Case No: 08ZF0035

Suspect Lares observed in dark large jacket in area of Brookhurst and Ball in area of Anaheim at 0200 hours

75 degree evening; seemed unusual

FTO Hibbs and Deputy Wicks attempt consensual contact to investigate

Suspect shows Deputies an open beer bottle

Refuses to be searched Suspect resists a pat-

down search; drops trench coat and flees on foot

Foot pursuit ensues, assisted by off-duty LAPD officer; suspect taken into custody

Suspect is contact tased during attempt to place handcuffs on him

FTO Hibbs Deputy Wicks

Prosecuted by OCDA for felon in possession of a firearm, PC 148, PC 148.9, HS 11357(b) for this incident (sentenced to 32 months State Prison)

Criminal History Convictions: 211 (SP prior) Multiple 148.9s Vandalism (misd) Domestic Violence

(misd) X2

245 (a) (1) (misd)

Dep. Wicks assigned to September 1 - 30, 2007FTO Hibbs

Report #07/181334: September 13, 2007 Hibbs Internal Memo: September 13, 2007 Sgt. Gunzel’s memo: December 13, 2007 OCSD Internal Crim Inv.: Dec 18, 2007 – Jan

23,2008 Grand Jury Testimony: August 18, 2008;

August 21, 2008; September 10, 2008

OCSD Meeting: February 26, 2009 Jury Trial: March 20, 2009 – April

9, 2009

FTO C. Hibbs (14 years) FTO B. Thomas (12 years) Deputy J. C. Wicks

Patrol Trainee ( 7 years) Deputy T. Hoffman

Patrol Trainee (7 years) Sgt. R. Long (28 years)

FTO Thomas

Deputy Wicks

Deputy Hoffman

FTO Hibbs

Sgt. Long

Deputy Wicks

Deputy Hoffman

FTO Hibbs

Sgt. Long(Not

present until

conclusion of the use of force)

FTO Thomas

Arrestee Lares

Report Includes: Facts leading to consensual

encounter and foot pursuit FTO Hibbs’ use of contact Taser

during handcuffing of arrestee at the conclusion of foot pursuit

Locating firearm in jacket Arrestee taken back to the

patrol right rear of that vehicle Abandoned jacket is searched

and a loaded 9mm semi-auto is located

Suspect arrested for felon in possession of firearm, possession of marijuana, resisting arrest, false identification to a police officer.

Authored by Deputy Wicks

Reviewed by FTO Hibbs

Approved by Sgt. Long

No documentation in original arrest report indicating any second use of force ie. Taser

Documents first use of force; no mention about second use of the Taser

Supervisor at scene Signs off on Dep. Wicks’ crime

report Never told about second use of

force

Lt. Gallivan inquires of Sgt. Gunzel about FTO Hibbs and a transfer opportunity on December 13, 2007.

Sgt. Gunzel shares with Lt. Gallivan that there is “locker room” banter regarding FTO Hibbs and the inappropriate use of a Taser on an arrestee.

Lt. Gallivan then requests Sgt. Gunzel to gather more information about that alleged incident.

Sgt. Gunzel calls FTO Thomas at home and interviews him over the telephone, which is not recorded.

Q: “Lieutenant Gallivan told you to find out exactly what happened; correct?”

A: “Correct” (26, 15-17)

FTO Thomas

FTO Thomas

Deputy Hoffman

FTO Thomas

Deputy Hoffman

FTO Thomas

Deputy Hoffman

FTO Hibbs placed on Administrative leave December 17, 2007.

Homicide Investigator S. Lang is assigned as lead investigator into the matter on December 18, 2007.

Inv. Lang conducts investigations of the following: Arrestee Lares: gave statement to Sheriff’s Homicide Investigators Sgt. Long: gave statement LAPD Andersen: gave statement Sgt. Gunzel: gave statement FTO Hibbs: refused to give statement Deputy Wicks: refused to give statement Deputy Hoffman: refused to give statement FTO Thomas: refused to give statement

FTO Thomas’ patrol vehicle video system did not capture Hibbs/Wicks’ patrol vehicle that was parked in front of the Thomas/Hoffman patrol vehicle. Thomas/Hoffman audio equipment associated with PVS was not turned on. Hibbs/Wicks' patrol video microphones on belt were not turned on.

