Did ex-CHP officer use excessive force in this Merced County arrest?
Local prosecutors hoped an aerial video showing a California Highway Patrol officer punching a surrendered hit-and-run suspect several times — and a CHP investigation condemning his actions — would lead jurors to convict him of misdemeanor battery.
However, an unusual, but convincing, witness’s testimony moved the jury to do the opposite and find him not guilty, according to the officer’s attorney.
Merced County Sheriff Vern Warnke was brought in by defense attorneys for former CHP Officer Angel Casas to testify as an expert witness on law enforcement’s use of force.
Attorneys from both sides noted having a sitting sheriff testify in favor of an officer of a neighboring law enforcement agency was unusual and surprising, if not unprecedented.
Warnke asked jurors to consider the officer’s state of body and mind during the arrest. And unlike investigators, he went to the scene of the incident. That visit possibly tipped the scales in Casas’ favor, according to Casas’ lead attorney, Shawn George.
“(Warnke) was a vital witness in this case,” George said. “A lot of jurors considered the fact that he was the sheriff. He’s in the trenches and he leads from the front, not from an ivory tower passing judgment down. ... It really resonated with jurors.”
George said he initially asked Warnke to look at the case as a law enforcement expert and give his feedback. “When I saw the video, it took me back a little bit,” Warnke told the Sun-Star, noting that the video looked “bad” for Casas.
But while going through the investigation reports, Warnke noticed there were references of Casas being tired and other factors he believed weren’t factored in the investigation. So he went to the scene and put himself in Casas’ shoes.
“Sometimes, I equate law enforcement to sausage,” Warnke said. “People like sausage, but don’t want to know how it’s done or made. ... I thought (Casas) shouldn’t be in trouble for doing his job.”
The verdict surprised many in the Merced County District Attorney’s Office, said lead prosecutor Natalia Enero.
“We thought the video was pretty convincing and spoke for itself,” Enero said. “What happened in the video is not what officers lawfully are trained to do.”
“I am grateful that the criminal justice system works,” Casas said in a statement through his attorney. “I thank the jury for considering all the evidence in this case.”
Casas resigned from his position with the CHP after the investigation concluded he used unnecessary force, George said, adding Casas already had a couple job offers from other law enforcement agencies after the trial.
CHP Los Banos Cmdr. John Martinho declined to comment on the criminal case or personnel matters.
District Attorney Larry Morse II didn’t respond to requests for comment about the case Friday.
Incident captured on video
Casas was one of several officers who responded to the scene of a non-injury hit-and-run traffic collision April 28, shortly before noon on Pacheco Pass just west of the Romero Visitors Center, according to CHP investigation reports.
The suspect in the collision, Agustin Jauregui Garcia, fled from the scene and sparked a manhunt that lasted more than an hour and involved K9 and air units, the reports state.
Kelly Smith, a citizen and former military police officer, helped in the search and found Garcia laying in the tall grass of a steep hillside, about a quarter-mile north of the collision, according to reports.
Smith reportedly approached Garcia and put one of Garcia’s arms in a “control hold” as Casas and California State Park Supervising Ranger Antheney Alegre walked toward them. Garcia didn’t appear to be resisting, aerial video of the incident shows.
The aerial video then shows Casas approach Garcia from downhill, and punch Garcia in the head before wrestling the suspect to the ground in an attempt to restrain him.
Casas reportedly delivered two more punches during the incident: one to the upper torso and another to the face. Garcia was not armed and was believed to be complying with the citizen and officers during the arrest, the reports state.
The video also shows Garcia rolling downhill several times, which the investigation ruled was unintentional. There were no body cameras of the incident, attorneys said.
Alegre reportedly told investigators he believed the punches from Casas were unwarranted, in part because Garcia was not resisting arrest. He also reported seeing Garcia with injuries after the arrest, although medical records didn’t indicate major injuries.
In his defense, Casas testified that he threw what are called “distraction strikes” that aren’t meant to physically harm the suspect. Rather, they are meant to distract the suspect so an officer can restrain.
Despite the explanation, a review of the incident by the CHP Central Division Investigative Services Unit concluded that Casas “unnecessarily and willfully punched Mr. Garcia in the face and in doing so was in violation of California Penal Code section 242: Battery,” according to the reports.
The CHP investigation used the California Penal Code’s definition of “arrest and use of force” to make that conclusion, according to the reports. That definition states an officer may use reasonable force to “effect the arrest,” “to prevent escape” and “overcome resistance.”
It also used a U.S. Supreme Court ruling from 1973, Johnson v. Glick, as a model to determine if lawful use of force was committed. That model asks four questions: 1). Is there a need for force? 2). Was the amount of force reasonable for the need? 3). What was the extent of injury from the force? 4). Was the force applied in good faith to maintain and restore discipline, or was it “maliciously and sadistically” used to cause harm?
Investigators also needed to determine the “objective reasonableness” for the use of force. While the investigation’s conclusion acknowledged Casas had some reason to feel a distraction punch was necessary, investigators claimed the video showed the suspect was complying and not attempting to flee before he was punched by Casas.
Adding to the case against Casas was the fact Alegre believed the punch was not necessary, according to the reports.
The CHP’s use of force policies and guidelines aren’t specific on when a distraction strike is or isn’t necessary.
Officer’s actions weren’t unnecessary force, sheriff says
When Warnke testified as an expert witness during Casas’ Nov. 8 trial hearing, the sheriff asked the jury to consider other unexplored factors in the case.
Warnke has served as an FBI-certified sniper with the SWAT team, worked on agricultural crime, and supervised the sheriff’s STAR team, K9 unit, motorcycle unit and school resource officer program in his 30-year law enforcement career before he was first elected sheriff in 2014.
Warnke also testified on receiving training once every two years on “use of force,” which he said was a “perishable skill.” Warnke said he has disciplined deputies in his own department for unnecessary use of force during his time as sheriff, including the termination of three deputies.
Warnke’s experience made him an expert witness in the eyes of the Merced County Judge Steven Slocum.
Warnke told jurors he reviewed the video and the reports, and suggested investigators didn’t go to the scene of the incident or consider the “totality of the circumstance” of the arrest.
That totality included Casas being tired from searching up and down the steep terrain and the fact that Garcia was on the run. Plus, Garcia’s feet were level and presented a threat to the officer. Additionally, the intentions of Smith, a private citizen who was present, weren’t completely known.
All those factors and unknowns required Casas to quickly apprehend the suspect, Warnke said, adding that while Casas could have used other methods to apprehend Garcia, the punches weren’t strikes of unnecessary force.
After the verdict, some jurors told Enero there was just enough reasonable doubt for them to acquit Casas, determining he wasn’t guilty of unlawfully performing his duties, Enero said.
Enero said she “greatly respected” Warnke and his qualifications as an expert witness. But she said it was unclear how much his testimony affected the jury’s decision.
“I think the evidence overwhelmingly doesn’t weigh that way,” she said.