A correction to an earlier version of this article has appended to the end of the article.
SAN JOSE — A protester who was hit in the neck with a police baton, then swarmed by officers — causing injuries including a shattered knee — will not face charges that he assaulted the officers during the chaotic first day of George Floyd protests in late May.
Attorneys representing 36-year-old San Jose resident David Baca said they got word from the Santa Clara County District Attorney’s Office that it will not charge him in the violent May 29 clash. The incident drew national media attention due largely to Associated Press photographer Ben Margot’s up-close image of the officer’s baton making contact with Baca’s neck — later broadcast on The Daily Show with Trevor Noah — and overhead footage from news helicopters.
The district attorney’s office confirmed to this news organization its decision not to file against Baca, but declined to offer specific comment other than stating there was insufficient evidence for criminal charges. San Jose police declined to comment on the decision not to prosecute Baca.
One of Baca’s attorneys, Dan Mayfield, thanked prosecutors for “their careful review and consideration of this case,” and said he and attorney Jerry Fong are exploring potential civil litigation against the city and police department.
“I think they came to the conclusion they could not prove it beyond the reasonable doubt, and they did the right thing,” Mayfield said. “This certainly wouldn’t happen anywhere. We were lucky there was a helicopter directly overhead. We were lucky the events occurred on one of those lines they painted on the street, so we could get a very clear estimate for how far away from police David was.”
The encounter at Seventh and Santa Clara streets was further detailed in police body-camera footage released in September that showed Baca walking up to a police skirmish line with his cell phone held up, looking to record an officer he asserted was being racist by targeting protesters of color with rubber bullets, including himself. An after-action report later released by police to the city council alleged that Baca “suddenly advanced” on one of the officers after an unlawful-assembly dispersal order had been announced.
But Mayfield said Baca was several feet away when an officer “clearly took two steps forward” and pushed his wooden baton into Baca’s Adam’s apple. The accumulated footage shows Baca grabbing at the baton — which his wife contends was out of protective instinct — before other officers quickly took him to the ground to subdue him. During the struggle, Baca can be heard yelling “I can’t breathe” while pinned down.
“It clearly showed that David was not a threat and that he got no closer than five feet,” Mayfield said.
Mayfield added that six months after emergency surgery to repair his knee, Baca “still cannot walk without pain and he is still disabled from this beating.”
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The police department has been under heavy scrutiny for what many city leaders, civil-rights groups and residents described as heavy-handed tactics used against demonstrators over several days in the wake of Floyd’s killing by Minneapolis police on Memorial Day.
SJPD has since restricted its use of rubber bullets and similar armaments for crowd control. After a months-long back-and-forth, the city last week mandated the expedited release of police-recorded video footage of high-profile incidents — starting with the Floyd demonstrations — to increase public transparency.
While lawsuits have been burgeoning, scores of demonstrators have not received recompense for serious injuries they suffered at the hands of police, largely from rubber and foam rounds and tear gas. Among those injured was a former police bias trainer and community activist who was shot in the groin while trying to de-escalate tensions between officers and protesters.
Relatedly, police have not said publicly whether Officer Jared Yuen — who drew nationwide infamy after being caught on video aggressively antagonizing protesters— has faced any discipline. Police confirmed in the after-action report that he was not on any street-enforcement duty.
Correction, November 28, 2020: An earlier version of this article incorrectly described an "unlawful dispersal order" as part of the context for the encounter, suggesting the order itself was unlawful. It should have been an "unlawful-assembly dispersal order."
