Judge cites 'public interest' in argument over 'post-trial' civil rights plea agreement
A federal judge in Los Angeles is questioning his authority to vacate a jury's felony finding against a ex-sheriff's deputy in a criminal excessive force case.
Faced with a packed gallery and a rare legal request, U.S. District Judge Stephen Wilson said his biggest concern about striking a jury’s felony civil rights verdict against a former sheriff’s deputy.
“The government hasn’t addressed, at least from my reading of the pleadings, any issue of public interest,” Wilson said.
That began an argument on Monday that never appeared to persuade Wilson he has the authority to reduce a felony verdict to a misdemeanor as called for in a “post-trial” plea agreement authorized by Bill Essayli, the Trump-appointed interim U.S. attorney in Los Angeles.
“I’m trying to find some principle to guide me, and the principle that stands out at the end of the discussion is the question of public interest,” said Wilson, a 1985 Ronald Reagan appointee. “Isn’t there a very strong public interest in assuring that law enforcement officers act without unnecessary means?”
Wilson said he’ll “hopefully” issue his ruling within three or four days. Kirk is due back in Wilson’s courtroom on June 3 for sentencing.
Essayli watched from the gallery as the veteran jurist questioned Assistant U.S. Attorney Rob Kennan for 85 minutes about a plea deal that all four prosecutors assigned to the case — Eli Alcaraz, Michael Morse, Brian Faerstein and Cassie Palmer — refused to endorse. Alcaraz, Faerstein and Palmer joined dozens of other colleagues who’ve submitted their resignations since Essayli began: An office-wide meeting last Friday included several farewell speeches.
Before the hearing began, a lawyer for the victim asked Essayli why the U.S. Attorney’s Office’s crime victim advocate was sitting next to him when Kirk’s victim opposes Essayli’s plea agreement.
“That’s a conflict of interest,” Caree Harper said.
Essayli said the victims’ advocate “works for us.” He also told Harper, “if you’re going to cause a disturbance … you can have a seat or you can be removed.” Harper commented that he wasn’t in charge of the courtroom.
After the hearing, a woman followed Essayli into the elevator and asked why he believes his agreement with Kirk is in the public interest. Essayli said he couldn’t discuss an open case but, “I’ll talk to all press when it’s concluded. Anyone who’s there who wants to talk, I’ll talk.”
Supporters of Kirk attended the hearing, including former Los Angeles County Sheriff Alex Villanueva, as did protestors who have urged Wilson to uphold the jury’s felony finding.
The victim, Jacy Houseton, told Judge Wilson during a victim impact statement that she feared for her life when Kirk attacked her as she filmed him arresting her friend outside a Winco grocery store in Lancaster, about 70 miles northeast of Los Angeles, on June 23, 2023.
“He kept telling me to stop resisting, even though I was unable to move and could not breathe, it felt like he was trying to kill me,” Houseton said. She said Kirk’s pepper spray “continually burnt my face, neck, ears.”
“The effects of the savage assault constrict my life to this very day,” Houseton said.
She said she no longer trusts law enforcement and was slandered by news media that falsely reported she’d stolen from the store, “which was disproven by the FBI.”
She said Kirk should no longer work in law enforcement, which a felony conviction will ensure. She also wants him sent to prison; the post-trial agreement calls for probation only, but the U.S. Probation Office’s Pre-Sentence Report recommends that Wilson sentence Kirk to 87 months in prison. The maximum sentence is 10 years in prison, and Houseton said Kirk deserves it.
“[Kirk] approached with uncontrollable rage and acted on it. The safety of females, regardless of age, is at stake,” Houseon said.
Wilson told the gallery to stop applauding after Houseton spoke.
“This is not a City Council meeting. Just maintain your decorum,” he said.
After Houston sat down, Keenan told Wilson, “I do now formally make a motion to strike” the felony allegation in the indictment “as well as striking the jury verdict.”
Keenan said his request to strike the felony finding is separate from the post-trial plea agreement. He cited a 1983 9th Circuit case, United States v. Weber, in which prosecutors sought to dismiss an indictment after a jury conviction. “The 9th Circuit expressly rejected any suggestion that the government lose the ability to move to strike or to dismiss counts or an indictment even at that point,” Kennan said.
Wilson asked if he believes prosecutors bear the burden of establishing justification for the request, Kennan answered, “Yes, but it’s a very minimal burden. If there’s any burden at all.”
Wilson said the lack of opposition “makes the matter more difficult for the court.”
