On a night in November, 50 students took over the Mrak Hall at UC Davis. Brie Holmes was never in the building. Instead she was described by her Attorney Stewart Katz as being outside Mrak Hall – clapping and cheering the protesters who had volunteered to be arrested.
Brie Homes was a 20-year-old senior who was charged with battery on UC Davis Police Captain Joyce Souza and resisting arrest. After deliberating Thursday afternoon, Friday, and Monday morning, the jury deadlocked on both counts. The final poll had a 10-2 vote for acquittal on the battery charge with a full 6-6 deadlock on the resisting arrest charge.
The officer involved was Captain Joyce Souza, an officer at UC Davis since 1985 who was reportedly wearing a standard police uniform the day in question. On the stand, Captain Souza claims that Ms. Holmes stepped into the pathway and that she asked her several times to move. Captain Souza then tapped Ms. Holmes on her shoulder and felt the weight of Ms. Holmes on her.
Captain Souza described the initial shove she gave the defendant as an “extension” of her arms. People had been “aggressively reluctant” to comply with her orders. Captain Souza then says that the defendant repeatedly struck her in the chest after the initial shove, at which point two sheriff deputies stepped in, grabbed Holmes, “placed” her on the hood of a patrol car and handcuffed her.
Under cross examination Captain Souza acknowledged that she was tired and frustrated, and she believed her resources were inadequate. When Souza contended that frustration doesn’t describe her attitude towards the resources, Mr. Katz read from her police report, which pretty well establishes that she was, in fact, frustrated. No obscene or derogatory language came from the defendant, and the more boisterous people were closer to Mrak Hall. There was no destruction of property in the ordeal which is significant since the Captain described the crowd as hostile.
Mr. Katz argued that Officer Souza instigated the situation. She walked up to Ms. Holmes and shoved her, and she fell back. Two of the Yolo County Sheriffs observed this and misperceived the situation. They used unreasonable force to detain her, so much so that she urinated on herself.
One of the points made throughout was that the defendant was very small in stature, and that likely led to the jury questioning the ability and willingness of the defendant to take on the police.
For instance, the people’s witness Deputy Sheriff Ryan Mez says he saw Ms. Holmes slapping Captain Souza in the face. In the video, Mr. Katz showed Deputy Mez trying to put the defendant on the hood of the car. Mr. Katz described this as an unconventional way of gaining control. Deputy Mez was 5-7, 190, a well built individual and it seemed implausible that he would have trouble getting Ms. Holmes under control.
Deputy Sheriff Gary Richter, the partner of Deputy Mez, testified that it took 15 to 20 seconds to subdue the defendant. However, when Mr. Katz asked on cross examination whether the defendant was resisting, both Deputies Mez and Richter affirmed that she was while on the hood of the car. It turns out that Ms. Holmes’ arm was caught on her purse and under her body while she was on her stomach on the car.
In addition, the Deputy Sheriff is well built and said to lift weights. At one point Mr. Katz asked him if he lifted weights and the Deputy responded yes. Mr. Katz asks what he benches. And the Deputy replied, “Whatever’s on the bar.”
In closing, Robert Gorman, Deputy District Attorney, argued that Brie Holmes experienced a 2-minute interval of her life in which she acted criminally, contrary to her general character and everything she believes in. He described her as a fundamentally good person who was probably caught up in the emotion of what was occurring.
He argued that Captain Souza testified to the events as she saw them. People are not allowed to lay hands on a peace officer. Mr. Gorman argued that even though there is discrepancy between Deputy Mez’s testimony and Captain Souza’s (Deputy Mez saw more strikes, and strikes to face, Captain Souza testified to two in chest), it does not mean they contradict each other. Perceptions can be different.
Mr. Gorman continued to say that the officers did not use unreasonable force. If you fight with police, you can expect to be met with force that is physical in nature. Katz will characterize deputies as thugs, muscleheads, but it does not matter once officers attempt to put on handcuffs, you must submit. In her testimony, the defendant said nothing about self-defense. A difficult case because Ms. Holmes is likable, has a scholarship, father is a good guy and LAPD officer. Set aside personal feelings for the defendant and follow the law. Deputy Mez and Richter are shown throughout the DVDs of the interior of Mrak. Mr. Gorman contends they acted professionally and appropriately throughout. Convicting Ms. Holmes does not mean she’s a bad person.
