He didn't ask her to get out of the vehicle. >> He doesn't have to. Officers are given great latitude to do their job. >> What you're arguing to the court is is that the officer, upon some assessment, can take some preemptive strike because he believes that something is going to happen that hasn't yet happened. >> On March 18th, 2024, Sergeant Christopher Deya of the Washtenaw County Sheriff's Office deployed aerosol subject restraint, commonly known as mace, on a handcuffed arrestee seated in the back of a patrol vehicle at the Washtenaw County Jail. Mr. Deya was charged with assault with a dangerous weapon and misconduct in office, both felonies, along with the misdemeanor count of willful neglect of duty by a public officer. On March 13th, 2025, the matter came before Judge Cedric Simpson in the 14A District Court for a preliminary examination. The state was represented by Assistant Attorney General Michael Doby, and Mr. Deya was represented by Defense Attorney Douglas Gutcher. The prosecution called two witnesses, and Mr. Deya's body camera footage was played during the questioning of the second witness, Special Investigator Miller of the Washtenaw County Sheriff's Office. >> Court does call the case of the people versus Christopher Deya. Your name? >> Christopher Deya. >> Deya. All right. Parties ready to proceed? >> We are, Your >> Sir, please come forward and be sworn. >> Thank you, sir. Uh what do you do? >> I'm a mayor of the Washtenaw County Sheriff's Office. >> And how long have you done uh been in that position? >> In that position since 2021. >> I'm going to ask some questions about uh incident in the jail, Washtenaw County Jail, March uh 18th of 2024, okay? When did you become aware of the uh the incident in question here? >> Saw an email notifying that there was a use of force jail, reviewed it, things stuck out to me. >> Tell me about that. >> What immediately stuck out was that the email indicated that Sergeant D sprayed uh a subject in the backseat of a police vehicle in an NC police vehicle while she was in her restraints. >> Okay. That stuck out to you. What did you do? >> Notified one of the lieutenants. >> And so what why did that stick out to you? >> ASR spray is used when somebody is a threat because she was in restraints in the back of a police vehicle car with the window. Um I had concerns as to whether or not that person was was a threat at the time in the instant. >> Could you tell What is What is ASR? >> Aerosol subject restraint, commonly known as Mace. >> And is that something that is um it issued to officers in the jail? >> It is, sir. >> Okay. And are there trainings regarding that? >> Yes, sir. >> That are required. >> Yes, sir. >> And are there policies regarding that? >> Yes, sir. >> What is done, if anything, to make sure that the officers know about the policies? >> Anytime there's a policy revision and there's a policy that's newly published, it's out in a program called PowerDMS. The employees are required to review the policies and electronically sign. And yearly, aerosol subject restraint, there's a training course that's pushed through PowerDMS where the students have to participate [clears throat] in the training, watch a video, and then take a test. >> Okay. >> Successfully pass the test. >> And specific to ASR? >> Yes, sir. >> Okay. What is your understanding from the policies of the proper use of ASR in the in the jail? >> ASR isn't classified anywhere in the force continuum. It's used anytime that a person that's applying force feels that lower force of control will not be adequate. >> Okay. You said something about the individual not being a threat. Where does that fit in? >> ASR is used when there's a threat to staff or a threat to another person. And as the The in this case was in restraints in the back of the police vehicle with bars on the window. It was difficult for me to see whether or not there was a threat to anybody else. >> Okay. Did you see, Commander, any justification for the use of ASR in that situation? >> Objection, relevance. Whether or not this officer sees that it's relevant is not the legal standard. Actually, under Graham v. Connor's >> As to the form of the question, I'll sustain the objection. It I'll allow you to rephrase the question. But I think as it's phrased, I think it's >> Thank you. In a situation like this, Commander Shpakacy, where someone is handcuffed in in in in the back of a vehicle, is that, based on both the your understanding of the policies and your own training and experience, a situation where ASR would be necessary? >> Based on my training and experience, what I saw in that >> Okay. And why is that? >> Because the person was not a threat at the time ASR could be used. >> Okay. >> Cross-examinations. Uh Commander, briefly, were you going to get the individual out of the car? >> I'm sorry, sir. >> Were you going to get this individual question out of the car? >> No, sir, I wasn't there. >> Okay. So, you weren't there, but you determined that there was no threat to the officers that were, correct? >> Based on the circumstances. >> Okay. Were her feet restrained? >> No. >> What What direction were her feet facing while the sergeant was talking to her? >> I'm not sure. >> Okay. Well, if the feet were facing the officer, could that be a threat? >> Not No, because she was in the back of the >> Okay. Is that where she was going to be housed? >> No. >> Okay. So, what