Cops' attorneys: Officers in video did nothing wrong

By Sean Webby and Lisa Fernandez
Mercury News
Posted: 10/26/2009 06:35:05 PM PDT
Updated: 10/27/2009 08:27:25 AM PDT
Source: http://www.mercurynews.com/top-stories/ci_13646146

Speaking through his attorney, the officer who was captured on a cell phone video last month hitting an unarmed college student with a baton insisted Monday that the student was "responsible" for the violent confrontation because he combatively resisted the officer's orders.

Attorney Terry Bowman, offering the officers' side of events for the first time, said veteran officer Kenneth Siegel had done nothing inappropriate when he and a fellow officer, Steven Payne Jr., took Phuong Ho, 20, into custody. Ho's roommate recorded the arrest, which was made public by the Mercury News this weekend.

"Mr. Ho is responsible for his conduct, and he is responsible for not taking lawful directives from a police officer," said Bowman. "He is being combative and noncompliant, and he raises the stakes of the game."

The grainy video depicts the event as Siegel struck Ho, a math major from Vietnam, more than 10 times with a baton in the hallway of the house. Payne shocked Ho with a Taser gun. Ho does not appear to be combative in the video, although it does not record the entire interaction between Ho and the officers.

The video has touched off a flurry of reaction. Siegel, Payne and two other officers who were at the scene remain on administrative leave, and police continue to investigate. Ho's lawyers said they have filed a civil rights complaint with the FBI, whose local spokesman confirmed officials there are "aware" of the incident.

The video has become a flash point in the Vietnamese community, discussed on radio stations, in cafes, and among community leaders who sought to mobilize a response.

Chief Rob Davis sent one of his top-ranked officers, Capt. Phan Ngo, to assure members of the Vietnamese community that "we really are digging into their concerns." Ngo said he urged community leaders to await the outcome of the police investigation before reacting.

But community leaders such as Paul Loc Le, vice president of the Viet-American Voters of Northern California, said the arrest of Ho was only the latest in a series of incidents raising concerns of how San Jose police treat members of the Vietnamese community. "Clearly, there's a pattern of excessive force to a minority group," he said.

Le is among residents who remain troubled by the events of May 10 when San Jose police shot and killed Daniel Pham, a mentally ill and violent 27-year-old. That incident remains under investigation.

Three members of the San Jose City Council — Sam Liccardo, Ash Kalra and Madison Nguyen — issued a joint statement saying they were concerned about the events on the videotape, adding, they "are saddened the Vietnamese American community has recently experienced two incidents with the San Jose Police Department regarding possible use of excessive force."

The incident developed after Ho had argued with a roommate over soap being slopped onto a steak. Ho reportedly picked up a steak knife and told the roommate that in Vietnam, "I would kill you" over that. Ho dropped the knife and was not armed by the time police arrived, according to witnesses.

Officer Siegel had trouble understanding Ho when he asked his name, and attempted to enter Ho's room to look for identification. He told Ho to wait in the hall, according to police reports. When Ho ignored Siegel's order and attempted to follow him into the room, Payne pushed him into a wall, setting off the events that another roommate captured on cell phone video, in which the officers are seen striking Ho as they yell at him to turn over onto his back.

Ho was taken to the hospital for treatment of several cuts incurred in the incident, including to his head, and then he was charged with brandishing a weapon against his roommate and resisting arrest.

The Mercury News obtained a copy of the videotape last week from Ho's attorney, and showed it to six experts, four of whom expressed alarm at the force used by the officers as Ho can be heard on the ground, crying and moaning. Several of the experts expressed alarm at the last baton strike, appearing to occur after Ho has been handcuffed — which is how Ho recounts the incident.

But attorneys Bowman and Craig Brown, who represents Payne, both said Monday that Ho was struck only after he was resisting, and not after the handcuffs had been applied to both hands. Bowman said that the poor quality of the video has caused confusion over this point, adding: "Whatever people think they are hearing, it is not the sound of handcuffs before the last baton strike." Siegel is a 15-year veteran; Payne, a three-year veteran of the force, is a combat veteran and son of a veteran officer.

The Mercury News provided a copy of the tape recording to police officials last Thursday with the approval of Ho's attorney, and they promptly launched the investigation.