Kelly Thomas Trial: Defense continues closing argument [Updated]

Police Homeless Death

JOSHUA SUDOCK,/AP

Former Fullerton police officer Manuel Ramos (right) in court Tuesday with his attorney John Barnett.

Police Homeless Death

Joshua Sudock/AP

Orange County district attorney Tony Rackauckas displays a Taser stun gun similar to the one used as a blunt-force weapon against Kelly Thomas during closing argument in the trial of two former Fullerton police officers.


Closing arguments got underway Tuesday in the trial of two former Fullerton police officers charged with beating to death a mentally-ill homeless man in 2011.

Manuel Ramos is charged with second degree murder and involuntary manslaughter, and Jay Cicinelli is charged with involuntary manslaughter and excessive use of force for their role in a physical altercation with 37-year-old Kelly Thomas outside the Fullerton Transportation Center on July 5, 2011. Thomas died five days later in a hospital.

Updates

Update: 5:13 p.m.: Defense continues closing argument

Following the afternoon court recess, defense attorney John Barnett continued to use the timeline of Kelly Thomas' alleged violent behavior as he addressed the jury.

"After the attack on his granddad, he pleads guilty, and he is a "dangerous violent felon," Barnett said.

"You can see a pattern of violence over time," Barnett said, as he recounted incidents at a Starbucks in Jan. 2009 and a fruit stand in June 2010. 

Barnett said the woman who operated the fruit stand had been "terrorized for three years" by Thomas. Those incidents, Barnett said, and others including the Dec. 2010 incident in which Thomas allegedly grabbed his mother's throat indicated a pattern of violent outbursts.

"No one could have predicted what his next moves would be. No one could predict from one minute to the next that he could do something violent, something crazy," Barnett said. "The evidence showed that [defendant Manuel Ramos] was a good cop. He didn't murder Kelly Thomas."

Barnett next showed the jury a timeline of seven previous contacts between Ramos and Thomas prior to the July 5, 2011, incident.

"On January 20, 2009, Kelly Thomas is naked [in a Starbuck's bathroom] and what does [Ramos] do? He uses a successful verbal strategy. That strategy worked on that day with Kelly."

On February 23, 2009, Barnett said Ramos and Thomas had another encounter. 

"The strategy is not to beat him up, not to cuff him up. [Ramos] lets him go," Barnett said. "He says, 'if you bother people, you'll go to jail.' They're talking the same language. Manuel Ramos gets the most desired result."

On May 26, 2010, Barnett said Ramos again used a verbal strategy to deal with Thomas, asking him to "please leave, OK?"

"Here's your murderer," Barnett said. "Here's your homeless harrasser; here's your guy who wants to put hands on Kelly Thomas. We know who Kelly Thomas is."

Then Barnett described the July 5, 2011, incident at the Fullerton Transportation Center. 

"Officer Ramos knows he's had contact with [Thomas] before, he just can't place the name," Barnett told the jury. "And he's saying 'I don't want to take you to jail.' They don't want to harass this guy. They want to get on with their work."

Barnett said Thomas was "verbally aggressive" and being "uncooperative, using the 'f' word frequently."

"But they need to find out who he is. They're not harassing this guy," Barnett told the jury. Barnett called the prosecution's claim that Ramos was "unprofessional" in the encounter "nonsense."

Barnett showed a section of the video in which Ramos puts his gloved hands on Thomas. Ramos instructed Thomas to put his hands on his knees. Thomas is seen taking his hands off his knees, and then Ramos pushes Thomas' hands away. 

"That wasn't an arrest. That was maintaining security during a lawful detention," Barnett said. 

"But there's something different going on with Kelly that night, in his own head," Barnett said.  He said Thomas was more verbally aggressive than in previous contacts with Ramos.

Barnett said in the midst of the verbal confrontation with Thomas, Ramos and a passerby  have a cordial conversation. 

"There's going to be a life and death struggle in three minutes, and the guy who wants to lay hands on Kelly Thomas, he's laughing," Barnett said. 

"It's right after this laughing that the prosecutor said Kelly Thomas lawfully fled for his life," Barnett said.

Barnett said Ramos issued orders to Thomas for the safety of officers, not because he was "suspected of mail theft." 

"He didn't just flip the switch from laughing with the other guy to wanting to do a beat down, that's what the prosecutor would have you believe," Barnett said. 

