Orange County District Attorney Tony Rackauckas held a press conference this morning to announce his agency won’t be prosecuting Kevin Ferguson, an Anaheim resident and off-duty Los Angeles Police department officer who detained 13-year-old Christian Dorscht in an after-school scuffle last Feb. 21. The altercation ended with Ferguson firing a shot into the ground scattering terrified youth that gathered near the scene. Viral video of the incident spurred angry protests that ended in multiple arrests and the vandalizing of Ferguson’s home.
“Central to the case at hand are two issues,” Rackauckas explained. “Does the evidence establish beyond a reasonable doubt that Ferguson did not have a legal right to detain John Doe? And second, does the evidence establish beyond a reasonable doubt that Ferguson used an unreasonable amount of force in detaining John Doe in assuming he had a right to do so?” (Being a minor, Dorscht wasn’t named during the press conference). The DA turned the podium over to assistant district attorney Ebrahim Baytieh to tell reporters why they decided not to file charges against the off-duty cop.
The trouble began around 2:38 p.m. that day when Dorscht walked home from school with three friends. A 13-year-old girl walked on the driveway of Ferguson’s home when he called her a “bitch” according to claims made in new videos shown at the press conference. Dorscht stood up for his friend, but the group decided to continue walking home. Newly released surveillance footage from a couple houses down shows Ferguson pursuing Dorscht before grabbing a hold of him. At one point, the 33-year-old man at the time kicked the teen in the groin before losing control of him. In another new cellphone video, Ferguson regained control of Dorscht on a neighbor’s lawn and placed him in a headlock. [embed-1]
Although Baytieh stated that Ferguson “unfortunately” and “unwisely” followed the teen, he didn’t deem it unreasonable or illegal. Because the off-duty cop can be heard on video contending that Dorscht criminally threatened him by allegedly saying “I’m going to shoot you,” he had the right to make a private person’s arrest irrespective of his status with law enforcement. Dorscht told Ferguson during the scuffle that he, in fact, said “I’m going to sue you,” but the attempt to clarify didn’t deescalate the situation.
As the videos go on to show, a 15-year-old black teen attempted to free his friend when a crowd of youth started to gather around. He later threw a punch at Ferguson when another 16-year-old shoulder-tackled him over some hedges. How did the OCDA explain away the second critical question of the off-duty cop pulling a concealed gun from his waistband and firing a shot into the ground? Baytieh drew attention to a third teen who jumped over the hedges, pulled a pencil tucked behind his ear and shoved it into his back pocket.
Even though Ferguson declined to give statements to Anaheim police beyond what he said to them afterward at the scene, Baytieh rationalized his actions. “This is the time that you see Mr. Ferguson looking directly at him and then reaching for his gun,” Baytieh said, pointing to video stills of the teen. “Now [when] the weapon is out, John Doe 4 starts moving away.” If Ferguson feared the ol’ furtive movement by the back waistband, he fired a single shot away from the teen and into the ground. With an explanation for Ferguson’s decision to detain Dorscht and later fire his weapon he legally carried as an off-duty cop, all that remained was the painfully obvious. “A private person, we’re not talking about a police officer, may arrest another individual for public defense,” Baytieh said. He explained that Ferguson’s actions came in response to the criminal threat he thought he heard and not any notion of teens trespassing by walking on his lawn. The force used in that arrest? The person has no right to resist being detained if reasonable force is used, the assistant DA said.
“Evidence does not support a finding beyond a reasonable doubt that Mr. Ferguson committed a crime,” Baytieh added. “We will not be filing criminal charges.” With the OCDA making its decision, Dorscht’s family members were unavailable for comment. A civil lawsuit against Ferguson was filed on the teen’s behalf last June with the trial slated to begin later this year. None of the kids face criminal charges stemming from the incident.
Rackauckas walked back to the podium to field questions from the media. He dinged Ferguson for displaying “not good behavior” and suggested that putting a fence around the lawn would be more sensible. The DA called the initial response from the group of teens “restrained” but also added that warning shots like Ferguson’s were legal under the right circumstances. “I think it’s really good that the bullet didn’t hit anybody,” Rackauckas added.
As always, watch the OCDA’s press conference in its entirety online.
Gabriel San Roman is from Anacrime. He’s a journalist, subversive historian and tallest Mexican in OC.