Violent Arrest Results in Settlement

A legal settlement has been reached in the federal lawsuit between the city and a San Jose State student whose violent encounter with police two years ago was captured on a cell phone video. Rather than go to court, the city will reportedly settle with Phuong Ho—who said his civil rights were violated when police used a Taser as well as a baton to subdue him—for somewhere in the range of $90,000 to $225,000.

The City Council will have to approve the settlement.

On Sept. 3, 2009, Ho allegedly threatened to kill his roommate Jeremy Suftin, because Suftin put soap on a steak Ho wanted to eat. Ho, who is from Vietnam, allegedly picked up a steak knife and said in his country he would have killed Suftin for what he did. A roommate of the two men called police and a struggle ensued between Ho and the officers, which a roommate of Ho’s captured on video with a cell phone.

The Santa Clara County District Attorney’s Office ended up dropping charges against Ho and also decided not to indict any of the four officers involved.

If the settlement numbers are accurate, Ho will be receiving far less than the $6 million his lawsuit was seeking.

Josh Koehn is a former managing editor for San Jose Inside and Metro Silicon Valley.

19 Comments

  1. Just let me get my glasses?  He pulls a knife.  The officers shoot him.  The Mercury news would have said
    “COPS SHOOT MAN WITH KNIFE” The Vietnamese community would have been in an uproar again.  The people would have asked “couldn’t the police have used a taser or baton?” 
        Sorry Bob C.  We don’t have XRAY glasses.  We don’t know if he is going for a knife or glasses.  We do know unlike what is shown on TV a person with a knife is deadly.
        Perhaps a reconstruction with you, might change your thought process.  We will run both scenarios after showing you a recent officer stabbed and slashed that is currently on the internet.  Who we might add is an expert in hand to hand defense.  Had the suspect complied and went to the ground with out reaching or asking for anything I can assure you he would have been cuffed and the house searched for additional suspects and the victims made safe.

  2. This was a weak case.  Any lawyer worth his salt knew this.  The city once again found it was chaper to pay than pay for real experts.  If this case was good it would be worth millions.  Makes you wonder what was the truth behind this case.
        Had he done what the Police requested he would have never been hit.  Folks it another quick and the dead.  SJ officers as well as all officers have only micro seconds to re-act.  The weak city paid because it was cheaper

    • To date no money has exchanged hands for the video.

      >>Public Employee Fri, May 13, 2011 – 8:59 am

      Your friends objectiveness was compromised the moment he sold the tape for money.

      By your standard objectiveness is destroyed once money is involved.  So I guess the cops that showed up that day lacked “Objectiveness” because they were on the payroll.

      He called me the day it happened.  His story has not changed since day 1.  Read above, to date he has gotten zilch.

      >>Two sides to every coin

      Isn’t that what Reed said about V and W? Same goes for the sign scandal.  Two sides is a weak argument.

      Look, part of your job is assessing the situation. Are you going to argue that with me?  They barely spent a minute there before it was hammertime.

      Phong curled up in a fetal position to protect himself.  They kept hammering. Please, by all means tell me how in the hell is someone a threat once they’re curled up in a fetal position.

      “MOVE YOUR ARMS”  “WHACK!”“WHACK!”“WHACK!”“WHACK!”  as they cracked down on Phongs forearms and shins to get him to uncurl. 

      See, that’s just it.  They took it too far. You think a subject isn’t subdued till they’re in handcuffs.  That’s your problem. 

      He was begging the entire time, “PLEASE STOP HITTING ME”  He was subdued after 2 or 3 cracks with the bat.  I’m sure after a whack or two a simple “Face against the wall, hands behind your back” threat would have yielded compliance.  What was the final count? 38 whacks plus taser and a few kicks to the head?

      Future Hollywood

      Read above.  Nada, zip, zilch.  He hasn’t gotten anything.

      What REALLY worries me about this story is there was a heavy glazing over of what happened.  The entire detail, heck even all of the video (crazed lady demanding to call 911 with Phong and the other roomates trying to calm her down) was never ONCE released, or talked about.  The events that led up to the beating have not once been publicly discussed or reported in their entirety.

      Just curious, would any of you be interested in talking to him yourselves?  I can probably get him to do a Q&A here.

      • According to the Mercury News article from 10/2009,
        “The roommate who made the video, Dimitri Masouris, said he considered the police response unnecessary and excessive. The roommate sold the tape to Duyen Hoang Nguyen, the San Jose lawyer now representing Ho.”

        http://www.mercurynews.com/news/ci_13635707

        Now I’m not one for believing EVERYTHING I read in the paper, especially the Mercury News, but for some reason, Mr. Webby felt the need to include that statement in the article.

