May 15th, 2013

FBI Investigating California Deputies for Deleting Footage of Beating Death from Confiscated Phones (Update II) 68

By Carlos Miller

 

It’s beginning to look like Kern County sheriff deputies not only confiscated phones from witnesses who recorded them beating a man to death last week.

It appears they also deleted footage from one of the phones.

But rather than circle the wagons as we normally see in these situations, Kern County Sheriff Donny Youngblood has brought the FBI in to investigate.

According to the Los Angeles Times:

BAKERSFIELD — The FBI launched an investigation Tuesday into the death of a man who was beaten by authorities amid questions over whether officials tampered with cellphone videos confiscated from witnesses.

Kern County Sheriff Donny Youngblood said he asked the FBI to get involved after learning that one of two phones seized from witnesses had no footage on it.

Two witnesses told The Times that they watched the videos on each of the phones last week in the wake of David Silva’s death. The case is generating widespread attention because several witnesses have come forward to say deputies ruthlessly beat Silva with batons on the head, even after he was motionless on the ground.

“Our credibility is at stake here,” Youngblood said in an interview. He did not dispute the witnesses’ accounts about the videos but said he would not draw any conclusions until the investigations were complete.

The FBI will also be investigating whether the sergeant and six deputies involved in the beating acted criminally in the beating death of 33-year-old David Sal Silva, a father of four, whose crime, at worse, may have been that he passed out drunk in front of somebody’s house after being refused care at a hospital across the street.

 

David-Sal-Silva2

David Sal Silva with daughters

Several witness accounts indicate the deputies not only beat a non-resisting man to death, they tried their best to prevent citizens from recording.

“They must have gotten rid of one of the videos,” said Melissa Quair, 31, who told of seeing deputies pummel and kick Silva after confronting him across the street from Kern Medical Center in East Bakersfield. Quair and several relatives and friends were at the hospital because a family member had been in a car crash.

Quair said a phone video shot by her mother showed a deputy trying to block her view of the beating. “She went around him and told him, ‘I’m still recording,’ ” Quair said.

Laura Vasquez, 26, a friend of the Quair family, said she also watched both videos — the other shot by a friend of Melissa Quair — and they vividly depicted the violence she witnessed.

Echoing the account of two other people interviewed, Vasquez said the first two deputies at the scene woke Silva, who was sleeping in front of a house, and ordered him not to move. When Silva sat up, looking confused or scared, a deputy hit him in the head, Vasquez said.

“He fell back and then the other officer got out and swung toward his head,” she said. “Mr. Silva was reaching for his head and the officers said ‘stop moving’ and ‘stop resisting.’ He wasn’t resisting. … He rolled on his back and they kept hitting.”

More deputies and two California Highway Patrol officers arrived at the location. Vasquez said the deputies hogtied Silva, lifted him off the ground and dropped him twice, and delivered more baton blows and kicks to his head and body until he went limp.

“He was screaming for help. He was laying on his chest. The cops were still on top of him, still hitting him. My family and I screamed at them to stop hitting him.… The blood was all over Mr. Silva’s face. We couldn’t even tell if he had eyes or a mouth.”

Vasquez said her girlfriend yelled, ” ‘Somebody call the cops,’ and everybody looked at her and said, ‘They ARE the cops.’ “

The California case is beginning to take on shades of the Kelly Thomas beating death in 2011, which occurred less than three hours south in Fullerton.

The notable difference being that Sheriff Youngblood appears to be striving for complete transparency in the investigation while Fullerton Police Chief Michael Sellers did his best to cover up Kelly’s murder, eventually being forced to resign.

Like in the Thomas case, a surveillance video camera captured part of the beating, which you can see below although it is dark and grainy.

 

 

But unlike the Thomas case, it was a camera from a residential house, so the owner wasted no time in giving the footage to Silva’s family members while in the Thomas case, it took more than a year for the city surveillance video to go public.

Despite the attempted coverup in the Thomas case, three Fullerton police officers were indicted on manslaughter and murder charges and are scheduled to go on trial this summer.

So it doesn’t look good for the six deputies and one sergeant involved in this death, whose names Youngblood released last week and have said to be receiving tons negative emails, including death threats.

At least two California Highway Patrol may have participated in the beating, but their names have not been released.

