Part Two of Peter Lance’s 2011 DUI series Santa Barbara News-Press
The stun gun and the DUI stop
By PETER LANCE, SPECIAL TO THE NEWS-PRESS
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June 23, 2011 5:01 PM
Second of five parts
Michael Kenny is a commercial fisherman who dives for sea urchins in the sometimes frigid waters off the Channel Islands. It’s a dangerous job, but nothing he ever encountered at sea prepared him for the life-threatening event that occurred the night Officer Kasi Beutel of the Santa Barbara Police Department pulled him over for a traffic stop and ended up shooting him at point-blank range with a stun gun.
The arrest occurred in August 2009, the year Kasi Beutel won the Gold Pin from Mothers Against Drunk Driving for achieving the top DUI arrest record in Santa Barbara County.
But the case raises serious questions, not just about how far Officer Beutel was willing to go in pursuit of a DUI arrest, but the lengths to which supervisors at the Santa Barbara Police Department went to protect her and validate her conduct.
Officer Beutel’s version of the Kenny case
The following are verbatim excerpts from the official report on the incident submitted by Office Beutel: “On 8/22/09 at approximately 2125 Hours (9:25 p.m.) I was on uniformed patrol . . . on Cliff Drive when I observed a late model pick-up . . . driving Eastbound. The truck did not have any rear lights, no tail lights or brake lights . . . It was a dark area and the truck, which is dark in color, was difficult to see. I pulled in behind the truck which was traveling at approximately 45 MPH . . .and the truck quickly braked and made a sharp right turn onto La Marina Street. I conducted a traffic stop on La Marina just south of Cliff Dr.”
“I contacted the driver who was sitting in the driver’s seat. He had one female passenger and a medium sized dog in the vehicle. He identified himself as Michael Kenny with his California (driver’s license). I immediately noticed a smell of alcoholic intoxicant coming from his person; his eyes were bloodshot and watery. I asked him if he had any alcohol tonight, he stated no. I asked him to look at me so that I could check his eyes, at which time he turned his head away . . . I asked him to retrieve his registration and insurance and told him that I would be right back.”
After returning to her patrol unit and determining that Mr. Kenny had a DUI conviction six years earlier, Officer Beutel called for a “cover officer” to assist her and shortly thereafter, Officer Gina Battaglia arrived.
At that point, by her own account, Officer Beutel returned to the driver’s side of Mr. Kenny’s 1978 Ford truck and asked him to step outside so that she could perform a field sobriety test. Officer Battaglia was standing at the curb on the passenger side. Heather Vaughn, the young woman who had accompanied Mr. Kenny, was in the passenger seat.
As Officer Beutel continued in her report: “(Kenny) refused to step from the vehicle. I informed him that he was being detained and that I needed him to step from the vehicle in order for me to ascertain that he was not too impaired by alcohol to safely drive.
“At this time he began rolling his window up. I placed my hands on his window to prevent the window from being rolled up and ordered Kenny to hand me his car keys. He refused . . . and continued to roll the window up. With my left hand on the window in an attempt to keep it down, I placed my Taser, which was in my right hand, against Kenny’s shoulder and informed him that he would be Tased if he continued to resist. I also informed him that he was subject to being arrested for delaying or obstructing an investigation.”
In a separate report, Officer Battaglia says that after her arrival, she moved from the passenger side of the truck to the driver’s side “to assist Beutel.”
“(Beutel) was holding onto the window to keep Kenny from rolling the window up and demanding that he give her his keys,” Officer Battaglia wrote. “I grabbed onto the window to assist Beutel. She retrieved her Taser and pointed it at Kenny and advised him if he did not comply with her commands he was going to be Tased . . . Kenny refused, locked his door and continued to roll his window up.”
Both officers insisted in their reports that Mr. Kenny was now moving to exit the car on the passenger side. Officer Battaglia reported that his “dog was very agitated and was aggressively barking.”
Allegations of battery on Officer Beutel
As Officer Beutel recounted, “Kenny was attempting to scoot out of the vehicle, feet first. I placed myself in front of the open door and ordered Kenny to stay in the car. I had my Taser in my right hand and was attempting to tell Kenny that he was going to be Tased if he continued to be non-compliant. I informed him to stay where he was until a supervisor arrived on scene. With his right foot, Kenny kicked me in the right hip. After kicking me, Kenny attempted to push forward. I deployed my Taser at close range, approximately 2 feet. The Taser probes hit him in the chest . . . Kenny then pulled the Taser probes from his chest, forcibly pushed me with both hands and shoved me backwards as he exited the vehicle . . . Kenny then stepped around the open passenger door and began sprinting Southbound on La Marina.”