“I can’t be an advocate for any side, even if there isn’t an opposition,” Wilson said. “But on the other hand …. this in my view is not like a civil case where I can grant a motion for non opposition.”
The judge said his reading of case law says “the justification has to be that there’s a serious and substantial doubt as to the defendant's guilt.”
He asked Keenan if he’s saying courts “must” still dismiss “even if the government did not have serious and substantial doubts, and Keenan said yes.
“Must,” Keenan said.
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Keenan said the 2000 9th Circuit ruling in United States v. Garcia-Valenzuela indicates “it’s not clear if there’s any limit on the government's ability to make this motion.”
But, Wilson said, “that doesn’t indicate the court is mandated to do something.”
“Maybe it’s something the 9th Circuit or a higher court has to address. Maybe if I don’t grant the motion, you’ll argue what you’re arguing to a higher court,” the judge said.
Keenan said the issue is one of “pure prosecutorial discretion.”
Prosecutors offered Kirk a misdemeanor plea before trial. Keenan said “in our office” they considered three options after the verdict: Let the felony conviction stand, reduce to a misdemeanor or dismiss the indictment entirely.
Wilson questioned Keenan’s interpretation of what happened.
“He never said to her, I’m going to handcuff you, ‘Show me your hands.’ The video was clear that he just grabbed her,” Wilson said.
The judge cited his previous findings when rejecting Kirk’s motion for new trial.
“The jury was fully justified in finding that he used excessive force,” Wilson said. “Had he ordered her to be handcuffed and had she resisted what he did might be justified, but he didn’t.”
Keenan cited what the prosecutors who withdrew from the case over the agreement said in trial.
“Gee, he didn’t communicate with the deputy,” Keenan said in a mimicking voice.
Wilson interrupted and said jurors heard expert testimony on both sides, and they still concluded Kirk used excessive force.
Keenan said the fact that Kirk now admits his actions were excessive is “an important fact alone” and has agreed not to appeal if his conviction is for a misdemeanor instead of a felony.
“This is the first time Deputy Kirk has ever acknowledged that his conduct that day was excessive,” Keenan said. “However …. it’s easy to throw around words like, ‘oh, extreme, this, extreme that,’ as we’ve heard during trial and some of the remarks from Ms. Houseton today.”
Keenan doubted whether pepper spray should qualify as a dangerous weapon, but Judge Wilson said the law is clear that it does.
Wilson said he sees four or five excessive force civil cases every month, but this is the first criminal case, and the conduct and injuries are less than what he’s seen in civil cases. But Kirk isn’t arguing he was selectively prosecuted, and he said the distinction is “like being a little pregnant.”
“You’re either engaging in excessive force or you’re not,” Wilson said.
Keenan said Houseton shoulders some blame for what happened.
“There’s no question that it did,” Keenan said.
“How?” Wilson asked.
Keenan said he’ll give Kirk “very low marks in terms of communication skills,” and Wilson interjected, “Zero.”
“He didn’t say anything,” Wilson said.
Keenan said he should have but didn’t have to.
“Better police work if he had, but that’s not what the Constitution required,” Keenan said.
At that point, 60 minutes into the argument, Keenan told Wilson trial prosecutors wrongly told jurors Kirk was angry because Houseton was filming him.
“We have concerns about the ultimate fairness of the trial,” Keenan said. “I completely reject the characterization of the evidence at trial by the government on that point.”
Wilson said Houseton was “interfering with law enforcement activities” by getting too close to deputies, but “I don’t know that she resisted.”
Wilson recessed court for 45 minutes, then asked Keenan when they returned if he’s familiar with singer Pat Benatar and her 1980 song “Hit Me With Your Best Shot” and told him to summarize his argument.
Keenan said his point is that “the government's motivation is to have a fair and just result in this case, and that’s not a felony.”
He also reminded Wilson that prosecutors offered Kirk a misdemeanor plea before trial. He didn’t mention whether it allowed Kirk to return to policing, but similar pleas have prohibited it, while Kirk’s current offer does not.
He said the trial is “not a waste of time” if Kirk is sentenced for a misdemeanor because “it has helped bring the parties together and allow Deputy Kirk an opportunity to hear from 12 good people from the community that they thought his conduct was excessive, and now he’s admitted that.”
Court documents:
Jan. 29 prosecutors’ trial memorandum
March 17 prosecutors’ opposition
April 10 stipulation to continue sentencing
April 13 victim’s objection to sentencing delay
May 1 post-trial plea agreement
May 13 response to Judge Wilson’s order
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