SANTA ANA – Seeking to have charges dismissed against a Fullerton police officer in the death of Kelly Thomas, the officer’s attorney said in a motion filed Tuesday that Thomas could “have avoided a physical altercation” by complying with the commands of the officer.
John Barnett argues in the filing that the action of his client, Manuel Ramos, did not cause Thomas’ death. When a “recalcitrant” Thomas did not comply, Ramos was entitled to use force and the threat of force to complete his arrest, Barnett said in his 80-page motion.
“Rather than use actual force, Officer Ramos employed a lawful, conditional threat, to use force,” he wrote. “The death of Kelly Thomas was not the natural and probable consequence of that lawful threat.”
Ramos, 38, and Jay Cicinelli, 40, both of whom are no longer employed by the Fullerton Police Department, have been charged in the death of Thomas – Ramos with second-degree murder and involuntary manslaughter, Cicinelli with involuntary manslaughter and excessive force. They have pleaded not guilty and remain free on bail pending trial.
The former officers are due back in court for pretrial motions Friday, when Orange County Superior Court Judge William Froeberg is expected to set a date to hear arguments on the motion to dismiss charges. Michael Schwartz, Cicinelli’s attorney, said he expected to file a similar motion before Friday.
The Orange County District Attorney’s Office will respond formally.
“It’s the same arguments that they tried to argue at the prelim and have been telling the media. There’s nothing new here,” said Susan Kang Schroeder, the district attorney’s chief of staff.
After a three-day preliminary hearing in May, Superior Court Judge Walter Schwarm ruled there was sufficient evidence for the officers to stand trial.
Barnett said the evidence is the same and he’s now seeking a review by Froeberg, the trial judge.
“What happened (during the encounter) did not and could not constitute a crime,” Barnett said.
Ramos and Cicinelli were charged in September after District Attorney Tony Rackauckas reviewed a 33-minute surveillance video of their July 5, 2011, encounter with Thomas at the Fullerton Transportation Center that began with Ramos approaching the mentally ill, homeless Thomas about a report of someone fitting his description trying to open doors of parked cars.
Rackauckas said Ramos triggered the sequence of events that led to the fatal fight when he snapped on latex gloves, turned to a sitting Thomas and threatened, “You see these fists? … They are getting ready to f— you up.”
In his motion, Barnett said the district attorney is wrong because Ramos’ threat was conditional and only acted upon if Thomas didn’t “start listening.”
Yet, Thomas “defiantly disobeyed,” Barnett said, adding that his “willful decision” not to comply with lawful orders was a choice that precluded liability on Ramos’ part for Thomas’ death.
“The alleged conduct of Officer Ramos was reasonable and protected by qualified immunity,” Barnett said.
By VIK JOLLY / THE ORANGE COUNTY REGISTER
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