Use of Force by Deputies Debated in Summations

Nicholas Dowey may have suffered a blow to the head with a baseball bat during a fight outside a wild Meiners Oaks party, but it was a violent struggle with sheriff’s deputies afterward that proved fatal for the 21-year-old man, an attorney told jurors in federal court Monday.

“They weren’t mortal injuries until deputies got there,” attorney Richard Hamlish, who represents the Dowey family, said during closing arguments of the civil trial in U.S. District Court in Los Angeles. “Then they were mortal.”

But the defense attorney representing the five Ventura County sheriff’s deputies being sued for their alleged role in Dowey’s death argued that they had no alternative but to struggle with Dowey, who, even though critically injured, thrashed against the officers trying to help him.

“I’ve been on this case a year and a half,” attorney Alan Wisotsky told jurors, “and I still can’t figure out just what it was these officers should have done. . . . I am proud to be representing these officers, and I commend them for their efforts.”

It was the last day of trial, prompted by a lawsuit filed by Dowey’s parents, James and Ann. The suit alleges that two deputies used excessive force and three failed to get the badly injured Dowey immediate medical care when officers responded to the Sept. 12, 1997, party. The college student died a day later from extensive head wounds.

Hamlish repeatedly criticized former Deputy Donald Rodarte and his partner, Deputy Darin Yanover, who wrestled with Dowey after he ran from them, for using brute force on a man bleeding from a gaping head wound.

Party-goers who witnessed the tussle between Dowey and the deputies testified that the officers used a chokehold, then pepper spray, before striking him in the head with an empty canister. Hamlish argued that a frustrated Rodarte then grabbed a flashlight and struck Dowey over the head several times to try to get him under control.

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“I submit to you that’s excessive force,” Hamlish said. “I suggest to you that’s unreasonable behavior.”

Other deputies at the party stood by while the abuse occurred, Hamlish said, including Sheriff’s Capt. James Barrett of the Ojai station, who was trying to calm a throng of agitated party-goers.

“Mr. Barrett maybe had the most egregious behavior,” Hamlish said. “He watched [Dowey] be put in a chokehold, hit with pepper spray, hit with a flashlight, and he stood there and watched it. He thought it was more important to do crowd control.”

Also on trial are deputies Oscar Gongora and Pat Hardy.

Hamlish also accused the defense team of altering evidence in the case.

A tape recording of the 911 call that evening was “doctored,” Hamlish charged, to include Rodarte’s voice ordering a dispatcher to call for firefighters and an ambulance.

Hamlish said Rodarte never called for an ambulance and pointed to a computer printout of the call that did not include the deputy’s request.

Hamlish also accused the defense team of changing the batteries in Rodarte’s flashlight to the 5-inch rechargeable cell shown to jurors last week. The batteries contradict testimony by witnesses for the plaintiff who recalled seeing C or D type batteries fly from the flashlight as it struck Dowey’s head.

Wisotsky balked at Hamlish’s charges, telling jurors to look at other evidence, including the testimony of an emergency medical technician summoned to the party, to decipher who is telling the truth.

But Wisotsky’s most vigorous attack was on the slew of young witnesses who took the stand for the plaintiff. At least two appeared to be under the influence of drugs as they testified, he said.

Several others, he told jurors, admitted to having problems with memory because they were on medication, had been struck on the head during an earlier fight at the party or had been under the influence of alcohol at the party.

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Still others said they never saw Dowey being struck with a flashlight, Wisotsky said.

“The flashlight blows simply did not happen,” he said.

At most, he argued, Rodarte may have hit Dowey with the bottom of a pepper spray can. An autopsy photo shows a semicircular bruise on Dowey’s skull matching the can’s circumference.

But even so, that’s hardly excessive force, Wisotsky said, considering Rodarte’s partner was by now out of the struggle after being accidentally hit with pepper spray and the crowd around him was becoming increasingly angry.

“He was dealing with a very, very combative subject,” Wisotsky said. “He was unable to restrain him. . . . Perhaps, during the struggle, he struck him. Is that excessive force under the circumstances? I hope you say no.”

Wisotsky asked jurors to consider physical evidence from a forensic pathologist who concluded Dowey’s fatal blows came from a steering-wheel locking device and a bat--not from a flashlight or other police weapon.

The bottom line, Wisotsky said, was that the deputies were struggling with Dowey that night--but only in an effort to detain an out-of-control, injured man long enough for medical help to arrive.

“Sometimes, you have to hurt someone a little to help someone a lot,” he said.

Jurors begin deliberating today.