Video shows forceful arrest of an unarmed homeless man. Did Fresno police go too far?
Recently released body cam footage shows how Fresno police officers pinned down and arrested a man for trespassing in February as they cleared a crowded homeless encampment on an empty city lot. Throughout the physical struggle, the homeless man said, “I can’t breathe.”
The video shows “clear use of force,” according to attorney Kevin Little, who is defending Lewis Brown, 60, in court as he faces four misdemeanor charges from that day. Little shared the footage and police report with The Fresno Bee.
Fresno police said they arrested Brown after he was asked to leave and refused and that he was “illegally camping.”
For years, advocates have alleged Fresno police use excessive force on the city’s unsheltered population. The body camera footage of the February incident offers a rare glimpse for the public into those daily interactions.
“They get away with things like that, and we rarely get to see what happened,” said Mike Rhodes, a longtime homeless advocate in Fresno who has been honored by city officials for his efforts.
An edited version of the body camera footage was posted on the Facebook page for the nonprofit Homeless in Fresno with a call to disband the police Homeless Task Force.
The police department’s Homeless Task Force recently came under scrutiny during the work of the Fresno Police Reform Commission. The commission in its final report this fall recommended transferring the budget for the Homeless Task Force to another city department and ending altogether police response to homeless encampments.
Fresno has one of the nation’s highest percentage of unsheltered people experiencing homelessness, and this year’s annual count tallied at least 3,251 people without a home throughout Fresno County.
Fresno city officials historically have struggled to find long-term solutions for the city’s homeless. Finally this year, with a combination of federal coronavirus relief aid and state homeless dollars, city leaders managed to create new shelters by converting blighted hotels into bed space for those without homes. But unhoused people continue to outnumber available shelter beds.
The body camera footage and pending jury trial for the February incident also raise questions about the charges against Brown.
The U.S. Ninth Circuit Court of Appeals ruled in 2018 that punishing homeless people for camping when there’s not enough shelter space available amounts to cruel and unusual punishment. The ruling forced the Fresno City Council to water down its own ordinance banning people from camping in public. Yet the Fresno County District Attorney’s Office charged Brown with a misdemeanor of “unauthorized lodging.”
Body cam footage: ‘I can’t breathe’
Officers arrived to the northwest intersection of Highways 99 and 180 on the morning of Feb. 21 to enforce a city municipal code that prohibits people from camping on private and public property, according to the police report.
Officer Andrew Diaz told Brown, who was staying on the property, to pack his things and leave, according to video footage. Brown seemed to disagree verbally and walk away.
The police report alleged Brown “attempted to rally additional people to prepare resistance against law enforcement.” However, that’s not shown in the video footage.
Walking through the crowded homeless encampment with three other officers about 20 minutes later, Diaz pointed to Brown and told the other officers, “This is one of the guys that told us that we need to leave,” footage shows.
According to the police report, Diaz was accompanied by Sgt. Troy Miller, Officer Gary Holden and Officer Nicholas Quisenberry.
“I did not say that, sir,” Brown replied, putting his hand up in a shrug, which an officer grabbed swiftly and put behind Brown’s back. Brown said he was leaving, according to the video.
“Well, you didn’t leave fast enough,” one officer said.
An officer then pinned Brown to the ground. During the minute-plus physical struggle, several officers appeared to pin Brown down using their hands or feet. At least one officer is seen pointing a gun, and Brown’s legs were crossed and bent behind his back.
“I can’t breathe, man. Come on, you guys,” Brown says, repeating multiple times throughout the video that he can’t breathe.
According to the police report, Brown tried to “conceal his hands under his body” and his legs “began to flail,” so an officer “gained control of both legs by folding one over the other.” Another officer used his foot to push down on the middle of Brown’s back because he was “concerned” with the crowd and Brown’s dog, which can be heard whining and barking in the video footage.
The police report notes Brown was unarmed.
Once restrained, the officers walked Brown next to a police vehicle and made him sit on the ground. Video footage showed blood streaming down his face, around his eyes, nose and cheeks.
An officer wrote in the police report that Brown scraped his face on the ground from rotating his head while pinned down.
An officer then searched Brown and found methamphetamine in his right short pocket; the drug weighed 2.16 grams, according to the police report.
Officers later took Brown to Community Regional Medical Center before he was booked into Fresno County Jail. At the hospital, they found a bigger amount of methamphetamine weighing 5.16 grams in his coin pocket, the police report said. Brown, who is blind in one eye, was also “treated for minor scrapes on his eyebrows.”
In a statement, Fresno Police Department officials said the incident was “thoroughly investigated” by its Internal Affairs Bureau. It’s unclear what the internal investigation found or concluded.
“This is a 60-year-old we’re talking about, legs bent all the way up to the small of his back,” said Little, his attorney. “Another had his foot in Lewis’s back, and another had his knee on his neck, which strikes a very negative chord post-George Floyd, with a gun drawn on him.”
Little believes the officers’ actions reflect the type of training law enforcement officers receive.