At this point, another six officers, in addition to officers Beutel and Battaglia, responded and a search commenced. Mr. Kenny was found minutes later with his dog hiding in a nearby house under construction. He was cuffed and ultimately charged with DUI, battery on a police officer and resisting arrest.
Michael Kenny’s version of the case
According to Mr. Kenny, 42, a lifelong resident of Santa Barbara who operates the fishing boat Patty Ann, prior to the stop, he had been at the Mesa Café; on Cliff Drive attending an informal wake for a fellow fisherman. He offered to give Ms. Vaughn, whom he’d just met, a ride home, because she was living on a boat at Santa Barbara Harbor. In a handwritten report he made shortly after the event, he described what happened after Kasi Beutel pulled him over on La Marina.
“The officer approached the driver side window, which was rolled down about 10 inches. She said that I was pulled over due to my rear lights not working. She then asked me for my driver’s license which I provided. She then went back to her car . . . When she returned she asked for my insurance and registration which I provided.”
“I repeatedly requested to be arrested so I could give a (blood alcohol content) sample. I didn’t believe I was drunk. If she wasn’t going to arrest me I asked for her to cite me with a ticket or release me. At this request, she became very loud and aggressive and reached into the truck to unlock and open the door. I put my hand over the lock and she tried to pull the window down with her hands. She then pulled her Taser and put it to my temple and then to my shoulder and chest demanding that I exit the truck.”
By Mr. Kenny’s account, all of this took place on the driver’s side of the truck.
“At this time, it seemed to be a good idea to comply, regardless of what my rights were. I was exiting the truck as instructed. However, the officer (Beutel) was trying to restrict my movement by leaning on the door . . . I exited with my arms bent and hands up, palms facing her. My dog was agitated, so I had his leash on my wrist. As soon as I cleared the door, the officer shot me at very close range with the Taser. Shocked, I pulled out the projectiles and ran in fear.”
In the Rashomon, “she said, he said,” world of DUI arrests and investigations, the People vs. Michael Kenny, case number 1327059, was typical in that the ultimate disposition would come down to the word of Michael Kenny, a fisherman with a 6-year-old DUI conviction under his belt, versus the word of Kasi Beutel, the award-winning lead officer on the Santa Barbara Police Department’s Drinking Driver Team.
But the evidence uncovered in this investigation demonstrates not only that Officer Beutel lied in her police report, but that key evidence which might have resulted in a dismissal of all charges against Mr. Kenny, was withheld from his defense lawyer.
The officers’ accounts versus the dispatch log
The first misstatement of fact in Officer Beutel’s police report of the 2009 incident comes in the first line when she cites the time that she pulled Mr. Kenny over on La Marina as “approximately 2125 hours” or 9:25 p.m. In fact, the department’s dispatch log on the incident shows that the traffic stop occurred 10 minutes earlier at 2115 or 9:15 p.m. Even fellow officer Gina Battaglia states that she responded at 9:16 p.m. and the dispatch log documents her arrival seven minutes later at 9:23 p.m. As Officer Battaglia noted in her report, “When I arrived, Office Beutel was walking to the driver’s window to contact . . . Michael Kenny.”
But if Officer Beutel’s account is to be believed, Mr. Kenny was shot with the stun gun just one minute, 29 seconds into the stop — an impossibility, not just because the dispatch log proves otherwise, but because there’s an official report of the Taser’s firing time contained in the police report. It proves that Mr. Kenny was fired on at 9:26:29 p.m. — 11 minutes, 29 seconds after the stop.
The police report also contains troubling evidence of a cover-up by Officer Beutel and other officers associated with the incident. Officer Beutel made an audio recording of the incident and a transcript of that recording, when compared against the dispatch log, proves that a number of minutes are missing from the recording that was turned over to Mr. Kenny’s lawyer. Those minutes would have documented the period when Officer Beutel attempted to get Mr. Kenny out of the truck by threatening him, through the window with the Taser.
