Three San Bernardino County sheriff’s deputies, from the left, Nicholas Downey, Charles Foster and Michael Phelps, have been charged in the April 9, 2015 beating of Apple Valley resident Francis Jared Pusok following a nearly three-hour pursuit in the High Desert. (Micah Escamilla – Staff Photographer)

By Joe Nelson, The Sun
Posted: 03/28/17 – 6:05 PM PDT |

SAN BERNARDINO >> Closing arguments concluded and the jury began deliberating Tuesday in the trial of three San Bernardino County sheriff’s deputies charged with assaulting an Apple Valley man after a lengthy pursuit in the High Desert nearly two years ago.

Defense attorney Michael Schwartz, who is representing Deputy Nicholas Downey, told jurors Downey was not looking to get in some “cheap shots” when he repeatedly punched and kicked Francis Pusok, but he was employing techniques he was taught to detain people resisting arrest.

Schwartz said Pusok, 32, of Apple Valley was moving his arms and hands after being instructed to put them behind his back, prompting Downey’s actions on April 9, 2015, following a nearly three-hour chase through Apple Valley and into Hesperia.

Downey had mere seconds to decide his actions in the detaining of a man deputies considered dangerous and possibly armed, Schwartz said.

“They’re going to approach (Pusok) as that kind of dangerous person,” Schwartz said. He said Downey was not trying to kick Pusok in the head, but in the shoulder area to keep him from moving his left arm.

“Those hands kept moving. He kept moving,” Schwartz said.

Closing arguments began Monday in San Bernardino Superior Court, and defense attorneys all maintain the actions of the three deputies were justified and fell within the scope of their training as levels of force used in the detaining and arrest of people.

Downey, along with deputies Michael Phelps and Charles Foster, each stand charged with one felony count of assault by a public officer under the color of authority. They face up to three years in county prison if convicted.

Downey and Phelps were the first deputies to detain Pusok, who had stolen a horse and rode into steep and rugged desert terrain between Apple Valley and Hesperia before falling off the horse and being felled by a dart from Phelps’ Taser.

An NBC news crew, hovering 8,000 feet above in a helicopter, recorded video of Phelps and Downey swooping down on Pusok, punching and kicking him repeatedly. Several more deputies arrived on scene and assisted in detaining Pusok, and while they’re actions also came under scrutiny by the District Attorney’s Office, they were not charged with any crimes.
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Foster was one of the several deputies who arrived on scene within a minute of Downey and Phelps making contact with Pusok, and is accused of illegally kicking Pusok as he was being detained.

The deputies taunted Pusok and called him names as he lay prone on the ground, moaning and groaning. Phelps did a celebratory “fist pump,” and Downey took a selfie of him posing next to the horse Pusok allegedly stole, Deputy District Attorney Robert Bulloch said.

Schwartz told jurors they needed to consider other factors Downey and the other deputies were facing at the time including the rugged, loose and steep terrain deputies were navigating, exhaustion and dehydration, and the heavy gear they were wearing, among other things.

Given the circumstances of the pursuit and Pusok’s criminal background of evading police and resisting arrest, Schwartz said no reasonable deputy would conclude Pusok was surrendering.

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