  3. “We’re a nation of immigrants!”, the liberals love to crow.
    If Phuong Ho is any indication of the quality of today’s immigrants, it’s no wonder our country, state, and city are in such pathetic condition.
    The guy lives here as our guest, getting the advantage of our education system, can’t manage to perform the simple task of keeping his nose clean, then shakes down his generous hosts to the tune of 100- 200K.
    I guess this is the modern version of the American Dream.
    Welcome to our country, scumbag.

  4. My friend of 20 years was the one that recorded the video.  Cops came to his place of work, demanding the SD card from his phone (and if he didn’t hand it over, he was interfering with a police investigation)

    He took it out, put it in his computer.  His e-mail client was up, and had an email open from a mutual friend.

    “James Woods huh?” the cop asked (not the mutual friends name, just protecting the innocent)

    The next day the cops showed up over at the mutual friends house asking “What do you know about the Phong Do case?”

    There’s a lot of stuff that was left out in the murky news and other places..  You can consider the version I’m going to tell as accurate.

    One of phongs friends poured palmolive soap on his steak.  He was cutting it with his knife, realized there was soap on the steak, and said, “I’m gonna kill you with this knife motherfucker”

    It wasn’t all caps though.. he wasn’t screaming, “I’M GOING TO KILL YOU MOTHERFUCKER!”  It was more of a friendly jest between friends.

    Now some other girl in the house starts flipping out and demands the police be called right away.  This is when my friend starts recording. She tells my friend “IF YOU DON’T LET ME USE YOUR PHONE, YOU’RE OBSTRUCTING AN EMERGENCY CALL!!”  He actually got this on video (never released anywhere, maybe I should do it)

    She calls the cops and tells them Phong just threatened another roomate with a knife.  Everyone is telling her to calm the hell down.  Police get there to an irate older woman, saying Phong has a knife.

    Cops come in, film still rolling. My friend tells me Phong wasn’t resisting in any way.  He tells the cops, “Just let me get my glasses” and in my friends words, “As quick as lighting, they had him on the ground CRACKING those batons on his head.  He’d put his hands up to block and they’d hit his hands. I’ve never seen anyone so brutally beat in my life”

    I taped an interview a while back with my friend, never bothered editing it but if folks are interested in hearing the story from the cameraman let me know.

    Phong didn’t deserve what happened to him.

    • Your friends objectiveness was compromised the moment he sold the tape for money.

      Greed makes people do amazing things and money alters the memory quickly.

      Sorry, but I am calling BS on your friends recollection of events.

  5. Robert Cortese,

    Assuming the situation you described leading up to the confrontation with the police is true, your conclusions about the incident are understandable. Of course, they are also unreasonable, but I won’t fault you for that because, unlike that of the district attorney or our city manager, you have no grounding in the how’s and why’s of policing.

    No matter how experienced or well-trained, a police officer responding to a report of violence cannot know anything with any reasonable degree of certainty—not even if he’s responded there previously. The credibility of the reporting person cannot be assumed (some reports are false or exaggerated), nor can the accuracy of that person’s interpretation of events or the identification of the parties involved. All the officer can know is that a dangerous situation has been reported and that he/she is responsible for rendering the situation safe and then sorting it out.

    The first priority once on scene is to identify the danger and isolate it (thus insuring the safety of others). In the case of Phong Do, the officers apparently accomplished this quickly (by surrounding him) and without using an appreciable amount of force.

    The next priority is to neutralize the identified threat (note: this has to be done before any fact-finding can occur). Handcuffing is the recognized minimum in any case involving violence. This, Mr. Do, did not allow the officers to accomplish. Instead, he resisted being rendered safe, and attempted to break his isolation and remain free of control. Had the officers allowed Do to have his way, as innocuous as this might seem to you, they would have opened the door to three absolutely disastrous developments: the injury to an innocent, the injury to an officer, a self-inflicted injury to the suspect. In addition to these risks there existed the less serious possibilities of the suspect barricading himself or taking flight.