A verbatim transcript of that recording that follows begins 2 minutes, 26 seconds into the stop when Officer Beutel walked back to Mr. Kenny’s car after checking his license. It continues to the purported time she fired her X26 model Taser into him with a charge of 50,000 volts.
OFFICER BEUTEL: Mr. Kenny, can I have you step out of the car for just a minute?
MR. KENNY: Ma’am, what for?
OFFICER BEUTEL: Yeah, I smell a little bit of alcohol and I want to evaluate you out here. I was waiting for my cover officer to arrive. So I just want to make sure you are OK. I know you said you haven’t had anything to drink and it’s possible you haven’t, but I would just like to check your eyes out here at a straight angle, which is easier for me than in the car.
MR. KENNY: OK
OFFICER BEUTEL: OK, so if I can have you step out of the car I’d appreciate it.
MR. KENNY: Well, at this point I would like to ask you to either cite me, release me, or . . .
OFFICER BEUTEL: At this point, what we have an option of doing . . .
MR. KENNY: (unintelligible)
OFFICER BEUTEL: OK, but that’s what I’m going to have you do, I’m going to have you step out so I can check you, to make sure you’re not too impaired to drive. OK?
MR. KENNY: Um, not necessarily.
OFFICER BEUTEL: Well, you don’t really have an option. If you’d like me to call the supervisor to come and hang out with us on scene while we do this, I can. But right now, you are being detained because I want to make sure that you’re OK to drive because I smell a little bit of alcohol. OK?
MR. KENNY: Um, can I call an attorney?
OFFICER BEUTEL: No. You don’t have a right to call an attorney right now. You’re simply being detained. You are certainly not under arrest right now . . .
At this point, about 3 minutes, 22 seconds into the recording, there is a decided break, both in tone and content. While Mr. Kenny’s voice remains calm as he sits inside his truck, Officer Beutel becomes suddenly agitated. We hear what sounds like Mr. Kenny attempting to comply with Officer Beutel’s request that he get out of the vehicle, but her voice level and direction take a radical turn:
OFFICER BEUTEL: No, no, no, no! No. You’re about to get yourself Tased or in trouble. Hand me the keys. Hand me the keys!
MR. KENNY: Oh really, you’re going to Tase me?
OFFICER BEUTEL: Hand me the car keys! Hand me the car keys! Hand me your car keys!
MR. KENNY: You’re really going to Tase me?
OFFICER BEUTEL: Right now I’m at the point where I feel like . . . Hand me the car keys! Hand me your car keys!
MR. KENNY: Really? My sister works for the District Attorney’s Office.
OFFICER BEUTEL: Hand me your car keys.
MR. KENNY: Are you sure you want to?
OFFICER BEUTEL: Hand me your car keys.
Mr. Kenny’s small, gray Australian cattle dog, Pete, who is in the front seat of the truck, starts barking. At this point, 3 minutes, 48 seconds into the tape, Officer Beutel asks Officer Battaglia to call for a supervisor. The dispatch log shows that Officer Battaglia called in a “Code 3 and Supervisor” at 9:26 p.m.
OFFICER BEUTEL (to Officer Battaglia): Call for cover. (to Mr. Kenny) Hand me your keys! (to Officer Battaglia) For a supervisor!
MR. KENNY: This isn’t legal.
OFFICER BATTAGLIA (calling it in): Code three.
MR. KENNY: It’s not legal.
OFFICER BEUTEL: Hand me the car keys! Hand me the car keys. Hand me the car keys. You’re about to get arrested for resisting arrest.
MR. KENNY: You’re about ready to break the law!
OFFICER BEUTEL: You’re about to get arrested for resisting arrest.
MR. KENNY: I’m not resisting arrest.
At this point, by Officer Battaglia’s account in her report, she was still on the driver’s side, attempting to assist Officer Beutel. Then suddenly, Heather Vaughn, Mr. Kenny’s passenger, exits the truck on the passenger side and Officer Beutel screams at her:
OFFICER BEUTEL: Stay in the car! Stay in the car!
OFFICER BATTAGLIA: Do you want me to go get her?
OFFICER BEUTEL (to Officer Battaglia): Yup. Now I want you to go open the door right there.
MR. KENNY: I haven’t been arrested . . . I haven’t done anything wrong.