There was an interesting exchange during the break. Mr. Katz accused Mr. Gorman of prosecutorial misconduct, endorsing street justice. Mr. Gorman says he never endorsed street justice, remarks occurred in context. Judge Richardson found that no misconduct occurred.
According to Mr. Katz, we have a system of justice, not a system of street justice (ie, you mess with a cop, tough luck). Obligation of the jury is the same in any case. People are more likely to believe an officer, just the way it is. There are two possible verdicts, guilty/not guilty. The jury should empathize with Ms. Holmes.
Significant things to glean from the video: position changing entire time during the video; Officer Souza is moving her, pushing, not just the one shove she testified to; people are in the pathway, there is no skirmish line or human barricade.
What happens when you suddenly place yourself within one inch of someone’s face? How would you react? What do you expect an officer to do? The defendant?
Mr. Katz questioned the credibility of Captain Souza. He argued that her report differs from her testimony. In the report she said she was shoved, in her testimony she was slapped. According to Mr. Katz it was Captain Souza who initiated contact. Further, he said that Captain Souza acknowledged that Brie may not have known she was addressing her. He argued that questions about the tape should give pause to the jury.
Were Mez Richter and Souza involved in the same arrest of Brienna Holmes? he asked the Jury. Deputy Mez didn’t even write a report, didn’t think it was a big deal. Deputy Richter wasn’t actually where he said he was, and was actually the third closest officer.
Todd Kolze is the tallest and closest witness, and had the best view. He was calmer than anyone else on scene, so much so that in his interaction with Captain Souza prior to the incident in question, she asked him to help her clear the area. Even Captain Souza characterized him as calm. Mr. Kolze said Ms. Souza was overtly and overly aggressive. He said Brie Holmes’s actions were in self-defense. He further testified that Ms. Holmes was slammed and manhandled on the hood of the car.
Ms. Holmes, according to Mr. Katz, told us what happened on stand. She was not looking for attention at the back of the demonstration. She was helping identify arrested people in a low-key way. Mild clapping and overall behavior are not consistent with someone about to attack an officer. Moreover, she did not know what was going on, no one told her she was under arrest.
According to Mr. Katz, the law of self-defense says that the burden is on the prosecution to prove beyond reasonable doubt that actions were NOT in self-defense. Ms. Holmes put her hands up to block the attack. The officers used excessive force. The jury must find the defendant not guilty because excessive force was used, so the officers were not performing normal duties.
When the jury returned, they announced they were deadlocked. They were given further instruction and sent back, however, they could never reach a unanimous verdict.
There will be an additional hearing on August 24 to determine whether charges will be refiled. The Vanguard will have additional coverage of the trial and surrounding events.
—David M. Greenwald
Received this letter this morning from Professor Joshua Clover from the English Department at UC Davis, did not want to publish this as a separate article:
28 July 2010
Dear Chancellor Katehi, Vice Chancellor for Student Affairs Wood, and
departing Vice Chancellor Gong:
As you may be aware, UCD student Brienna Holmes was tried last week in Yolo County Court, having been charged with battery of a police officer and resisting arrest on November 19, 2009. She was so charged while outside Mrak Hall during the political protest in which she did not take part. On July 26, the jury announced itself unable to reach a unanimous verdict (splitting on the latter count and voting 10-2 for acquittal on the former). A mistrial was declared, with the presumption of retrial — the date of which is to be set on
August 5, 2010. The Yolo County District Attorney’s Office intimated at that time that the decision to be retry would rest largely with the University, because of the protest’s location and the lead role of the UCD Police Department, which the University oversees.
You will recall as well that on November 24, 2009, members of the UCD
community returned to Mrak Hall. In addition to extant matters, the students and others returned with grave concerns about the actions of the various law enforcement agencies on November 19, and about the administration’s role in disciplinary proceedings against students engaged in peaceful protest. After good faith negotiation, an agreement was reached committing the University to certain courses of action regarding the disciplinary processes against all those arrested inside Mrak, as well Brienna Holmes (“B.H.”). Attached please
find a copy of this agreement signed and dated by Janet Gong.