    Now I ask you to weigh the importance of Mr. Do retrieving his glasses against that of the officers reacting as trained so that they might have a chance to investigate the particulars of the incident, and I hope you are able to form a conclusion in a manner more responsible and honorable than did the DA or the City Manager. This might help:

    Imagine your treasured friend Mr. Do confronted by a gunman at an ATM, the robber demanding, “Hand over your wallet.” Do you imagine him refusing, insisting he be allowed to retrieve his card and receipt from the machine before complying? I don’t—and I can’t imagine you advising him to do so. My guess is that you would recommend that he do as told, convinced that his interests would be best served by complying, regardless of all other concerns—including that of right and wrong.

    The police cannot provide for anyone’s safety or fairly enforce the law without having a chance to examine evidence and interview witnesses, and when prosecutors and city administrators choose political expediency over responsible law enforcement—as they did in this case, they foster resistance to lawful order and weaken the foundation of the very system upon which they depend. Don’t think for one minute that should a reportedly dangerous man threaten the immediate safety of Ms. Figone or Mr. Rosen that either of them would endorse the kind of kid gloves police work they tacitly did in the Do case. They’d have no concern for his glasses, cultural confusion, language limitations, or skin color; no, they’d want the threat neutralized posthaste, and would demonstrate a passionate understanding for the actions of the police officers who made them safe.

    And so would you.

    • Thanks for the well written and thoughtful response BS.  It’d be a joy to chat with you sometime over a dennys sampler.

      Reading though, I focused on one spot..

      Imagine your treasured friend Mr. Do confronted by a gunman at an ATM, the robber demanding, “Hand over your wallet.” Do you imagine him refusing, insisting he be allowed to retrieve his card and receipt from the machine before complying? I don’t

      Ok.  Here’s the difference..

      A gunman I expect to kill me.  A peace officer, I expect to keep the peace.  To Phong, it was just as much his house as the room-mates.

      Phong was ushered away, 2 other room-mates, and my friend were all trying to explain to one officer (as you said, isolate from the group)  In Phong’s, and most of the other people’s in the houses mind, Phong wasn’t the aggressor.  The lady screaming “LET ME USE YOUR PHONE, OBSTRUCTING AN EMERGENCY CALL IS A FELONY” was who everyone else saw in the house as an aggressor.

      Maybe I can explain it better.  It’d be like if you had a fake a 911 call to YOUR house, then the cops came over and kicked your ass in your own house.

      Throw in some cultural/language differences, and you can begin to see how the entire message of “compliance” just didn’t make sense to Phong.  As Galt pointed out, he’s a “guest” in our country.  Last thing he wants is to get into some sort of trouble that would cause him to lose that. 

      I’d rather have cops using good judgement instead of “by the book”.  “By the book” has become the new way to get away with bad things, and keep ones self beyond reproach.  “Oh it was our policy, yup, I didn’t whack that guy 38 times with a baton and taser him, I just followed policy”

      I’ve never had to throw a punch watching the door at the 7 Bamboo in 10 years, and believe me when I say I have dealt with some of the nastiest, would soon as rather shoot you than look at you people.  I’ve not once had to hit them to get them to go outside…

      What’s the saying?  “If the only tool you have is a hammer, ever problem tends to be a nail?”  If the only tool cops have for getting suspect compliance is policy and batons, they need new tools.

      Video is a powerful tool. You tell a suspect, “See this lapel cam?  I’m supposed to cuff you, the cam is recording, if you don’t comply the camera will catch that and I’ll proceed to beat your ass” How come SJPD doesn’t use lapel cams?

      I’m not even a cop and I can get folks outside with that and my cell phone camera (but instead of a threat of an asskicking I just tell them I got 911 ready to dial)

  6. If you can do links here, then copy and paste.

    http://californiaschildren.typepad.com/californias-children/2011/04/san-jose-must-pay-325mil-to-family-for-pds-civil-rights-violations.html

    No soapy steak knife from a San Jose State Vietnames person was invloved.  No vegetable peeler either.

    It was not a settlement.  It was a trial, in Federal Court in San Jose.  12 of your peers.

    Took 45 minutes after a one week trial for the jury to reach a $3.25 million judgement against the City for what it’s police officers did.

    Rick Doyle says the City may appeal.  Appeal away Rick Doyle, of this Federal Court jury award.

    That San Jose State student had the crap beat out of him, for nothing.  I don’t care if he was born on Mars, or was a tourist.  The City paid money because it was on video.  Without that video it would just be another resisting arrest case.

  7. Robert Cortese,

    You admit to expecting a police officer to “keep the peace” yet you endorse the right of a person who’s been reported as a knife-wielding maniac to refuse to submit to handcuffing? The essence of keeping the peace in such a case is to neutralize the identified threat, not treat it neutrally.