do the officers have to do to house her? >> Remove her from the vehicle. >> Okay. So, if they open the door and the feet are facing the officer and they're unrestrained, is that a threat? >> No, that's how we typically get people out of the vehicle. >> [laughter] >> So, you're telling me that it's Is a problem for officers to be kicked? >> No, I said that's how we usually get people out of the vehicle. >> Right, but that wasn't my question. Is that a threat to have the feet unrestrained at an officer? >> Depends on the circumstances. >> Okay. So, did you see the demeanor of the individual that was coming into the jail? >> I did. >> She was kicking the back of the windows of the car? >> When she was on the way there, yes. >> She was screaming, yelling, insulting, combative? >> Yes. >> Okay. The officers have to make a determination to get her out of that car, right? How they're going to do it? >> Yes. >> Now, the three questions were just a precursor to getting her out of the car, correct? >> Yes. >> The officers were actually there to extricate her from the car and put her in a cell. >> Yes. >> Okay. Sergeant uh D and or Day and one other person, what was the other sergeant that was present? Do you recall? >> We had Sergeant Merritt. >> They're the ones that are in charge of getting this individual out of the car, right? And again, the ASR doesn't appear on the chart because you said that I want to get this quote right. Uh not part of the continuum because it can be used anytime the officer feels or believes And what was the rest? >> or force to control another subject. >> Okay. No further questions. >> All right. Thank you. Any redirect? >> Uh one question uh off Sorry, Commander Shpakovsky, uh based on both the policies and your training and experience, was the is the preemptive use of ASR spray uh a reasonable? >> Given the circumstances, no. >> Okay. Thank you. >> All right. >> Yeah. You may step down. Thank you, Commander. >> Sir, please come forward and be sworn. >> All right. You may inquire. >> And what do you do, sir? >> I'm a special investigator with the Washington County Sheriff's Office. >> Uh I have some questions about an incident in the Washington County Jail on March 18th of 2024, okay? >> Okay. >> Mr. Miller, you obtained uh a number of videos. >> That's correct. >> And People's Exhibit number one, which has been admitted by uh stipulation, is going to be the body cam of the defendant. And if you will [clears throat] give me a moment to connect. >> [laughter] >> You just cracked your window. So what's going on? Hey Rachel, Rachel. And I'm Sergeant Diaz, supervisor that's on shift right now along with Sergeant Mayor, okay? Hey, so I want to get you in, but I want to work with you. I don't want any I do. I want to work with you. >> So let's just be honest >> So I get paid whether you're here or not. I want to get you in the door. And we are having this conversation right now. Now when I go back outside are you Are you I'm asking you questions. Are you sure? I haven't seen you. So Are you Yes. Yes, so I'm going to tell you who you are and who you are not. Are you sure? Do you Do you need anything from me? Do you need medical needs? I have them. Rachel, I'm trying to help you out. So here's what I'm going to tell you. I'm trying to get you taken care of, but I'm trying to work with you. Do you need anything from me? I've already told you yes. Yes, this is what I'm asking you. This is what I'm telling you. THAT WORKS. OKAY. >> [clears throat] [screaming] >> OKAY. >> I'm going to stop the play there. That was one of the videos that you obtained. >> Yes, it was. >> And reviewed. >> Yes. >> Commander Shipocasse talked about things sticking out to him. What sticks out to you in that video? >> Objection, your honor. It's irrelevant at this point in time. He He He did the investigation. His opinion of what the investigation shows is irrelevant. >> Overruled. >> What sticks out to you? >> A number of things. And so, when I looked at the action and the interaction involved in this, I felt that it was problematic in terms of the action taken by Sergeant Dee. [clears throat] >> Okay. What do you mean problematic? >> The use of ASR is for someone that's non-compliant. You give them a directive, tell them something specifically to do, afford them a reasonable period of time to comply with that. >> Okay. >> And you also give them a warning that they don't comply with that, that there will be consequences, and subsequent to that, the ASR will be deployed. What I saw here was none of that took place. There was no um warning given. There was no directive given. Uh in terms of the uh the degree of threat Sergeant Dee or anyone else, she was confined in the backseat of a patrol car, handcuffed behind her back, in a particular patrol car that has cages all the way around. She did not exhibit any aggressive, threatening behaviors that would necessitate uh the use of ASR. Nor was warning given to her. So, when we talk about ASR, what what we're talking about is you want to gain compliance. Okay? >> [clears throat] >> Well, you have to have a directive to gain compliance. Okay? Asking questions is not the same as giving a directive as I want you to do this. We are getting ready to open the door. I want you to step out of the vehicle. Okay? None of that was given. >> Okay. Tell me a bit about ASR itself and you talked about when it is appropriate to to use, but