But it was the Kern County deputies who detained two witnesses, confiscating one camera without a warrant and refusing to let the other witness out of their sight until they obtained a warrant.

According to a prior Los Angeles Times story:

“I saw two sheriff’s deputies on top of this guy, just beating him,” Ceballos said in an interview Monday. “He was screaming in pain … asking for help. He was incapable of fighting back — he was outnumbered, on the ground. They just beat him up.”

One woman frantically called 911, telling the operator: “The guy was laying on the floor and eight sheriffs ran up and started beating him up with sticks. The man is dead laying right here, right now. I got it all on video camera and I’m sending it to the news. These cops have no reason to do this to this man.”

In an unusual move, sheriff’s officials later detained for several hours two witnesses who had videotaped the incident on their phones. They were released only after they surrendered their phones to deputies.

“It makes it look like a coverup,” said David Cohn, a lawyer for Silva’s children and parents, adding that he has not been able to see the footage. “What we’re all concerned about is, ‘Are these videos going to be altered? Are they going to be deleted?’ “

Obviously, the answer appears to be yes, the video was deleted. Now the question is, will criminal charges be filed against the deputies who deleted the footage?

It wasn’t too long ago that the thought of this would be inconceivable, which was why so many cops in this country act as if they could get away with it, including the Miami-Dade and Miami Beach cops in my last two arrests. Never mind the fact that it did them no good considering I was able to recover the footage both times as I explained in this recent Blaze article.

But earlier this month, a Nebraska prosecutor filed felony evidence tampering charges against two cops who stole a citizen’s memory card and threw it away to prevent evidence of police abuse from leaking out.

And if it can happen in a state like Nebraska, never known for its precedence, then it could surely happen in California.

UPDATE: Here is a pretty candid press conference with Sheriff Donny Youngblood.

 

UPDATE II: Here is a Google Chat I did with Radley Balko and the attorney for the Silva family tonight on Huffpost Live. The lawyer mentioned that there is probably additional video from the CHP cars as well as audio recordings from the CHP body-worn recorders.

Body-worn recorders became a huge piece of evidence during the Fullerton investigation.

 


Send stories, tips and videos to Carlos Miller.
  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    Someone will go to prison over this. Tampering with evidence is indicative of a guilty mind in the underlying offense, which in this case would be murder.

    • http://www.facebook.com/levi.d.dietrich Levi Dietrich

      But They are cops, Cops, are above reproach, and are perfect lol Cops Can do no wrong

    • Mark Olish

      I hope you’re right . I don’t believe it, but I hope.

  • FUCKUPIG

    HOLY SHIT ! Waking up to this news is pissing me off. WTF ! You would think with all the coverage this has gotten that the police wouldn’t even think about doing such a thing. My question is, did they delete footage from all of the witness cameras or just one of them ?

    • http://www.facebook.com/catstop.thespam Catstop Thespam

      READ the fucken story bro. there were 2 known witness videos. each comparing at the scene of what they captured.

      • FUCKUPIG

        Sorry, I was blinded with rage. I

  • steveo

    1) the family member with the phone called the leos and told them she had a video. Why would she do that?

    2) the detectives who took the cameras didn’t get to the homes until 1 1/2 hrs later. Why in the world aren’t they making copies or at least concealing the cameras somehow?
    3) Why would you let them into your house, just after they beat one of your family members to death?
    4) Why didn’t you record the encounter with the detectives? When they wouldn’t leave your home until noon the next day.

    This whole story is the most bizarre thing I’ve ever read.

    • http://www.facebook.com/levi.d.dietrich Levi Dietrich

      This is just a shot in the dark, as I agree with the “why the hell didn’t they upload that shit immediately” But My guess is they were prob traumatized and trying to make sense of it all, and shocked that Their ideas of cops was incorrect

      • n4zhg

        I have read a report that police prevented copies being made.

        • Difdi

          They can’t lawfully do that. The video is private property, and short of a judicial gag order (which they didn’t have) they can’t prevent copies being made. Legally anyway.

          But they’re cops, and are willing to arrest or even shoot people for disobeying them, so who cares what the law says?

