Excessive Force And Deceptive Report Writing By Clovis Police Unacceptable

“I think the Clovis Police Department in general is an excellent agency, however their conduct on this occasion is unacceptable,”

Jeffrey T. Hammerschmidt

FRESNO, CA (May 15, 2015) – Fresno based criminal defense attorney Jeffrey T. Hammerschmidt is defending John and Travis Smith who stand accused of public intoxication and resisting arrest..  Both have been charged with violations of California Penal Code section 148(a)(1) and 647(f).  Hammerscmidt is requesting the Fresno County District Attorney’s Office dismiss all charges against John and Travis Smith, after considering the actions of the arresting officers. The closed-circuit television (CCTV) cameras operated by the City of Clovis captured video showing multiple Clovis Police Officers detaining, Travis and John Smith, with what can only be described as an excessive use of force.  The video also illustrates the willingness of the Clovis Police Department to practice deceptive report writing.

An intensive review of both CCTV footage and Clovis Police Department reports glaring inconsistencies between the involved officers’ reports and the video were uncovered by the Hammerschmidt Law Corporation.  The video starts with Travis Smith’s interaction with the officers, and their excessive use of force against him.  Once Travis is put onto a gurney and taken away in an ambulance, the video continues with his brother, John Smith, cordially conversing with the same officers before he suffers the same fate as his brother.

At the beginning of the encounter, Officer Wade[1] describes Travis[2] as, “unable to care for himself” in his report and decides to detain him.  Mr. Smith attempts to walk away from Officer Wade, but makes no physical threat to the officer.  In his report Officer Wade describes the arrest of Travis:

“Corporal Gamez and I were able to grab the suspect and assist him to the ground.  He continued to violently struggle on the ground.  The suspect was kicking his legs and actively resisting our attempts to take him into custody.  Corporal Gamez gave a distraction blow and I deployed my taser.  After the taser deployment, we were able to subdue the suspect and take him into custody.”

Officer R. Wade’s Arrest Report, Page 3.

The video footage tells an entirely different story.

The video begins with Travis and Officer Wade casually conversing on the corner while Travis waits for the light to turn green so he can use the crosswalk.  When Travis attempts to cross the street, Officer Wade grabs Travis from behind and Travis instinctively spins out of it.  At this point Travis begins walking backwards away from the officer who unsuccessfully attempts to grab him again.  Officer Wade states that, after Travis spins out of his hold, he assumes a “fighting stance.”  While Travis walks backward from Officer Wade, he never raises his hands to assume a “fighting stance.”

Officer Wade then draws his taser from his holster.  While Officer Wade has his taser pointed at Travis, Officer Gamez approaches Travis from the rear and aggressively takes him down to the ground, utilizing a method proscribed by CAPOST (California Peace Officer’s Standard Training.)  At this point Travis is showing no signs of resistance or violence.  He is lying flat on his back with his knees bent and both feet flat on the ground.  Officer Gamez and Officer Wade each have a knee in his chest with another plain clothes officer standing over Travis’s head.  Again, there are no signs of resistance or any sort of struggle for power between my client and the officers.

Seconds later, Officer Gamez strikes Travis in his head utilizing his elbow, causing him to role onto his side.  Travis was temporarily rendered unconscious by the blow to the head, as such there is still no visual evidence of Travis resisting.  It should be noted here that striking subjects in the head is defined as “deadly force” by CAPOST.  There is also nothing in Officer Wade’s report about asking the suspect to roll onto his stomach or to put his hands behind his back, or an elbow to Travis’s head.  Still not satisfied, Officer Gamez places both his hands on Travis’s side to brace himself while he pulls his right knee away Travis before forcefully delivering that same knee into the small of Travis’s back.  Although Officer Gamez’s report mentions one “distraction blow,” it is unclear to which he is referring; the elbow to the head, or the knee to the back.

The knee to the back rolls Travis onto his stomach and brings Travis back to consciousness.  At this point Officer Gamez, Officer Wade, and the plain clothes officer are all on top of him.  Travis’ feet and legs are motionless.  There is still no sign of resistance or violence on Travis’ part.  It is not until Officer Wade deploys his taser into Travis’s left rib cage that he begins flailing his legs.  While Officer Wade is tasing Mr. Smith, Officer Gamez places him in a carotid hold.  There is no mention of this in any report.  It should also be noted here that in California when a carotid hold is used by a law enforcement officer, that officer is required to notify emergency medical staff, his/her supervisor, and the jail the suspect is taken to.

There is no record of any such notifications being made, nor is there any record of the carotid hold being utilized.

At this point, Travis is face down on the pavement with Officer Wade standing above him with taser in hand, and Officer Gamez lying across his back, possibly still applying the carotid hold.  The plain clothes officer and an unidentified female officer were placing Travis in hand cuffs.  After Travis is cuffed, he is motionless, yet the plain clothes officer knees him in the back twice while the unidentified officer bends his legs up toward his lower back in what can most accurately be described as an attempt to hog-tie Mr. Smith.  The unidentified female officer remains kneeling on Travis’s shins keeping his legs crossed and pushed up toward his back for approximately five minutes.  Again, none of this is described in any of the reports.  Lastly, there is no written record in discovery of a “use of force” report by Officer Gamez documenting the use of deadly force, and the carotid hold.

The ambulance arrives and takes Travis to the hospital to get medical treatment for his lacerations, an X-Ray for his chest, and to have the taser darts removed from his rib cage.  Unfortunately, that is not the extent of the excessive force used by the Clovis Police Department that night.

Travis’s brother, John Smith, approached the same group of officers after his brother had been taken away by ambulance.  John, not knowing what had taken place, asked the officers what took place with his brother.  What began as a cordial conversation between John and the officers ended in excessive force and deceptive report writing.

