Prosecutors have declined to file charges against a man whose knee was shattered when police arrested him on the first day of George Floyd protests in downtown San Jose.
In one of the most widely publicized incidents from local demonstrations, the San Jose Police Department on May 29 aggressively detained 36-year-old David Baca after he closed in on a line of officers firing rubber bullets.
Police defended their response—in which several officers piled on Baca with such force that they choked off oxygen and broke his knee—by saying he approached too quickly, swung his arms and tried to wrest away a wooden club used to fend him off. In referring the case to the Santa Clara County District Attorney’s Office, SJPD asked prosecutors to charge him with assault and battery of an officer.
Baca, for his part, has maintained that he walked up to the line with his cellphone outstretched to film an officer who seemed to be overusing his riot gun on people of color.
A spokesman for DA Jeff Rosen confirmed his office would drop the case based on “an insufficiency of evidence,” but declined to elaborate.
Dan Mayfield, Baca’s attorney, applauded the DA’s decision.
“First and foremost, I think what it says is that our district attorney’s office is truly looking at these [protest-related] cases, and they’re looking at them individually, as they said they would,” he said in a phone call Monday. “I can’t speak for them, but it seems they decided they couldn’t prove the allegations beyond a reasonable doubt.”
Baca’s arrest at Seventh and Santa Clara streets went viral, thanks to aerial footage from ABC7 News, a photo by Associated Press photographer Ben Margot that showed an officer with a truncheon pressed against Baca’s throat and images shot from another angle by San Jose Inside correspondent Kyle Martin. Margot’s photo was subsequently broadcast on national media, including The Daily Show with Trevor Noah.
San Jose PD cited the incident in a 247-page report to the City Council detailing its controversially heavy-handed response to the protests that broke out in late May and lasted through the following month. In the after-action report, police said Baca “suddenly advanced” on one of the cops in violation of an order to disperse from what had been declared an “unlawful assembly.”
Mayfield disputed SJPD’s characterization, saying he measured the painted lane dividers and analyzed aerial news footage to determine that Baca came no closer than five feet to the skirmish line. As for Baca’s swinging his arms, he told San Jose Inside said that was an instinctive reaction to being choked by a baton.
In police footage of the incident, Baca can be heard saying, “I can’t breathe.”
Baca had to undergo a five-and-a-half-hour surgery to repair the broken knee sustained during his arrest. Six months later, his family says he has yet to fully recover.
Meanwhile, Baca’s attorneys say the ordeal is far from over.
Mayfield has filed a public-records request asking the city to release additional body-camera footage and police reports related to the incident. And one of colleagues, attorney Jerry Fong, said they may file a civil lawsuit.
“At this point,” he said, “we are exploring all options concerning future litigation.”
Sgt. Christian Camarillo, a spokesman for SJPD, said the agency is conducting an internal investigation into the same incident. “Thus,” he said, “we have no comment, nor are we releasing additional footage at the time.”