what is the what is the effect of it? >> It's basically a combination of like CS gas agent, a chemical agent that creates an irritant. So, it it momentarily incapacitates a person. >> Pain, right? It causes pain. >> Absolutely, you're right. >> Okay. Cross-examination. >> After Mr. Dehayes' body camera footage is played, special investigator Miller testifies that the deployment of aerosol subject restraint was problematic because Mr. Dehayes gave no directive, no warning, and faced no imminent threat before spraying a restrained arrestee. Under the Washtenaw County Sheriff's Office Use of Force Policy, aerosol subject restraint may be deployed when an employee believes that lower forms of control will not be sufficient given the level of resistance. But, before deploying it, an employee must announce a warning of the intent to deploy if the subject does not comply with verbal commands and gives the subject a reasonable opportunity to comply unless doing so would increase the risk to the employee or another person or permit the subject to undermine the deployment. The policy further provides that the purpose of aerosol subject restraint is to subdue an unarmed attacker or to overcome resistance that is otherwise likely to result in injury to either the subject or the employee. And that it may not be brandished as a form of intimidation. Additionally, the policy states that yelling at or insulting an officer is a form of verbal resistance that generally does not create an imminent threat and it prohibits the use of force against a person in restraints except as objectively reasonable to prevent imminent bodily harm to overcome active resistance or to physically remove a person offering passive resistance. Here, the arrestee was handcuffed in the back of the patrol vehicle, had not been ordered to exit, and was given no warning that the spray would be deployed. Well, following Mr. Doby's direct examination, Mr. Gutcher cross-examined special investigator Miller. After brief questioning, the witness stepped down and the attorneys presented arguments as to whether the state had established sufficient probable cause to bind Mr. Dea over on the felony charges, starting with Mr. Doby. >> So, I could certainly hear the bindover motion now and then argument. Or would you like the opportunity to just submit positions as you have in writing to the court prior to the court making its ruling. Whichever way is more convenient for counsel. >> I'll defer to Mr. Doby. >> I I'm happy to argue it this way. >> All right, very good. >> Uh your honor, the facts are pretty simple in this case and are not really in dispute based on the the cross-examination that happened. Rachel Damon, his mom, was uh arrested for an offense, brought into the jail by YPD, and was a jerk. Uh she was yelling and and uh and making a scene in the backseat of the car as we saw in the video when she when she first got to the sally port. But it's the behavior of the defendant that's a question here. Uh and we saw him approach the car, uh attempt to ask several questions, give give no commands, not asking her to do anything, and not being in any type of threat from this person. So, taking setting aside for a moment that this is a police officer and all of the responsibilities, uh duties, and trust that are placed in him, this is a person who is handcuffed within a cage in the back of the who has a weapon uh used on her. That weapon being the ASR spray. That is an assault. It is a felony assault based on the type of weapon that the ASR has been can be found by a trier of fact. A jury can find that it's a dangerous weapon and it's how how it's used. It was sprayed directly into her eyes, obviously causing significant pain based on the video. And the jury could find that it meets definition of a dangerous weapon and that it could cause a serious injury. But he was a police officer. He was a I'm sorry, not a police officer. He was a corrections officer at the time. He was there acting under the color of his office performing or supposed to be performing duties of taking this woman into the jail. And his behavior by spraying her in the face when she was no threat, when she was not refusing any orders, when she was just not answering questions. Questions that Commander Shipocasse says happens all the time that people do not answer those three core questions. She's not answering the questions and she insults him. And he sprays her in the face with the ASR. That is a wrongful act. Going through the elements of misconduct, he is a public officer. He meets that definition. That's by stipulation. He was there. He was working acting under the color of his office. The only issue at this is the corrupt intent. And for that we've had some testimony and admitted some exhibits. Obviously subject to the court's later ruling on them regarding those duties and responsibilities that are placed on officers and the trust that is placed on them for the people that are in their custody. By flagrantly violating all of those, spraying someone who was handcuffed and in the back of a police car, goes to show that his corrupt intent. He knew that this what he was doing was wrong. He knew that >> [clears throat] >> he was trained in it. He has to be certified in it in this every year. And it went It goes against that trust that we put in people in his position for the basic humane treatment of people that are put into our jail. >> Mr. Doby