LOS ANGELES COUNTY DISTRICT OFFICE
BUREAU OF FRAUD AND CORRUPTION PROSECUTIONS
JUSTICE SYSTEM INTEGRITY DIVISION

 

STEVE COOLEY - District Attorney JANICE L. MAURIZI - Director
JOHN K. SPILLANE 0 Chief Deputy District Attorney
CURTIS A. - Assistant District Attorney

March 22, 2011

Chief Jim McDonnell

Long Beach Police Department
400 West Broadway

Long Beach, California 90802

Re: .S.I.D. File 10-0509
L.B.P.D. DR 10-45417

Dear Chief McDonnell:

The Justice System Integrity Division of the Los Angeles County District Attomey?s O?ice has
completed its review of the July 5, 2010, death of Brian Powell, which occurred after Long Beach
Police Department (LBPD) assisted Long Beach Fire Department (LBFD) in transporting Powell to
the hospital. We ?nd that efforts to restrain Powell by LBPD Of?cers Paul Tovar, Daniel 
Melendez, Darren Lance, Nicholas Kent, John Garry and Raymond Panek were reasonable and
necessary. There is no evidence that use of force by any of the of?cers contributed to Powell?s

death.

ff] 1 

The District-Attorney?s Command Center was noti?ed of this incident at 6:30 am. on July 5, 2010.
The District Attorney Response Team, consisting of Deputy District Attorney Fernando Guzman
and Senior Investigator Jeffery Scott, responded to the scene. They were given a brie?ng and walk?
through by LBPD, investigators.

The following analysis is based upon the police reports and witnesses? statements submitted to this
of?ce, by Detective Roger Zottneck. Incident reports prepared by each Of the Of?cers involved
were reviewed and considered as part of this analysis. 'Compelled statements, if they exist, were not

reviewed.

FACTUAL ANALYSIS

On July 5, 2010, at approximately 3:39 am, LBPD Of?cers were dispatched to 943 Washington
Place to assist Fire Department personnel with an altered and combative subject. This apartment is
a sober living facility. Of?cer Darren Lance, who was working without a partner, was the ?rst to
arrive. Fire Department personnel had not yet arrived.

 

Clara Shortridge Foltz Criminal Justice Center 

210 West Temple Street

Los Angeles, CA 90012-3210
(213) 974-3888

WEBSITE: 

Chief Jim McDonnell
March 22, 201 1
Page 2 of 6

As Lance approached Apartment he noticed that interior lights were on and the front door was
open.1 He could see two males in the apartment. The male later identi?ed as Brian Powell was
wearing only a pair of basketball shorts. Although it was approximately 60-65 degrees farenheit,
Powell was sweating profusely and wiping himself with a towel. 

The second male, later identi?ed as James Welch, saw Of?cer Lance and motioned for him to come
closer. Powell made contact with Lance who surmised that Powell was possibly under the
in?uence of (PCP).

Lance positioned himself behind a parked vehicle on the street and called for other police units to
assist. Lance drew his ?rearm and held it at the low ready position. When assisting units arrived
Lance holstered his ?rearm and drew his electronic control device (ECD). He aimed his ECD at
Powell?s waist area until he was handcuffed. The ECD was not activated.

Lance moved to the sidewalk which was approximately 15 feet ?om the front door of Apartment
He ordered Powell to exit the apartment and stand at the from door. Powell did as ordered. He
continued to wipe sweat off his face and body and began scratching his stomach. Powell stated 
feel funny. Something?s not right.? Lance noti?ed Powell that the Fire Department was on the

way. 7

Long Beach Fire Department Engine #10 and Rescue #2 arrived. Lance opined that Powell was in
need of medical attention. All of the of?cers present believed that Powell was under the in?uence

of PCP. Fire personnel came to the same conclusion.2

For the safety of ?re personnel, police personnel and others in the area, Lance decided that Powell
should be handcuffed. Of?cers Lance, Tovar, Melendez, Kent and Garry entered the fenced grass
area in front of the apartment and approached Powell.

Of?cer Garry momentarily removed his baton ?om its ring and replaced it shortly thereafter.
O?icers Tovar and Panek removed their ECDs from their holsters and spark tested them to ensure
they were operational. None of these items were utilized on Powell.

Of?cer Tovar asked Powell if he had ingested PCP. Powell responded don?t know. I drank some
beer and now I feel funny.?

Powell complied with Of?cer Melendez? request to lay on the ground face down. He stated don?t
want to ?ght you. I?m not going to ?ght you.? Of?cers Kent, Tovar and Melendez handcuffed
Powell without incident. Because of his size the of?cers used two sets of handcuffs which were

linked end to end.3

 

1 Apartment is on the street level and is accessible from the sidewalk.

2 Powell?s included a distant stare, abrupt twitching motions, rapid repetitive speech, restlessness, profuse
sweating, grinding his teeth and divided attention.