Dispatch call by Dep. Wicks recorded FTO Hibbs yelling at suspect. On or about January 23, 2008 the OCSD requests the OCDA to file felony criminal

charges on FTO Hibbs as follows: Penal Code section 149: Battery by a Public Officer under color of authority

without lawful necessity.

OCDA reviews OCSD reports

OCDA schedules Grand Jury proceedings to conduct a criminal investigation to determine if FTO Hibbs used excessive force on September 13, 2007 with respect to the second Taser incident.

Grand Jury convenes and the following witnesses testify: Arrestee Lares LAPD Officer Dan

Andersen Deputy Bryan Thomas Deputy James Wicks Deputy Trenton

Hoffman Sgt. Robert Long Investigator Stacy Lang Forensic Scientist Tara

Christian Deputy Theodore Wilder Chandler Garrett, Taser

International

Grand Jury Finds as True: Count 1: that

Deputy Hibbs committed assault and battery on arrestee under color of authority

Count 2: that Deputy Hibbs used unlawful force with a Taser on arrestee

Q: “Did you ever notice the suspect that was in the back rear of the patrol unit become physically uncooperative?” A: “Physically as in combative? I did not see

that.”(158, 20-24) Q: “Did he ever appear to you to be flailing while in

the back of the patrol unit?” A: “I would say fidgeting, just moving around

readjusting himself.” (158, 25-26; 159, 1-2) Q: “Do you recall before Deputy Hibbs used the

taser gun, Deputy Hibbs asking this subject for his name?” A: “Yes.” (181, 7-9)

Q: “Did you see anything in your mind that would have justified using a taser at that point in time? Did you personally see anything?”

A: “From the perspective that I was, I did not.” (169, 10-12)

Q: “You didn’t see the subject coming towards the officer right? His head wasn’t coming towards officer?”

A: “No.” (169, 19-22) Q: “The subject from as far as you can tell

wasn’t kicking at the officer, or could you see that if that did happen?”

A: “I assume I would see upper body movement with the kick. I didn’t see that.” (169, 23-26; 170, 1)

Q: “And at some point after the final taser sound that you heard, what was the next thing that you recall happening?”

A: “Well, at that point it was in my mind that this is enough, we have to stop this. And at that point, he put his taser away and that part of the incident ended.” (174, 13-18)

Q: “And do you recall what the response was by the subject before he was tased?”

A: “He refused to give it. But I don’t remember what he said.” (181, 7-13)

Q: “Do you recall Deputy Hibbs saying anything about give me your true name or anything like that before he tased him.”

A: “Give me your name or what is your name or something to that effect, you know. I won’t quote him because I don’t remember exactly what was said. But it was him trying to get the guy’s name out of him.” (181, 14-20)

Q: “You were never told the subject kicked Deputy Hibbs, right?”

A: “Correct.” (182, 20-22) Q: “You were never told that the subject came at

Deputy Hibbs?” A: “Correct.” (182, 23-25) Q: “OK, and how was Deputy Hibbs behaving

before he used the taser gun when you noticed that the subject was not giving his name to him?”

A: “He appeared frustrated.” (182, 26; 183, 1-3) Q: “That night did Deputy Hibbs explain why he

tased the suspect?” A: “No” (206,8-9)

Q: “When you placed suspect Lares in the back of your patrol car, his feet were inside the patrol car?”

A: “Yes, sir.” (25, 8-11) Q: “You don’t let a defendant who you just

arrested dangle his feet outside the patrol car, do you?”

A: “No, sir.” (25, 13-15) Q: “He’s placed in the footwell in the rear

passenger side of your patrol car?” A: “The subject, yeah.” (25, 21-23)

Q: “And at some point in time you looked up and saw now the rear passenger door was open and Deputy Hibbs was standing right in front of that passenger door?”

A: “Yes, sir.” (34, 17-20) Q: “And so you’re facing basically the patrol

car, and the first thing in front of you is the trunk of the car with the gun on top of it?”