argues that Mr. Diaz' conduct satisfied each element of misconduct in office, identifying quote unquote corrupt intent as the only element that's genuinely in dispute. Misconduct in office is a common law offense, which means that it's defined by case law rather than a statute. As the Michigan Supreme Court explained in the 2003 case of People v. Perkins, misconduct in office requires corrupt behavior by an officer in the exercise of the duties of the office or while acting under color of the office. The court described three ways that an officer can commit the offense: by committing an act that is itself wrongful, known as malfeasance; by committing a lawful act in a wrongful manner, known as misfeasance; or by failing to perform an act that the duties of the office require, known as nonfeasance. Committing one of those acts, however, is not by itself enough. The court also noted that in cases of malfeasance and misfeasance, the officer must act with corrupt intent, meaning a sense of depravity, perversion, or taint. While in cases of nonfeasance, the officer must willfully neglect to perform the duties of the office. Now, here, because the conduct at issue was an affirmative act rather than a failure to act, corrupt intent was the applicable standard. And Mr. Doby argued that Mr. Diaz' deployment of aerosol subject restraint on a handcuffed arrestee, in violation of his training and against the trust placed in him as a corrections officer, reflected the depravity, perversion, or taint that was required to satisfy it. >> All the elements of each crime have been proven to the standard necessary for binding over, and I ask that you do so. >> All right. You just one question. >> Yes, Your Honor. >> Say the door had been open, either side, it doesn't matter. And the arrestee is now out of the vehicle and let's say is thrashing around. We wouldn't be here, I guess. >> I'm not sure that >> And then the deployment of the ASR. >> I'm not sure that that's that's your I mean she In your hypothetical, she is still handcuffed. She is still a restrained person and within the jail. Kicking and thrashing around, I I think that there's a that there might be an argument that they used ASR or other forces necessary, but in this circumstance, there's seven officers around that car. Someone kicking and and thrashing around happens often and they are not sprayed while they are restrained. >> Got it. Okay. >> Your Honor, the standard preliminary exam is simply they have to produce evidence to the level of probable cause or evidence that probable cause to each element can be inferred from the evidence presented. In this case, you have two unique charges that by the circumstances present themselves here. First of all, my client by stipulation and by fact at that time was a law enforcement officer working as a law enforcement officer, which means by law there's certain things present for consideration for this court that's not present in the normal course of an assault and battery case. Graham v. Connor is the standard by law an officer is given greater latitude to use force in the course and conduct of his employment. In fact, that court says the law recognizes law enforcement officers are required to make split-second decisions of life and death, which cannot be judged through the 20/20 vision of hindsight from the vantage point of judges on the bench or for that matter other officers who would have done things differently as they're sitting in an office reviewing the actions of an officer the next day. Even the policies and procedures of the of the Washtenaw County Sheriff's Department, which the prosecution entered into evidence in this case, indicates that the officer makes the determination. What Mr. Miller left out and was already admitted into evidence in the general rules is that the AR spray, while it says employees shall provide a warning prior to deploying a chemical agent, if doing so does not increase the risk of the employee or another person, which again leaves discretion to the officer involved. Uh Commander Shakaasi testified that the use of force in an AR spray does not fall on the continuum of force. It's left to the discretion of the officer to use based upon the facts and circumstances as they see them. So, take all that into consideration. How does that apply to the first charge of assault with a dangerous weapon? First of all, there was no assault because his use of the the tools that were given to him for compliance were lawful. That's what he's supposed to do. That is the purpose of the AR spray. No officers in that video were injured. The individual did not sustain any serious physical injury and was not subject to death. The individual was removed from the car and taken to a cell. If you look at the facts surrounding it, they're they're trying to create that there was some type of retaliation by Sergeant D. There was no retaliation. He was very patient with this individual. The decision not to issue a warning appears, based upon the video, to be more in line with extracting her from the car in a safe manner for both him and his officers, which was successful. There was no There was no abuse of this prisoner. The prisoner's legs were not restrained. The prisoner's mouth was not restrained. Every day this court in in law enforcement deals with situations where officers are injured by individuals, as you just gave in your scenario, getting out