Editor’s Note: In PoliceOne “First Person” essays, our Members and Columnists candidly share their own unique view of the world. This is a platform from which individual officers can share their own personal insights on issues confronting cops today, as well as opinions, observations, and advice on living life behind the thin blue line. This week’s essay comes from PoliceOne Member David Demurjian, a law officer from a large agency in Southern California. Demurjian notes that the information in his contribution was culled from various public sources. He was not able to access any of the information contained in any prosecutorial or investigatory files. Do you want to share your own perspective with other P1 Members? Send us an e-mail with your story.
 |
By David Demurjian
Police1 Member
It is interesting to see the progression of technology as it impacts our daily lives. Not that long ago, one would have to use a pay phone in order to stay in touch while traveling. Now, one has to be living as a hermit to avoid owning a cell phone. Of course, it is no longer just a cell phone but rather a “personal digital assistant” (PDA). Many PDAs have a video software application that allows one to videotape with their PDA. One may easily witness countless videos recorded with PDAs while “cruising the Internet.” It has become common for many law enforcement agencies to use video cameras in their police vehicles. Many of these videos become part of the evening entertainment as reality television shows.
Viewer surveys show that videos depicting police officers using force against individuals are the most popular. Typically, the general public sees these videos before an official investigation is completed. Most assume that the video is a full and complete account of the incident. After the video is released to the general public, it is not uncommon for the media networks to edit the video depicting only the police officer’s actual application of force. It is not surprising for viewers to demand a swift call for justice on what they perceive to be an injustice done by the police officer and without having all of the facts.
As any good trial lawyer knows, a video recording is only one witness to an event. Although this particular witness has great recall, it is not without its limitations. The video witness can have both visual and audio perception problems. During trial, many of these limitations will be presented to the jury. All too often, many jurors realize that the video only presents part of the story.
And then there was the Streamwood Police Department…
On March 28, 2010, Corporal James Mandarino of the Streamwood Police Department, a suburb of Chicago, Illinois, was working alone in a patrol car. As a 15-year veteran of the Streamwood Police Department, Corporal Mandarino’s had received “outstanding” evaluations by his superiors. The only written reprimand he had received was for “neglect of duty.” In that reprimand was the police chief’s expression of appreciation for Mandarino’s “complete honesty,” as well as his “willingness to accept responsibility for (his) actions.”
According to different sources, sometime around 0300 hours, Corporal Mandarino heard tires squeal. He observed a car being driven by 28-year-old construction worker Ronald Bell. Riding inside the car was 38-year-old Nolan Stalbaum. Both of them had just left a union party where they had both watched Ultimate Fighting Challenge Number 111.
Alcoholic beverages were served at the event. After activating his lights and sirens, Mandarino pursued the vehicle for a short distance as Bell continued to drive to his home. After the short pursuit, Bell parked his car down his driveway directly in front of his house. Inside the house was Bell’s brother, Stacey. All of this was unknown to Mandarino. Video from Mandarino’s police unit is on the internet however it is only a small portion of the entire recording. Most of the video clips appear to begin after Bell parks the car in front of his house.
Unfortunately, the video from the dash-cam does not have any audiotape so there is no sound and there is no way to hear Mandarino’s statements and commands.
Mandarino exited his car with his firearm in his hand. Both Bell and Stalbaum are seen immediately exiting their car as soon as it comes to a complete stop. Mandarino appears to be giving instructions to both of them and is ordering them back into their car. Neither Bell nor Stalbaum appear to be fully complying. Further, Stalbaum appears to have something in his hand.
For the next couple of minutes, there appear to be numerous statements made by Mandarino. One can assume that he is issuing orders and commands. Stalbaum appears to be ignoring the commands, and at one point, Mandarino deploys his TASER. After deploying the TASER, Ronald Bell, on his own initiative, decides to leave his car and approaches Mandarino. In response to that, Mandarino appears to give commands to Bell. It appears that Bell is not fully complying with those instructions.
Eventually, Bell gets onto his hands and knees. In that position, he can be seen to visually monitor Mandarino’s position relative to where he is located. It appears that Mandarino is instructing Bell to get all the way on the ground. Bell does not comply. During this time, Bells’ brother, Stacey Bell, leaves the house and approaches Mandarino while he is trying to get Ronald Bell to comply. Also, at this time Stalbaum is back on his feet after having been hit with a TASER by Mandarino. It is at this moment that Mandarino uses his collapsible baton in order to get full compliance from Ronald Bell while Stacey Bell and possibly Stalbaum close in on Mandarino’s position.
