Cpl. Stephen Rubio testified that ex-Officer Manuel Ramos may have strayed from policy when he used profanity as he spoke with Kelly Thomas prior to the deadly struggle at the
Rubio added that ex-Cpl. Jay Cicinelli used his stun gun properly, including when he deployed it as an ``improvisational tool'' for punching the transient in the head.
``In the video, I honestly don't see anything out of policy there,'' Rubio said when discussing Cicinelli striking Thomas with the butt of the gun.Cicinelli was trained in how to keep a suspect from taking away his weapon, which defense attorneys claim Thomas was trying to do during the struggle, Rubio testified.
It wouldn't be ``practical'' for Cicinelli to have discarded the weapon during the struggle if it wasn't working because Thomas could have retrieved it, Rubio said.
The ``loud clacking'' of the stun gun that can be heard on the video indicates it was not working as it should to subdue the suspect, he said.
When asked if Cicinelli was right to strike Thomas in the head with the stun gun, Rubio testified the police department's policy ``allows for the improvisation of a tool or weapon under certain circumstances.''
As for Ramos putting on latex gloves and then holding up his fists to Thomas before threatening to ``(expletive) you up'' if he didn't follow orders, Rubio said the defendant properly used a ``conditional threat.''
Rubio added, ``The profanity is a little off color, a slight policy violation.''
Although the profanity was ``unprofessional,'' using the threat to avoid a physical fight was OK ``for the greater good,'' Rubio testified.
Assistant District Attorney Jim Tanizaki got Rubio to acknowledge that ``improvised weapons'' are OK under the department's policy when ``reasonable,'' and that there's an admonition against head strikes with an impact weapon.
Rubio also testified, under questioning by Tanizaki, that after the first deployment of a stun gun, a suspect must be given time to comply with orders because the immediate reaction to a Taser might be improperly construed as resistance.
When Tanizaki pressed Rubio on whether a suspect should be given more than one chance to comply, the corporal resisted.
Rubio testified that he recalled Cicinelli struck Thomas four to six times with the stun gun. But after he was shown the video in court, he revised his estimate to three times.
``I see his arm moving back in a circular motion, but I can't tell if that's a strike or not,'' Rubio testified.
Officer Kenton Hampton can be seen on the video jumping away from the struggle, an ``indication he got a bit of that Taser discharge,'' Rubio testified.
Tanizaki questioned Rubio on whether Ramos' threat to Thomas could be viewed as a provocative act.
``Do you agree words can foster and create an environment for confrontation?,'' the prosecutor asked.
``It's possible,'' Rubio responded.
Tanizaki also questioned Rubio about a part of the policy that discourages threats to mentally disabled suspects.
``With respect to individuals who are mentally disabled, aren't you taught to avoid threats?'' Tanizaki asked. ''Once again, it depends,'' Rubio replied.
The prosecutor asked Rubio if he trained Ramos to not threaten mentally disabled suspects.
``I taught him to communicate with people effectively whether they were mentally ill or not,'' Rubio said. ``You try to treat everyone with calming language ... That's what we try to teach.''
Rubio also testified that blows to some parts of the head are less dangerous than others, and that the plastic stun gun would be ``not as dangerous'' as a police baton, or asp.
Retired FBI use-of-force expert John Wilson Jr. testified for the prosecution last week that Ramos and Cicinelli did not follow proper procedures.
'`I have problems with everything that happened after'' Ramos put on the gloves and held up his fists to the homeless man,
Ramos is charged with second-degree murder and involuntary manslaughter and Cicinelli is charged with involuntary manslaughter and excessive force.