A: “I was on the side. The car was parked along the curb, so I was standing on the curb on the side of the car at the trunk.” (35, 24-26; 36, 1- 3)

Q: “Passenger side or driver’s side?” A: “Passenger side.” (36, 4-5)

Q: “Why do you believe it was Deputy Hibbs’ taser that was deployed upon suspect Lares in the back of the police car.”

A: “Well one, I mean, I just know it was Hibbs. There was no one else there. That’s why we’re here.” (39, 10-14)

Q: “He told you he tasered arrestee Lares in the back of the police car, did he not, at some point in time?”

A: “No, he never told me he did. I mean, he didn’t have to. I knew he did.” (39, 22-26)

Q: “Did Deputy Hibbs tell you that suspect or arrestee Lares was resisting arrest in the back of the police car when he was tasered?”

A: “Did he tell me that?” Q: “Yes.” A: “No.” (40, 15-20) Q: “Did you ever observe arrestee Lares

resisting arrest or struggling in the back of the police car after he was handcuffed?”

A: “Did I observe? “ Q: “Yes.” A: “No, sir.” (40, 21-26)

Q: “Did you hear arrestee Lares what you would consider struggling or physically resisting arrest in the back of the police car when Deputy Hibbs tasered him?”

A: “Did I hear him—no. I heard him being tased.” (41, 1-5)

Q: “Thinking back right now, did arrestee Lares do anything to justify being tasered in the back of the police car while he was handcuffed?”

A: “No.” Q: “You’re sure of that?” A: “Yes, sir.” (41, 6-11)

Q: “In that graveyard shift change when the talk is going on among the fellow deputies, locker room banter is how it’s been described of Deputy Hibbs tasering. It was– the banter was not about tasering him out at the scene when he was struggling when you had to capture him and handcuff him, the banter was about tasering him in the back of the police car, was it not?”

A: “Yes, sir.” Q: “What things were said by anybody?” A: “What’s your name, what’s your name,

clack, clack, clack, clack. Tell me your name, clack, clack, clack, clack.” (41, 12-23 )

Q: “Deputy Hibbs laugh about that one?”

A: “His locker’s not in my row, so I don’t know.”

Q: “There had to be a bunch of laughter going on about that one?”

A: “Yeah. I don’t know specifically if it was him or not.” (41, 12-26; 42, 1-3)

Q: “Deputy Hoffman was right next to you, so he had to hear what you heard? Your best guess?”

A: “Yeah, he was right next to me.” (44, 1-3) Q: “And during that entire period of time, did arrestee Lares do

anything that would necessitate the use of the taser on him while he was handcuffed in the back of the police car?”

A: “As far as I know, no.” (46, 16-20) Q: “And Deputy Hibbs basically approved your police report for

Lares that evening?” A: “Yes, sir.” Q: “So, he didn’t say put in the fact that I tased Lares in the

back of the police car, did he?” A: “No, sir.” Q: “Did he ever talk about that?” A: “He did not.” (48, 13-20)

Q: “Was there kind of, hey, you’re both trainees, we can’t say anything, we just need to keep quiet about this. Was it that kind of an attitude out there?”

A: “I mean, I was a trainee. It wasn’t my place to open my mouth. You know, the other two guys, Deputy Thomas, Deputy Hibbs, they’re experienced patrol guys and training officers.” (49, 24-26; 50, 1-4)

Q: “Did you ever ask Deputy Hibbs if that was proper to administer it that way?”

A: “I did not.” Q: “You already knew it wasn’t proper; is that

correct?” A: “Yes, sir.” (52, 24-26; 53, 1-3)

Q: “Were you near that police car at any point in time where you heard the Taser being deployed?”

A: “I don’t remember.” Q: “Could it have happened, but you just don’t remember?” A: “Yes, sir.” (103, 2-7) Q: “Did you ever hear anyone use this model X26 at any time

after you arrived on Ball Road and Brookhurst?” A: “No sir.” Q: “Did you ever hear the sound of the clacking noise that you

used - - that you demonstrated for us at any time after you arrived on the morning of September 13, 2007?”

A: “I don’t remember, sir.” Q: “Did you ever recall seeing Deputy Hibbs approach anyone

with a model X26 in his hand?” A: “I don’t remember, sir.” (95, 13-23)

Q: “Deputy Wicks said you were standing next to him when the taser was initiated against the arrestee in the back of the police car.”

