March 2, 2005. Another day of work for Senior Correctional Deputy Mike Vernal and his fellow deputies assigned to Robert Presley Detention Center (RPDC).
An inmate named Daniel Leonard was apparently angry because he did not have any toilet paper. He yelled threats to the deputies that he was going to “gas” them (you all know that means throwing feces and urine at deputies). Because of the threat, it was decided to move Leonard to a different cell, in a location that minimized his “window of opportunity” to throw feces and urine at the officers.
Several deputies accompanied Vernal to relocate Leonard to the other cell. The idea was simple: go in, restrain and cuff Leonard, and move him without incident to the other cell.
Leonard was having none of that. He was aggressive and non-compliant, even after being handcuffed, requiring Vernal to “pin” him against the wall and a glass window. This forcible maneuver caused Leonard’s face and body to violently contact the wall and glass. This wasn’t intended, but neither was it unexpected. Such injury mechanisms frequently are involved when a resistant inmate is forcibly “pinned” against a wall.
After 30 years of defending these kinds of cases, it always comes down to the same question for the decision-maker (be it the chief, the sheriff, an arbitrator, a prosecutor, a judge or a jury): Was it an unintended injury, resulting from the reasonable use of force; or, was it a gratuitous infliction of injury for the purpose of punishment or retaliation for some perceived insult? The answer to that question means either “no misconduct,” or “a crime.”
What does all of this mean for you? Let’s assume you are a typical deputy or officer, out there every day, trying to do the job the best way you can. Sure, you rail against laws and court decisions that over-emphasize criminals’ “rights” and that de-value the community interests in safety and peace. You are sick to death of having to put up with assaults, insults, threats, and even greater crimes committed against you by criminals, just because you are doing your job and your duty.
But you don’t move the line. You are not about to forsake the public trust and the badge of your office. You aren’t going to “fudge” on probable cause or write any false reports. You aren’t going to use excessive force, even when the facts would enable you to because some force is required, but you know and understand that more force is not better, nor is it legal; you will restrain yourself in the temptation to “teach lessons” even when they seem to be the most pragmatic way to get your point across to a knucklehead.
You recognize that when a cop begins to perceive a blurring of the lines between right and wrong, the process of corruption is underway. It isn’t always about money and financial profit—morals can be corrupted by much more than money; sometimes it is as simple as “the ends justify the means,” or more to the point “it’s the only justice this jackass will ever be dealt.” But you are one of the ones we call “untouchable.”
You will not move the line. Regardless of profound provocation, you are going to do it the right way. That’s what you are paid to do. And, that’s why we all need you, more than you will ever know. You recognize wrongdoing immediately. You have conditioned your response to wrongdoing according to your own moral compass. When you see wrongdoing, you know it, and you know what to do. You do it because you demand it of yourself. You don’t need direction from a supervisor.
So there you are: A typical deputy or officer, like Mike Vernal. You deal with “Daniel Leonards” hundreds of times throughout your career. But then somebody, who has the authority or power to say “No, this was excessive, this was misconduct, this was a crime,” decides that is so. Suddenly, you are thrust into the system, administrative and criminal. Your job is threatened as well as your livelihood, and your liberty.
Simple misjudgments by decision-makers along the way, lousy, result-oriented or biased investigations, agendas, reckless charging decisions, failures to apply objective analysis—all or any of these can send you down a long road like the one traveled by Mike Vernal, who was, after all, just such a “typical deputy” described at length above.
After Leonard was secured in a better location, Vernal made the customary reports and went to clean up and sanitize the blood drops which emanated from Leonard’s collision with the wall and glass. Nothing much to it, but why leave blood-borne pathogens unattended? No big deal. That simple act became Count Two in the criminal case: “Destruction of Evidence.” (The first Count was Penal Code §149 — “Assault Under Color of Authority,” a felony.)
The criminal investigation, which triggered the criminal prosecution, is what it is. Its defects are apparent to all. But when the sheriff’s special team of Administrative Investigations Unit (AIU) investigators went after the case, the result was, shall we say, “180 degrees the other direction.” What looked like a sure termination case based on the criminal submission turned out to be a “no misconduct case” on the force issues. Vernal was reprimanded for a policy violation (not notifying a supervisor before he pulled Leonard out of his cell).
What was a termination case was stopped in its tracks by the sheriff. Vernal was reinstated to duty in the same jail facility, and since has been promoted to senior deputy, winning a coveted assignment in gang intelligence and monitoring, where he commonly supplies the District Attorney’s office (the same one that was prosecuting him) with audio tapes and intelligence on gang inmates!
Now, one would think that when the persons in charge of Vernal’s prosecution were made aware of the AIU investigation and its conclusions, some thought would be given to re-consider the merits of a criminal prosecution. Sadly, that was not the case.
While in state prison, the alleged “victim,” Mr. Leonard, called a watch commander at RPDC, and in a taped conversation offered to “forget” everything about the incident, if the Sheriff’s Department would help him get out of an unrelated criminal and/or civil TRO matter. We gave that tape to the district attorney. “OK, now will you consider a disposition?” No response.
