Is Disarming a Cop a Capital Offense?

 

The friendly faces of the San Diego Police Department.

The encounter began as a routine traffic stop. It ended with the avoidable shooting death of a young man that the killer described as an act of self-defense. 

After the jury acquitted the defendant of murder, the prosecutor indicted the shooter a second time on several lesser charges. The second jury acquitted the defendant on the most serious charges and deadlocked regarding multiple counts of assault with a deadly weapon. The prosecutor, grudgingly admitting that the defendant had been exonerated in a “fair trial,” dismissed the remaining charges. 

San Diego resident Sagon Penn was 22 years old when he was detained and assaulted by Officers Donovan Jacobs and Thomas Riggs in March 1985. At the time, he was about two weeks away from starting a job as a “community service officer” with the police department. He had also filled out an application to attend the police academy. 

Physically and temperamentally, Penn was over-qualified for a job with the SDPD. Although he hadn’t played high school sports, he was tall and athletic, and had earned a brown belt in Karate. According to his friends and family, he was a natural peacemaker, a student of Buddhism who later converted to Christianity and who learned martial arts as a way to protect himself and those around him without using lethal force. 

Jacobs, by way of contrast, was superbly qualified to be a law enforcer, and patently unqualified to be a peace officer. He was described as “one of the most prejudiced white people I’ve ever known” and “an ideal candidate for the Ku Klux Klan” by former police colleague Drew MacIntrye, who  became a minister in nearby Alpine after leaving the San Diego PD in disgust. 

Fellow SDPD Officer Nathaniel Jordan, a black man who also left law enforcement for the ministry, confirmed that assessment, testifying that Jacobs made casual and frequent use of epithets in his presence, such as “n*gger” and “boy.” During Penn’s second trial, former SDPD Lieutenant Doyle Wheeler described his attempts to warn superiors that Jacobs’ bigotry and aggression had provoked confrontations endangering the lives of his comrades.

Jacobs was made a Police Agent (the department’s designation for a patrol officer) despite an academy assessment documenting his tendency to “use profanity, slurs, and lies in his police work,” in the words of a Los Angeles Times summary of trial evidence. 

“Unless you show some considerable change or at least some more consideration for others and can change your behavior … we don’t want you because you are going to do nothing but create problems for yourself, for the public, and for the department,” Jacobs was reportedly told by an academy supervisor in 1979. 

At the time of his confrontation with Penn, Jacobs was a known danger to his colleagues and the public at large. Penn, despite “rumors” that the prosecution lusted to introduce as evidence in the subsequent trial, had no criminal record, no gang affiliations, and no demonstrated inclination toward violence. 

Among the tenets instilled in Penn by his Karate instructor, Orned Gabriel, was the need to de-escalate conflicts before they blossom into violence. Self-defense, Penn was taught, begins with walking away from a potential fight.

Officer Jacobs, who had stopped Penn without cause simply because he was a young black man in the company of several black friends, was determined to start a fight. Penn, on the other hand, was determined to avoid one.

Penn wasn’t stopped for a traffic violation. The official pretext supplied in the subsequent report was that he had made an illegal U-turn, but that pretense dissolved very quickly during the first trial.  He was seated behind the wheel of a pickup truck in a driveway talking with friends when he was accosted by Jacobs.

“Are you Blood or Cuz?” Jacobs sneered at Penn, assuming that the puzzled young black man simply had to be a member of a street gang. “Are you Blood or Cuz?”

Although Jacobs had neither probable cause nor reasonable suspicion to do so, he demanded identification from Penn. Out of an abundance of caution and a desire to be fully cooperative, Penn handed the officer his billfold, inviting him to inspect its contents. His intent, Penn later explained, was to demonstrate that “there were no drugs or anything in there."

Jacobs – who by this time was being backed up by Officer Thomas Riggs, who arrived in a separate cruiser with a police groupie named Sarah Pina-Ruiz -- reciprocated his cooperation by shoving the wallet back in Penn’s face and ordering him to withdraw the license. Recognizing that Jacobs was trying to start a fight, rather than conduct a legitimate investigation, Penn behaved in accordance with his martial arts training: He put up his hands in a gesture of withdrawal, and walked away. 

At that point, Penn had done everything the law had required. He was not legally obliged to answer any questions, or endure any abuse. He had been compliant and respectful in the face of provocation, and rather than responding with violence when baited by Jacobs he stood down.