“Now with respect to that, I’m going to ask you to search your memory right now, do you remember hearing the Taser being deployed on when the suspect was in the back of the police car? “

A: “No, sir. I don’t remember.” (102, 18-25)

Q: “When you spoke to Deputy Thomas, did you ever discuss with him anything that you had seen occur in the patrol unit that Deputy Wicks and Deputy Hibbs were driving?”

A: “No sir.” (96, 2-5) Q: “Do you recall Deputy Thomas asking you

whether or not you saw what had happened at that particular call the morning of September 13, 2007.”

A: “No, sir.” (96, 10-13) Q: “Did you ever acknowledge to Deputy

Thomas that you had seen Deputy Hibbs use a taser on someone who was handcuffed in the rear seat of his patrol car?”

A: “No, sir.” (96, 14-17)

The way Dep. Hoffman answered The way Dep. Hoffman answered several questions about the Gunzel several questions about the Gunzel memomemo

A: “Sir, I know the memory you’re talking about in question, sir, and I don’t remember talking to Deputy Thomas all about Deputy Hibbs tasing a handcuffed inmate in the back of the car. I would remember talking to him about that sir.” (107, 20-26)

Q: “…the grand jury is looking into the fact that we have some other deputies describing some specific conduct by Deputy Hibbs. And I’m trying to find out are they just mistaken about what they’ve viewed, because you can’t corroborate anything they’ve told us - - or is it the fact that maybe your memory - - you just don’t remember that event that well that night?”

A: “I don’t remember that event that well. If Deputy Wicks and Deputy Thomas gave you guys testimony, they are men of integrity and I know what they said is what they believe in and remember.” (111, 18-26; 112, 1-2)

Q: “We’ve heard both of the other deputies, both Thomas and Wicks talk about some locker room activities going on. And one of them was - - not verbatim, but basically give me your name, clack, clack, clack, clack, meaning give me your name, and then the taser being applied?”

A: “Yes sir.” Q: “In reference to Hibbs, have you heard that?” A: “Have I heard that rumor, sir?” Q: “Not rumor. Did you hear that in the locker room,

those conversations by other deputies?” A: “I don’t remember. I don’t remember anything

specific. I do remember hearing, he had used a taser on someone that was handcuffed in the back of a car and he got talked to by the Sergeant and then the Lieutenant talked to him, but I cannot give you any specific rumors or jokes or anything that was going on about the department in the locker room. I was just trying to pass training. I didn’t want to go back to the jail.” (110, 5-22)

Q: “When someone deploys a taser in the field, is there some type of procedure that a patrol officer must follow to document the use of that taser in the field?”

A: “There is.” Q: “What procedures must a patrol officer

follow?” A: “They should document in their report

their reason for use of the taser, justification for the use, and where it was used - - following to make sure that the patrol sergeant is notified.” (124, 21-26; 125, 1-4)

Q: “When you spoke to Deputy Hibbs the early morning hours of September 13, 2007, did he brief you about what had happened earlier that morning?”

A: “Yes, sir, he did.” Q: “What did he tell you?” A: “He told me that he conducted - - he and his

trainee conducted a ped stop on a suspicious person who was standing on the sidewalk, I believe who had a heavy coat on and I believe who had a can of beer in his hand. And when he approached the individual was somewhat uncooperative. He attempted to pat him down for weapons, and at that point in time, the person got away from him, he ran away from him. As he ran away from him, he stripped him from his jacket. Apparently he must have had enough hold on his jacket to hold it and the guy basically ran out of his jacket.”(131, 23-26; 132, 1-11)

Q: “Did Deputy Hibbs ever tell you that - - first of all, did Deputy Hibbs ever tell you that how many times he, Deputy Hibbs, had tased the suspect while taking him into custody?”

A: “No, he did not. I don’t remember for sure. All I know he said is that they were wrestling with the guy. He was trying to get a taser on him. I don’t know how many - - if the tase was more than once or not.”

Q: “Did Deputy Hibbs ever tell you he tased this particular individual back in the patrol unit area where this individual was currently located when you were out on the scene?”