In their reports, Officer Berna and Officer Martinez describe John Smith as being intoxicated to the point where it was affecting his judgment.  Officer Berna states that John had a strong odor of alcohol on his breath as well as red and watery eyes.  Both officers describe him as confrontational and argumentative from initial contact.  Officer Berna also states that John said, “Why don’t you try to taze me big guy.”  It was at this point Officer Berna decided to take John into custody.  He describes John’s arrest as follows:

“I went over to John Smith and grabbed onto his right hand.  I told him he was under arrest for public intoxication.  John Smith immediately resisted and pulled away.  I chased after him and attempted to control him.  Smith landed on the ground.  He continued to physically resist Corporal Gamez, Officer Martinez and myself.  He was eventually taken into custody after the use of a taser and several attempts to detain him.”

(Officer Berna’s Report, Page 2.)

The deception of the night’s events continues with the Clovis Police Department’s own video illustrating the incidents.

At initial contact the video shows John Smith walking up to Officer Wade, Officer Gamez, and two other officers.  He shakes one officer’s hand and begins inquiring about what happened to his brother.  They talk for approximately two minutes.  There is no audio but the video does not show the conversation becoming confrontational.  The officers begin to walk away from John and it appears he becomes unsatisfied with the explanation of what happened with his brother as he tries to talk to each officer before they walk away.  He begins to walk away and makes an unidentifiable hand gesture before Officer Berna approaches him from behind and attempts to grab him.  He instinctively flinches and Officer Berna goes straight for the carotid hold.  Again, this carotid hold was not documented in any police report, nor were the required notifications made to the proper authorities.

While Officer Berna has his arm around John’s neck he begins to struggle.  At this time the unidentified female officer, who was involved in detaining Travis, comes in and attempts to grab Mr. Smith.  Next, several officers rush in and the camera angle is skewed.  The camera adjusts in time to see John go to the ground.  Within ten seconds of going to the ground, John has seven officers on top of him.  None of the police reports correctly recount this.  All mimic Officer Berna’s report which says there were only three officers attempting to take John into custody.  While the seven officers had John on the ground Officer Martinez tased him twice.  The plain clothes officer that was involved in the arrest of Travis Smith is also involved in John’s arrest.  At 1:44:45, the video shows the plain clothes officer position himself above Mr. Smith’s head and appears to drop a knee onto John’s head.  Travis Smith corroborates this.  There are so many officers on John, it is hard to imagine he was moving at all.  John Smith suffered two cuts on his face, a knee to the back of his head, and was tased twice while he had seven police officers attempting to detain him.

The California Penal Code authorizes officers to use reasonable force to effect an arrest, disregard for the Smith brothers health and safety by employing such excessive force should be considered for felony charges against the offending officers.

The next hearing date for this matter has been set for June 5th, 2015 at 8:30 a.m. in Department One where my office will be filing Pitchess Motions regarding the officers involved in these arrests.

This case has received high profile media attention via ABC owned television news station ABC30-KFSN.  Please see ABC’s coverage of the incident below:


By Corin Hoggard

Thursday, May 14, 2015 06:00PM

FRESNO, Calif. (KFSN) — A questionable use of force by police in Clovis was caught on camera.  “This is a black mark on all officers when this type of thing happens,” said defense attorney Jeff Hammerschmidt. A shot to the head and a knee to the kidney on one brother, while the other brother took a blow to the head as well, according to Hammerschmidt.

The brothers have filed a government claim against the city of Clovis for the violent arrests. They drew the attention of police with some foul language and apparent drunkenness. By the time they got out of custody on charges of resisting arrest and being drunk in public, they had bloody faces and say they were concussed as well.

Travis Smith wandered out of an old town bar and straight into trouble. A Clovis city camera shows him talking to an officer, then trying to walk away, and scuffling when the officer tries to stop him. Another police car pulls up, and Clovis police officers take him down. His attorney has no problem with what happened up to here. But this is where it gets tricky. The same officer who took him down delivers an elbow to the jaw followed by a knee to the kidney area. Hammerschmidt says those are both potentially deadly use of force against a man who, at that point, was not resisting arrest. And when Justin Smith came out of the bar a few minutes later, he says the eventual interaction is even more troubling.

“The one officer, plainclothes, actually looks around to make sure no one’s watching and then drops a knee into Mr. Smith,” Hammerschmidt said.

But the attorney hasn’t even figured out who that officer is. He says the video is shocking, but the police reports are almost as bad. You can see seven people involved in arresting Justin Smith, but only five are mentioned in the reports. And officers only documented only one of the blows that could be considered potentially deadly — calling it a “distraction blow.”

“If you read the reports in this case and then watch the videos, you’d think you were watching the videos from the wrong case,” Hammerschmidt said. “They don’t match the reports at all.”

Hammerschmidt wants prosecutors to drop the charges against his clients. And they’ve already taken the first step to sue the city based on injuries they say they suffered, including concussions. But he doesn’t believe this one incident should define all police — in Clovis, or anywhere.

“I think the Clovis Police Department in general is an excellent agency, however their conduct on this occasion is unacceptable,” Hammerschmidt said.

Action News reached out to the police chief in Clovis, Matt Basgall, who told use this was the first he heard of this incident, but he “will look into the matter and review any tape that may exist as well as look into the allegation of excessive use of force.” The city attorney was unavailable to comment.CLOVIS POLICE QUESTIONABLE USE OF FORCE CAUGHT ON CAMERA.

Fresno County Criminal Defense Attorney Jeffrey T. Hammerschimdt discussed the Smith matter Christopher Gabriel of Fresno’s Power Talk 96.7 Power Talk 96.7