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By PORAC | October 1, 2016 | Posted in PORAC LDF News

Elk Grove Officer Reinstated to Canine Unit

Senior Associate Attorney
Mastagni Holstedt, APC

Twelve-year veteran officer Jason Miller was returned to the Canine Unit and given a new canine partner after appealing the Department’s decision to remove him for allegations of excessive use of force.
Miller was a new canine handler, having started training in October 2014. In February 2015, Miller had his first canine deployment, which would have also been his last had the discipline not been overturned by arbitrator James Margolin.

Negative Consequences of the Video Age for Peace Officers

Video evidence — be it from in-car cameras, body cameras or private citizens’ cellphones — has created a climate of hyperscrutiny for peace officers today. These videos, coupled with the politically sensitive nature of uses of force by peace officers, have placed officers in a very difficult and sometimes untenable position when deploying force. In the past few years, officers have told me about times they second-guessed themselves in dangerous situations for fear of how their actions might appear from a camera’s point of view. This case illustrates the harm caused to an officer’s career when the optics of a situation are given more weight than an objective analysis of what the officer reasonably perceived and the reasons for using a particular force option.

Arrest of the Domestic Violence Suspect

In February 2015, a domestic violence call came in from the daughter of the abuser and the victim. The call was cut short by her father, the suspect. Reportedly, the suspect had taken all phones from the house and then left the home to avoid capture. This was cause for concern by all officers who responded and searched for the suspect. En route, Miller discovered that the suspect had multiple arrests for offenses such as domestic violence, assault with a deadly weapon and resisting arrest — amplifying the need for the officers to be on high alert when they found him.
Almost simultaneously, three officers, including Miller and his canine partner, Exo, spotted the suspect walking down the street. The officers began giving the suspect verbal commands, but the suspect did not fully comply. Eventually, the officers instructed the suspect to lie on the ground with his hands out “like a cross” and “like an airplane.” But again, they never achieved full compliance. The suspect repeatedly lay on his side until the officers holstered their weapons and approached to cuff him. But he would then sit straight up with his hands either waving or in his lap near his waistband. This bizarre behavior prompted the officers to unholster again for fear that he was, in their words, “sucking them in.”

Since this suspect had been arrested so many times, including for resisting arrest, the officers reasonably believed that he understood what they were asking him to do. They believed his refusal to comply was intentional noncompliance. Finally, Miller decided to deploy his canine to stop this repeated feigned compliance, which caused all officers on scene to fear for their safety.

Video Evidence Does Not Tell the Whole Story in Use-of-Force Case

There were multiple in-car cameras activated at the time of the deployment, capturing — at best — a clear view of the three officers and suspect from more than 30 feet away. To a layperson, it could appear that Miller deployed his canine on a suspect who was putting his hands in the air in surrender. However, the video reveals nothing of the suspect’s criminal history, the reason for the arrest or the suspect’s previous violence toward his family.

The video merely provides a “bird’s-eye” view, and fails to capture the officers’ fear for their safety or why their fear was reasonable. There is a reason why horror films or tense scenes in thriller movies use first-person camera angles. It more effectively allows viewers to experience the situation as the person in the movie is experiencing it. However, in this case, the camera was positioned so far from the event that it gave the impression that the situation was not as intense and dangerous as each of the officers testified it was.

Additionally, the camera’s vantage point is behind Miller and his canine partner, Exo. The Department’s trainer for Miller and Exo testified that after an officer decides to deploy a canine, it can take a few seconds or longer to aim the deployment. This step is crucial, as it ensures that the canine will not confuse the other officers for the suspect. Miller decided to deploy the canine because the suspect had sat up again, against the commands of the officers, and had his hands in his lap near his waistband. But by the time Miller let the canine go, the suspect had begun waving his hands in the air, a mistaken sign of surrender, as it was not what the officers had ordered him to do multiple times.

It is impossible for the video to capture this interplay between Miller and Exo. But it is also impossible for the video to show whether the suspect was confused because of a language barrier (as the Department suggested) or was intentionally refusing to comply with commands. Surprisingly, the Department’s conclusion that the suspect was merely confused because of a language barrier was based solely upon the video evidence. This was especially troubling because the suspect twice admitted that he knew and understood that the officers were telling him to lie on the ground, face down, with his arms out, but he refused to do so because he didn’t like the fact that the canine was on scene.

Arbitrator Margolin relied upon this evidence in deciding that the Department incorrectly imposed discipline. The arbitrator also relied upon the testimony of the Department’s canine trainers and Steve Brewer, owner of Law Dogs, all of whom are subject-matter experts. Each testified, and Arbitrator Margolin agreed, that Miller’s deployment was lawful and consistent with Department policy. According to Arbitrator Margolin, the Department’s decision appeared to have been driven by public relations. He wrote in his opinion, “So-called ‘political correctness’ for its own sake cannot and should not ever be a substitute for the safety of police officers and the public whom they serve.”

Jason Miller is happy to be back in the Canine Unit with his new canine partner, Drogo. Unfortunately, the Department sold his original canine partner, Exo, when they removed him from the Canine Unit. Miller is grateful to the Elk Grove Police Officers’ Association, PORAC LDF and Mastagni Holstedt, APC, for supporting him through this difficult process.

About the Author

Sean D. Howell is a senior associate attorney with Mastagni Holstedt, APC. He represented Jason Miller in his administrative appeal before hearing officer James Margolin