We would like to direct your attention particularly to the first and second agreements. The first commits the University to “review the arrest of the young woman [Brienna Holmes].” The second commits the University “to take an affirmative position of advocacy with the District Attorney and to ask him to strongly consider his option of not filing charges” in regard to her case.
We are in some strange way fortunate that the University now has the
opportunity to fulfill that agreement in earnest and in full. Indeed, you are obliged to do so. The option, it appears, now rests with you regarding whether there will be a retrial, or whether the juridical proceedings against Brienna Holmes can be dropped. We call upon you to take that affirmative position, immediately and unambiguously, and state for the public record that the University affirms that it does not wish Brienna Holmes to be retried for these charges. The University is ethically obliged to do so, and to do so clearly and publicly, in advance of the next court date of August 5, 2010.
Please inform us of your intention to honor this obligation, no later than Monday, August 2, 2010, by 5:00. The most effective manner would be a public letter to the District Attorney stating that the University does not wish to pursue further action with the Yolo County Court against Brienna Holmes regarding these matters — to be published in the Davis Vanguard, Davis Enterprise, and/or Woodland Daily Democrat. We will also accept a signed letter to this effect from Chancellor Katehi, Vice Chancellor Wood, or their proxies, on University letterhead, received as of that time by any of the
undersigned (see following page). This letter drafter’s email and campus address are above for your use.
Thank you,
Joshua Clover
Brandon Anson
Emily Barry
Chris Bumgardner
Tim Chin
Emily Dalmeyer
Jacqueline Dufresne
Kathleen Dycaico
Alicia Edelman
Erin Hafeman
Lobna Khalil-Darwish
John Mac Kilgore
Kristin Koster
Timothy Kreiner
Vanna Le
Megan McMullan
Genevieve Mount
Kathryn O’Connor
Yoo-hyun Oak
Sharada Balachandran Orihuela
Christina Platenkamp
Magali Rabasa
Brian Riley
Alberto Salcedo
George Sellu
Mohamed Shehk
Brian Sparks
Sunny Sumal
Jasjot Sumal
Laura Megumi Thatcher
Ted Tracy
Kurt Vaughn
Kase Wheatley
Getting arrested is one of the risks you run when engaging in civil disobedience, or even being a bystander to civil disobedience. Students need to think long and hard before becoming involved in activities that could result in damage to their future ability to obtain gainful employment. Had the jury found this girl guilty as charged, she would have had a permanent criminal record – making it much more difficult to obtain work. Even now, she may not be off the hook.
Back in my day as a college student, many who were involved in the protests on campus against the Viet Nam War were shocked to find they were unable to obtain gov’t jobs requiring a security clearance in both the public and private sector. Sometimes these sorts of behaviors (civil disobedience) have far-reaching consequences that are not worth the risk.
And frankly, in the case in point, what real good came out of the student protests? UCD still raised student tuition, cut programs, yet raised salaries of upper management and continue to build as if there were no economic crisis. Unless I’m missing something…
“There was no destruction of property in the ordeal which is significant since the Captain described the crowd as hostile.”
Must hostility be accompanied by physical destruction of sorts? Can’t a crowd be hostile absent of any destruction of property?
“They used unreasonable force to detain her, so much so that she urinated on herself.”
Sheesh, I’m sure Ms. Holmes is not too thrilled to have that tidbit out there. What is the causation here, re: unreasonable force and wetting herself. Was she simply fearful as a result of the force used against her?
“In the video, Mr. Katz showed Deputy Mez trying to put the defendant on the hood of the car.”
Was this camera situated on the dash of a law enforcement vehicle?
“Mr. Katz described this as an unconventional way of gaining control.”
Placing a person, whom the officer is attempting to put in restraints and subdue, onto the hood of the vehicle, is ‘unconventional?’ I guess conventional would need to be defined here, but often times, police work requires unconventional or improvised techniques out of necessity and safety. I guess my point is that ‘unconventional’ is not necessarily unreasonable or unlawful.
“It turns out that Ms. Holmes’ arm was caught on her purse and under her body while she was on her stomach on the car.”