These actions, San Diego Deputy DA Michael Carpenter would later pretend, displayed “an insurmountable attitude problem toward authority.” The unarmed Penn, whom Carpenter described in court as “Mr. Arrogance,” supposedly threatened Officers Jacobs and Riggs by asserting his legal right to end a conversation with a truculent, abusive cop. His behavior was “insolent, brazen, and immature” in dealing with a police officer who supposedly had the authority to berate him in any language he chose, and detain him on a whim.

Carpenter disgorged that lengthy string of adjectives in order to avoid the one he almost certainly wanted to use, but was canny enough to avoid: “Uppity.” He also urged the jury to accept the sophistical claim that because Penn had been trained in self-defense, he couldn’t invoke the right to self-defense in justification of his actions – presumably because anything other than abject helplessness on the part of a victim of criminal aggression by police constitutes a felony. 

After Penn turned to leave, Jacobs attacked him from behind, throwing him to the ground and assaulting him with both punches and kicks. 

“He beat me down, over and over,” Penn recalled years later. “He beat me down. He beat me down.”

Unprepared for the skill with which the trained and physically skilled victim repelled the unprovoked attack, the costumed bully withdrew his baton, and – according to several witnesses – screamed that he was going to “beat your black ass.” Rather than intervene on behalf of the victim, Riggs joined in the criminal assault.

 

Officer Thomas Riggs.

“I could hear ‘em just grunting with anger and just breathing real hard and just trying to take my head off,” Penn later recounted to investigators. At the time, Jacobs was “sitting on top of me … punching [me] in the face … He was reaching for his gun, he was reaching like right there for his gun .... And I reached, and I grabbed it before he did.”

“The power of the state was ganging up on him,” summarized defense attorney Milton Silverman during Penn’s second trial. Multiple witnesses described how after he gained control of Jacobs’ gun, the victim hesitated and briefly pleaded for the assailants to stop before firing several shots within the space of six seconds. Riggs was fatally wounded. Sarah Pina-Ruiz, who was sitting in a police vehicle, suffered a gunshot wound that left her paralyzed. 

Jacobs, who had instigated the entire affair, was shot in his right arm and then run over by Penn, who commandeered a police vehicle and fled – not from the police, but to the police. Acting entirely out of character for someone who supposedly had “an insurmountable attitude problem toward authority,” Penn drove to the nearest police station to report the incident. 

“The police were nice to me at first,” Penn told a reporter following his second trial. “But that didn’t last.”

Unlike Darren Wilson, who also shot and killed someone in what he describes as an act of self-defense, Penn suffered visible injuries from being struck and kicked by two armed police officers – including blows to the head with a baton, which is an act of attempted homicide. Years after the beating, Penn still displayed wounds in his skull from the baton strikes. 

Unlike Darren Wilson, after the fatal shooting Penn was not allowed to clean his hands and change his clothing, thereby destroying physical evidence. 

Unlike Darren Wilson, who never filled out an incident report or gave a formal statement to investigators, Penn – acting in the ingenuous hope that his self-defense claim would be respected -- spoke at length and in detail about what had happened. Since Penn was not protected by the “Garrity” privilege that Wilson invoked, or the spurious doctrine of “qualified immunity,” every self-incriminating statement he made was used as evidence against him.

Unlike Darren Wilson, Sagon Penn was not given the luxury of a grand jury inquest in which a congenial prosecutor presented exculpatory evidence and examined the background of the victims at length and in detail. Penn spent years in jail prior to his trial, and then endured two lengthy and expensive trials before he was free to resume a life that had been irreparably damaged as a result of a few minutes of senseless, state-inflicted violence. 

Perhaps the most striking divergence between Wilson and Penn is offered by their respective answers when asked how they would remember the shootings, and if they would respond the same way in similar circumstances. 

Is the killing of Michael Brown “something you think that will always haunt you?” Wilson was asked by George Stephanopoulos, who clearly expected a perfunctory expression of regret. 

“I don’t think it’s a haunting,” Wilson replied, his voice flat as the Kansas prairie and his blank demeanor displaying no evidence of a burdened conscience. “It’s always going to be something that happened.”

Penn’s response to similar questions revealed that he was tormented to the depths of his soul by the knowledge that he had taken the life of another human being, and left two others permanently disabled. 

“I should of just [gone] ahead and let ‘em just blow my head off,” a tearful Penn told investigators following his acquittal. “Lord, is that what you want?... You know, that’s a tough faith, but at the same time it’s like saying, `Well, Lord, if that’s your will, then I’ll just close my eyes and just pray…. That’s what I would do right now. If it ever happened again like that, I would just close my eyes and I would just pray…. I’ll just accept that pain, I’ll just accept that bullet to my head.”

