PEPPER-SPRAYING OF SUSPECT SEEN IN A NEW VIDEO BRATTON DEFENDS DEPARTMENT AS CONCERNS OVER FORCE MOUNT.

Byline: BETH BARRETT Staff Writer

Police Chief William Bratton steadfastly defended the beleaguered Los Angeles Police Department on Tuesday after a new video emerged showing officers pepper-spraying a handcuffed suspect in a patrol car.

The video of the February 2005 arrest of transient Benjamin Barker surfaced less than a week after an 18-second tape showing a Los Angeles officer repeatedly punching a suspect in the face while another officer tries to handcuff the man during an Aug. 11 struggle in Hollywood.

During an afternoon news conference, Bratton said he has concerns about the pepper-spraying case, and will make an administrative ruling about the officers' conduct in the next few days.

At the same time, he noted that District Attorney Steve Cooley's office had declined to file charges against the officers.

``Examination of the videotape clearly shows (the officers) did not use excessive force on Benjamin Barker, nor did they assault him under color of authority,'' Bratton said, quoting the district attorney's decision. ``The officers showed remarkable restraint and demonstrated professional courtesy to Barker despite his belligerent, threatening and combative behavior.''

The district attorney's report, citing the videotape, said Barker resisted police efforts to put him in the police car, was screaming and making a kicking motion toward an officer.

The officers involved were identified as David Guieterman, Victor Eguez and Peggy Thusing. Guieterman, seen in the video using pepper spray, left the department last year for reasons unrelated to the arrest, but remains in law enforcement, police said.

The tape shows Guieterman take pepper spray out of a holster, then raise it toward Barker, who was handcuffed and seated in the back of the patrol car. The door of the car is then closed, and the suspect can be seen grimacing through the window.

``Police are authorized to use force,'' Bratton said. ``The challenge is, and the requirement is that they do it lawfully, and in these instances the triers of fact have indicated they did, and the challenge for officers is to do it within prescribed procedures and that's where I come in.''

Showing restraint

Bratton said the LAPD polices the city with restraint, noting there were nearly 160,000 arrests in 2005.

According to department records, those included 97 cases in which serious force was used, including the use of deadly force, head strikes with an impact weapon and force resulting in hospitalization. A dozen of those cases were later deemed out of policy.

There also were 1,875 less-serious cases involving force -- like those seen in the two videos. Three of those cases were determined to be out of policy.

Bratton said he'll order a review of the department's pepper-spray policy, adding it is an effective tool for dealing with uncooperative individuals. He said it causes no more than 15 minutes of eye irritation and is widely used by agencies around the United States.

The second video surfaced as the LAPD and FBI continued their investigations into the case of two officers videotaped arresting suspect William Cardenas on Aug. 11.

Shot by a cell-phone camera and posted on YouTube.co, the video shows Hollywood Division Officer Patrick Farrell punching Cardenas a half-dozen times while Officer Alexander Schlegel restrains the suspect. Both officers have been placed on paid administrative duty pending the outcome of the inquiries.

Adding to concerns

The second video and Bratton's comments fanned growing concerns about the department's commitment to reforming a ``warrior'' culture and responding with transparency to public concerns.

Attorney John Raphling, who as a public defender represented Barker against criminal battery charges last year, said the officers were in no danger when they pepper-sprayed his client.

``There are no sudden movements. He sticks his head in to spray him. You wouldn't do that if he's spitting on him,'' Raphling said in an interview. ``They summarily punished this guy.''

Paul Hoffman, a former attorney with the American Civil Liberties Union of Southern California, now in private practice, said the video illustrates a failure of training, and raises questions about the use of force as punishment.

``You can't use force on someone who is just mouthing off, and you can't do anything when (a suspect) is in a police car in handcuffs,'' Hoffman said.

Police transparency

Meanwhile, a Web site launched last year by the Los Angeles Police Commission as a way to boost public ``transparency'' shows that the file that is supposed to contain redacted use-of-force summaries hasn't been updated for months.

And, a recent court decision cuts off public access to boards of rights, which until recently provided a way to view how discipline in serious use-of-force cases was dispensed.

``There's very little transparency, and less and less of it,'' said Raphling, now a civil rights and criminal defense lawyer. ``You can't get (access to) complaints against officers in their personnel files without going through a difficult process.''

Bratton said he would ``like more transparency'' within the department, but is constrained by California law. He also said he has advocated strongly to install video cameras in all patrol cars, and to equip all officers with audio microphones.

``I'm used to a much more transparent form of interaction than we have here in California,'' said Bratton, who formerly was the police chief in Boston and New York City. ``That's unfortunate. I'd like to be in a position to give you much more information.''

LAPD Inspector General Andre Birotte said the backlog in posting the use-of-force summaries on the Internet is a ``resource'' problem, but that the site will be updated as quickly as possible.

Watched department

Bratton said the LAPD remains one of the nation's most-watched departments, with a federal consent decree and monitor, the civilian Police Commission and its inspector general, and Bratton's willingness to address use-of-force cases publicly, including several over the last year that have resulted in changes in policies and equipment.

``In terms of transparency ... we are the most transparent organization in America in many respects despite the limitations that the laws of California place upon us.''

But civil-rights attorney Connie Rice, who chaired a blue-ribbon panel that reviewed reforms in light of the Rampart scandal, said the videos renew questions about how well the LAPD conforms to its use-of-force policies.

``I do see a different LAPD, but that doesn't mean we've solved all the problems,'' she said. ``They are way beyond 20 years ago ... but there is still an excessive use-of-force culture in LAPD.''

beth.barrett(at)dailynews.com

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