OFFICER BEUTEL: Nope. You’re being detained. Open the car.
At this point, Mr. Kenny is still in the driver’s seat.
OFFICER BEUTEL: OK. You drive away.
MR. KENNY: I want to call my sister.
At this moment, 4 minutes, 17 seconds into the tape, Officer Beutel seems bent on keeping Mr. Kenny from driving away.
OFFICER BEUTEL (to Mr. Kenny): Stay here, stay here.
There appears to be another break in the tape. We hear several seconds of dead air and then:
OFFICER BEUTEL: Good god.
OFFICER BATTAGLIA: We’re not breaking the law.
MR. KENNY: Yeah, you are breaking the law. I’d be happy to step out of the car.
Now, in a matter of seconds, Officer Beutel goes from demanding that Mr. Kenny get out of the vehicle to ordering him to stay inside.
OFFICER BEUTEL: Nope. Nope. You’re gonna stay right there right now until we have a supervisor.
At this point, by Mr. Kenny’s account, he began exiting via the driver’s side door.
OFFICER BEUTEL (shouting): Stay there! Stay there! Stay there!
MR. KENNY: You can go ahead and Tase me if you’d, like . . .
OFFICER BEUTEL: Stay there! Stay in the car! Stay in the car, you’re gonna get . . .
The Taser goes off.
MR. KENNY: Ouch!
OFFICER BEUTEL (screaming): Get down, get down, get down on the ground!
At this point Mr. Kenny pulls the two Taser leads from his chest and takes off running with his dog as Officer Beutel gives chase, calling in her location on her radio.
OFFICER BEUTEL: Foot pursuit down La Marina! Foot pursuit! Affirmative. Foot pursuit down La Marina towards the beach!
The aftermath videotaped for ‘On Patrol’
The distress call from Officer Beutel resulted in at least three Santa Barbara Police Department patrol units being dispatched to the scene to search for Mr. Kenny. Sergeant Chad Hunt arrived accompanied by a video crew shooting a segment of “On Patrol With Santa Barbara P.D.,” the local variation of the Fox series “Cops,” which airs weekly on KCOY.
Sgt. Hunt, who narrated the segment, is actually seen passing Mr. Kenny on the street as he walks with his dog, a block away from the Taser incident. Mr. Kenny hid out in a nearby house which was under construction and was apprehended, according to the dispatch log, at 9:35 p.m., less than nine minutes after Officer Beutel fired the Taser.
In the video from the “On Patrol” episode that later aired, Mr. Kenny is seen in the construction site lying face down on the floor as Sgt. Hunt and Officer Mark Corbett, the former DDT officer who became Officer Beutel’s fiance;, stand him up and walk him out.
Moments later, the video shows Sgt. Hunt and Officer Corbett processing the handcuffed Mr. Kenny near a patrol car back at the scene of the initial stop. At that point, on the video, Officer Beutel is heard in voice-over referring to Heather Vaughn: “He had a passenger in his car. As soon as he started going south and rolling up his window, she jumped out and sat on the curb.”
Moments later, Officer Gina Battaglia is seen saying, “I showed up and she (Officer Beutel) was on the driver’s side, like starting to argue with him. And like he’s trying to roll the window up . . . Like both her and I are holding the window down so he can’t roll it up . . . The Taser goes off. But it’s like, (Mr. Kenny) was (gesture of surprise) . . . launched off and he was gone.”
At that point in the “On Patrol” segment, Officer Beutel claims that Mr. Kenny kicked her: “He kicked me once right here (gesturing to her right thigh area) and with his arms, at that point I had the Taser (she pushes out her arms to indicate Kenny’s actions) he just shoved me as I was trying to step back, I had the Taser going off . . .”
Missing minutes on the recording
A comparison of the Santa Barbara Police Department dispatch log — which has a series of indicators pinpointing events like the Code 3 call — against a transcript of the audio recording, shows that almost seven minutes appear to be missing from the audio turned over to Mr. Kenny’s lawyer.
Even though by the accounts of officers Beutel and Battaglia, they confronted Mr. Kenny on the driver’s side of the truck, and tried to roll the window down, there is nothing on the recording to document when that took place. Also, there is nothing on the recording to document the assertion by Mr. Kenny that Officer Beutel reached through the window and touched the Taser to his body.
