Attorney John Raphling shows tape of incident. The officer has since resigned, but the department has declined to discuss the circumstances.
By Patrick McGreevy and Richard Winton, Times Staff Writers
November 14, 2006
The LAPD on Monday was grappling with another controversial videotaped arrest, this one showing an officer shoving a handcuffed suspect into a patrol car, then leaning in with a can of pepper spray to douse the man's face before shutting the door.
The arrest occurred last year on the Venice boardwalk and was the subject of a lengthy LAPD investigation. But the tape was not revealed publicly until Monday by an attorney in an interview with The Times.
A source familiar with the investigation said top LAPD brass were "livid" after reviewing the incident, which also prompted a prominent police watchdog to call on the department to develop strict rules on when officers can use pepper spray on handcuffed suspects.
The officer who used the pepper spray resigned from the department before the investigation was completed. After reviewing the tape, the city attorney's office dropped charges that the suspect resisted arrest and committed battery on a police officer.
The suspect is identified in police reports as Benjamin Barker, a transient who frequents the Venice beach area.
Barker was arrested after getting into a scuffle with a merchant on the boardwalk. He pleaded guilty to misdemeanor battery on the shopkeeper.
The videotape shows Barker in handcuffs as he is bent over a patrol car. As the officer pushes Barker into the car, Barker can be heard saying, "Why am I going to jail?"
Once Barker is in the back seat, he starts shouting: "I can't breathe! I can't breathe! Don't spray me!"
One officer is heard saying: "He knows what's happening."
Another officer takes a pepper spray canister from his belt, shakes it and leans in to apply it to Barker's face.
The officer closes the doors of the patrol car and steps back. Barker is seen holding his face up to the car window, his features contorted in pain.
The tape has been viewed by several top LAPD officials as well as police watchdogs.
Connie Rice, chairwoman of the Police Commission's Blue Ribbon Rampart Review Panel, said she was troubled by the officer's actions and referred the tape to LAPD officials for investigation.
"I could see no justification for pepper spray," said Rice, who reviewed the tape several times. "It's a very serious use of force and you have to have a serious threat such as someone reaching for your gun. I didn't see any kind of threat from a man who was whining and annoying but not posing a threat."
The tape was also viewed by an independent monitor appointed by the federal court to oversee the LAPD after the Rampart scandal, and the monitor was concerned enough to refer it to LAPD administrators for investigation, according to several department sources who spoke on the condition of anonymity.
The Venice incident comes as the LAPD and FBI have launched investigations into another videotape showing a police officer hitting a suspect in the face several times at the end of a foot chase in Hollywood.
As in the Hollywood case, LAPD investigators focused in part on whether there were differences between what is shown on the Venice videotape and what officers later said in their arrest report.
In the arrest report, the officer described Barker as combative and said pepper spray was used after Barker spit on him once and attempted to spit on him when he was in the patrol car. The video is shot at an angle that makes it difficult to determine whether Barker spit at the officer, but there is no physical assault seen from Barker. The tape shows the officer take the pepper spray out of its holster then raise it toward Barker's face, but the actual spraying is obscured by shadows.
The officer, identified in the police report as Officer Guiterman, resigned well before the investigation was completed, and officials would not say Monday whether his departure was related to the incident.
"The officer is no longer with the department," said Mary Grady, the LAPD's communications director, adding that she would not discuss the results of a personnel investigation into those involved in the incident.
An LAPD source said the officer left the department a few months after the incident for a job out of state. The investigation into the video didn't get underway for a few more months, the source said. The video was shot by a Venice resident who turned it over to Barker's attorney.
Grady said pepper spray can be used when a suspect is deemed to be combative, and in general "spitting at an officer is deemed to be combative."
"Basically, when a suspect is uncooperative and noncompliant and combative, officers are allowed to use the spray to de-escalate a situation," she said.
But Barker's attorney and Rice said using the pepper spray was unwarranted in the case of a handcuffed suspect who did not appear to be resisting an officer's orders.
"It appears that if you are disrespectful, they will punish you," said his attorney, John Raphling. "He is running his mouth. He is whining and crying. But he is not being aggressive or threatening to them."
In the arrest report, Guiterman said Barker sat in the back of the patrol car but with his feet on the ground outside the car.
"Barker remained rigid and took a deep breath and began to spit at me. I moved my head to the left and avoided the spit," he wrote. "If I had not moved, it would have struck me in the face. The spit landed on my right chest/armpit area."
He said Barker then cursed at him.
Fearing that Barker might spit at him or kick him, he said, he sprayed Barker twice with two one-second bursts of pepper spray.
A sergeant supervising the scene said in the initial police report that the incident had occurred as they stood at the rear door of the car. But the report was later corrected to say it took place inside the car.
For Rice, the incident is more evidence that the LAPD brass needs to tell officers to change what they do in the field.
"The LAPD needs to say 'Don't pepper-spray handcuffed suspects that are subdued just because they are mouthing off,' " Rice said.
Grady, the police spokeswoman, said the LAPD did a thorough investigation of the incident but declined to say whether any officers faced discipline.
The Venice videotape comes five days after another video showing an LAPD officer trying to restrain a suspect in Hollywood made its way to the Internet site YouTube.
The 18-second tape shows an officer punching William Cardenas at least five times as he and his partner try to restrain and handcuff the man, a suspected gang member.
In a jailhouse interview with KABC-TV Channel 7 on Monday, Cardenas insisted that he never resisted arrest and said police used excessive force.
But several witnesses interviewed by the LAPD said Cardenas ran from officers and swung at them before they got him on the ground.