Barnett said Ramos comment "See these fists, they're going to f**k you up" are the words the prosecutors said would make a reasonable person flee

Before he could finish his closing argument, Judge William Froeberg adjourned court for the day. Barnett is expected to finish his closing argument when court resumes Wednesday before Michael Schwartz, representing co-defendant Jay Cicinelli, offers his closing argument. 

Update 3:45 p.m.: Defense begins closing arguments

John Barnett, defense attorney for Manuel Ramos began his closing argument to the jury by depicting  Kelly Thomas as a violent, dangerous man.

"This is about Kelly Thomas who beat his 73-year-old grandfather with a poker, put his hands around his mother's throat. This is a case that involved Kelly Thomas with outbursts over years -- spontaneous acts of violence that nobody caused except Kelly Thomas," Barnett said. "Kelly Thomas presented a danger. We're not smearing Kelly Thomas, he smeared himself with his conduct. Kelly Thomas was a dangerous, a very dangerous guy.

"This case isn't about a bully cop who was trying to beat down a homeless guy. [Ramos] acted the way he was taught. He followed that training to a T.  He didn't kill Kelly Thomas. He didn't use excessive force. He did exactly as he was trained to do, and he's not guilty of murder and he's not guilty of involuntary manslaughter."

Barnett used overhead slides and an easel with cardboard printouts to show the jury the definition of murder and involuntary manslaughter used by Orange County District Atty. Tony Rackauckas and called them "theories." 

"The people have to prove what the cause of death was, but here, there is some controversy over it," Barnett said. "Dr. Singhania [the pathologist who performed Thomas' autopsy] said it was mechanical compression that caused the death. During the preliminary hearing, she said it was a discrete event. She pointed to a specific part of the video when that happened. But Manuel Ramos was nowhere near Kelly Thomas and his chest when that happened."

Barnett told the jury that Singhania's cause of death determination "evolved" after viewing the video of the incident. 

"Is there reasonable doubt to the cause of Kelly Thomas death?" 

"The medical experts can't agree," Barnett told the jury. "There's controversy over the cause of death."

"What is it that Ramos did that make him a murderer? He says 'these fists are going to f**k you up.' But what's the theory that makes him a murderer? Ramos' threat is what the prosecution uses to make Kelly Thomas' flight lawful."

"Ramos can use force and the threat of force to get [Thomas] to comply and that's what he was trying to do," Barnett told the jury.

"Who was Officer Ramos dealing with on July 5, 2011. I know the prosecution doesn't like this, but in order to judge [Ramos and co-defendant Jay Cicinelli] it's important to know this."

Barnett proceeded to talk about Thomas' alleged use of methamphetamines, which he said started in the tenth grade. He also discussed what he said was Thomas' "highly violent" nature. He used the courtroom monitor and showed the jury a timeline of various incidents, in which he said Thomas exhibited that behavior. 

Holding a fireplace poker, Barnett described the June 8, 1995, incident in which Thomas was accused of striking his 73-year-old grandfather with a fireplace poker. 

"What [Ramos] dealt with was a various dangerous person," Barnett told the jury, hitting the poker on the podium.

Judge Froeberg ordered the afternoon break. Barnett will continue his closing argument when court resumes. 

3:10 p.m.: DA's closing arguments enter third hour

Following the lunch break, Orange County District Atty. Tony Rackauckas continued his closing argument.

"Frankly, I wish this didn't have to take so long," Rackauckas told the jury, beginning his third hour of closing argument.

Rackauckas returned to explaining the concept of "implied malice" that's part of the second-degree murder charge leveled against Manuel Ramos. 

He also explained the criteria for the involuntary manslaughter charge that Ramos and co-defendant Jay Cicinelli face and what the prosecution must prove. 

Rackauckas used a combination of slides, autopsy photos, audio and video from the incident as he addressed the jury.  

"There are a number things in evidence here that clearly show that defendant Ramos acted with a conscious disregard to human life," Rackauckas said.

He cited a section of the Fullerton Police Department manual that describes the use of leg restraints. 

The manual states that when leg restraints are used, the person should be placed in an upright position because if the person is on "his/her stomach for an extended period of time it could potentially reduce their ability to breathe."  Rackauckas displayed the section on slide for the jury to see. 

During the struggle, Thomas was placed on his stomach by officers and later, his legs are restrained by officers and a device called a hobble. 