        • steveo

          The lady gave the leos her name and phone number. When the leos got to her house, they asked her if she knew who the other videographer was, she did and she gave them that information, then the leos called him and he came over to the 1st lady’s house with his recording device. WHY ARE YOU PEOPLE DOING THIS???

          • Difdi

            Simple. Police are widely viewed as heroes. Even people who have just watched police commit second degree murder tend to give those same cops the benefit of the doubt, even if they wouldn’t give anyone else who had committed murder any such respect.

  • http://www.facebook.com/betty.e.mcguire Betty Ellis McGuire

    Not only is this murder….but holding witnesses hostage for their video and then deleting it, appears to me to be additional crimes “special circumstances” for capital punishment. I hate to see this group mentality on a police force, no one stopping the beating, group cover up etc. Very scary behavior from a police force.

    • http://www.facebook.com/people/Gregg-Jones/527975393 Gregg Jones

      Business as usual.

      • n4zhg

        The Sheriff basically said in the press conference that he had no problem holding witnesses hostage for their recordings.

        This is BS.

  • steveo

    With the number of instances of leos deleting videos, which are now I think numbering in the 100′s . You just have to assume that they are going to try to delete the recording. Take out the sd card, upload it to youtube, use dropbox, use bambuser, pair it to your laptop and transfer the file, do something, don’t just tell them you have a video and expect them to act like someone who is sworn to protect evidence.

    The very best way to handle a recording like this, is to make several copies and don’t tell anyone until the leos have had a chance to spin their stories under oath, then show it. By that time, Inside edition or one of them would pay you six figures for it.

  • rick

    I know as the standard bearers of integrity and morality the cops policing themselves makes perfect sense and avoids all conflicts of interest, but…shouldn’t it be automatic to have the FBI take over all homicide investigations involving cops?

    • Jim Tocci

      You’re absolutely right.

      • Gary

        Then who will take over the homicides involving the FBI?

        Remember to ask yourself, “Who watches the Watchmen?”

    • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

      It’s not normally a federal question. An outside agency should investigate, but not the FBI unless you are looking at a federal crime.

      For example, if the city police have an officer involved shooting, then the county or the state can investigate. If the state, it can be the county; and vice versa. It already happens to some degree.

      • rick

        The point being an agency outside of local and state law enforcement that is unburdened by any conflict of interests or affected by political pressures.

        • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

          I really don’t want the federal government any more involved in local issues than they have to be.

          I agree with everything else you say.

        • Difdi

          A press conference to defame someone should be matched (if the guy turns out to be innocent) with a second press conference to announce he’s not the guy they’re looking for…unfortunately, that’s rarely the case with a lot of departments.

          Putting someone’s name and face on national TV as a true monster is not balanced by a paragraph on page five of the local newspaper.

  • steveo

    The ABC news crew was out at the beating scene shortly after it happened, . One call to the news station from the home of the people who had the cameras and they would have been over there in 5 seconds. The detectives were probably telling each other not to use dispatch or the radios so the news crews wouldn’t know.

  • Jim Tocci

    My understanding is there is a fairly accessible technology that would allow the FBI to recover the deleted data.

    • Michael Lederman

      You are correct we can access deleted files forensically and restore them to almost perfect condition. I am sure my fellow agents will do exactly this and will investigate the matter fully. I expect to see charges filed after said investigation is complete.

    • http://www.facebook.com/tater.gumfries Tater Gumfries

      Not from a SD card. HD, yeah.

  • frank

    PIGS! Kern County Cops are losers..

  • http://www.facebook.com/people/Steven-Zahl/1670371040 Steven Zahl

    Put the Bad Eggs in jail.

    • n4zhg

      Put them in General Population and let the other prisoners take care of them.

  • Christian Castillo

    NOTHING WILL HAPPEN, THE COPS ARE STILL LAUGHIN AT THIS.
    THI IS WHAT YOU CHOOSE, THIS IS WHAT YOU DESERVE/

    • Hawaii Corruption

      With all the coverage and outrage, SOMETHING will happen. Bet the cops were laughing while they were committing murder, but not laughing anymore. I’m sure that right now they are deservedly terrified of the fate that will befall them. POSs!

  • tech916

    lets add Hate Crime to this; since the guy is Hispanic

    • http://twitter.com/eruptionchaser Mike Ross

      Of course. And we know for a fact that all the cops were non-hispanic… right?

