The Incredible Reappearing Videotape
If Orange County sheriff’s deputies are being honest, fear caused them to behave aggressively at a 2007 minor, late-night incident in Dana Point. The three fully armed officers portrayed themselves as frightened because they were “outnumbered” by citizen bystanders, “some holding objects in their hands.” Would the crowd go nuts and attack?
Only a non-OC-resident would be able to suppress a laugh at that thought. The unspecified objects were, according to multiple sources, cell phones, which are usually only dangerous in the hands of teenagers, as they rack up excessive usage fees. More to the point, the incident occurred in an upper-middle-class, white, Republican neighborhood perched over the Pacific Ocean and in the shadows of Southern California’s premier high-end resort—the Ritz-Carlton.
The matter is alive today inside the Ronald Reagan Federal Courthouse in Santa Ana because those arrested—including three professional athletes (one a seven-time world-champion skimboarder) and a reality-TV male-model contestant—are suing the deputies for abusing their powers: making false arrests, using excessive force, filing disingenuous charges and generally acting like assholes anxious for confrontation in the seaside village.
In court filings, the deputies insist they acted “reasonably” because they’d encountered “willful defiance.” Besides, they say, they have legal immunity from responsibility because they’re cops. They asked the court to dismiss the lawsuit as meritless.
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But last month, Federal Judge Cormac J. Carney denied the deputies’ pretrial motion for summary judgment.
“Genuine issues of material fact exist regarding whether the defendants had probable cause to arrest the plaintiffs and whether excessive force was used to effect those arrests,” Carney wrote in his ruling. “More specifically, the plaintiffs have presented evidence that they were not willfully resisting or obstructing any of the defendants in the discharge of law-enforcement duties . . . and the [deputies] used unnecessary force and acted unreasonably under the circumstances.”
The judge also noted that the deputies have their own evidence, but concluded, “The jury will have to decide, not the court, whether to believe that version of events over the version presented by the plaintiffs.”
Weekly readers already know the basics of the case from my 2008 column: A group of people who’d attended a Sept. 15, 2007, water-park contest in San Diego returned home to Dana Point and drove an RV into a parking lot above Salt Creek Beach. Except for three people—a mother, a father and their child—everyone else either drove away in their own vehicles or calmly entered a nearby residence before deputies, called to the scene for an unrelated loud-noise complaint, arrived. The deputies decided to stop and interrogate Miriam Lew, who was exiting an RV, and sports star William Jennings Bryan, who was holding the couple’s sleeping 4-year-old daughter.
What happened next is the core of the dispute. The deputies claim they were attacked after politely questioning the couple. The plaintiffs, as well as unrelated bystanders who’d come out of their homes to see the cause of the ruckus, say the officers were foul-mouthed and repeatedly using excessive force. A bikini-clad Lew, who barely weighed 120 pounds, was tossed face-first onto a concrete sidewalk. A deputy body-slammed Morgan Just, Lew’s concerned friend, even though he’d done nothing to provoke the violence, according depositions in the case.
“Bill Bryan was essentially arrested for yelling, ‘Help us! Help us!’ after what the deputies did to [Lew],” said Joshua R. Stock, the Newport Beach-based civil lawyer representing the plaintiffs in the suit. “It’s nuts.”
David D. Lawrence, a private lawyer hired by the county to represent the deputies, wrote in legal briefs the plaintiffs have overdramatized the deputies’ actions.
But when Dominic Prietto, Bryan’s friend who appeared as a contestant on Make Me a Supermodel and is now an actor on The Bold and the Beautiful, returned to the scene, he began filming the deputies’ conduct. The deputies then arrested Prietto and confiscated his recording. Deputies Brett Gardner, Jose Pelayo and Jonathon Daruvala also arrested Bryan, Lew, and their friends Just and Steve Lerum.
I began to cover the story because, before trial, the Orange County Sheriff’s Department (OCSD) said the Prietto tape was blank. When I made an inquiry with the OCSD, a spokesman told me deputies were claiming they didn’t confiscate a recording. In several interviews on the subject during one week, the department refused to change its stance, which was odd because Prietto’s jail-intake form recorded that deputies had confiscated “one Fuji videotape.”
The deputies’ next version was that they did, in fact, possess Prietto’s tape but it was blank. The flip-flops didn’t impress the district attorney’s office. Prosecutors decided to drop all the charges because of the inconsistencies in the deputies’ stories.
When Scott Borthwick, the criminal defense lawyer for those arrested, insisted on seeing the tape, deputies claimed it was lost again. Over a period of months, Borthwick persisted, and the department eventually alleged it had found the tape once more, but it renewed the claim that it was blank. The OCSD again refused to return it or allow inspection.
How is this for additional suspicion? When the defendants sued in federal court, the deputies initially refused to show the tape to their own lawyer.
Recalled Borthwick, “After a 20-minute discussion on the federal rules of evidence, the department relented and handed the tape to its attorney. Defense counsel and plaintiffs’ counsel immediately viewed the tape.”
Drum roll, please.
“The videotape was not blank,” Borthwick said.
So let’s briefly summarize the deputies’ revolving positions on the tape: It is blank; we never confiscated it; found it, but it’s blank; lost it; found it, but it’s blank; lost it; found it, but it’s blank; and finally, we don’t have to show it to our own lawyers. Under the soiled Sheriff Mike Carona administration, such acrobatics with the truth could have earned these deputies promotions and awards. Current Sheriff Sandra Hutchens has so far shown she’s less tolerant of blatant corruption.
The tape saga took one more twist when OCSD spokesman John McDonald offered another explanation on Sept. 29. It "was never missing," he said. He blamed the DA's office and Borthwick for never asking for it.
So what’s on the tape that the deputies may not have wanted a judge and jury to see and/or hear?
Based on the recording (which I’ve watched), you can tell the deputies weren’t cowering in fear. In fact, they sound like tough guys looking for an excuse to pounce.
You can hear a deputy arrest Prietto and place him in handcuffs. Prietto asks if he’s going to be read his Miranda rights, as required by law. A deputy says, “No.”
Prietto asks, “Why not?”
“Because we don’t feel like it,” replies the deputy—without a trace of fear in his voice.
The civil trial is scheduled for November.
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