Rackauckas used audio from the portion of the struggle where Kelly Thomas repeatedly tells officers he can't breathe and then later calls for his dad, saying, "help me, help me, please, dad help me. I can't breathe … I can't breathe sir."

During the playing of the audio, the courtroom monitor was used to show key highlights of text from Thomas' pleas including "Help me" and "I can't breathe."

Rackauckas said Thomas' pleas for help were disregarded by Ramos. He used a picture taken from the video which showed Ramos on Thomas' chest.  "That's where the compression starts," Rackauckas said.

"He was trying to tell him, 'I can't breathe,' " Rackauckas told the jury. "So there was a lack of oxygen caused by compression."

Rackauckas cited testimony from medical experts that said holding the legs could impair breathing.

"We're taking about hitting Kelly Thomas in the face with a Taser, that's the assault here," Rackauckas told the jury, as he explained the involuntary manslaughter charge against Cicinelli. 

Rackauckas cited Fullerton Police Department policy in the use of impact weapons. He said the policy state that officers should avoid head strikes when using those weapons. Although the Taser is not mentioned specifically in the policy, the district attorney said it should be considered one. He referred to testimony from Fullerton Police Sgt. Kevin Craig, who said a Taser could be used as an impact weapon. 

Rackauckas then returned to the video and showed the jury a portion of the video,  first in real time then in slow motion, where Cicinelli is seen using the Taser to strike Thomas' head and face.

Using a slide of the Taser covered in blood, Rackauckas asked the jury: "Is there any question this could cause serious damage?" 

Rackauckas then told the jury, using a slide, what Cicinelli said the night of the incident: "I got the end of my Taser and I probably…  I just smashed his face to hell."

As Rackauckas read the Cicinelli comment aloud, a picture of Thomas' bloody face, taken later at the hospital, was shown on the courtroom monitor. 

The district attorney referred to testimony from three medical experts, including the doctor who treated Thomas at the UC Irvine Medical Center and the pathologist who performed his autopsy. The three  testified Thomas died as a result of of a lack of oxygen to his brain, caused by compression and blunt facial and head injuries. 

A color picture of Thomas bloodied head, tubes attached to his nose and mouth, was on the courtroom monitor with the word "Reasonable?" above it as Rackauckas wrapped up his closing argument. 

"Is this the result of reasonable police force? This didn't have to happen. This started out as a routine incident. Kelly Thomas did not represent any threat or any harm to any officer. So defendant Ramos committed murder, and defendant Cicinell committed involuntary manslaughter," Rackauckas said.

Update 1:15 p.m.: DA's closing arguments enter second hour

Following a brief recess, Orange County District Atty. Tony Rackauckas continued his arguments.

He began by telling jurors that Kelly Thomas had "every right to resist this use of force."

"Ramos was well beyond his legitimate authority at this point," Rachauckas said.

"Ramos assaulted Thomas with his baton and he sought the assistance of Officer [Joe] Wolfe. What he knew was that he was out of bounds with use of police authority. He had a duty to stop the use of force against Kelly Thomas because it was unlawful.

"He knew without question, that by assaulting Kelly Thomas, that he was subjecting Kelly Thomas to danger. Ramos persisted in his conduct until Kelly Thomas went quiet. Officer Ramos had a legal duty to bring this whole situation to a stop, but did just the opposite.

"He encouraged the continued use of force by officers against Kelly Thomas. When Kelly Thomas was being compressed, [Ramos] was holding his legs.

"Every use of force against Kelly Thomas was at the behest of Officer Ramos.  Why didn't he stop it? He sure knew he was supposed to. He never did anything to keep Kelly Thomas from dying. 

"Throughout the entire deadly beating, Manuel Ramos acted with complete and utter disregard for the life of Kelly Thomas."

Prior to resuming playback of the surveillance video of the struggle, Rackauckas again used a slide citing California law relating to an officer's use of force and duty to a person being arrested.

In the video, Thomas can be heard during the struggle saying, "I'm sorry, I'm sorry dude, I'm sorry."

Officer: "Put your hands around your back."

Thomas: "OK."

Thomas: "I can't breathe man. I can't breathe man, please."

The video was paused and Rackauckas addressed the jury:

"So, when they tackled Kelly Thomas, he tried to run. What does he say when they have him on the ground with their batons? He says 'I'm sorry, I'm sorry.' It's not the words of someone being arrested. It's the words of someone being beat up.