So, what the deputies perceived as resistance by Ms. Holmes was actually due to her arm being caught up in her purse strap? Is ignorance as to why they had trouble subduing Ms. Holmes an excuse, should they have known her arm was caught in her purse strap and does that mean the deputies’ use of force was unreasonable? Did she suffer any injuries or bruising?
Yet civil disobedience, particularly nonviolent, is recognized as a very valid response to adverse, reprehensible or even immoral conditions or laws. We have learned in high school the various successes of well-practiced civil disobedience. It is fresh in the minds of college students. I am not prepared, nor qualified, to try to ramble on about Thoreau, or Gandhi, or tea parties, or civil rights, or workers’ rights, and so on. But I do not believe you are trying to discredit any of these activities by pointing to the possible outcomes or pitfalls. What I believe is important here is not that a student may have been involved in a protest that resulted in consequences, nor that she should have expected some consequences. Instead, I see the issue here to be that the student believes her actions were not sufficient to warrant these consequences (the alleged treatment, the arrest and the prosecution).
I fully agree with you that the protest appears now to have been futile (and I felt sad at the time, sensing it to be futile in the face of university policies and agendas…). Perhaps the difference for me is that I still believe it is important to try, and perhaps keep trying. And, silly as it may be, I believe that, with good intentions and respectful behavior, the people will be able to right some more wrongs and that fairness can persevere over greed.
Elaine,
It is surprising, or was to me anyway, to find out that what we often write off as being “youthful indiscretions” can prohibit one from gaining entry into certain positions. Most teens and college-aged folks aren’t thinking about the repercussions.
Ms Musser said
“Back in my day as a college student, many who were involved in the protests on campus against the Viet Nam War were shocked to find they were unable to obtain gov’t jobs requiring a security clearance in both the public and private sector.”
You should have added – the protests against the Vietnam war were important and the people who participated should be admired for helping to end a useless war. Also, most of the Vietnam protesters did not know if their efforts would make a difference when they decided to act. I am glad those people did not just stand around thinking long and hard.
Back to this case – I wonder if any students at any of the other UC campuses faced similar charges and prosecution for actions similar to this case. I doubt it! Another example of over zealous prosecution in Yolo county.
Alphonso,
I may be confusing incidents, but didn’t the DA state that his office would not be pursuing any charges resulting from the arrests?
Then why was this case prosecuted?
Alphonso: “You should have added – the protests against the Vietnam war were important and the people who participated should be admired for helping to end a useless war.”
I didn’t admire it when the Viet Nam War protestors set a car on fire during their protests on the U of MD campus… and disrupted classes for the rest of us who wanted to attend classes (campus classes were closed for a week). Too often protestors trample on everyone else’s rights to get what they want…
I understand some of the protests were inconvenient to some but consider the casualties of that war – US 60K deaths, 150K wounded and 2K still missing and what about the 1.1 million Vietnamese deaths (North and South combined).
the cops overreacted on this one. the establishment IMO is so completely wrong. protest is supposed to be protected by freedom of speech. we need to work to make this country more free in terms of our rights to protest against something we are against.
they want protestors to go away and just be quiet and we are being treated as a nuisance, rather than citizens in a so called “free” country.
without our ability to gather peacably, there will be no change and we will forever remain in the dark ages.
the cops went tooo far in this case and need to just DROP it!
Everybody should watch this documentary called “sir no sir”
it’ showing on LINK TV on direct tv and chronicles how the protests against the vietnam war were mainly spearheaded by army soldiers.
no one talks about how those same soldiers were imprisoned and treated like crap, but they still in the tens of thousands came out strong against the war. they were being used by their own government and said ENOUGH!!!
Too bad that the government refused access to civilian and military jobs..
wow. what a sad sad day for freedom and democracy.
oh wait a minute, I forgot, this isn’t a democracy, it’s a republic.
Alphonso,
“Then why was this case prosecuted?”
My recollection could be wrong or something may have happened and the DA went back on his public statement.
On another note, at least the DA’s office isn’t showing preferential treatment for the UCD student with a cop father. The argument is often that the white, educated, connected, upper-middle class skirt the charges, while the poor, uneducated, minorities with checkered pasts are shown no mercy.