The Volokh Conspiracy
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The Justice Department's Dubious Attempt to Erase a Police Officer's Federal Excessive Force Conviction
I've teamed up with well-regarded civil rights lawyer, Caree Harper, to fight the Department's effort to vacate L.A. Sheriff's Department Officer Trevor Kirk's conviction.
Over the last several days, the Justice Department has attempted to vacate the conviction of a police officer the Department's career prosecutors had convicted of using excessive force. Because I believe it is important to hold police officers accountable when they violate the law and harm victims, I've teamed up with well-known civil rights lawyer, Caree Harper, to fight the Department's dismissal effort. As Ms. Harper and I explain in our brief filed late last night, the Department has made no real showing of any reason why that properly obtained conviction should now be erased.
The case involves L.A. County Sheriff's Department deputy Trevor Kirk, whom a jury convicted in February of a felony civil rights violation for assaulting and pepper spraying an elderly woman. The relevant events were captured on video.
On June 24, 2023, while responding to a call for service at a grocery store in Lancaster and handcuffing another individual, Kirk encountered J.H. She was seated in her car, and then left her car to film Kirk with her phone. Then, Kirk approached Victim J.H. Without giving her any commands, Kirk attempted to grab her phone. J.H. turned away from Kirk, meaning Kirk was unable to seize the phone. So Kirk grabbed J.H. by her arm, hooked his left hand behind her neck, and violently threw her to the ground. J.H. told Kirk, "It's already on YouTube Live," implying that her video had already been made public. Kirk responded, "Stop, I don't give a sh** . . . ." Kirk then stuck his knee on J.H.'s shoulder. When J.H. yelled at Kirk to "stop," Kirk cocked his right arm back with a clenched fist and said, "Stop or you're gonna get punched in the face."
J.H. told Kirk that she would sue him if he punched her. Kirk then pressed his knee into J.H.'s neck. J.H. said, "Get your neck off my . . . off my . . . I can't breathe." While on top of Victim J.H., Kirk used his LASD radio to misleadingly report that he was "in a fight." Shortly thereafter, without giving any additional commands to J.H., Kirk sprayed J.H. twice in the face with "pepper spray." As a result, J.H. received medical treatment at a hospital approximately 40 minutes after the assault. In addition to physical pain, J.H. suffered various physical injuries.
The indictment recounted the foregoing facts and charged Kirk with the felony of depriving Victim J.H. of her rights under color of law, in violation of 18 U.S.C. § 242.
In May, the Justice Department convinced the judge handling the matter (Judge Stephen Wilson, a Reagan appointee) to reduce the conviction from a felony to a misdemeanor, through the maneuver of moving to dismiss the part of the indictment alleging serious bodily injury—leaving only a misdemeanor excessive force conviction in place. The Department also proposed a binding plea agreement with a straight probationary sentence. Judge Wilson rejected the proposed plea deal as too lenient, in light of the officer's clear betrayal of the public trust. In early June, Judge Wilson sentenced the officer to four months in federal prison.
The latest developments arose late last week, when the Justice Department abruptly moved to dismiss the criminal indictment against the officer. The Department gave as its only reason the fact that it had decided not to defend the conviction of the officer on appeal.
Late yesterday, Ms. Harper and I filed our response to the Department's motion to dismiss. Here's our introduction, touching on federal jurisdictional issues and other reasons the Court should deny the motion:
This [District] Court must deny the Government's motion to dismiss, because it no longer possesses jurisdiction. More than eight weeks ago, the Defendant filed a notice of appeal and took his efforts to overturn his conviction to the Ninth Circuit. Whether the Government can now dismiss this case must be addressed by the Ninth Circuit.
Perhaps recognizing (but not admitting) the lack of jurisdiction, the Government also asks this Court for an advisory opinion—specifically, an "indicative" ruling that it would grant a motion to dismiss if the Ninth Circuit were to later remand this case. The Court should deny the request for an indicative ruling, because the Government has failed to make a "timely motion" for relief, as required by Fed. R. Crim. P. 37(a).
In any event, the Court lacks jurisdiction to rely on Rule 37(a), not only because of the Defendant's pending appeal but also because the Government is asking for an advisory opinion of how the Court might proceed if certain events were to occur in the future. The Court is not permitted to give speculative advice on how things might unfold.
Finally, if the Court is inclined to indicate how it would rule on a motion to dismiss in the future, on this exceptional record, the Court should indicate that it would deny the motion. The Government's purported reasons for the dismissal are after-the-fact, pretextual, and unpersuasive. At bottom, the Government relies only on the fact that it is not inclined to defend the conviction on appeal. But it would be clearly contrary to the manifest public interest for the Court to dismiss this case on such flimsy grounds. Indeed, it appears that the Government's true basis for the dismissal motion is that it objects to the Court's prison sentence. The Court should not allow the Government to subvert a duly imposed sentence for a serious crime.
This case echoes my current litigation attempting to block a similar abrupt effort by the Department to dismiss a pending criminal charge against Boeing. Ms. Harper and I explain the parallels in our brief:
[I]n this case, the Government appears to be pursuing a strategy it has recently pursued elsewhere—specifically, a strategy of not allowing district courts to make a reasoned evaluation of the underlying reasons for a motion to dismiss. See, e.g., Victims' Consolidated Sur-Reply, ECF No. 340 at 2-9, United States v. Boeing, No. 4:21-cr-0005 (N.D. Tex. July 18, 2025) (explaining how the Government entered into a binding non-prosecution agreement even before the district court had ruled on a dismissal motion). Here, by presenting an undeveloped record, the Government is staking out new ground—e.g., that it can simply inform a trial court of its decision to dismiss, and that decision standing alone is enough to justify dismissal. In light of this ploy, the Government's (unelaborated) reasons for abruptly dismissing this case are "clearly contrary to the manifest public interest." ECF No. 103 at 5 (quoting United States v. Weber, 721 F.2d 266, 268 (9th Cir. 1983)). Specifically, the Government's reasons are contrary to Rule 48(a), which adopted a judicial review requirement for motions to dismiss to prevent dismissals "savor[ing] altogether too much of some variety of prestige and influence (family, friends, or money) that too often enables their possessors to violate the laws with impunity." United States v. Woody, 2 F.2d 262, 262 (D. Mont. 1924), overturned in Rule 48(a), as recognized in Adv. Comm. Note (1944 Adoption). By blocking meaningful judicial review, the Government is acting contrary to the Rule 48(a) judicial review provision—and thus acting contrary to the public interest.
Ms. Harper will be in court this morning, arguing for the victim that the court should not vacate Kirk's conviction. To maintain public trust in law enforcement, it is is important to hold officers fully accountable when they violate the law. Officer Kirk is obviously entitled to appeal his conviction. But at this point, no reason exists to doubt the validity of the jury's conviction that he used excessive force—and thus no good reason to set his conviction aside.
I'll try to pass along further developments.