“The recorded evidence of Beutel putting her Taser through the window could have been extremely helpful to Kenny’s defense,” says Darryl Genis, the veteran Santa Barbara DUI defense specialist who is representing me in a DUI case where Officer Beutel was the arresting officer. “The complete recording should have been turned over as exculpatory Brady material by the police. If the tape was edited, that raises serious questions of a cover-up.”
The landmark decision in Brady v. Maryland (1963) requires a prosecutor to disclose exculpatory evidence to a defendant, a duty that, through case law, has been extended to law enforcement agencies.
A questionable account of a test by Beutel
Another contention by Officer Beutel in her report about the DUI stop related to a purported test she performed on Mr. Kenny while he was seated in the truck. “I asked him to look at me so that I could check his eyes, at which time he turned his head away. I again asked him to look at me, he asked me if I wanted his registration and insurance. I told him yes, however I wanted to check his eyes first. I was able to get a brief look at his eyes and was able to see nystagmus at maximum deviation prior to him again looking away from me.”
The horizontal gaze nystagmus test is one of three common examinations administered by police officers to test the sobriety of drivers in DUI stops. The testing protocol designed by the National Highway Traffic Safety Administration involves a three-step test lasting up to 80 seconds in which a cooperative DUI suspect is asked to follow a stimulus, like a pen, while the officer checks his gaze.
“Based on my reading of Officer Beutel’s report in which she found nystagmus at ‘maximum deviation,’ I would find that impossible,” says Robert LaPier, a former lead DUI investigator for the Idaho State Police who examined the Kenny file at our request. “In this case, the subject, Mr. Kenny, refused to show her his eyes. To conduct the test properly and conclude there was maximum deviation, the officer would have had to test each eye with the stimulus twice for up to four seconds per eye for a total of 16 seconds. Only then could she have determined whether the deviation was ‘distinct and sustained.’ That conclusion just couldn’t have resulted under these testing conditions.”
D.A. drops the DUI and battery charges
In a booking sheet attached to the report Officer Beutel wrote, “Kenny attempted to exit the passenger side of the vehicle and ignored commands not to move. Kenny kicked me in the right hip with his right foot. He then forcibly shoved me backwards as he exited the vehicle.”
The Santa Barbara Police Department treats officer battery cases seriously. But there is no evidence, in the police report, beyond Officer Beutel’s assertion that Mr. Kenny kicked her, that a battery occurred. Even Officer Gina Battaglia who backed up Officer Beutel’s claim that Mr. Kenny exited on the passenger side, failed to mention in her narrative of the events any contact with Officer Beutel by Mr. Kenny as he left the truck.
“There were no pictures of Officer Beutel’s alleged injuries in the file that Kenny received.” says Mr. Genis. “Standard operating procedure in a battered peace officer case is to take photographic evidence of the injuries. But beyond Beutel’s claim that Kenny went after her — a story that might help explain why she Tased him at point blank range — no other evidence was presented.”
In fact, on page nine of the Santa Barbara Police Department report, which lists Victim #1 as “Beutel, Kasi,” the entry in the section “Type of injury” states “none.” And in the section “Injury sustained by officer,” it says “not injured.”
Officer Beutel files workers’ comp claim
Nonetheless, despite no evidence in the police report beyond Kasi Beutel’s claim that she was injured, and despite her initial insistence that Mr. Kenny had kicked her in “the right hip with his right foot,” a workers’ compensation claim was filed on her behalf alleging that she sustained an injury to her shoulder “while taking Kenny into custody.”
On June 17, 2011, Mr. Kenny’s attorney received a letter from Julia Alcocer, a risk analyst with the city of Santa Barbara’s Finance Department stating: “Officer Beutel has now completed treatment for these injuries which included $2,274.02 in paid medical costs to date and $5,488.87 in temporary disability payments.” The city has asked the District Attorney’s Office to “request that charges against Michael Kenny include restitution for the damages,” which total $7,762.89.
“To get this letter 24 months after I was Tasered, when there is zero evidence in the police report beyond Officer Beutel’s word that she was injured, is beyond belief,” says Mr. Kenny. “Didn’t anybody in the risk management department read the police report where it says on page nine that Officer Beutel sustained no injuries?”