“Using force is the first action,” he said. “They didn’t even try to use their verbal command skills. They never told Lewis, ‘You’re under arrest, put your hands behind your back.’”
Court case
Brown was charged with four misdemeanors stemming from the incident, online court records show. The charges include possession of a controlled substance; resisting a peace officer; trespassing and refusing to leave; and unauthorized lodging. He pleaded not guilty to all charges.
The prosecutor offered to dismiss all charges except for the drug possession, for which Brown was allowed to do a drug diversion program. Brown did not accept, Little said, because then he would he forfeit his right to go to civil court and sue for false arrest or malicious prosecution.
That’s also why he chose a jury trial.
“A judge would feel enormous pressure to dismiss these charges, knowing he or she would be leaving the city open to civil liability, so the only alternative is the jury,” Little said.
He added that he and Brown do not agree with the meth charge because the drug was found only after Brown “was wrongfully arrested.” Little filed another motion to suppress the meth charge as illegally seized, he said. The legal proceedings only made it this far because the charges are all misdemeanors, so there was no preliminary hearing, Little said.
The case is scheduled to go to a jury trial Nov. 30, which was previously postponed due to no courtrooms being available.
Little isn’t worried about the video tainting the jury pool because even if they have seen the footage, “they’re going to see the video so many times during the course of the trial, anyway.”
Brown’s criminal history since 2014 includes drug charges, buying or receiving a stolen vehicle or equipment, stints of jail time and violating probation.
Was the homeless encampment illegal?
Little argues Brown was right – the campers didn’t have to leave the property.
“The Ninth Circuit Court of Appeals says that in a city where you have more homeless than you have shelter space, you can’t enforce laws that would essentially criminalize homeless people for merely existing,” Little said.
Fresno police officials said their officers responded to “illegal homeless camping on city property.”
In August 2017, the Fresno City Council outlawed camping in public and private spaces for people who are homeless. The ordinance allowed campers to accept services instead of going to jail. After the Ninth Circuit’s ruling, the council amended the ordinance to restrict police from citing an individual for illegal camping if no shelter beds are available.
While it’s unknown if any shelter beds were available on Feb. 21 when Brown was arrested, Fresno for years has not had enough shelter beds for its unhoused population. The body camera footage does show police officers discussing transporting at least one person at the encampment to a shelter.
Police officials referred additional questions about the arrest to the city attorney’s office. The city attorney did not return messages left by The Bee. Other city officials who also deal with homeless issues did not respond to emails, phone calls and text messages left by reporters.
Officials with the Fresno County District Attorney’s Office declined to comment on what evidence contributed to the charges since the case is set for trial.
Future of the homeless task force
Rhodes, a community advocate and journalist for the Community Alliance, said the footage shows a rare glimpse at how police officers treat the homeless when they’re not being watched by members of the media or advocates. Every time Rhodes attempted to obtain similar footage, he was “told to pound the sand,” he said.
“People can see for themselves what these so-called cleanups are like,” he said. “They’re not cleanups. They are demolitions. It just couldn’t be clearer that this isn’t helping the homeless. This is furthering their misery.”
Fresno City Councilmember Esmeralda Soria – who has been outspoken on homeless issues and serves on California Gov. Gavin Newsom’s homeless advisory task force – said she was surprised to learn Brown was cited and arrested.
“From the conversations I’ve had and inquiries about how (the Homeless Task Force) was working, they told us they weren’t arresting and putting people in jail,” she said. “But they in fact did that to Mr. Brown. I was surprised they went to that extreme.”
Soria was the only councilmember three years ago to vote against a camping ban in the city of Fresno, when she warned the ordinance would be legally challenged and said city leaders shouldn’t criminalize poverty. Her position hasn’t changed, she said in a phone interview Monday.
“It’s criminalizing poverty. That’s essentially what this incident reflects,” she said.
Soria launched an adhoc committee on the city council, together with advocates and experts, to examine the police Homeless Task Force. The committee’s meetings were put on pause while Fresno’s Police Reform Commission also looked at the issue of homelessness in terms of policing. Soria hopes to put the reform commission’s recommendations into action and resume her committee in order to make some proposals to address homelessness “in a dignified way.”
On the other hand, Councilmember Garry Bredefeld said he supports the Homeless Task Force – and said it should be expanded.
The Homeless in Fresno Facebook video post called out Bredefeld for supporting the task force and saying the officers don’t assault people who experience homelessness.
Bredefeld on Monday had not seen the full 45-minute body camera footage, but he said the video posted to Facebook was “heavily edited” and likely left out context.
“These people have an agenda to make officers look bad, and that’s what they’ve done,” he said.
Bredefeld said he talked to Police Chief Andy Hall about the incident, and Hall told him the officers acted appropriately.
“This is a problem that is out of control,” Bredefeld said about homelessness. “Disbanding the Homeless Task Force makes absolutely no sense.”
This story was originally published November 24, 2020 at 12:36 PM.
