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Suspension Overturned for Imperial County Probation Officer

Posted on Thursday, March 01, 2012 at 12:00AM
Posted by SEAN D. HOWELL Associate Attorney Mastagni, Holstedt, Amick, Miller & Johnsen

An Imperial County personnel board has revoked a disciplinary suspension imposed on Deputy Probation Officer Jaime Duron over the shooting of a dog during a multijurisdictional task force operation. The Employment Appeals Board dismissed the 10-day suspension after Duron demonstrated the employer’s case-in-chief was so flawed the discipline could not be sustained.

On May 30, 2010, while serving a restitution notice as part of the “Stonegarden” multijurisdictional task force, Duron and his partner were attacked by a dog. Duron shot the dog to protect himself and other officers. At the time, Duron was not wearing his Department-issued body armor.

Department Flip-Flops on Use of Force

An Imperial County Probation Department Shooting Inquiry Board determined the shooting was justified. The Board issued findings Duron did not violate any laws or Departmental policies during the shooting and justified his use of force.

But several minutes after the Shooting Inquiry Board adjourned, Chief Deputy Probation Officer Pete Salgado went back to his office and changed his mind. He provided a dissenting opinion which noted it would have been a “safer shooting” had Duron been wearing his body armor.

Chief Probation Officer Martin Krizay, who later resigned amidst allegations of committing unfair labor practices, concluded Duron should have worn his body armor pursuant to Department policy. Krizay’s conclusion was based on improper findings by Gloria Munoz-Brunswick, the Internal Affairs Investigator who made those findings even though the Department’s own policy did not require the use of body armor during service of a restitution notice.

County Pursues Duron Despite Contradiction in Use-of-Force Policy

Chief Krizay imposed a 10-day suspension on Duron for failing to wear his body armor, allegedly in violation of the County’s policy. Krizay was unavailable for the hearing, so Salgado and Munoz-Brunswick testified regarding the investigation and suspension. From the opening statements on, Duron’s defense emphasized the weakness of the County’s case.

The Imperial County Probation Department’s Procedures Manual states, “All officers are mandated to wear protective body armor (vest) and [a] utility belt when doing any type of enforcement activity ([e.g.,] searching residences or making an arrest in the field).”

The service of a civil restitution notice is not a search of a residence or an arrest in the field. Therefore, on its face the policy could not have been violated. Undeterred by the policy and the facts supporting Duron’s exoneration, the Department attempted to support a violation of the policy by arguing a different set of policies applied to the Stonegarden assignment.

The County’s witnesses asserted the Stonegarden assignment required body armor because of an operations plan for the assignment indicating body armor would be required for all probation officers. However, the County failed to recall Duron was the supervisor who authored the operations plan. Duron explained probation officers asked him about the body armor requirement in the operations plan. He explained to the other probation officers this directive was intended to remind the officers of the County’s body armor policy and was not an attempt to create a new policy which would require body armor at all times.

Faced with unfavorable facts, the County abandoned its initial position and argued service of restitution notices is per se an enforcement activity.

County’s Case Collapses at Appeals Board Hearing

Witnesses from the Department’s administration testified that the service of restitution notices are enforcement activities and therefore require body armor. Witnesses for the Department went so far as to attempt to interpret the policy to read, “All officers are mandated to wear protective body armor (vest) and [a] utility belt when in the field.”

By changing “enforcement activity” to “in the field” in her testimony, Administration Representative Gloria Munoz-Brunswick attempted to mislead the Employment Appeals Board to believe the body armor is required any time the probation officers are in the field, not just when engaged in enforcement activities.

This argument backfired on the County when a Department witness testified, on cross-examination, that at the time of the investigation he regularly served restitution notices without body armor. Interestingly, this witness is not a probation officer and was not issued body armor, and his possession of body armor is questionably illegal because he is not a peace officer. Nonetheless, the Department regularly sent him into the field without body armor to serve restitution notices, just as Duron and his partner were serving at the time of the shooting.

One of the pages in the Stonegarden operations plan included a list of 10 objectives. A County witness testified that with the exception of report writing, each of the 10 items described in the plan was enforcement activity, including restitution contacts.

But on cross-examination, the witness was asked about a second list of items on the bottom of the same page. The list at the bottom of the page identifies, from the list of 10, which items are enforcement details. Warrants and Fourth Amendment waiver compliance checks were the only two activities from the list of 10 possible Stonegarden activities identified as enforcement. Confronted with the obvious inconsistency between his own testimony and the evidence provided by the County, the witness was literally speechless.

This document was never made available to Duron or his attorney prior to the evidentiary hearing. However, Ms. Munoz-Brunswick and then-Chief Krizay’s hubris in the belief they answer to no one and are permitted to fabricate policy, reinterpret the definitions of various provisions in the policy and practices of the Department and run roughshod over Duron proved to be their downfall.

Before Duron had to put one witness on the stand in his case, the Employment Appeals Board agreed it had heard enough inconsistent statements, misapplication of the policies, proffered testimony from the County’s witnesses and lack of any proof Duron violated the alleged policies.

Because of the support provided by the Imperial County Probation and Corrections Peace Officers’ Association and PORAC LDF, the Imperial County Probation Department was unable to succeed in its attempt to impose excessive discipline with impunity.

ABOUT THE AUTHOR: Sean D. Howell is an Associate Attorney with Mastagni, Holstedt, Amick, Miller & Johnsen. He represented Jaime Duron in his administrative appeal before the Imperial County Employment Appeals Board.

 

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.