Kenny wasn’t DUI
Perhaps more troubling than the lack of hard evidence to support the battery claim and this latest claim for workers’ compensation damages, was the test of Mr. Kenny’s blood alcohol content performed at Goleta Valley Cottage Hospital after he was taken into custody. The report shows a BAC of .07, which is under the legal limit.
“In other words,” says Mr. Genis, the lawyer, “this guy gets shot with 50,000 volts after he gets pulled over for a DUI and he wasn’t even under the influence as a matter of law.”
After months of costly litigation for Mr. Kenny, the D.A.’s office ended up dropping the DUI and battery charges and Mr. Kenny pleaded no contest to the charge of resisting arrest.
Did the tasering violate department policy?
By Officer Beutel’s own admission in her police report, she placed the X26 Taser “against Kenny’s shoulder.” He claimed that she also touched his head. Moments later, she fired the X26 at a range of two feet, indicating that the “Taser cartridge” with its “blast doors” containing the explosive leads, was fixed to the front of the weapon at the time she placed it through the partially open driver’s side window.
Just how dangerous was that action? In bold letters, the manual for the X26 from the manufacturer (Taser International) warns officers to “KEEP BODY PARTS AWAY FROM the front of the TASER cartridge.” Further, the Police Department Policy Manual authorizes Taser use only “to subdue or control: (a) a violent or physically resisting subject or (b) a potentially violent or physically resisting subject if . . . other available options reasonably appear ineffective or would present a greater danger to the officer or subject.”
“In this case you had a suspect who was inside a locked truck,” says Felix D’Amico, a retired sergeant from the San Bernardino County Sheriff’s Department who spent 23 years working DUI cases and examined Officer Beutel’s account of the Kenny incident. “He had no legal obligation to exit the vehicle and perform any field sobriety tests or the nystagmus test. You had a second officer deployed on the other side of the vehicle. I wasn’t there, but it’s difficult to understand how an officer would use a Taser to coerce a DUI subject out of a vehicle and then deploy that weapon absent solid proof of an attack.”
Beutel misstates Kenny’s arrest history
At the end of her narrative in the police report on Michael Kenny’s 2009 arrest, Officer Beutel writes, “It should be noted, Kenny has an extensive criminal history including prior arrests for DUI, resisting arrest and battery charges.”
Yet a computer printout of Mr. Kenny’s record, contained in that same police report, shows only the single DUI arrest for a stop in November 2003 and some minor traffic violations. The printout shows no other arrests for resisting arrest or battery, one of the charges in this case that was ultimately dropped by the district attorney.
Thousands in legal fees and lost earnings
Apart from surviving the stun gun penetration, Michael Kenny’s interaction that night with Officer Kasi Beutel has been costly. After nearly a year of litigation and more than $8,500 in legal fees, fines and related costs, he’s now on house arrest, forced to submit to 35 days of electronic monitoring by the Santa Barbara County Sheriff’s Department. The sentence, which began May 26, prevents him from diving for sea urchins; his principal source of income.
“Keeping me out of the water will cost another $8,000 in earnings,” says Mr. Kenny.
Perhaps even worse, when it comes to his reputation, Mr. Kenny has seen the Santa Barbara Police Department version of his case played and replayed on “On Patrol.” Even though the DUI and battery charges were dropped months ago by the D.A.’s office, a rerun of that segment titled “Officer in Foot Pursuit,” was included in the “Best of On Patrol” that aired April 2. It contains the following commentary from Sgt. Chad Hunt who signed off on Officer Beutel’s report of the Kenny incident:
“He’s likely DUI, resisting an officer. Battery on an officer, ’cause as he was getting out he kicked her with his foot on her upper leg and hip to get her out of the way.”
“They know that the blood evidence didn’t support the DUI,” says Mr. Kenny. “They also know that there wasn’t a shred of evidence presented beyond Beutel’s allegation that I kicked her, which is why they dropped the charges, yet this episode continues to replay unedited, leaving the impression that I drove drunk and attacked a female police officer.”
“It’s amazing that in the year 2009, a U.S. citizen can be driving without being under the influence, have his life threatened and have an indelible mark on his record as a result of an overzealous cop who is willing to lie and get other officers to back her story just to rack up another DUI arrest. How much did my prosecution cost the county of Santa Barbara? There were eight officers involved, a year of litigation, court time, the D.A.’s time, the judge’s time. It had to be thousands and thousands of dollars and for what?”
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