Penn was haunted – a condition with which Wilson professes to be unacquainted – by the fact that Officer Riggs had a family.

After Riggs died, Penn recalled, “I would cry, I couldn’t live, I hated holidays. I’ll always be worrying and praying and thinking about his two children and crying.” 

After Penn’s acquittal in the first trial, Judge J. Morgan Lester – who was by no measure inclined to coddle accused or convicted murderers --  excoriated the San Diego PD for what he described as a pattern of serious misconduct, including perjury and withholding evidence. Following Penn’s second acquittal, the California Attorney General’s office briefly considered pursuing assault and perjury charges against Jacobs. Those charges were never filed, in large measure because Penn – who did not want to see his assailant prosecuted -- refused to cooperate.

In an interview with investigators, Penn described his belief that God wants to “give Donovan Jacobs a chance to receive [Him]. To receive Christ into his life, to receive God in his life. That’s why he lived through that.” 

Although he was not a paragon of virtue, either before or after the fatal encounter with Jacobs and Riggs, Penn followed the much-discussed and little-observed Christian practice of praying for his enemies and forgiving the men who had attempted to murder him. Significantly, Michael Riggs, brother of the late Officer Thomas Riggs, found it more difficult to forgive Jacobs, who initially sought to deflect blame by dishonestly claiming that his dead comrade had started the fight. 

Free from prosecution because of Penn’s forgiving nature, Jacobs remained with the San Diego PD for six years before retiring on a disability pension. He went into legal practice representing other police officers accused of misconduct or seeking disability benefits. Utterly impenitent, Jacobs has also published two books describing his “innovative, proactive tactics” for dealing with street crime. 

Wheeler, circa 2009.

Doyle Wheeler, the former SDPD Lieutenant who testified against Jacobs during Penn’s second trial, barely survived what could have been one application of those “innovative, proactive tactics.”

Shortly after the trial, Wheeler retired from the force and relocated to Sun Crest, Washington, a suburb of Spokane. In April 1988, three or four unidentified men broke into Wheeler’s home, forced him to write a suicide note at gunpoint, then bound him and shot him behind an ear. Just seconds before the shooting, phone records and an automatic recording confirmed, a call was placed from Wheeler’s home to the desk of Police Agent Donovan Jacobs in San Diego. 

Police authorities in Spokane and San Diego dismissed Wheeler’s story, claiming that the former officer was psychologically infirm and had staged the alleged attack – despite the fact that witnesses had seen strangers enter his home. Police detectives insisted that Wheeler’s voice was the one in the recorded phone call to Jacobs. No effort was made to follow up on Wheeler’s suggestion that the recorded phone call be subjected to voice analysis.

The following year, t-shirts depicting an ear and the inscription “Doyle Wheeler Hit Team” were sold during a party held by the police department. The FBI briefly investigated a claim by a police informant that he had been offered $1,500 by a San Diego PD sergeant to attack Wheeler, but turned down the offer because the risk was too great and the payoff too small. A short time later, the matter was consigned to the cold case file. 

Although he physically survived the events of March 31, 1985, Sagon Penn lost the life he might have enjoyed had he been spared the encounter with Officers Jacobs and Riggs. Advised by friends and family to leave San Diego for his own safety, Penn stayed where he was in order to help raise his young son – who was given his mother’s maiden name out of fear of retaliation. He briefly attempted to attend college under an assumed name. 

For fifteen years following his acquittal, Penn’s life was a fitful affair frequently punctuated by domestic conflicts and hostile encounters with the police, at least some of which were self-inflicted. In the early 1990s, he served time in prison for a probation violation after he threw a brick at his wife’s vehicle. 

 

"Doyle Wheeler Hit Team," paramilitary division?

Penn’s conduct subsequent to his acquittal, contended former San Diego Police Chief Bill Kolender, supposedly validated the claim that he “was guilty of [unlawfully] killing a police officer.” It could just as easily have been a reflection, at least in part, of the physical and psychological trauma Penn had suffered. Kolender tactfully declined to comment about Jacobs’s alleged role in the attempted murder of former Lt. Doyle Wheeler, or the conclusions that could be drawn from the behavior of subordinates who referred to themselves as the “Doyle Wheeler Hit Team.”