A: “He did not.” (132, 23-26; 133, 1-9)

Q: “If that had happened, that he tased someone in the back of the patrol unit that’s handcuffed, is that something that was required to be documented in a report?”

A: “Absolutely.” Q: “Is it policy for the person who

actually uses the taser gun on a suspect to document it in their own report?”

A: “Yes.” (133, 14-22)

Arrestee Lares He admitted during his grand jury testimony

that he committed the crime for which he was arrested, including carrying a loaded firearm

His grand jury testimony also corroborated that he was Tased in the back of the patrol car while handcuffed.

Taser download records produced by OCSD confirm that the Taser was activated nine minutes after the first activation. (corroborates witnesses testimony on second Taser activation).

OCSD Meeting Participants: Captain D. Nighswonger

Lt. Toni Bland Investigator Stacy Lang I/A Investigators including

Gabrielle Peloquin 2 I/A Sgts

OCDA Meeting Participants ADA Mike Lubinski DDA Israel Claustro Inv. Eric Ackerlind

Pre-trial meeting to coordinate upcoming trial Agreement that this trial would be presented as a

joint prosecution by OCSD and OCDA Request for OCSD to provide expert witnesses for

use of force and report writing Discussion of Sheriffs’ witnesses “going sideways” Both parties felt it was important to have a Sheriffs’

presence at trial Lead Investigator Internal Affairs

Both OCSD and OCDA communicated regularly with each other from beginning to end of case.

During the trial:

Lead Investigator S. Lang was investigating officer and was present during the entire trial working together with the prosecuting attorney.

Internal Affairs present during large portion of trial.

GRAND JURY JURY TRIAL He placed Lares in rear passenger side

of patrol vehicle: Feet were in foot well of backseat, not

dangling. Lares was not aggressive or combative

or trying to get out. Never saw Gomez Lares resist arrest or

struggle while handcuffed in back of the patrol vehicle. (40, 21)

Never heard Lares struggle or physically resist in the back of the police car when Hibbs tasered him. (40, 26)

Could see back of Lares through rear window though it was dark. (67, 14-17)

Lares was pleading mercy from deputy Wicks/Hibbs. (33, 11-12)

Lares was crying and complained of having difficulty breathing while in patrol vehicle.

Q: Did you ever see person actually resist while he was seated in rear passenger seat“I did not see,

sir, no.”“I couldn’t see

inside the vehicle sir.” (54)

GRAND JURY JURY TRIAL Lares did not do anything to justify

being Tased in the back of the patrol vehicle while handcuffed.

Was sure of it. (41, 8 -11) Lares did not deserve to be Tased.

(51, 20) Knew it wasn’t proper to use Taser

on Lares. Didn’t know what was going on,

thought it was a little ridiculous. (51, 20)

“Lares was in the back of the car handcuffed.”

“I mean, we could have got his name another way.”(51, 25)

Did not see arrestee become combative, but “could not see inside the patrol vehicle.” (54, 18-22)

Lares did not become aggressive with FTO, but “I could not see sir.” (55, 4) “I didn’t hear anything.” (55, 6)

Did not see FTO holding Taser, but “could not see inside the patrol vehicle.” (54, 3)

GRAND JURY JURY TRIAL

“I was on the side. The car was parked along the curb, so I was standing on the curb on the side of the car at the trunk.” (35, 24 and 36, 1-8)

Dep. Hoffman was right next to him (Wicks) (44, 3)

“I was at the rear of the vehicle.” (43, 5)

“I was standing right behind the vehicle.” (referring to the area just behind the license plate) (45, 16)

“I should have been closer to the right rear of the patrol vehicle for officer safety.” (45, 2)

“If I said the side, I meant on the side of the curb at the rear of the vehicle.” (78, 6-10)

GRAND JURY JURY TRIAL

Did not document second use of the Taser on Lares while he was handcuffed in the rear of the patrol unit.

Wicks wrote reports, Hibbs would approve them. (47, 15)

FTO Hibbs approved report for that evening. (48, 13)

FTO Hibbs did not say “put the second Taser use in police report.”

“Don’t know that I saw the second Taser use, but I heard it.”

