David Sal Silva, a 33-year-old father of four small children between the ages of 4 and 10, was beaten to death by as many as nine police officers in Bakersfield, California, early Wednesday morning. Police say Silva was intoxicated and fighting officers. But this was contradicted by several eyewitnesses.

Grainy security camera footage obtained by 23ABC from a person who was “afraid of a cover-up by deputies and wanted ‘the truth to come out'”, appears to corroborate witness accounts, showing several men striking a man laying on the ground with objects over a dozen times.

The release of a 911 call from a woman who witnessed the beating (listen here) doesn’t bode well for the officers either. The woman can be heard telling the dispatcher:

“There’s a man laying on the floor and your police officers beat the shit out of him and killed him. I have it all on video camera.I am sitting here on the corner of Flower and Palm right now and you have one, two, three, four, five, six, seven, eight Sheriffs. The guy was laying on the floor and eight Sheriff’s ran up and started beating him up with sticks.  The man is dead laying right here, right now.”

Despite the hazy security footage and 911 call, police are sticking to their story. So, someone is lying. But who? Fortunately, at least two witnesses captured the beating on their cell phones. However, the devices were immediately seized by police, which is illegal in California.

Cops vs. Witnesses

Kern County Sheriff’s Department spokesman Ray Pruitt says that a deputy with a canine was responding to a call from Kern Medical Facility late Tuesday night about an intoxicated man outside when he spotted and approached Silva at a nearby intersection. Pruitt claims that Silva put up a fight when the deputy attempted to take him into custody, at which point more deputies and two California Highway Patrol officers showed up to help. Silva then had trouble breathing. He was taken to Kern Medical Center and died less than an hour later.

But Witnesses tell a very different story.

Just minutes before Silva’s encounter with police, a woman, who asked not to be identified, told ABC23 that she saw Silva lying on the sidewalk seemingly unconscious. “I seen the guy laying there. I thought something was wrong with him. Then when I saw him moving… I saw his chest  moving up and down…I knew that he was just drunk and eventually he’ll wake up,” the woman said.

It’s hard to imagine that Silva was able to muster the strength to fight off several police officers just minutes after he was purportedly incapacitated.

Ruben Ceballos, 19, told The Bakersfield Californian he was at his home and in bed when he awoke around midnight to screams and loud bangs, which he soon recognized as the sound of police batons smashing into Silva’s skull. “When I got outside I saw two officers beating a man with batons and they were hitting his head so every time they would swing, I could hear the blows to his head,” Ceballos said. The beating continued for several minutes despite the desperate cries for help. Then Silva went silent and became unresponsive, Ceballos said.

“His body was just lying on the street and before the ambulance arrived one of the officers performed CPR on him and another one used a flashlight on his eyes but I’m sure he was already dead.”

The Sheriff’s office told the Californian that they will not comment on the case until their investigation into the matter is complete.

Recording the Police is Not a Crime

Criminal law attorney John Tello is representing seven witnesses to Silva’s beating. Two of them say they recorded the incident on their cell phones. Tello told the Californian of the disturbing lengths police went to seize his client’s device:

“When I arrived to the home of one of the witnesses that had video footage, she was with her family sitting down on the couch, surrounded by three deputies,” Tello said.

Tello said the witness was not allowed to go anywhere with her phone and was being quarantined inside her home.

When Tello tried to talk to the witness in private and with the phone, one of the deputies stopped him and told him he couldn’t take the phone anywhere because it was evidence to the investigation, the attorney said.

“This was not a crime scene where the evidence was going to be destroyed,” Tello said. “These were concerned citizens who were basically doing a civic duty of preserving the evidence, not destroying it as they (sheriff deputies) tried to make it seem.”

A search warrant wasn’t presented to either of the witnesses until after Tello arrived, he said, adding that one phone was seized before the warrant was produced.

Tello said the phone of the first witness was taken after the deputies told him he was either going to give up the phone the easy way or the hard way.

“They basically told him they were either going to keep him at this house all night until they could find a judge to sign a search warrant or he could just turn over his phone,” he said.

The witness gave up his phone two hours before he had to get to work and was told by deputies that he could collect his phone the next day after they had extracted the evidence they needed, Tello said.

However, the witness never got his phone back, Tello said, and was told it could take years before he does because the investigation could take a long time.

“My main concern is that these witnesses are not harassed by deputies because this case can make others who see crimes happening not want to speak up because of the way law enforcement handles situations,” Tello said.

If the deputies did in fact beat a helpless man to death, they have good reason to fear the recordings.

In Fullerton, California, just two and half hours away from Bakersfield, cell phone footage was instrumental in holding police accountable for beating Kelly Thomas, a mentally ill homeless man, to death in 2011.

Though California is a two-party consent state (requires all parties to consent to an audio or video recording for the the recording to be legal), the law does not apply in public settings due to an “expectation of privacy” provision. More importantly, police are not permitted  to confiscate a cell phone unless the phone was used in a crime. Therefore, the seizure of cell phones by the Sheriff’s deputies was illegal.

Silva’s Family Wants Answers

Silva’s younger brother, 31-year-old Christopher, was devastated after learning the details of his brothers death from witnesses. “My brother spent the last eight minutes of his life pleading, begging for his life,” he told the Californian.

The family has since hired attorney David Cohn.

At a press conference Friday, Cohn praised witnesses for “policing the police” by recording the beating. He also expressed concern that the police might tamper with the footage.

“Those videos that were taken are the most important piece to this case and another main concern is that those videos aren’t altered or destroyed by the Sheriff’s Department,” Cohn said. “We all know that a picture is worth a thousand words. And thank God we have concerned citizens who take video and pictures of incidents like this and who are ultimately policing the police.” He addressed the Sheriff’s department directly, asking, “what are you hiding?”

https://www.youtube.com/watch?feature=player_embedded&v=rWtf6_a4WXY

The family has yet to see Silva’s body as they patiently await the results of an autopsy conducted on Thursday. The coroner’s office says the cause of death is pending toxicology and microscopic studies.

Meanwhile, Silva’s mother, Merri, is struggling with how to tell her grandchildren that they no longer have a father. But her grief has only strengthened her desire for justice, which goes far beyond her son’s horrific death. Expressing concern for future victims of police brutality, she told the Californian, “If I don’t do anything about my son’s death then it will just be pushed to the side and I don’t want this to happen to another person.”