"Look at this video, where they're pushing him forward and telling him to cooperate. But he  can't do anything. He's not assaulting them. He's not doing anything aggressive to them."

When the video was played again, co-defendant Jay Cicinelli can be see in the struggle, using his Taser. Three officers -- Ramos, Wolfe,  and Cicinelli --are seen on top of Thomas, who repeatedly screams as the Taser is used against him. In the courtroom, some spectators teared up as the video was played.

"Thomas is not assaulting anyone, he is trying to get the pain to stop," Rackauckas said. "Cpl. Cicinelli doesn't believe [Thomas is] under control yet. We're getting to a point now where the situation is getting grave for Kelly Thomas."

Rackauckas pulled out a Taser like the one used by Cicinelli during the struggle. He held it in front of the jury then banged it slightly on a podium. Cicinelli allegedly used the hard plastic Taser to strike Thomas' head and face.

"This is a hard device," Rackauckas sadi. "It doesn't have too much give to it. Kelly Thomas' head is to the pavement and he's getting hit from the top down. This is going to cause damage to somebody's face. Kelly Thomas does not represent a danger to the officers. He's not dangerous to anybody at this point. He's just resisting. So Cpl. Cicinelli decides to use deadly force to control the situation. That is unreasonable and excessive."

The video continues. Cicinelli is seen striking Thomas with the Taser as a fourth Fullerton police officer arrives to assist in the struggle.

Thomas can be heard yelling, "Dad, help me. Help me, please dad, help me, help me please, dad. Ouch. Dad, I can't breathe. Help me dad, help me dad."

"That's Cpl. Cicinelli putting his full weight on the patrol car and helping to hold Kelly Thomas down," Rackauckas told the jury. "Kelly Thomas is obviously not getting enough air. The situation right here is getting very grave for Kelly Thomas. Manny Ramos remarks that there is blood everywhere."

As the video was played again, the mother of Kelly Thomas, Cathy Thomas, looked down and began sobbing.

Thomas: (voice slower) "Daddy, daddy, daddy."

The video was played to the point where Thomas is no longer heard. Several officers are standing around Thomas, who is on the ground. Paramedics arrive. 

"It's remarkable how casual all the officers seem to be in the aftermath of this beating," Rackauckas told the jury after the video was stopped. "And a short time after this, when Kelly Thomas is being taken to the hospital in an ambulance, Manuel Ramos gets on the radio and called dispatch to identify Kelly Thomas."

Rackauckas then explained the charges facing Ramos and Cicinelli, using slides on the courtroom monitor. He referenced a section of the Fullerton Police Department manual that details how officers are instructed to deal with people who are mentally disabled. 

"Now, Manuel Ramos is charged with second-degree murder and involuntary manslaughter. We're dealing with implied malice here," Rackauckas said, explaining the second-degree murder charge to the jury. 

Rackauckas said the threat by Ramos -- "These fists are getting ready to f**k you up" -- was a threat of excessive force.

"The threat was unnecessary. In all past contacts Ramos had with Mr. Thomas, Thomas was obedient, passive and complaint."

Rackauckas then showed slides taken from the surveillance video as he told the jury the posture of Thomas was not a threat to Ramos or anybody else.

"Thomas has been compliant. He's followed instructions, He's even volunteered to go to jail,"  Rackauckas said. 

Rackauckas said Ramos was "anxious to take Thomas to jail."

"He never tells Kelly Thomas he's going to be arrested rather than be 'F'd up by fists," Rackauckas, said, returning again to the video.

Ramos: "I'm not f**king around anymore, dude."

Ramos: "Get on the ground. Get on the ground."

"There's no statement of arrest," Rackauckas told the jury after the video was stopped. "Why would somebody who knows he's about to get beat by police get on the ground?"

"It's up to you  to determine what force a reasonable person might use to resist," Rackauckas told the jury. "All his resistance was defensive, not assaultive, an instinctive effort to survive.

"Thomas statements are entirely defensive: 'Help me sir, I can't breathe.'" 

Rackauckas showed a photo of Ramos injuries – abrasions to an elbow and a scrape on a knee – telling the jury those injuries were not from an assault. 

Rackauckas again played the video from where the physical struggle begins to the end of the altercation. Thomas is handcuffed, rolled on his face and begins calling for his dad and that he can't breathe.  The video is stopped after Thomas' last words are heard. 