Based on the video, Mandarino strikes Ronald Bell a number of times while he remains in a “four point position” on the ground. In this position, an individual stays on their hands and knees. Instead of dropping completely to the ground, Ronald Bell eventually gets back to his knees. Mandarino continues with his strikes onto Bell’s arm and body. It appears that Mandarino may have struck Bell’s head. Mandarino uses his baton while trying to keep a safe position from Stacey Bell, who appears to advance on the officer.
Interestingly, it would appear that Mandarino is issuing commands for Ronald Bell to get all the way on the ground and he is refusing to comply. This is based on the fact that Stacey Bell pushes his brother down to the ground after hearing Mandarino issue his commands. Once Ronald Bell goes fully to the ground, due to Stacey’s actions (he pushes Ronald all the way to the ground), Mandarino stops applying baton strikes. Ronald Bell suffers a concussion and bruising to his arm. According to Stacey Bell, his brother was back at his construction job within a day after the incident.
On April 15, 2010, the Illinois State Attorney in Cook County charged Corporal Mandarino with aggravated battery and official misconduct. The State Attorney dropped all criminal charges against Ronald Bell and Stalbaum. The State Attorney characterized Mandarino’s use of force as “an unprovoked attack” upon Ronald Bell and Stalbaum. Interestingly, a representative of the Illinois State Attorney’s Office stated that the audio portion of the dash-cam tape was irrelevant for their investigation.
From the limited information that is available regarding the use of force by Mandarino, there are some factors that need to be considered before anyone or any agency makes a decision as to whether Mandarino used objectively reasonable force. The State of Illinois has a unified use of force policy for all law enforcement agencies in the State. The policy is based upon Graham v. Connor (490 U.S. 386 (1989)) and accordingly, Mandarino’s use of force must be reviewed based on the “totality of the circumstances.” The analysis under Graham considers whether the encounter is “tense, uncertain and rapidly evolving” and whether Mandarino used “objectively reasonable force” when encountering Ronald Bell, Noel Stalbaum and Stacey Bell.
After viewing the entire dash-cam video, interviewing all the witnesses and analyzing all relevant evidence, one must consider some of the following factors before rushing to judgment:
• The statements by Mandarino, Ronald Bell, Stalbaum, and Stacey Bell are vital evidence. If Mandarino had applied force during this encounter without providing any of the men with guidance on what he wanted them to do, Mandarino’s use of force would be objectively unreasonable. However, it appears from the video there was an extensive conversation among the parties. It appears that Mandarino was giving orders and that he was adjusting his application of force in response to Ronald Bell’s and Stalbaum’s action or inaction to those commands. The audio portion of the tape is a key piece of evidence that no investigator or prosecutor should ignore. Mandarino’s oral commands could be directly correlated to his application of force.
• Environmental elements: The scene was dark except for one set of car lights, a flashlight, and a porch light. It had been raining, so the surface was slippery and both Ronald Bell and Stalbaum were wet from the rain (this would be a concern for hand control compliance techniques). The scene was not an open space allowing for easy motion by the police officer: one side of Bell’s car had another car parked alongside it and the other side had steps and a bush. A car and a bush obstructed Mandarino’s vision and at no time after force was applied was he able to keep both known individuals under observation at the same time since they had separated.
• Mandarino was outnumbered for most of the encounter. At one point, he had three unsearched and uncuffed men moving towards him on a dark wet driveway in the small hours of the morning. Moreover, all three men had access to an unsearched car and a house that possibly contained numerous potential threats. Both Ronald Bell and Stalbaum are wearing loose fitting slacks and thick outer coats. Mandarino could not determine if either man was armed based upon a visual inspection.
• Ronald Bell, Stalbaum, and Stacy Bell are not small or frail individuals. Their size, their appearances, and their mental condition are factors that need to be considered when the force was applied.
