By Sean Webby
San Jose Mercury News
SAN JOSE, Calif. — A newly enhanced video of the arrest of a San Jose State University student further deepens the questions about why police repeatedly struck him with batons and shocked him with a Taser, as the student never speaks defiantly to the officers.
The video, taken with a cell phone by a roommate of Phuong Ho inside their house, shows Ho saying over and over, “I’m just looking for my glasses ... I’m looking for my glasses” as he is struck. Ho’s glasses had fallen off earlier in the encounter as an officer shoved him.
In the video, Ho repeatedly apologizes as the officers strike him and asks officers not to stand on him.
A transcript of the enhanced version of the September incident, created by an audio and video-forensic analyst hired by the Mercury News, also indicates one of the officers said at one point, “I wanted to punch that (expletive) in the mouth.”
None of the details of these verbal exchanges between the officers and Ho had been clear in the raw version of the video, which was first reported by the Mercury News in October.
The transcript that analyst Gregg Stutchman created from his enhanced version of the grainy cell phone video seems to some experts to offer stronger support for Ho’s contention that he was not violently resisting arrest at the time he was surrounded in a hallway of his house by officers who had responded to a disturbance call.
Though an attorney for one of the officers said the tape did not undercut her claim that the force was appropriate, outside experts said the enhancement deepened such doubts.
“Of course, it shows that all he is worried about are his glasses,” said Roger Clark, a retired Los Angeles County deputy sheriff with expertise in force training. “This is contrary to the assumption that he was violently resisting.”
All four officers on the scene were placed on administrative leave last month on the day the grainy video, provided to the Mercury News by Ho’s lawyer, first was posted on the newspaper’s Web site. The department has completed an investigation into the incident and turned over its results to the Santa Clara County District Attorney’s Office, which is deciding whether to file criminal charges against the officers.
Charges that the office brought against Ho in September, for brandishing a weapon at another roommate and resisting arrest, are pending.
Meanwhile on Wednesday, Mayor Chuck Reed called on a City Council committee to step up outside review of the department’s use of force.
The mayor’s recommendation comes after continuing controversy over the issue. The Mercury News reported Nov. 1 that a study of more than 200 criminal prosecutions of resisting arrest last year showed that the police use of force in such instances often developed from minor infractions, including jaywalking and missing bike head lamps. Most of those cases involve people of color, the newspaper review found.
Police Chief Rob Davis responded by announcing two internal committees to review individual instances as they occur, as well as to review training techniques.
Reed on Wednesday said he believes a review also is needed of past cases. But his recommendation, which will be taken up by the Public Safety Committee today, also is notable for including officials outside the department — the independent police auditor and city auditor — in the process.
Reed said the Ho video was one of the catalysts, along with community complaints and questions over excessive force, that inspired him to ask for the independent case review.
“It is a minor-level incident that escalated into the use of force,” he said of the Ho matter. “That is the area where there may be the most potential for problems, according to what I hear.”
The police responded Sept. 5 to a disturbance call that stemmed from a dispute that Ho was having with a roommate. At one point, Ho, a math major from Ho Chi Minh City, Vietnam, picked up a knife and said to the roommate, “I could kill you” for having slopped soap on Ho’s steak. As shown on a separate cell phone video, Ho then dropped the knife, and some roommates laughed, but one called the police.
Ho was not armed when Officers Kenneth Siegel and Steven Payne Jr. arrived. As he tried to follow Siegel into his bedroom, Ho was knocked to the ground in the hallway when he disobeyed the police order not to follow them, their reports show. Then, another roommate began taking a cell phone video of the incident, as Siegel repeatedly struck Ho with a baton, and Payne shocked him with a Taser gun.
Stutchman’s transcript shows that in the portion of the confrontation captured on video, Ho is never openly defiant. “Ho is not trying to resist the officers or even disobey,” Clark said. “This use of force is not justified whatsoever.”
But Terry Bowman, a lawyer representing Siegel, said the transcript bolstered the officers’ contention that he was not following their clear and repeated commands.
“It’s not a defense to say ‘I wanted my glasses,’” Bowman said. “It’s not the officers’ duty or responsibility to assume the most innocent intent. That’s how officers get killed.”
Mark Harrison, another registered California force expert, trainer and a former 15-year veteran of the San Pablo and Antioch police departments and the Contra Costa County Sheriff’s Office, said the transcript and video seemed to show that officers were not effectively dealing with a clearly panicked and confused Ho. “I thought he was more passively resisting and certainly not violently resisting,” Harrison said.
Harrison noted that at the end of the video, the police officer put Ho’s glasses on him. “That’s a novel approach,” he said. “Let’s put water on the fire, and maybe it will put it out? No kidding.”
Copyright 2009 San Jose Mercury News