On Independence Day, 2002, Penn committed suicide, consummating by his own hand the fate Jacobs and many of his comrades had intended for him. 

When informed of Penn’s demise, Bill Farrar, president of the local police union, reacted with all of the graciousness we should expect from someone in his position.

“As far as the Police Officers Association is concerned, the world is better off without him,” grunted Farrar, reflecting the widespread and demonstrably untrue belief that any Mundane who dares to disarm an abusive cop has committed a capital offense. 

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Darren Wilson and the Reality of "Blue Privilege"

(A version of this essay was originally published at Photography Is Not A Crime.) 

“Any time I’m involved in an officer-involved shooting, be it a fatal one or non-fatal, it is always during my initial investigation listed as an assault on law enforcement,” explained the St. Louis County Police Detective who inaugurated the investigation of the Michael Brown shooting. “Officer Wilson … was the victim of the assault we were investigating.”

Once it had been established that the living, armed individual was the “victim” and the dead, bullet-ridden body had belonged to the “assailant,” continued the detective in his September 3 grand jury testimony, “One of the sergeants with Ferguson [gave] me a brief walk-through to start my investigation so I [could] have a logical starting point from where I would start my video, photographs, and looking for evidence.”

That unnamed sergeant, most likely, was the supervisor who had told Darren Wilson to leave the scene after the shooter told him that Brown had tried to take his gun.

From its inception, the shooting of Michael Brown was not investigated as a potential criminal homicide, and the inquiry was an exercise in validating the killer’s story, rather than testing it against the available evidence.  The assumption was that killing was part of his job description – or, as Wilson has subsequently told George Stephanopoulos, “I did what I was paid to do.”

If Wilson had been a member of the productive class, rather than a state employee licensed to dispense aggressive violence, he would have been presumed legally innocent, but required to justify his actions. Because of his occupation, however, Wilson was considered both legally innocent and presumptively correct, and the investigation became an exercise in justifying the shooter’s actions, rather than an inquiry into their propriety. 

If Officer Wilson had been “merely” Darren Wilson, the deceased Michael Brown would have been identified as the presumptive “victim.” The shooter would not have been allowed to leave the scene without making a statement to the police, and his associates would not have been allowed to frame the crime scene for the benefit of the investigating detective. 

Most importantly, if Wilson had been treated as a homicide suspect, rather than the “victim” of an “assault on law enforcement,” he would not have had the luxury of composing his story at leisure, in consultation with his attorney, to fit the facts as they emerged from the investigation.

“When you got back to the police department, after you washed off and everything, did you ever think at what time that I needed to write a report while it is fresh in my mind?” asked assistant St. Louis County prosecutor Kathi Alizadeh.

“No,” Wilson replied. “The protocol is whenever you are involved in a significant use of force, that you contact your FOP [Fraternal Order of Police] representative and then he will advise you of what to do step by step because they are the clear head in that situation. They have not been through a traumatic experience.” (See the transcript of Darren Wilson’s grand jury testimony, pages 77-78.) 

When the shooter is a Mundane – that is, a common citizen, rather than a police officer – he may be similarly traumatized, but he can’t count on the “step-by-step” guidance of clear-headed police officers who have identified him as the victim. One of the first priorities for investigators in non-“officer involved” shootings is to get the original story from the shooter, and compare it against the evidence. As a police officer, however, Wilson wasn’t required to make an initial statement of any kind – either in an incident report, or to any of the investigating officers

Asked by Alizadeh if he had committed his recollections to paper in a diary or journal, Wilson replied: “My statement has been written for my attorney.”

“And that’s between you and your attorney, then?” asked the unusually helpful prosecutor, who received an affirmative reply.

“So no one has asked you to write out a statement?” the assistant DA persisted.

“No, they haven’t,” Wilson acknowledged. He made one brief reference to speaking with a detective while in the hospital, but that communication was protected by Wilson’s “Garrity” privileges, which means that it could be used only for the purposes of an internal investigation, not in a criminal or civil proceeding. 

In his November 24 press conference, St. Louis County DA Robert McCulloch made conspicuous mention of the fact that some witnesses had changed their testimony once their original story was found to be in conflict with subsequently discovered evidence. This is something that happens frequently to homicide suspects, as well. Wilson was never in danger of being caught in that contradiction because he was not treated as a suspect, nor was he required to make a statement to criminal investigators.

During Wilson’s examination before the grand jury, McCulloch’s deputy prosecutors were gentle and deferential, rather than being adversarial. This is to be expected, given that this was a conversation among colleagues.