• Mandarino appears to taper his application of force according to his ability to get compliance. Initially drawing his firearm after the pursuit and attempting to get both men to stay inside the car, he holstered his weapon in an attempt to get Stalbaum to stay. He hits Stalbaum with the TASER after he appears to disobey Mandarino’s command. Mandarino did not strike Stalbaum or Stacey Bell with his baton. After using his TASER, it could be argued that Mandarino used his collapsible baton to gain control of a potentially dangerous situation. He did not immediately begin to strike Ronald Bell but he appeared to give his commands before applying the baton. Also, though Ronald Bell’s head is the largest and most obvious target for baton strikes, the majority of Mandarino’s strikes hit Ronald Bell’s body, not his head. With Ronald Bell’s movement, it is reasonable to assume that Mandarino’s strike(s) to the head was (were) not intentional but rather due to Bell’s movement. The baton strikes ceased once Ronald Bell got to a fully prone position after his brother pushed him to the ground. At no time was any force applied to Stacey Bell since he appeared to listen to Mandarino’s commands.
• Ronald Bell did not comply with Mandarino’s very first command to stop his car. He continued to drive his car down a driveway, off of the public street and in front of his house. From Mandarino’s perspective, he was unsure what serious crime Ronald Bell may have committed. Mandarino could assume that Ronald Bell was driving to an area that he knew. Mandarino had to consider all of this as he pursued the vehicle into a dark and wet driveway with what he believed contained at a minimum two unidentified men. Additionally, it is unknown what, if any, reputation this area has with law enforcement
• The state of mind for both Ronald Bell and Stalbaum should also be explored and considered. As mentioned above, both had just left a union party where alcoholic beverages were being served. Both had been there all night to watch a series of televised UFC fights. If they watched the entire event, they would have observed a total of ten fights. All of those fights involved grappling, and many of those fights had the fighters in a “four point position” at one point during their fight. Three of the fights were won while both fighters were on the mat: two were won by choking out the other fighter and one of the fights was won by applying a technique to the other fighter’s leg. Based on the popularity of the UFC and the fighting styles that are prevalent in the public, one can no longer assume that a person does not pose a credible threat simply because they are in a “four point stance.” Many fighting disciplines teach numerous techniques from that position. Some systems have their fighters assuming that position since it is more stable than standing on one’s feet. Based on this information, and the fact that Ronald Bell had just watched several hours of professional fighters who were sometimes in a “four point stance,” it is easy to reason that Ronald Bell may have been looking to sweep Mandarino’s legs instead of complying with his command to get all the way down to the ground. Mandarino could have concluded that Bell was attempting to do that to him and Mandarino realized that he would be finished if he went to the ground and had three men to deal with while in that position.
• It can be reasoned that Mandarino was attempting to stall both Bell and Stalbaum while additional units arrived. He appeared to be on the radio while engaging either one of them in conversation as he waited for backup to arrive. Mandarino did not apply any force during this time. If he had a desire to unreasonably apply force, he could have administered other methods of compliance. It appeared he made a tactical decision to wait, but he also recognized that he could not allow the situation to deteriorate and allow any of the men to not comply with his orders.
• Noel Stalbaum’s conduct, both prior to and after being tased, is relevant to Mandarino’s application of force. Stalbaum was carrying something in his hand when he quickly exited the car; he also appeared to be kicking something after he was tased and while Mandarino was dealing with Ronald Bell. Stalbaum also appears to throw his jacket over something after he goes back towards the car. He seemed to not have any concern for Ronald Bell as Mandarino is striking Bell and he appeared to be focused on hiding something. This is important for several reasons. If Ronald Bell was being brutally beaten by Mandarino, Stalbaum would have looked or walked in the direction of his friend. Instead Stalbaum walked away from Ronald Bell and into the house before another police unit arrived. Additionally, Stalbaum’s actions were indicative of his state of mind and/or consciousness of guilt. Because Stalbaum was traveling with Ronald Bell, Mandarino would have to factor in Stalbaum’s conduct when applying force to both men.
This is a cursory review of some of the factors that must be considered before determining whether Mandarino used objectively reasonable force on the night he encountered the Bells and Stalbaum. Unfortunately, it appears that some representatives of the media and some governmental officials are rushing to judgment before all the evidence is gathered and analyzed. If after a thorough investigation, it is shown that Mandarino was applying objectively unreasonable force, then he deserves the full penalty of the law. Until that fact finding process is concluded, a responsible individual will not join a media lynch mob and condemn an innocent man for doing his job.
Deputy David Demurjian is a sworn member of a large law enforcement agency in Southern California. He is also a certified force instructor with that department. David is also a member of the California, New York and Massachusetts State Bars and the 1st, 2nd, and 9th Federal Circuit Courts.
