EDITORIAL: San Jose (California) needs clear policy on use of force by police

March 3, 2010
Mercury News Editorial

The decision not to indict the San Jose police officers involved in the videotaped beating of college student Phuong Ho last September was no surprise. But the vehemence of District Attorney Dolores Carr's defense of the officers Wednesday was unexpected and disappointing.

Carr went out of her way to discredit Ho, noting he had been in trouble once before — a fact irrelevant to this case — and pointing out that the city's police manual nowhere says officers should use the lowest level of force necessary to subdue a suspect. The clear implication was that police conduct in this case not only was legal but acceptable.

It was not. Now it's up to Police Chief Rob Davis to make that clear.

What happened to Ho may not have been a crime; the law gives wide latitude to officers subduing suspects. But it was wrong. Davis implied as much when he saw the video last year, calling it "deeply disturbing." He said at the time that officers were supposed to use the "lowest amount of force" needed to make an arrest.

In fact, while two use-of-force experts Carr's office consulted on the Ho incident said the officers committed no crime, a third concluded that they had used excessive force.

On Wednesday, Davis said he couldn't discuss the case because his internal affairs unit is investigating whether the officers violated department policies. But he said the police manual, while not explicitly requiring the lowest level of force, makes it clear that the force used must be reasonable. Officers' training, he said, also makes that plain. But officers themselves seem less certain of the policy.

Police were called to Ho's apartment Sept. 3 after he got into an altercation with a roommate. The beating happened in a hallway, when Ho tried to follow officers into his room. They said he resisted arrest; he said he dropped his glasses and bent over to pick them up when the beating and Tasing began. A roommate captured it all in a cell phone video, which is online at www.mercurynews.com.

At a time when community groups were already raising questions about police conduct, the video struck a nerve, particularly with some Asian-Americans upset by the earlier police shooting of a mentally ill Vietnamese man who had attacked officers.

The Mercury News' Sean Webby has reported extensively on an unusual San Jose pattern of arrests for resisting arrest when no other major charge is involved — indicating that minor incidents seem to escalate to physical confrontation. When defendants fight the charge, it is often dropped or reduced. Charges against Ho were dropped last month, when Carr's office decided no jury seeing the beating video would convict him.

The video makes Ho's case unusual. Without it, he might well have been convicted and deported. But it presents an opportunity for Davis to clarify his expectations of officers when force must be used. We hope he does that when the internal investigation is complete.

Ho's beating may look fine to the district attorney, but it's not conduct that San Jose residents expect from their often-exemplary police department.