At several points in his testimony, Wilson made statements that a motivated prosecutor would have aggressively pursued. For example: Wilson – who at 6’4” and roughly 225 pounds is no small man – said that when he grappled with Brown, he felt like a “five-year-old” who was trying to restrain “Hulk Hogan.” He likewise claimed that he had been struck twice by Brown with such force that he was concerned a third blow would be “fatal” – yet the medical examination displayed no evidence of corresponding trauma to his face.

Wilson didn’t explain how the right-handed Michael Brown could have punched the right side of his face while the officer was sitting in the driver’s side of his vehicle. Although Wilson claimed that the initial blows were inflicted while Brown was holding stolen cigarillos in his right hand, no broken cigars were ever recovered, either in the SUV or the surrounding area. The stolen cigars were not found by the medical examiner who arrived on the scene after the shooting. (Interestingly, that examiner never took photos of the deceased, because “My battery in my camera died,” nor did he take any measurements at the crime scene.) 

A well-known and highly respected forensic analyst and expert witness on biomechanics and accident reconstruction takes note of several points the prosecution either ignored or minimized to the point of invisibility.

“The big issue as I see it, is how do the cops justify provoking a lethal confrontation with a kid over some damned cigarillos?” the analyst pointed out in an email to me. “Why not wait for ample backup and use non-lethal methods to subdue and arrest for shoplifting? This of course assumes grounds for an arrest. Why were the alleged cigarillos not found? And what did the DA mean when he stated on TV that Brown’s body was on the road 150 feet from the police car? How does an unarmed kid that far away with no weapons constitute an immediate threat to life?”

He also underscores the fact that the unarmed pedestrian Brown, rather than Wilson, may have had the stronger case for self-defense:

  

“As for what supposedly went on in the passenger compartment with the alleged grabbing of the cop’s arm – this is “consistent with” a kid whose life was threatened by an overly aggressive cop with a gun aimed at him and where the kid was so terrified of an immediate shooting that he felt compelled to take preemptive action to protect himself by disarming the cop.”

If Darren Wilson had been part of the wealth-producing class, as opposed to an armed emissary of the tax-consuming elite, those questions most likely would have been examined in a criminal trial. But, once again, owing to his occupation, this was never going to happen.

Robert McCulloch has a well-earned reputation for deference to the police, and a well-established habit of justifying every use of lethal force, no matter how questionable. Rather than simply seeking an indictment, McCulloch presented the case for the “defense” as well – a characterization that is an odd fit here, given that Wilson – it bears repeating – had been treated as the “victim” in this incident from the beginning. 

“Had the prosecution desired an indictment against Ferguson Police Officer Darren Wilson, the presentment would have taken an hour, maybe two, and there would have been a true bill by close of business the next day, well before Michael Brown had been laid to rest,” points out attorney and civil rights advocate Scott Greenfield. “The grand jury isn’t the venue to present `all the evidence.’ That’s what trials are for. The grand jury serves a very limited function, to determine whether sufficient evidence exists so that there is probable cause to proceed to trial.”

A great deal of the media coverage has referred to the Grand Jury’s decision as a “verdict,” which is both technically incorrect and substantively true: Rather than seeking probable cause to indict Wilson, McCulloch and St. Louis County law enforcement built a case to convict Michael Brown of “an assault on law enforcement.”

Given the ambiguity of the evidence, Darren Wilson as a private citizen likely would not have been convicted of murder if the case had gone to trial, but a conviction on a lesser count would be a possibility. Under Missouri’s constitutionally perverse statute dealing with police homicide – which has been criticized by former federal judge Paul Cassell, who is broadly indulgent of killer cops – Officer Wilson was never in danger of being convicted of a crime.

It is not necessary to believe that Michael Brown was the embodiment of winsome innocence (it’s pretty clear that he was not) to take issue with the architecture of official privilege that protects Darren Wilson – and the other armed representatives of the political class – from accountability. The problem, in a single phrase, isn’t “white privilege,” but rather “blue privilege.”

Edmund Burke could have had this case in mind when he wrote these lines from his neglected essay “A Vindication of Natural Society”:  “In a State of Nature, it is true, that a Man of superior Force may beat or rob me; but then it is true, that I am at full Liberty to defend myself, or make Reprisal by Surprise or by Cunning, or by any other way in which I may be superior to him. But in Political Society ... if I attempt to avenge myself, the whole Force of that Society is ready to complete my Ruin.”

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Dum spiro, pugno!