"Failure to act can be an act if there is a duty to act and you don't do it," Rackauckas told the jury. He said Ramos had a duty to assist Thomas.

"He exposed [Thomas] to unreasonable risk to third parties. As this was going on, he was still asking for more help. During that entire time, he never called it off. And his subjecting Kelly Thomas to the danger of these other police officers. He assisted in all the force. He even assisted in rolling Kelly Thomas over on his stomach when they put the hobble on him."

"Officer Ramos had a duty to relieve Kelly Thomas because he put him him at risk of death," Rackauckas said as he again showed the portion of the video in which Thomas is calling for his dad as officers rolled Thomas over on his stomach. 

Update: 11:38 a.m.: Prosecution begins closing arguments

"All the evidence is in and you've heard the judge's instructions concerning the law," Orange County District Atty. Tony Rackauckas told the eight-woman, four-man jury as he started his closing argument.

"This is going to be a long argument," he said.

Occasionally using slides of the instructions jurors were given, Rackauckas said it is up to them to determine whether Ramos and Cicinelli used excessive or unreasonable force based on all the evidence that has been presented in the trial.

"This is your decision to make as a jury. You speak for the community in this case,” he said. “You're going to speak as the voice and the conscience of the community in this case. You're going to send a message to the police and the public.”

Rackauckas then focused the jury’s attention on a key piece of evidence both side have used in their cases: a 34-minute surveillance video tape of the altercation synched with audio from the digital recorders officers wore on their uniforms.

“It's fortunate that there was a video on a pole at the transportation center that picked up all of this activity otherwise we wouldn't have a record of this incident at all,” Rackaukas said. “You can see and hear for yourself what happened. It's a terrible thing. What you're watching is a person dying at the hands of police. You're watching a homicide, so it's not a fun thing.”

DA: Kelly Thomas did not die from a weak or diseased heart

Rackauckas then sought to dispel a central argument of the defense case: that Kelly Thomas died from a weakened heart brought on by years of drug abuse.

"He didn't have a weak heart. Not many people would survive that struggle with police officers. This whole idea of a weak heart is just nonsense,” Rackauckas said. "You can see everything. You can watch it. You can see he was not acting violent on that night."

Rackauckas said evidence introduced by the defense that Thomas had a violent past was an attempt to "smear” him.

"We don't expect our police officers to mistreat a person because of their station in life or because they don't like them,” Rackauckas said. “It's not for the police to decide about punishment.”

The district attorney also challenged the testimony of defense experts who concluded Thomas had used methamphetamines and that that caused long-term abnormalities in his heart that made him vulnerable to a heart attack.

“Another smear,” Rackauckas said. “And, it's not true. 

"This is not someone who died from a weak and diseased heart. He put up a struggle until he couldn't take it anymore, and his system shut down. So the stuff about a diseased and weakened heart has no value in this case. So what are you left with? That Kelly Thomas was a drug abuser? It's just another smear. All that information about Thomas being a drug abuser is just not true. There is no evidence of Thomas being an abuser of methamphetamines."

Surveillance video played for jury

Rackauckas next walked the jury through the surveillance video, stopping and starting it. He started by playing it when Ramos is first talking to Kelly Thomas. Thomas is seen wearing a backpack, standing face to face with Ramos, as Ramos twirls his baton. 

"It's certainly just a routine matter to Kelly Thomas and defendant Ramos as well," Rackauckas told the jury. "But he is twirling his baton, and it sets the tone."

Rackauckas mentioned that Thomas and Ramos had at least seven previous contacts before the July 5 incident. 

The video was played again, continuing from the point where it was stopped. Thomas and Ramos are still standing and talking: Thomas with his arms folded across his chest, Ramos twirling his baton.

Ramos can be heard saying, "Seems like every day we have to talk to you about something."

"This kind of conversation going back and forth is really unprofessional on the part of the police officer," Rackauckas told the jury as the video was paused. "As it goes through, the unprofessional conduct of Manuel Ramos makes it appear that [Thomas] is being harassed."

"You can see from the conversation that Kelly Thomas was talking to someone that knew his name," Rackauckas said after the video was played again. Ramos is heard asking Thomas: "Is your name Kelly Thomas?"

"Kelly Thomas wasn't even asked if they could search his backpack. Thomas took the backpack off himself, so he's cooperating," Rackauckas told the jury as another portion of the video was played.