    It is a matter of law that a citizen (or free-loading foreigner) has an obligation to submit to the lawful and reasonable commands of a police officer. It is also a matter of law that handcuffing a person, even one who turns out to be innocent of any wrongdoing, does not constitute mistreatment. In the case of Mr. Do, handcuffing him was supported by the facts (as the police knew them), police training, and common sense. Yet Mr. Do thought otherwise, and people like you apparently believe that the opinion of the individual trumps all.

    Every day in America innocent people are ordered out of their cars, sometimes at gunpoint, for no other reason than they and/or the car they are driving fits the description of a person or vehicle wanted for a crime of violence. The law, based on hundreds of years of judicial wisdom, says they must comply. People like you obviously disagree, and maintain that obeying police commands is a citizen’s choice, must like the choice exercised in the voting booth.

    Frankly, that’s a pretty foolish belief, but comfort yourself with the knowledge that the Harvard-trained lawyer sitting in the White House apparently believes the same thing, at least when the citizen is one of his black friends.

    Every day here in San Jose we send our police officers out to deal with dangerous situations. Sometimes the danger is clear and present but often times it is not. It is quite obvious that a number of people think Mr. Do is a wonderful human being, quite possibly as many as thought the same thing of Mr. Caligurian, the kind and polite engineer who just murdered two people in the SJSU parking garage. (If you’re wondering who would have ever thought that a peaceful, decent high-tech professional could murder two people in cold blood, here’s the answer: every cop I know.)

    The Do case, and the disagreements it has spawned, is a perfect example of a simple but unfortunate reality: our culture lacks the mettle required for the rule of law. We want safe streets, but we want Mr. Rogers on patrol of our neighborhood. We want the law to matter, except when it threatens to deport the foreigners we like, deprives a favored group of something, or results in severe consequences for a friend or family member.

    Mr. Do was hit with a baton because the highly effective carotid restraint that a cop would’ve used thirty years ago succumbed to black political activism (a key component of the Rodney King incident, which has done so much to make baton use synonymous with brutality). He wasn’t tased because local activism has rendered the use of the Taser more hazardous to the cop than the crook (I think most SJPD cops have turned theirs in).

    The cops are getting the message, and the legacy of that message will be unsafe streets. When cops stop taking action, as is already happening, then criminals will travel with their drugs, weapons, and loot from place to place at little risk of that which they once feared most: the investigative car stop—the no-nonsense look into what they’re doing and with whom they’re doing it. Such car stops will probably stop altogether after Chuck Reed gets through gutting the department. Thugs, like the two who all but murdered paramedic Bryan Stow, will roam the streets of this city with the same boldness and sense of anonymity as they enjoyed that night in the Dodger stadium parking lot. San Jose is filled with such human garbage, and left unrestrained it is quite likely to spill over into your neighborhood.

    It’s the choice that’s been made.

    • If police are always 100% in the right, why don’t they wear lapel cams? 

      I mean, if they were 100% following procedure 100% of the time, what have they got to hide right?

      • Other than it being a silly idea, it came down to money.  Yes, it costs too much to equip every officer with cams.  Plus, when you carry a wooden stick to do your job…it never looks pretty.  Usually involves broken bones and blood…based on your friends and blogs you probably don’t have the stomach for it.

        I’m sure you would have a lot of suggestions, but most cops would just prefer you say thank you and be on your way…

    • As a fellow cop, you hit the nail on the head. Every word you wrote is the absolute truth and the reality of police work. Mr. Do put himself in the position of being dealt with in a harsh manner. It is a good think for those like Mr. Cortese that soldiers did not wear “lapel cams” during ww2 or we would have lost the war cause he does not have the stomach for the gore.

      • Tom
        stomach for the gore.

        Jaime
        stomach for it.

        You two have an obvious bloodlust, and no idea for what I can stomach.  I just don’t feed on gore.

        The stomach is an organ that digests and breaks down food, which gives you the nutrients you need to live.  Interesting that both of you use the word “stomach”.

        Every crack of the baton, every bullish threat you issue, every time you’ve “Subdued” someone, feeds that stomach.

        It’s an imaginary stomach.  Something that only exists in your minds. 

        It wells from your very psyche. It is the very black shadow of your id that you hide behind your ego by calling it a “Stomach”

        It’s way of saying, “I stash my empathy deep down when I wear this uniform, I am a souless, my actions have no influence on my spiritual alignment”  Yet slowly as the days go by, people look less human to you, and more like the demon to be vanquished.  Everything is a threat, Your idealized reasons for going into law enforcement into take a backburner to your personal safety. 