of the car and starting to act in a manner in which officers could be subject to injury. In this case, he short-circuited. The individual was not there for a white-collar crime. She was there for a felonious assault. The officers were made aware she was being non-compliant combative and kicking in the car prior to them ever going out there. Her actions in refusing to answer created a situation where officer D under the law made a reasonable determination to extract her in the safest manner possible and it was successful. In order for him to be bound over for assault with a dangerous weapon, they would have to prove by at least a preponderant probable cause level that a dangerous weapon was used in this case. The jury standard jury instruction a dangerous weapon is any object that is used in a way that's likely to cause serious physical injury or death. There's no probable cause presented in this case to show that the use of that pepper spray in this this mace in this case would have caused serious physical injury or death. The facts and circumstances that are predicate to find that it was a dangerous weapon. There's no probable cause. That can't be bound over as presented to this court. The standard jury instruction continues to say some objects such as benz and bombs are dangerous because they are specifically designed to be dangerous. Other objects are designed for peaceful purposes but may be used as dangerous weapons. The way an object is used or intended to be used in an assault determines whether or not it's a dangerous weapon. In this case because this is not a standard delineated by statute dangerous weapon, the court first has to find probable cause to base upon the facts of this case that this pepper spray was in fact at least the level of probable cause a dangerous weapon which I don't believe was present. >> Mr. Gutcher argues that the prosecution has not established probable cause that the aerosol subject restraint qualified as a dangerous weapon. Under section 750.82 of the Michigan compiled laws, a person commits felonious assault by assaulting another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder. As the Michigan Supreme Court explained in the 1938 case of People v. Goetz me, some weapons are dangerous per se because they are designed to be deadly when used, while other objects are not dangerous weapons unless they are used for that purpose. This principle was applied directly to an aerosol chemical spray in the 1983 case of People v. Bender, where the Michigan Court of Appeals considered a defendant charged with assault using an aerosol can containing the chemical agent that's found in tear gas. The court declined to hold that such a spray can is not a dangerous weapon as a matter of law, concluding instead that whether the can was used as a dangerous weapon was a question for the jury as the finder of fact. Now, because aerosol subject restraint is not a dangerous weapon per se, the question in front of the court was whether the prosecution had shown probable cause that it was used in a manner likely to cause serious physical injury or death. And Mr. Gutcher argued that the evidence did not rise even to that level. >> Now, go to the misconduct in office. Again, based upon the facts, they can disagree with how Sergeant D did his job that day, but that's just second-guessing. You know, there's no depravity shown here. There's no corrupt intent. There's no perversion. You know, in the court rule or proposed court rule that was provided by the prosecution in this case, the word corrupt is defined as depraved, perverse, tainted. I mean, that that's not there. Corrupt intent includes intentional purposeful misbehavior related to requirements or duties. What's interesting is even with the policies and procedures and testimony, nothing was intentionally against the policies and procedures. Policies and procedures do not require a warning if the officer deems that it could put someone at more risk than they're in. And there's no prohibition on using the ASR spray. So, they didn't even prove that there was anything for their purpose of showing corrupt that he didn't follow policies and procedures. They didn't even show that. And then if you take the facts of the case as presented, he used one burst of pepper spray that's issued to the officers to gain compliance and to ensure safety of officers and the individuals, he did that to get her out of the car. >> What was he gaining compliance to? >> To get her out of the car. That was it. He wanted to get her out of the car in a manner in which she didn't fight with the officers and the officers weren't hurt and it was successful. >> As I look at it, how would I know she wasn't going to comply with that? >> You wouldn't. But if the officers take her out and they're injured, then you're second-guessing saying, "Why didn't you use the pepper spray to get her out?" Because that's why you have it to distract her. >> No, no, no. But I would >> Judge, I have a question. Yes, because that's why we're second-guessing now. >> No, I don't think we're second-guessing. I mean, the issue would become he didn't ask her to get out of the vehicle. >> He doesn't have to. >> All right. He doesn't say, "We're going to take you out of the vehicle." >> But Judge >> saying he doesn't have to. Counsel, just cuz you say it doesn't make it true. What he does, you're what you're arguing to the court is is that the