DA: Thomas was complying with officer's orders

Later in the video, Ramos and Thomas continue talking. But Thomas, following Ramos' instruction,  is now seated on the ground, his back against a low brick curb, with his legs stretched out in front of him, hands behind his back. At times, Thomas moves his hands and feet in different positions. A second officer, Joe Wolfe, is seen going through Thomas' backpack as the conversation between Ramos and Thomas continues.

“Kelly Thomas did comply with Ramos' orders. He sat on the little brick curb. Then there's a lot of talk about Thomas' name. Ramos gives Thomas a lot of instruction about how to sit, and they go back and forth. It appears Kelly Thomas is confused. But he gets in the position for a very short time, then he changes his position," Rackauckas told the jury. "But Ramos didn't follow through on the orders. He is talking to that passerby and not paying much attention to Thomas at all. He is not in a professional way controlling the situation."

"Why do I keep harping on why this is sloppy police work? Bad police work is destined to lead to bad results. Sloppy unprofessional police work is at best, at best, negligible," Rackauckas said.

He told the jury that at this point in the encounter, Kelly Thomas did not pose a threat to Ramos or Wolfe. 

As the video resumed, only Thomas is seen for a short time, sitting by himself, as Ramos talks to Wolfe about the contents of Thomas' backpack. When Ramos returns to Thomas, he again instructs Thomas to sit with his feet out in front of him. 

"What was Kelly Thomas doing? He is sitting there waiting. He's not doing anything. He's not being a threat. What would happen if they took the backpack, took it to the station? They would have found out the letters in the backpack weren't stolen, and the backpack wasn't stolen. It was left in the transportation center. It's not a big dangerous deal or anything. It's kind of small."

“I guess the point is, there's not much reason for an arrest here,” Rackauckas said. “Look how [Ramos] behaves from this point forward. Maybe he was angry about all the lip he got in the last 15 minutes. It's like a lot of punishment coming Kelly Thomas' way instead of a legitimate arrest."

Rackauckas referred to a jury instruction about lawful performance. "The officer must tell that person that the officer intends to arrest him, why the arrest is being made and the authority for the arrest,” he said.

Prior to playing a portion of the video where Ramos has put on a pair of disposable gloves, Rackauckas told the jury what they would see: 

"So clearly, these are not the actions and words of a police officer making a legitimate arrest. He comes out there, he's got his gloves on, 'I'm not f**king around any more dude, I tried to be nice,' said Rackauckas, quoting Ramos from the video. ‘I'm going to be mean now,’ that's what [Ramos] is saying."

"Putting the gloves on, means contact is coming. He's putting his gloves on to handle Kelly Thomas,” Rackauckas said. “It's an unequivocal statement of intent, that he intends to put his hands on Kelly Thomas. And he's already said it's not going to be nice. It's a statement to Kelly Thomas. The next thing that he did was to go over to Kelly Thomas, and put his fists in his face," Rackauckas told the jury, as he clenched his own fists. 

DA: Ramos escalates encounter with Thomas

"'You see these fists, they're getting ready to f**k you up,'" Rackauckas told the jury, quoting Ramos from the video. "Can you imagine a police officer saying that when you're sitting there on a low curb?"

"This was about punching and hitting and causing damage to the person, hurting Kelly Thomas,” Rackauckas said. “So Kelly Thomas says 'it sucks.' They're signaling to each other they know what this [gloved fists] means."

The video was played, then paused at the point where Thomas gets up after Ramos talks about his fists and what they're going to do to Thomas. 

Rackauckas then showed a slide about the use of reasonable force.  (“A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense.")

"This is just a brazen threat to Kelly Thomas. This is just a threat to beat the daylights out of him ," Rackauckas told the jury.

Thomas has a right to defend himself, Rackauckas said as he showed a slide citing California law about the use of reasonable force. 

(“A person being arrested uses reasonable force when he (1) reasonably believes that he is in imminent danger of the unreasonable or excessive use of force by a peace officer.")

"So Kelly Thomas stands up and starts backing away," Rackauckas said. "A police officer doesn't have a right to 'F' somebody up, period. The police officer doesn't have a right to beat somebody up for failure to listen. This is just a brazen threat to beat the living daylights out of Kelly Thomas, period.”

After an hour into his closing argument, Judge Froeberg ordered the morning recess. Rackauckas will resume his close after the 20 minute break. 

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