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Michael Fagans / The Californian

Attorney Daniel Rodriguez talks about the legalities surrounding the seizure of the videos of the incident involving David Silva and Kern County Sheriff's Deputies and CHP officers in his office on Monday afternoon in Bakersfield.

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Felix Adamo / The Californian

Protesters with the group Anonymous wave peace signs to motorists passing in front of Kern County Superior Court where a protest against police and sheriff brutality was held. The shirt worn by Kelly Brown, center, refers to David Silva, who died in sheriff's custody and witnesses say was beaten, and James Moore, who died in 2005 while in custody.

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Photo courtesy of the family

A photograph from the family of David Silva showing him and his three daughters Makayla, 10, Katelyn, 4, and Chelsey, 8.

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Alex Horvath / The Californian About 20 people attended a vigil for David Silva on the corner of Flower Street and Palm Drive Friday evening.

David Sal Silva’s screams seem like they will never stop. But they do.

Daniel Rodriguez, the attorney now representing the witnesses in the in-custody death of Silva following his beating earlier this month by several law enforcement officers, released cellphone video shot by one of the witnesses Monday.

As expected, the video taken by Francisco Arrieta at just after midnight on the morning of May 8 shows no baton strikes by the sheriff’s deputies and California Highway Patrol officers who responded to the scene.

Kern County Sheriff Donny Youngblood has said batons were used by deputies, but that he doesn’t yet know how many blows were struck or where on Silva’s body they landed.

A second confiscated cellphone had no video, both the Bakersfield Police Department and the Sheriff’s Office have said. Witnesses insist it did. Rodriguez said Monday a private forensic analysis turned up no video on that phone.

It seems clear that this long-anticipated video — while pitiful and sad to watch — will shed little light on the question of Silva’s cause of death. At first glance, it doesn’t appear to incriminate or exonerate anyone.

But the 33-year-old Silva’s screams and moans can be heard repeatedly on the video until they finally fade away into silence. The father of four was pronounced dead at 12:44 a.m. that morning.

Rodriguez said he is not focusing his legal resources on the confrontation between Silva and the nine law enforcement officers who responded that night to a sidewalk on Flower Street adjacent to Kern Medical Center.

That’s likely a case, if they choose to pursue it, for the Silva family.

“We’re focusing on what happened at the apartment after they left the hospital,” Rodriguez said.

When sheriff’s investigators reached Arrieta and Maria Melendez via phone in the early hours of May 8, their first questions to the witnesses were related to whether they had already published any video of the Silva incident, Rodriguez said.

The conversation went like this, he said:

“Have you posted the video on YouTube? Facebook?” Rodriguez said. “No? Good. You’re not to post the video on YouTube or Facebook.”

Warning his clients under color of authority not to exercise their First Amendment rights was outrageous, Rodriguez said.

His clients — those who had their cellphones confiscated by sheriff’s investigators and possibly others — will sue the sheriff’s department and the county of Kern for the alleged violation of their First Amendment right of free expression and free press, Rodriguez said. Their Fourth Amendment protections against unreasonable search and seizure, and their 14th Amendment protection from government depriving them of property without due process, will also be addressed.

And finally, they will also sue for assault and false imprisonment, Rodriguez said.

“They did not have the right to do that,” Rodriguez said.

When investigators entered the apartment without a search warrant, when they demanded the cellphones, when they detained witnesses for hours — all of those actions were violations of his clients’ rights, Rodriguez said.

A spokesman for the Kern County Counsel’s office could not immediately be reached for comment Monday.

A forensic analysis of the second cellphone owned by Melendez proved to be no help, Rodriguez said. While it may have been possible to gather more information on another type of phone, the attorney said his expert was unable to determine whether any video had existed on Melendez’s phone the morning of Silva’s death.

The witnesses have been adamant that Melendez did indeed capture video, and that it only disappeared after the phones were confiscated by sheriff’s investigators.

The FBI and local law enforcement are also examining the data on the phones at the request of Youngblood. The results of those investigations have not been released.

Youngblood said he asked for the FBI’s help because he wants the question of a second video answered. In the video released Monday, the second phone ostensibly held by Melendez is visible at least twice, with a lighted screen showing an image.

While it’s probably impossible to determine whether video was being recorded at the time, it seems clear by the way the phone is held upright that the user is attempting to record video.

The cause of Silva’s death remains undetermined. The results of Silva’s autopsy have not been released pending a toxicology screen to determine whether there were any drugs in his system.

On the video, when emergency medical professionals begin CPR on Silva, a male voice is heard saying, “Now they’re trying to revive him after like five minutes of them standing over him.”

“Looks like the guy’s not responding.”

A woman’s voice chimes in: “He died, and they killed him.”

Then both say the same thing: “Now it’s a murder scene.”

Aside from reports from deputies that Silva was resisting arrest, there’s been little or no evidence released so far that provides a clue into how Silva behaved when approached by officers.

If two videos did exist and one disappeared, it may be impossible to know how or when that happened.

But from Rodriguez’s point of view, the way the witnesses were treated — “held hostage,” is how he describes it — is reason enough to squeeze accountability from local law enforcement, both through a monetary award and, he hopes, new training for deputies ordered by an outraged court.