3 Powell was approximately six feet tall and weighed approximately 260 pounds.

Chief Jim McDonnell
March 22, 2011
Page 3 of 6

Powell was searched and then seated on the front steps of Apartment He reiterated several
times that he wanted help and that he wanted to go to the hospital. He denied knowingly taking
illegal drugs but felt that someone may have slipped some unknown substance into his beer.

With the assistance of ?re personnel, Powell rose to his feet and voluntarily walked to the rescue
unit. He voluntarily entered the vehicle and laid down on the gurney. When a paramedic began to
fasten seat belts around him Powell began to squirm and stated ?Help me, help me.? Of?cer Tovar
stood at the rear step of the rescue unit as he again retrieved his ECD and spark tested it. He stated
to Powell ?Brian, listen to them. I don?t want to use this, but if I have to I will.? Tovar replaced the

ECD into its holster.

The paramedic asked police of?cers for assistance to strap Powell to the gurney. Of?cers Lance
and Panek held his ankles down while a paramedic applied hobble straps to one of Powell?s ankles.
Tovar then entered the rescue unit and applied a hobble strap to Powell?s other ankle. Tovar stated
to Powell ?Calm down Brian. Calm down buddy. Everything is gonna be okay.? The hobble
straps were tied to the gurney. A paramedic tried to place an oxygen mask over Powell?s face and
explained that this was intended to relax him. Powell repeatedly tried to bite the mask.

While lying face up on the gumey Powell tried to sit up. A paramedic placed a towel over Powell?s
chest and held down one end of the towel. He asked Of?cer Melendez to hold the other end down.
Melendez did so as Powell was transported to Saint Mary?s Hospital. Of?cers Tovar and Melendez
rode in the back of Rescue #2 at the request of paramedics.4

Upon arrival at the hospital Powell became more combative, yelling and attempting to get off the
gumey. The restraints were removed by police of?cers and paramedics. Hospital security of?cers
placed Powell on a hospital bed and strapped him to the bed. Of?cers Tovar, Melendez and Garry

assisted by placing weight on Powell?s left leg.

Powell became more agitated and was screaming incoherently. He failed to respond to questions by
emergency room personnel. Powell spit on a hospital employee during the examination. The police
officers left the scene at approximately 4:27 am. Powell was pronounced deceased at

approximately 4:50 am.

All of the of?cers mentioned above wrote incident reports. These reports were reviewed in
preparation of this memorandum. There were no material inconsistencies among any of these

reports.

Witnesses

The four LBFD personnel who were present wrote incident reports. Their reports were consistent in
every material respect with those of the LBPD of?cers. Fire?ghter Andy Chan mentioned that an
of?cer removed his ECD from its holsterPowell. Paramedic Matthew

 

4 St. Mary?s Hospital is less than one mile ?om 943 Washington Place.

Chief Jim McDonnell
March 22, 2011
Page 4 of 6

Lawrence heard the sparking sound of an ECD being activated outside the rescue unit. At that
moment Lawrence was inside the rescue unit with Powell.

Nineteen other witnesses were interviewed about their observations, including occupants of
Apartment All of these witness statements were consistent in every material respect with the
statements of LBPD of?cers. 

Baer, who resided in Apartment stated that Powell had used heroin, 
methamphetamine and cocaine in the past ?fteen months. Bill Williams, who resided in the same
apartment, stated that Powell had been ?acting weir and sweating profusely for a couple of days.
Powell recently told Vesna ovan. that he had ?racked a rail? meaning that he had used some
?speed.? All three of these witnesses believed that Powell was under the in?uence of an illegal drug
on the morning of July 5, 2010. 

Stanley Bonnett and Michael Charity shared a bedroom with Powell. They stated that Powell woke
them up by making a lot of noise. Charity described him as sweaty and ?dgety. After hearing
arguing, Brian Smith awoke to ?nd Powell walking in the hallway, banging doors and walls with
his hands. Smith called the apartment manager by telephone at approximately 3 :00 am. Fifteen
minutes later he called again.

James Welch, the manager, arrived at the apartment to ?nd Powell pounding the wall with his ?st.
Welch walked Powell into the garage to talk. Powell was sweating, nervous and moving around.
He picked up several heavy objects and then placed them down. Welch called LBFD. He remained

near Powell until the rescue unit left the scene.

Welch commented that the of?cers at the scene were very professional. Rosalie Leggett added that
the of?cers were very polite and showed the utmost respect to Brian. None of the witnesses saw

any use of force by any of?cer.

