From Termination to Exoneration

DAVID EMILIO MASTAGNI
Partner
Mastagni Holstedt, APC

How Building the Record Exposed a Manufactured Motive to Lie in a Dishonesty Termination

The reinstatement of Sacramento Police Officer Mark Smalling constitutes a significant affirmation of due process principles in peace officer disciplinary proceedings. It illustrates the decisive role that thorough and methodical record development can play in exposing deficiencies in a dishonesty allegation and securing complete exoneration.

Smalling, a five-year veteran assigned to the North Area Gang Enforcement ShotSpotter Team, was terminated based on statements obtained during an unlawful on-scene interrogation. Through arbitration before Barbara Kong-Brown and unanimous adoption by the Civil Service Board on November 18, 2024, he secured complete reinstatement with back pay, benefits and restoration to his special assignment. The case offers enduring lessons for every peace officer, supervisor, investigator and labor relations professional.

The Traffic Stop and the On-Scene Interrogation

On June 11, 2022, at approximately 7:40 p.m., Smalling and his partner, Officer Maclean, conducted a lawful traffic stop of a Volkswagen near Howe Avenue and Arden Way. The driver, Steven Flower, proved immediately confrontational. He delayed pulling over, drove evasively through a parking lot and, upon contact, accused the officers of racial profiling while demanding a sergeant. The officers lawfully removed Flower from the vehicle, after which they observed marijuana in plain view. The officers detained Flower in Smalling’s patrol vehicle. At Flower’s request, the officers summoned a sergeant.

Upon the sergeant’s arrival, Maclean debriefed him, advising him of the stop, the detention, the removal of the driver and the subsequent observation of marijuana in plain view. The sergeant then approached Flower, who repeated his complaint of profiling and illegal search. The sergeant offered to review the in-car camera footage at the scene and, to do so, entered the patrol vehicle where Smalling and the still-shouting complainant were located. What followed was not routine debriefing. The sergeant acknowledged he was investigating the complaint of misconduct. He questioned Smalling about the circumstances of the stop and, critically, about the timing of the marijuana observation relative to the driver’s removal.

The environment was chaotic: the complainant shouted obscenities inches away, the air conditioning ran at maximum, radio traffic crackled and ambient noise filled the vehicle. Even Internal Affairs personnel later described these conditions as “not typical,” “uncommon” and “not ideal.” Smalling, focused on the profiling allegation and the justification for the search, understood the sergeant’s compound, trailing question — “Did you guys see the marijuana on the floorboard before…” — as inquiring where the marijuana had been seen in plain view. He answered accordingly and truthfully to that understanding. When the sergeant followed up with “So you saw some…,” Smalling replied, “Yeah.”

The sergeant, however, labored under a fundamental misapprehension of law. He believed officers required probable cause to remove a driver during a lawful traffic stop. That belief directly contradicted both Pennsylvania v. Mimms (1977) 434 U.S. 106 and the Sacramento Police Department’s own training, which states unequivocally: “In all cases, you have the right to order the driver to get out of the vehicle. You do not need any particular reason, such as danger or suspicion of a crime.” The timing of the marijuana observation was therefore legally immaterial. Smalling had no motive to lie about it.

The POBR Violation and the Manufactured Motive

Because the sergeant was investigating potential misconduct that could lead to punitive action — profiling, improper stop or unlawful search — POBR rights attached. Under City of Los Angeles v. Superior Court, whether questioning constitutes an interrogation triggering those rights turns on the supervisor’s purpose and intent: did the supervisor suspect misconduct and seek information related to that suspicion? The sergeant’s own admissions and the testimony of IA investigator Detective Antonetti established that he was doing precisely that. He questioned Smalling and Maclean separately, in the complainant’s presence, to compare their accounts of timing. Antonetti confirmed the sergeant was “conducting an investigation” into whether the stop was proper and that his questioning could lead to punitive action. She further acknowledged that reviewing in-car camera footage with both officer and complainant present was “not typical” and that she herself would not have done so.

The City’s charging documents, however, compounded the procedural violation with substantive misrepresentations. Paragraph 5 of the Notice of Discipline inaccurately portrayed the sequence of events, claiming the officers advised Flower to exit, he refused and only then did they remove him — none of which occurred as described. Paragraph 8 inserted the word “before” into the sergeant’s question twice, asserting that Smalling had twice claimed he saw the marijuana prior to removal. At arbitration, the arbitrator found this a “crucial error” that “misstates what was said on the video camera.” Paragraphs 11 and 12 quoted Flower’s IA interview, claiming Smalling had “lied” and been asked “when did you all see the weed?” — a conversation that, as Antonetti ultimately conceded, never occurred in the manner described.

