Pima County Attorney’s Office 32 North Stone Avenue Suite 800 Tucson, Arizona 85701-1412 Barbara LaWall Phone (520) 724-5600 Pima County Attorney Fax (520) 724-5585 www.peao.pima.aov March 10, 2020 Sheriff Mark Napier Pima County Sheriff's Department 1750 E Benson Highway Tucson, AZ 85714 Re: Use of physical force/PCSO Cases Numbered 190926091 and 19118228 Dear Sheriff Napier: | have read and reviewed the reports in the above-referenced use of physical force investigation in which Pima County Sheriff's Deputy Manuel Van Santen used physical force to restrain two teenage males at a group home on September 26, 2019. | have been asked to determine whether any criminal charges should be filed against Deputy Van Santen. | have met with PCSO Detective Shawn George who summarized the use of force investigation and provided me with materials to review. | have reviewed the 911 call, radio communications, police reports, witness statements, photographs, and video recordings supplied to me by Detective George. | have also viewed a video recording published in the media and verified that it was included among the materials provided to us by Detective George. Based on my review of the materials supplied to me by Detective George, | understand the salient facts to be the following: At about 10:00 am on September 26, 2019, Deputies Joseph Knipp and Manuel Van Santen responded to Vision Quest group home located at 3571 East River Road. An employee had called 911 to report that a teenage male resident with initials 1.0. had been yelling at her and threatening her. In reviewing the call, a male voice can be heard in the background cursing and yelling. During the call, the employee reported that 1.0. just “threw” a trash can. A few moments later, the employee stated that I.O. threatened to throw her just like he just threw the trash can. aDeputy Van Santen arrived at the scene first. He was aware of the details of the 911 report and the threat made to the employee. Deputy Van Santen contacted the employee at the door, whereupon she advised him that I.O. was enraged about not being able to go to school due to a suspension. The employee further advised the deputy that I.. had no arms or legs. Deputy Van Santen entered the kitchen where |.O. was on the floor. 1.0. was extremely agitated and was yelling and cursing at Deputy Van Santen. 1.O., who was able to shuffle around on the floor, tried to push past Deputy Van Santen. Deputy Van Santen put on his gloves and tried pushing 1.0. back in order to prevent him from leaving the kitchen and approaching the employee. 1.0. became even more agitated. Deputy Van Santen grabbed a hold of his upper torso. Another resident at this time began video recording the events. When the video started, Deputy Van Santen had ahold of |.0.'s torso and was trying to get him under control and keep him in the kitchen. 1.0. was almost sixteen years old and weighed 170 pounds. 1.0. was physically resisting and then began to yell at Deputy Van Santen. Deputy Van Santen asked I.0. to calm down while holding |.O. in an effort to get 1.0. to cooperate. After about 30 seconds, I. was able to get away from Deputy Van Santen's grip and maneuvered away from him towards the doorway out of the kitchen. Deputy Van Santen then got on top of |.0. in the doorway area, and used his weight to pin him to the ground and to gain control of him. 1.0. continued to physically resist and verbally shout at Deputy Van Santen while Deputy Van Santen was on top of him. Both Deputy Van Santen and at least one resident repeatedly told 1.0. to “calm down.” After about 10 seconds of having |.O. pinned on the ground, Deputy Van Santen asked him, “Are you going to calm down?” 1.0. responded, “yes” but then continued to yell. After another 10 seconds, Deputy Van Santen advised |.O. that he is going to get up and that he needs to calm down. After about 10 more seconds, Deputy Van Santen removed his arms from around |.0.’s torso, but continued to lean his upper body against |.0. A total of one minute and 30 seconds after the video started, Deputy Van Santen moved off of 1.0. and stood up. Deputy Van Santen then asked I.O. about what had been going on. The deputy and 1.0. had a mildly heated verbal exchange. At that point another male resident, S.S., who was not involved and was observing from across the room, verbally interrupted to express concern about how Deputy Van Santen was speaking to 1.0. by telling |.O. to “shut ... up.” Deputy Van Santen then left |.0. and walked across the room where he and S.S. then had a heated verbal exchange in which Deputy Van Santen used profanity and yelled at S.S. to “shut ... up.” Deputy Knipp then arrived at the residence where he was briefed by Deputy Van Santen. 