Dr. Patrick Cichon admitted Powell into the Saint Mary?s Hospital Emergency Room. Powell was
very agitated and the medical staff was having dif?culty rendering him aid. Dr. Cichon ordered the
staff to apply leather restraints to his wrists and ankles.

Powell was given a shot of Haldol to relax him.S When Powell was able to break through one of the
leg restraints, a nurse asked permission to give him a second dose. Before the second dose was
given, Powell turned to his left and stopped breathing. Dr. Cichon conducted Cardio Pulmonary
Resuscitation unsuccessfully. Dr. Cichon pronounced Powell deceased at 4:50 am.

Autopsy

On July 6, 2010, an autopsy was performed on the body of Brian Powell, by Deputy Medical
Examiner Yulai Wang, MD. Dr. Wang opined that the cause of death was methamphetamine

 

5 Haldol is a sedative.

 

Chief Jim McDonnell
March 22, 2011
Page 5 of 6

intoxication. Other signi?cant conditions included cardiomegaly, coronary atherosclerosis and fatty
liver. The manner of death is accident.

The only signs of trauma to Powell?s body were abrasions around the wrists, which Dr. Wang
characterized as handcuff marks. The toxicology report con?rmed the presence of
methamphetamine in Powell?s blood.

LEGAL ANALYSIS

Penal Code sections 692-694 speci?cally authorize any individual protecting himself or another to
use all force which he believes reasonably necessary and which would appear to a reasonable
person, in the same or similar circumstances, to be necessary to prevent the injury which appears to
be imminent. (See CALJIC 5.30, 5.32)

In Graham v. Connor (1989) 490 US. 386, the United States Supreme Court held that the
reasonableness of the force used ?requires careful attention to the facts and circumstances? of the
particular incident ?including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the of?cers or others, and whether he is actively resisting arrest or
attempting to evade arrest by ?ight.? at 396) Further, the Court stated, ?[t]he ?reasonableness?
of a particular use of force must be judged from the perspective of a reasonable of?cer on the scene
rather than with the 20/20 vision of hindsight.? (Id, at 397) Moreover, ?[t]he calculus of
reasonableness must embody allowance for the fact that police of?cers are often forced to make
split-second judgments - in circumstances that are tense, uncertain and rapidly evolving about the
amount of force that is necessary in a particular situation.? at 397?398)

In Brown v. Ransweiler, 2009 DJDAR 2707, 2710; 2009 Cal. App. LEXIS 200 (2009), the
California Court of Appeal held:

An of?cer ??may use reasonable force to make an arrest, prevent escape or overcome
resistance, and need not desist in the face of resistance.?? (Munoz v. City of Union
C_ity (2004) 120 Ca1.App.4th 1077, 1102 [16 Cal.Rptr.3d 521] (Munoz), quoting Pen.
Code, sec. 835a). ??Unlike private citizens, police of?cers act under color of law to
protect the public interest. They are charged with acting af?rmatively and using force
as part of their duties, because ?the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it.? (Munoz, supra, 120 Cal.App.4th at p. 1109.)

CONCLUSION

The evidence examined in this investigation shows that Brian Powell was under the in?uence of
methamphetamine when he returned to his sober living facility and began disturbing the other
occupants. He was sweating profusely and acting strange causing the occupants to call the manager,
James Welch. Welch spoke to Powell, believed that he was under the in?uence and called the Fire
Department. The Police Department responded to render assistance if necessary.

 

Chief Jim McDonnell
March 22, 201 1
Page 6 of 6

Initially, Powell was completely cooperative. Although he was handcuffed for safety purposes,
there was no use of force required. Powell requested medical assistance, acquiesced to be
handcuffed and searched, and voluntarily walked to the rescue unit.

After laying on the gumey in the rescue unit, he became agitated. Paramedics requested the
assistance of the of?cers to secure Powell to the gumey. The only force applied to Powell by the
of?cers was when they held his arms and legs to assist Fire personnel. Of?cers rendered this
assistance in the rescue unit and again 'at the hospital. This reasonable and effective use of force
allowed the of?cers to minimize the risk of injury to themselves or others.

The autopsy ?ndings con?rmed that the minimal use of force did not contribute to Powell?s death.
The autopsy revealed no undue use of force in the restraint and control procedures applied by the
police. Of?cers Tovar, Melendez, Lance, Kent, Garry and Panek used reasonable and necessary
force to gain control of Brian Powell. Therefore, we are closing our ?le and will take no further

action in this matter.

Very truly yours,

STEVE COOLEY
District Attorney

By

FERNANDO GUZMAN
Deputy District Attorney
(213) 974-5090

c: Of?cer Paul Tovar, #10247
Of?cer Daniel Melendez, #10236
Of?cer Darren Lance, #6041
Of?cer Nicholas Kent, #10244
Of?cer John Garry, #10245
Of?cer Raymond Panek, #5857