No charges for Calif. officer who kicked suspect

AP News
Posted: Dec 30, 2009 6:20 PM

Los Angeles County prosecutors have decided no charges will be filed against a suburban police officer who kicked a surrendering suspect in the head after a dangerous car chase.

Deputy District Attorney Jason P. Lustig wrote in a decision Tuesday that evidence indicated the kick by El Monte Officer George Fierro was likely an attempt to stun or distract gang member Richard Rodriguez.

Rodriguez, a parolee heavily covered in gang tattoos, was lying face-down on the ground during the May 13 incident, which was broadcast by a TV news helicopter. After four officers converged on Rodriguez, two of them did a "high five."

Rodriguez's attorney, Nick Pacheco, told the San Gabriel Valley Tribune that he plans to file a lawsuit because the city of El Monte has denied his client's claim for $5 million in damages.

Fierro should have held his gun on Rodriguez and waited for backup, Pacheco said.

"Instead he kicked him in the head," he said.

A telephone message from The Associated Press seeking comment from an attorney for the El Monte Police Officer's Association was not immediately returned Wednesday.

The decision not to file charges was denounced by the American Civil Liberties Union of Southern California, which issued a statement Wednesday calling it "deeply disturbing."

The incident began with a 30-minute auto pursuit through eastern Los Angeles County. The fleeing car went on sidewalks and sped through intersections before it crashed in Pico Rivera and the driver jumped out.

News helicopters following the pursuit showed Rodriguez giving up after running into a back yard. He was down on a lawn with arms and legs spread when Fierro _ pointing a handgun _ ran up and kicked him in the face.

In deciding against charges, Lustig indicated that Rodriguez lifted his head slightly as Fierro approached, which provoked the kick.

"The physical evidence of Rodriguez's injuries are significantly more consistent with a blow intended to stun or temporarily distract him than with a kick done out of anger or vindictiveness," Lustig wrote.

Lustig also concluded that another officer's use of a flashlight to strike Rodriguez while one of his hands was under his body was justifiable because the known gang member could have been reaching for a weapon.

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The "high five" is a common gesture signaling that the suspect was captured and no one was hurt, he wrote.

"In sum, Rodriguez clearly demonstrated that he did not want to go back to prison and was trying to escape at all costs," Lustig wrote. "Fierro was presented with a highly dangerous and unpredictable suspect who appeared to have no regard for human life."

El Monte police Chief Thomas Armstrong told the Tribune he was pleased with the decision and that Fierro will return to patrol after being assigned to desk duty since the incident.

"Officers do have to make decisions in a split second," he said.

ACLU staff attorney Peter Bibring said the organization "appreciates the difficult, split-second decisions police must make in the heat of the moment" but the authority given to officers "must be used lawfully."


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