Did FTO review police report? If gave FTO a copy of

police report? (84, 14) “I don’t recall” (84, 19) Again, I’m not sure that

[FTO] read the report. I can’t say for certain he did. Some reports he read, some he didn’t. (122, 5) (119, 17)

Did FTO approve police report? “I don’t recall” (133, 25) “Not say for certain”

(134) Wicks admitted he told

Grand Jury that Wicks would write all paper, FTO would approve. (121, 23)

If you use force, you write use of force report. (81, 13)

Admits documenting the first Taser use. Explains he did not document the Taser use while

Lares was handcuffed in rear passenger seat of patrol vehicle because he “didn’t see it.” I couldn’t write on that. I couldn’t see it. I couldn’t write on something I couldn’t see. (80, 24) (137, 17)

Intentionally left it out of police report, because he didn’t see it. (112, 11)

No justification for Taser use, did not see anything. (81)

He couldn’t see from exactly where he was. (160) If a report needed to be written, I assumed Dep. Hibbs would’ve written it. (160)

It was not important to document the taser use in the back of patrol vehicle. (158, 21) (161, 1)

NOTE: Sgt. Long testified during trial that on September 6, 2007 (One week prior to incident) FTO Hibbs instructed Deputy Wicks on OCSD Use of Force Policy and signed off on the document.

Deputy Wicks

Deputy Hoffman

FTO Hibbs

Sgt. Long(Not

present until

conclusion of the use of force)

FTO Thomas

Arrestee Lares

GRAND JURY JURY TRIAL

It is policy that the person who actually uses the Taser gun on a suspect document it in their own report. (133, 22)

If in a training team, deputy who did not actually use the Taser could document Taser use. (133, 24 and 134, 1)

Deputy who actually uses force DOES NOT have to personally document it, report writing deputy may document the use of force. (170)

GRAND JURY/TRIAL WICKS TESTIMONY(GRAND JURY AND JURY

TRIAL) Did not see or hear Taser being activated after he arrived on scene. (95)

Did not see or hear Taser being deployed on the person in the back of the patrol unit (95).

GJ: Best impression was that he was not around when it happened. (103, 13)

Hoffman stood right next to Wicks when the Taser went off, and Wicks could hear it. (59, 25); (40, 20)

He was right there.

Deputy Wicks

Deputy Hoffman

FTO Hibbs

Sgt. Long(Not

present until

conclusion of the use of force)

FTO Thomas

Arrestee Lares

Q: “Didn’t you tell investigators on that day when they asked you about this memo, he was upset, meaning Deputy Thomas, and maybe it was my assumption that Deputy Hibbs tased the guy because he was upset?

A: “I was trying to reconcile with myself how - - Q: “Did you say that or not, sir.” A: “Yes.” Q: “So it may have been your assumption that

Deputy Thomas thought he knew the reason for the use of that taser?”

A: “Yes.” Q: “Not a fact. An assumption; correct?” A: “I believe so.” (38, 13-25)

Q: “He told you Mr. Lares got tased; right?” A: “Yes.” Q: “He told you Deputy Hibbs was upset?” A: “Yes.” Q: “But that nexus, that connection, he did this

tasing because he was upset is not something that Deputy Thomas told you, is it?”

A: “No.” (39, 13-20) …. …. Q: “That was another assumption, was it not? …. A: “Yes.” Q: “An assumption. Not a fact; correct?” A: “Yes.” (40, 1-9)

Deputy Wicks

Deputy Hoffman

FTO Hibbs

Sgt. Long(Not

present until

conclusion of the use of force)

FTO Thomas

Arrestee Lares

Penal Code Section 118.1: False Report Filed by Peace Officer

Penal Code Section 118: Perjury

Omission in police report does not make it a violation of Penal Code section 118.1.

Elements: Under oath; When the defendant testified, he willfully stated that the

information was true, even though he knew it was false; and The information was material.

No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant.

Even if the statement at issue is made under oath, and is material to the proceedings, it still must be proven that the witness “states as true any material matter which he or she knows to be false.”

In situations where the sworn testimony concerns opinions, estimations, or recitations of events, these elements are often difficult to prove beyond a reasonable doubt.