officer, upon some assessment, can take some preemptive strike because he believes that something is going to happen that hasn't yet happened. I'd like to see the same law that gets me there. >> Their policies and procedures provide for that. They can use the level of force that they believe is necessary. It's left to the employees' discretion. And there's an it's enumerated in there. There's active resistance, passive resistance, if an individual is combative physically or if they're just refusing to to comply. Now, in this case, you're saying that he should have said, "Hey, we're going to open the door and take you out." Well, she was at the jail. Well, I mean, you're not saying that specifically, but that's that You're saying, "Why didn't he open the door and see what she would do?" And if she opens the door and he kicks him in the knee and blows it out, we're saying, "Well, you don't know that would happen." It happens in the jail all the time, Judge. All the time. You know, they >> Okay, but but the thing is, that would mean that anybody who is in the back of the vehicle, an officer would be correct, or at least could properly anybody coming in, whether they're screaming, yelling, doing anything. They're in the back, in all kinds of restraints, I can spray them, introduce something to them under the notion that something might happen when I open the door. >> I think that that may be correct. However, you you in this situation, he's charged with specific crimes. You know, there are other crimes that they can be charged with, theoretically, that wouldn't be assault with a dangerous weapon, i.e. a weapon that could cause serious physical injury or death. That would be a simple assault and battery. And an individual can be charged with assault and battery without being charged with misconduct in office, because while it may rise to the level of an A&B, it doesn't rise to the level of depravity, perversion, or corrupt intent. There's levels to this. The reason we're here is this is a felony charge in which they have to have probable cause for the charges they issued. That doesn't mean that another charge may not be more appropriate. These charges are not appropriate. And that's what we're here on today. And yes, officers are given great latitude to do their job. That is the law. Graham v. Connor, 20/20 hindsight is not the standard. Can't second-guess what he did. In fact, the court says unless the use of force is arbitrary, the officer has discretion. This is reading from People v. Sherer. The officer has discretion within reasonable limits to determine the amount of force which the circumstances require. And he's not guilty of wrong unless he arbitrarily abuses the power confided in him. It's one of the cases I gave the court. It's a quote from the court. These are special circumstances based upon the fact that the officers work for the public. And their job is not necessarily second-guessed. Force is part of their job on a regular basis. The charges in this case are not appropriate and as such there's not probable cause to the first and the first case the element >> Well, okay. Whether or not the actions meet the what's charged. >> Right. >> I guess I'm asking from a factual standpoint. What you're arguing is is that anybody brought into the jail, doesn't matter what they're doing. You're saying that the court if an officer responds the way that the defendant in this case has to somebody in the back of a vehicle, regardless of what they're doing. >> No. No, you're not. >> That they're provided that latitude. >> No, you're not. >> Okay, what are you >> saying is as long as their actions aren't arbitrary. If if you just decide that an individual sitting in the car is brought in, I'm going to spray him, that's an arbitrary use of force. But that's still not necessarily a felonious assault. It still might not be misconduct in office. It may be a policy violation, not every action is a criminal violation, your honor. And the officer under the law, as long as his actions are not arbitrary, then yes, it's legal. That doesn't mean that it's not excessive, that's called a civil action. 1983 action, there's a whole list of things that officers aren't allowed to do that still aren't criminal, but they're charged in in civil court all the time with violations. Officers are given special treatment and as long as his actions weren't arbitrary, if there's a reason for it. >> Yeah, I get I get that they're given special treatment. I I know the law in that area. That's not sort of cart blanche. It's not And so the question becomes in this case, where are you drawing the line? Because the only reason we're here is one side's drawing the line here and one side's drawing the line here. >> But that'd be a factual issue which I don't want >> I'm trying to figure out where your line is. >> My line on the first one is it's not a dangerous weapon. >> Okay. >> Okay. So therefore that charge shouldn't be bound over. On the second one, it's not corrupt intent. There was no perversion. There was no depravity. If you're using the policies to say that there was corrupt intent or depravity, the policies say it's up to the officer's discretion to that they can use the ASR. They don't have to give a warning as long as, you know, if something is >> would determine that a reasonable fact-finder could conclude that it was an abuse of their discretion. Does that then give or give rise to