1.0. remained where he was and remained relatively calm. Deputy Van Santen advised Deputy Knipp that S.S. needed to be handcuffed because he was interfering. Deputies Van Santen and Knipp walked over to S.S. Deputy Van Santen grabbed his left arm and 2began to turn him around to face the wall. S.S. looked over his left shoulder at the deputy. Deputy Van Santen then pushed S.S. around so that he faced the wall and using his own body, pushed S.S. into the wall. Deputy Knipp grabbed a hold of S.S.’s right hand. Deputy Van Santen and Deputy Knipp began to handcuff S.S. During the handcuffing, Deputy Van Santen used his forearm at the base of S.S.’s neck to push his head abruptly against the wall. Deputy Van Santen described in his report that S.S. had physically pulled his arms away, flexed his muscles and moved his right arm forward. Deputy Knipp also described that S.S. physically resisted as he was being placed in handcuffs. This description of S.S.’s resistance cannot be corroborated by what can be seen in the video, but neither can it be disputed by what can be seen in the video, because S.S.'s right arm is not visible in the video; it is blocked by his body. S.S. was escorted outside and placed in a patrol car. 1.0. voluntarily shuffled outside and offered to be cooperative with the deputies. He was arrested and placed into a patrol car without incident. S.S.’s handcuffs were then removed and he was released. S.S. did not complain of any injury. ARS. § 13-409 provides that a law enforcement officer is justified in using physical force to detain or arrest someone, or to prevent an escape from a detention or arrest. “Physical force,” is defined as force used upon or directed toward the body of another person and includes confinement but does not include deadly physical force. In accordance with ARS. § 13-409, an officer is justified in using physical force if: 1) a reasonable person ‘would believe physical force is immediately necessary to effect the arrest or detention or to prevent escape; 2) the officer advised the person of the purpose of the arrest unless it otherwise cannot be made known; 3) a reasonable person would believe the arrest to be lawful. Here, Deputy Van Santen responded to a 911 call where an employee was requesting assistance and had described multiple criminal offenses, such that a reasonable person would believe the arrest of I.O. to be lawful. Once Deputy Van Santen arrived at the scene, |.O. was physically uncooperative and verbally expressed his unwillingness to cooperate. Deputy Van Santen attempted to calm 1.0. down and then attempted to detain him but did not appear to advise |.O. he was under arrest. |.0. continued to physically resist and was able to escape from Deputy Van Santen’s grip and move towards the doorway out of the kitchen. Deputy Van Santen then used force against I.O. by pinning him to the ground near the doorway until he calmed down. Deputy Van Santen was justified in preventing 1.0. from leaving the kitchen and moving to a location where he could further threaten the employee, and once 1.0. calmed down, Deputy Van Santen stopped the use of physical force against him. The first question presented is whether the amount of force used by Deputy Van Santen to restrain I.O. was necessary to prevent him from leaving the kitchen area where he was being detained. That question cannot be answered definitively. In order to pursue criminal charges, the state must have not just probable cause, but a reasonable likelihood of proving to a jury beyond a reasonable doubt that the physical force used was not immediately necessary to prevent I.0. from leaving the kitchen and again threatening the employee. That high burden cannot be met in this case. Accordingly, no criminal charges will be brought against Deputy Van Santen in connection with his detention of 1.0. 3Deputy Van Santen also used physical force against S.S. in the course of arresting him Deputy Van Santen was in the process of detaining |.0. and conducting an investigation into his alleged criminal activity by questioning 1.0. prior to arresting him. S.S. had no involvement in that investigation and began to verbally challenge Deputy Van Santen, which the deputy interpreted as him interfering with the questioning he was conducting as part of his investigation. Deputy Van Santen verbally berated and cursed at S.S., using profanity when telling S.S. to stop talking. S.S. was defiant toward Deputy Van Santen when the deputy told him to stop interfering. Deputy Van Santen later decided to arrest S.S. for interfering. As S.S. was being detained in handcuffs in the course of his arrest, according to both Deputy Van Santen and Deputy Knipp, he physically resisted by tensing up, flexing his muscles, and pulling his right arm away. While the video evidence does not corroborate this resistance, it is not possible to see S.S.'s right arm, and the video evidence likewise does not dispute this resistance. Without resistance by S.S., the force used to push him against the wall by Deputy Van Santen would have been excessive. Even assuming both deputies are accurately describing S.S.’s resistance, the force used to push S.S. against the wall by Deputy Van Santen may have been excessive under the circumstances. However, the mere possibility that the level of force used was excessive is not a sufficient basis upon which to file criminal charges against the deputy. Such charges would have to be predicated upon evidence sufficient not merely to demonstrate probable cause, but to prove beyond a reasonable doubt that the level of force used was excessive. The evidence here is not sufficient to meet that high burden of proof. For these reasons, the Pima County Attorney's Office declines to file any criminal charges against Deputy Van Santen arising from this incident. If additional materials are obtained at a later date, | would appreciate the opportunity to review such materials to consider whether they add to my understanding of this incident. If you have any questions or need anything else in connection with this matter, please contact me at 724-8329, Sincerely, oa Nicol R. Green Chief Trial Counsel ce: Barbara LaWall, Pima County Attorney Detective Shawn George, PCSO