  • steveo

    If it had been a commercial news crew or even a paparazzi taking the video, they would be screaming their lungs out that these videos are private property and the jackass Kern county guy acts like these recordings are the property of the State and he can do anything he wants with them and nobody is even asking about the property owners, the press just wants to know when the Sheriff is going to make someone elses property public.

    • Difdi

      You don’t have to be part of an actual news crew to trigger the enhanced protections for news gathering cameras. You just have to intend to publish the video. YouTube probably qualifies, sending a copy to the local TV news definitely does.

      With the enhanced protections, a warrant to seize the camera is not valid, the police are limited to a subpoena for a copy of the video.

  • shine

    loosing AUDIO??? Fucking murderers. This shit is out of control – PLOEASE take our guns ANDE video cameras – this is what we are left with – WE ARE FUCKED

  • steveo

    The reason I couldn’t really make out what the leo was doing in the grainy video is because I think he has his dog on a leash and he’s using the dog to do something to the guy on the ground. Right about at 1 min, you can see the dog walk to the right of the scene and the dog is not on a leash, so you can’t really tell what the leo was doing with the dog before that, the dog could have been biting away at the guy on the ground. The dead guy might have been trying to protect himself from the dog, because it doesn’t look like the leo has control of the dog.

  • shine

    amazing – when they are caught RED HANDED – they want everything TRANSPARENT – BullSHIT!!! just you got caught is the ONLY reason you will play fair = MURDERERS

  • http://www.facebook.com/profile.php?id=511327220 Samuel Burca

    Pigs, I hope all involved in the murder go away for a long time.

  • physics2010

    Even without the video the cops are supposed to be trained to never hit someone in the head with their batons. Physical evidence of that alone loses them their immunity.

    • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

      That’s not an accurate statement.

      • Jonnybgood

        Which part is inaccurate? You saying cops are trained to use lethal force to gain compliance or they won’t lose their immunity?

        • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

          Officers are trained not to hit someone in the head unless it is a deadly force situation (which this was not). That part is OK.

          The officers would not necessarily lose qualified immunity based on evidence of a strike to the head. Qualified immunity is based on two factors. The complaint must allege a constitutional violation AND the law must be clearly established at the time of the incident. Pearson v. Callahan, 555 U.S. 223 (2009).

          A single blow to the head, delivered by the officer to the wrong spot either because the subject moved or a mistake by the officer, may not be actionable. See Jackson v. Culbertson, 984 F.2d 699 (5th Cir. 1993).

          A blanket statement that the deputies will lose their immunity if there is evidence of a blow to the head is not accurate.

          • http://twitter.com/eruptionchaser Mike Ross

            I understand what you’re saying. But I don’t see where the law you’re citing comes into it; this isn’t some ‘constitutional violation’; this is, potentially, straightforward homicide.

            The degree of murder or manslaughter would be determined by what a reasonable person would expect to be the likely consequences of the amount of violence used, is that not so? Assuming that the degree of violence, or indeed any violence, was unjustified by self-defence or other valid reason.

            THAT law is very clearly established!

          • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

            Qualified immunity only applies in civil actions, not criminal ones, so my comments were directed towards any civil lawsuits that will be filed.

  • http://www.facebook.com/derrickjfr33man Derrick J. Freeman

    Great job in this interview, Carlos! I love that you got the last words in, and they were, “You can openly record! You can openly record!” Damn right!

  • Freedom_Fighter_of_America

    Why don’t people call it for what it is, TERRORISM.

    • Delurking

      Because it is not terrorism.

      • Freedom_Fighter_of_America

        Terrorism isn’t just flying planes into buildings, what these officers did was an act of terrorism. They murdered someone under color of law. They used their positions to terrorize people into giving up their cameras, deleted footage to hide their crimes. These officers are nothing more than terrorists, and what they did was and act of terrorism.

        ter·ror·ist [ter-er-ist] noun
        1.
        a person, usually a member of a group, who uses or advocates terrorism.
        2.
        a person who terrorizes or frightens others.

        ter·ror·ism [ter-uh-riz-uhm] noun
        1.
        the use of violence and threats to intimidate or coerce, especially for political purposes.

  • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

    I wonder why no one has mentioned that the use of a search warrant to seize the video was a violation of federal law. See http://excoplawstudent.wordpress.com/2013/05/16/did-the-kern-county-sheriff-illegally-seize-videos-of-deputies-beating-a-man-to-death/

    • http://twitter.com/eruptionchaser Mike Ross

      Indeed. That could be bad; the evidence might well be inadmissible at any trial.

      The more paranoid or suspicious might wonder if that was a deliberate mistake for that very reason.

      Personally, I wouldn’t attribute to malice that which can adequately be explained by stupidity; they’re probably simply not used to thinking of cellphone video from an average Joe or Jane as potential or actual journalistic material, and the declaration in the phone call wasn’t passed on. Ooooops. Teachable moment.

      • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

        That violation does not trigger the exclusionary rule except possibly in Texas. Everywhere else has a good faith exception based on a warrant.

        The violation does trigger damages, with a minimum of $1K plus attorney fees and costs.

  • Alex

    If it was an iPhone and they were near wifi, it might have been uploaded to the cloud…

  • benpg93

    I assume its pretty clear detaining a witness simply because they have evidence is illegal, I wonder if the sheriff was aware they were detained awaiting a warrant. It also goes as a reminder that you should question authority, I dont know if the witnesses protested being held,but if I were them I would not have been happy at all and tried to make sure superiors other people knew what was going on.

  • ccbarrpics

    After listening to the interview with Carlos Miller, Radley Balko, and the lawyer representing the family, I’m wondering if any activists (or press) in California could file to get the CHP video and audio tapes under a public records request like Carlos mentioned. The lawyer didn’t really seem to fully answer that question when Carlos brought it up. The more public information that can be gotten out about the case the better informed we all can be about what happened. Looking forward to seeing the cellphone video or videos if the other phone has recoverable data on it.

    • http://excoplawstudent.wordpress.com/ ExCop-LawStudent

      Public records laws typically exclude on-going criminal investigations from being released.

  • LBrothers

    The next time this happens, jam your phone or camera down into your underwear and refuse to turn it over. The building blocks of a great lawsuit.

  • http://twitter.com/datsneefa Jim Terwiliger

    Proof there is only 1 kind of good cop

  • http://www.facebook.com/nathan.bolden.98 Nathan Bolden

    Local news coverage video here http://www.youtube.com/watch?v=7taxYcpEfX4

    Witness accounts of beating death and when they came to steal their property.

  • http://www.facebook.com/profile.php?id=1511740582 Tony Loro

    Muted outcry over Kern County beating: ‘We’ve gotten used to a lot here’

    http://www.latimes.com/local/lanow/la-me-ln-kern-beating-bakersfield-20130520,0,2377779.story

  • Fotaugrafee

    From the opnateye.com website, re: http://opnateye.com/?p=780

    “The two California Highway Patrol assailants’ names are being withheld, but the seven Kern County cops involved are Ryan Greer, Douglas Sword, Tanner Miller, Jeffrey Kelly, Luis Almanza, Brian Brock and David Stephens.”

    I hope karma comes back on them in the worst of ways possible. The justice system is too good for these scum.

  • Mark Olish

    “Our credibility is at stake here,” Youngblood said

    Please! Kern County has no credibility to be at stake . They have a LONG history of abuses and cover-ups

  • Davis

    So where is the story here? Mexican gets belligerent with the police, police respond in kind? Hardly news.

  • psileste

    Everyone should have this app on their phone. Cops will soon learn that they can’t delete videos and may conclude they should stop beating people to death.

    http://www.prweb.com/releases/fivo/fivo/prweb11566985.htm

  • Layla

    They either deleted it or doctored it, BIG TIME. The original footage showed them turning loose the police dog and hitting this man hard with their batons while he screamed.

    Sheriff Donny Youngblood needs to be removed from office and these deputies, many of which have been in trouble before, need to be prosecuted.

    This was murder and we all know it. SIX men dead at the hands of Kern County Sheriff’s deputies in 18 months.

  • Layla

    They couldn’t lawfully use excessive force and kill either, either, but they did.

  • Layla

    The courts now say otherwise. You may photograph and do NOT have to turn over your camera, at least NOT to the offending officers.

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