San Francisco deputy’s assault conviction overturn by court

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A state appeals court overturned the felony conviction of a San Francisco sheriff’s deputy for assaulting a homeless and disabled man at San Francisco General Hospital, saying Tuesday the trial judge failed to let the jury decide whether the officer’s use of force was necessary.

Michael Lewelling was convicted in October 2015 of assault by an officer and was granted probation, with 100 hours of community service. As a member of the sheriff’s patrol unit at the hospital, he had been charged with illegally attacking Fernando Guanill in the waiting room in November 2014.

Guanill, 60, had come to the hospital in severe pain, and argued with a nurse. He fell asleep while awaiting an appointment, but staff members asked Lewelling to escort him out. The deputy tapped Guanill on the shoulder to wake him, then tried to handcuff him.

In a followup report, Lewelling said Guanill had threatened him and tried to attack him with his cane. Guamill said Lewelling and two other deputies hit and choked him. Prosecutors charged the officer with assault and said a video of the incident showed he was the aggressor.

Guanill sued for damages, and the city agreed to pay a little over $100,000 in a settlement, said Guanill’s lawyer, Randolph Daar.

At Lewelling’s trial, a sheriff’s sergeant who reviewed the deputy’s report testified that Lewelling had used reasonable force to overcome Guanill’s resistance, but that choking him was excessive.

A jury convicted him under a rarely used state law that forbids public officers to assault or beat someone “without lawful necessity.” In Tuesday’s ruling, the First District Court of Appeal said Superior Court Judge Ellen Chaitlin had failed to define “lawful necessity” for the jurors and instead allowed them to decide that any use of force — like pushing Guamill back in his chair — amounted to assault if Lewelling had no legal basis for detaining Guamill.

Based on the judge’s instructions and the evidence, “the jurors must have relied on the prosecution’s invalid theory of unlawful detention” without the need to show unreasonable force, Justice James Richman said in the 3-0 ruling reversing the deputy’s conviction.

Defense lawyer Harry Stern said after the ruling that the jury instructions used in the trial “would have led to the understandable reluctance by the police to stop and detain criminals.” Lewelling’s “alleged crime,” Stern said, “was attempting to stop a disruptive street person from attacking a nurse.”

District Attorney George Gascón declined to comment. His office could appeal the ruling and could also seek to retry Lewelling, but Dylan Schaffer, another lawyer for the deputy, said the court’s definition of the assault charge left no basis for a retrial.

Lewelling has been on leave since his conviction but could return to the department, Schaffer said, since “he’s done nothing wrong.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@

sfchronicle.com

Twitter: @egelko