Most damningly, Antonetti knew the correct legal standard before she even opened the investigation. Her own December 9, 2022, investigative summary quoted the Department’s training verbatim. Yet during the sergeant’s interview, she repeatedly elicited and amplified his misstatement by asking why it was “important” to know the timing and why the absence of probable cause would be “problematic” — all while knowing both premises were legally irrelevant. At the arbitration hearing, she admitted she added those words, she never corrected the sergeant and Smalling had “no benefit” and “no motive” to lie. The Labor Relations manager who testified at the hearing struggled even to define dishonesty or articulate the required intent to deceive, despite the Department’s Internal Investigations Manual defining it as “knowingly giving false or misleading information” and POST Regulation 1205 emphasizing willfulness and materiality.

The Arbitrator’s Decision and the Board’s Unanimous Adoption

Arbitrator Barbara Kong-Brown concluded that the City failed to prove dishonesty by a preponderance of the evidence. At most, the exchange constituted a misstatement arising from inadequate conditions and an ambiguous question — not dishonesty. She expressly found the timing immaterial under Mimms and Department policy, criticized the “inadequate environment” of the field interrogation and noted that the sergeant should have referred the matter to Internal Affairs rather than proceeding on scene. The Notice of Discipline and Final Notice inaccurately inserted “before” and misstated the video evidence. The termination was set aside.

On November 18, 2024, the Civil Service Board unanimously adopted the proposed decision in full. During the hearing, the Board chair pointedly inquired of City counsel why the City was required to continue prosecuting a disciplinary case once testimony and evidence had made clear that the charges were unsupported and the officer was innocent. The Board’s decision is final. Smalling has returned to active duty.

Why the Outcome Matters — and the Three False Pillars

The City’s dishonesty narrative rested on three false pillars, each exposed through careful cross-examination and record development. First, a misstated legal premise: officers required probable cause to remove a driver, when both Mimms and SPD training establish they need no particular reason at all. Second, a manipulated portrayal of ambiguous body-worn camera audio — compound questions with trailing, inaudible endings, captured amid shouting, maximum air conditioning and radio traffic — further distorted by IA qualifiers such as “something similar to.” Third, selective drafting of the charging documents that injected motive where none existed and mischaracterized both the audio and the law.

The arbitrator’s ultimate assessment captures the matter perfectly: “This appeal involves a minor miscommunication that should never have been elevated to a potentially career-ending charge of dishonesty.”

Practical Takeaways for the Profession

This case supplies concrete guidance for every role in the disciplinary process.

Officers must know and assert POBR rights the moment a supervisory inquiry veers into potential misconduct, even before Internal Affairs is formally involved. Request clear notice of the nature of the investigation and representation of choice, or insist that the matter be referred to IA or an appropriate adjudicative body. If conditions prevent full comprehension — noise, distractions or an inappropriate setting — state so on the record and document the request.

Supervisors must ask clear, non-compound questions in a controlled environment that permits accurate understanding and response. Avoid conducting investigative interviews in the presence of complainants or amid chaos.

Internal Affairs investigators must honor POBR from the outset, avoid tainting evidence through improper procedures and ensure every summary and charging document faithfully reflects the record — particularly where audio is ambiguous. Precision is essential when careers and POST certification are at stake.

Labor Relations personnel must charge accurately, connect every allegation to the required elements of intent and materiality, and resist any temptation to bootstrap legally irrelevant facts into a dishonesty theory. Charging documents must withstand the same scrutiny applied to the officer’s statements.

Conclusion

Through the steadfast advocacy of the PORAC Legal Defense Fund, the Sacramento Police Officers’ Association and counsel who methodically built the record, Officer Mark Smalling stands fully exonerated. His case demonstrates that manufactured motives to lie cannot survive rigorous examination of the facts, the law and the procedural safeguards designed to protect due process. It remains a powerful reminder for every peace officer who may one day face similar overreach.

About the Author

David Emilio Mastagni is a partner with the law firm of Mastagni Holstedt, APC, and an experienced panel attorney for the PORAC Legal Defense Fund. He also provides legal analysis and representation for PORAC at the California Legislature on bills affecting public safety employees.