the potential >> I would say no because then you're basing the decision to bind him over on the policies and procedures and not the action. See, this is this is the difference that we're talking about. Yeah. >> No, that's not that's not true. What you're saying is >> Mhm. >> that the discretion of it's it's really the discretion of the officer. That's what the policy is. I'm saying if one were to determine that it's an abuse of discretion, that equates to that depravity that we're talking about or some corruption because it's an an abuse of discretion. >> No, that would mean >> be for the fact-finder to determine? >> I think you're mixing I In my opinion, your honor, I think you're mixing two different concepts together to get >> No, I think you are in trying to run me in a circle because what I'm saying is if I take the policy >> Correct. >> and I take that policy and I say yes, they have discretion. >> Correct. >> But a reasonable fact-finder could conclude that this is an abuse of discretion which could be used as a factor to determine whether or not there's depravity or corrupt corrupt a corrupt behavior. Well, your honor, I That then I'll I'll leave it to you to go and make your own determination. I'm not going to be able to to change your mind necessarily on that. I think we're going kind of in circles, but I will direct you to the People v. Milton case which is the assault and battery and the misconduct in office charge, which kind of started this whole thing in 2003. It It kind of addresses your first part that you're kind of coming at me with it this question. And it said that if our holding will strike fear in the hearts of police officers throughout the state that no public officer under the color of his office will feel entitled to behave in the egregious manner that this defendant did and would achieve that result. So, it's It's saying to us that if our concern is that officers when every time they use force is going to be left to an a jury to decide if that force was arbitrary and whether or not it's misconduct in office, the court says to the first part, if it's like this case, if it's horrible like this, what Milton did, then that's going to serve our purpose. But, they go on at the end of that paragraph and says, "Listen, the defendant's fear that in light of this result any malfeasance on the part of officers will be construed to misconduct in office is unfounded. Only malfeasance committed during the existence of a duty under the office or under the color of the office and results from corrupt behavior constitutes misconduct in office." You know, I think in this case, if you look at that, there was no corrupt behavior on the part of Sergeant >> This That was one of the cases that you presented to the court. Okay. >> This isn't corrupt behavior. Milton, he beat He beat the inmate. He hit him repeatedly, knocked him down, slapped him, hit him. This was an individual where you got where the court the witnesses, the prosecutor, they may all disagree and say, "You should have done it differently." But, there's different levels to this. This is a criminal court with specific elements. You know, the There's administrative proceedings, civil proceedings, and other proceedings which you can address perceived wrongdoings. This is a criminal in which an individual's liberty is at stake. And they have to have probable cause to each element. I'm not asking the court to condone his conduct. You may disagree with what he did. But, I'm asking you to find and hold them to the probable cause level of each element in this offense. Thank you, Your Honor. >> All right. Thank you. >> Following the attorney's arguments, Judge Simpson adjourned the preliminary examination to April 3rd, 2025. On that date, Mr. Daya was bound over to the Washtenaw County Circuit Court, where the case proceeded. On December 18th, 2025, Mr. Daya pleaded no contest to the misdemeanor charge of willful neglect of duty by a public officer, and the two felony charges, assault with a dangerous weapon and misconduct in office, were dismissed. He was sentenced to 6 months of probation and 1 day in jail with credit for time served. This hearing demonstrates that the option to use physical force is among the most consequential powers that a society can place in the hands of a public servant, and that the abuse of that authority can have serious consequences. When a police officer directs force at someone who is already in custody, handcuffed, and confined, then the public's trust in law enforcement is betrayed. The requirements that precede a use of force, such as a command, an opportunity to comply, and a warning, they exist to protect against excessive and gratuitous police brutality, and to preserve public confidence that the use of force will be reserved for genuine necessity. When physical force is used against someone who poses no threat, then the damage extends beyond just the person harmed, and it reaches the trust that allows officers to carry that authority at all. The measure of a public servant is found less in how they treat the compliant and the agreeable than in how they treat those who are difficult, powerless, and entirely within their control. Let us know if there is a case or courtroom interaction that you would like us to explore in the comments below. [music] Thank you for watching, and don't forget to like and subscribe so we can help foster a more informed society.