        You probably weren’t always like this. You two are burnt out on the work.  It’s time to open a photography shop and go out on disability, maybe even run for office.  Trust me, if I sat on the disability board, I would have no problem sending the two of you out on “Mental Disability”

        Let’s go back to other things though.

        Other than it being a silly idea, it came down to money.  Yes, it costs too much to equip every officer with cams.
        $43 too much? 
        http://www.ankaka.com/ultralight-rc-plane-camera_p46850.html

        How many officers are on patrol at any given moment?  300? 400?  Which is the bigger number smarty pants, a $6m dollar settlement (referring to the 90lb lady with a potato peeler that was shot) or $17k in small cameras?

        Cost is not the issue, there is a serious cost/benefit here. We could be $7m ahead if you guys wore them and were “truly in the right” 

        Why don’t you man up and tell us the real reason you don’t want to wear lapel cams?  Don’t have the “stomach” to face the real reason why you don’t want them, do you?

  8. Robert Cortese,

    I don’t believe the police are right 100% of the time; what I do believe is that when their duty exposes them to peril they have an absolute right to compel others to submit to the authority of the law.

    In the Do case, what the police officers demanded of him was necessary, lawful, and reasonable. Necessary because their safety and that of innocent bystanders was at stake; lawful because there was probable cause to believe that Mr. Do had made a threat while armed; reasonable because what they were demanding of Do was something he could easily accomplish.

    I ask that you consider that while keeping your emotional connections to this case in check. Necessary, lawful, and reasonable: could it ever be fair to hold our police officers to a higher standard?

    Now contrast the conduct of the police to the behavior of Mr. Do. Even if he knew for a certainty that the call to police was an exaggeration or misinterpretation of his conduct, he had no reason to expect the police to know that. Any minimally intelligent person would realize, given the nature of the report, that he would be viewed as a potential threat by the officers, at least until they investigated and discovered the truth. And with that realization, any minimally intelligent person would recognize the importance of cooperating with the officers AND GIVING THEM THAT CHANCE TO LEARN THE TRUTH.

    But Mr. Do didn’t react like a minimally intelligent person, didn’t behave in a such a way to relieve the officers of their understandable concerns, which raises a question: does Mr. Do possess minimal intelligence? Given that he is a university student we have to assume he does, which gives rise to a more pertinent question: can the stupidity of his conduct be explained by anything other than his having been in an abnormal state of mind?

    I see no other explanation. In other words, the only explanation for Do’s resistance to officers is that he was in exactly the kind of emotional state originally reported to the police by the caller. He was emotionally out of control, thus giving the officers on the scene reason to view him as being every bit as dangerous and disturbed as was the knife-wielding assailant described by the original caller.

    It’s been a long time since I viewed the tape, but in writing this what comes to mind is the desperate pleading of Do’s friends, begging him to cooperate—exactly what would be expected of people trying to coax a friend or loved one back into a rational state. That they failed, that Do could not be jarred back into sanity by their appeals to him, speaks directly to his state of mind, and no doubt also factored into the mindset of the officers present.

    To those who knew him personally, seeing Do parrying off baton strikes and curling on the floor (as you described) must have been deeply disturbing. But the cops trying to handcuff him did not know him personally. All they knew was what they’d learned via the reporting caller (a man armed and irrational) and what they saw of the man himself (reacting irrationally). Verbal commands were used to obtain compliance, yet Do did not comply. Baton strikes were used to force submission, yet Do did not submit. What the officers wanted was to control that which had been identified to them as dangerous, Do’s hands, yet he did everything in his power to deny them that, at the same time denying them the chance to search him for weapons.

    Mr. Do’s injuries were the direct result of his actions. That he wasn’t prosecuted is a black mark on our DA’s office, an increasingly political institution of declining integrity. That Do was compensated for his lawlessness is a black mark on our city administration, an institution where integrity is as foreign as America is to Mr. Do. The Do case is one of pure politics: of race, immigration status, and the appeasement of anti-police activism. Cutting the check was easy for people interested only in politics. For the cops, who literally live and die by the law, it was a kick in the gut—one of many.

    My only hope is that Mr. Do takes his education back to his native land and someday soon repeats his conduct with the police agents of his native culture, who have the backing of their government and ARE right 100% of the time.