So, on June 5, 2009, at Master Calendar call in State Court, we answered the court’s question with “ready for trial.” The people said, “We will not take this case to trial.” Judge Webster then dismissed the case “in the interests of justice.” What??? “Interests of justice???” Justice delayed is justice denied.
How can this happen? The entire process lasted over four years. The incident occurred on March 2, 2005. Vernal was criminally charged on June 23, 2005. The case was dismissed on June 5, 2009.
But for the objectivity of the sheriff’s AIU investigation, and the courage of the sheriff to call it right and reverse the department’s action against Vernal, this fine deputy would have been out of a job and tormented for four years with a serious felony prosecution. It turns out that he was still tormented by the prospect of a criminal trial for four years, but at least his career was saved.
WHAT SHOULD BE DONE ABOUT CASES LIKE THIS? We are all familiar with Skelly v. State Personnel Board (1975) 15 Cal. 3d 533, and Arnett v. Kennedy (1974) 416 U.S. 134. We know that before you take a cop’s job away, you have to comply with certain pre-removal safeguards. The idea is to prevent mistaken or ill-advised administrative decisions that cost the employee his livelihood. Great stuff.
But do we, can we, should we employ such devices before launching a criminal prosecution against a cop or deputy that could cost him his liberty? Doesn’t it make sense that before we present a case to a prosecutor recommending a criminal prosecution against our employee, we activate the same safeguards that we are required to do before we take his job away? Shouldn’t we undertake a thorough administrative investigation before we refer the case to a prosecutor? Sure, we have to be careful about contaminating the criminal case with compelled statements from the accused. But if our administrative investigation discloses evidence that is exculpatory, don’t we need to give that to the prosecutor? Isn’t that Brady material??
Can’t we develop a process, similar to Skelly (or Loudermill for you non-Californians), that insures high-level staff review of a potential criminal case against an employee, supplemented by internal investigatory fruits, before the case is referred to prosecutors? Why do we adhere to this meet-axe approach defining “criminal” and “administrative” even at the risk of ignoring the “truth of the matter?” And, worst of all, delay the administrative investigation until the criminal is “resolved?”
A number of agencies as a matter of internal policy, delay conducting an administrative investigation until the companion criminal case is resolved, or at least rejected by the prosecutor.
In my view, no case should be presented to a prosecutor until the department has thoroughly investigated every aspect of the case, whether by criminal or administrative means, and is therefore confident that the prosecutor has all the necessary and relevant information before deciding to file, subject to constitutional requirements imposed by the Fifth Amendment. That process, had it been invoked, would likely have saved Mike Vernal four years of torment for which he will never be compensated. Think about it. STAY SAFE!
ABOUT THE AUTHOR: Michael P. Stone is the firm’s founding partner and principal shareholder. He has practiced almost exclusively in police law and litigation for 30 years, following 13 years as a police officer, supervisor and police attorney.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
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Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
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Hope to never in a situation again, however, glad to know that LDF is there to help.
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Brian Markert Lakewood Police Indp Guild
I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- Sherri Coral Riverside Community College
He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Marshall Henderson Vancouver Police Officers Guild
I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Paul Barrolaza Twin Cities POA
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Christopher Wells Hollister POA
My rep was great.
- Raymond Fisher Colorado State Patrol Assn
I have known for sometime that PORAC would provide the services I needed at the time I needed them. This is a professional competent organization prepared to handle the appropriate legal matters our officers face in today's environment.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Miguel Masso Oakland POA
[I'm very satisfied and grateful] for LDF representing me. My attorney was professional, honest, and very knowledgeable of his profession. During these tough times my attorney would contact me on a regular basis to see how I was doing. This was obviously not part of his job description, but it kept me at ease and not losing my mind. I'm thankful that I was represented by LDF.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- Shaun Luciano LA School PA
LDF assisted by taking a stressful situation and calmed it down by thoroughly explaining the entire process. It was nice to know that I had an ally when I was sure that I was alone.
- Michael Kan Palo Alto POA
I have always been and will continue to be a strong supporter of LDF and would not work as a police officer without it. I am extremely happy with the service I have received both from LDF and [my representative].
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Marco Flores Ventura County PPOA
Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- James F. Beland Lake County SDA
- Aaron Delgado Monterey POA
My representative called me back promptly and kept me informed. I had the impression she cared and was there to help.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Ken Burbank Shasta Co DSA
[ My representative ] was professional, articulate and prepared, but most importantly he understood the emotional impact the investigation was having on me as a person and peace officer. I highly recommend [my representative].
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Yvonne Heuston ERS/SPPOA Supervisors
My representative was outstanding and knew what to lookout for and how to handle situations as they appeared. He told me what to expect and how he proposed to handle the hurdles. Just telling what to expect helped put me at ease as the situation was so foreign to me, and intimidating.
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- German Alvarez Anaheim PA
[My representative ] was great!
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- Jason Walters Claremont POA
LDF was very informative and provided me with the direction on how to handle my case. I was very happy with LDF and their staff.
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- Nancy Page Aurora PA
I didn't end up needing his service but he was awesome in what conversations we had before the matter was resolved. Very valuable - LDF!
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.