The 'slap' begins
Some viewers of the videotaped 2008 arrest of businessman Jon Kita might think Seattle Police officer Kevin Oshikawa-Clay was using unnecessary tactics in subduing the smaller, compliant suspect under Seattle's I-5 freeway. A federal judge has already found the dash-cam video "tends to indicate" the officer used excessive force and the case should go to civil trial over Kita's damage claims.
The 'slap' begins
But the Seattle City Attorney's office sees the vid much differently, and has decided to take the digital recording--around which the fate of the case swirls--to the federal Appeals Court in San Francisco. After analyzing each hand-to-head strike, the city is arguing that, contrary to the judge's view, when Oshikawa-Clay banged Kita's head on the police-car hood and then took him to the ground and struck him twice more, the officer was using minimal force: one slap and two bops.
City attorneys, in their appeals brief filed with the 9th Circuit Court two weeks ago, call the use of force a "distraction technique . . . a brief slap and two left-handed fist 'bops' to the head." And that's permitted:
A single open-hand distraction strike to the head and two strikes with the fatty part of the fist, all delivered with Officer Oshikawa-Clay's non-dominant hand, are objectively minimal uses of force consistent with proper training protocol.
At least two of the officer's supervisors who reviewed the video praised Oshikawa-Clay's actions, describing his "quick reaction, sound decision-making ability, and restraint" as "praiseworthy."
The city, which wants the case thrown out, takes exception to the findings of U.S. District Court Judge John Coughenour, who also viewed the video and in April concluded that "At one point, [Oshikawa-Clay] struck [Kita] forcefully on the back of his head. This fact cannot be ignored. It tends to indicate that Defendant used excessive force while arresting Plaintiff," and a jury should be allowed to decide the issue.
The city is also arguing that while Kita today claims he was injured in the incident, he did not complain of any problems when arrested that July day for domestic violence, having allegedly assaulted a woman he shoved to the ground as the officer passed by.
Even if force was excessive, case law requires that Oshikawa-Clay be "given leeway to be wrong" in his perception that Kita truly was resisting and a threat to the officer, the city maintains.
Kita, 49, who is seeking unspecified monetary damages, has said he's not surprised at the department's denial he was the victim of excessive force. He earlier filed documents showing that in the last three-and-a-half years, all of almost 400 police-brutality allegations filed with SPD were rejected by the department. Kita claims the SPD has a "local custom" of allowing abuses by police.
The appeals court has given no indication when it will rule on the city's appeal.