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Veteran San Bernardino Police Officer Reinstated

Posted on Thursday, April 06, 2006 at 12:00PM
Posted by Robert W. Krause

The city of San Bernardino Civil Service Board has ordered veteran San Bernardino Police Officer Johnnie Macias reinstated with full back pay and benefits. After five days of hearing, the board exonerated Macias of all charges pending against him. I had the privilege of representing Officer Macias through all phases of his lengthy ordeal.

Macias is a highly decorated officer with an unblemished record. He is very active in his community, donating countless hours to community service. He is a use of force instructor, taser instructor, and has earned over his lifetime several black belts in various martial arts disciplines. He is also human. When Macias, for the first time in his career found his integrity challenged, he also found himself abandoned by his command staff and chief.

The irony of what you are about to read is that the closed-minded attitude and action taken against him were by a group of high-ranking apostles who preach taking responsibility.

FACTUAL SCENARIO I: Dishonesty and failure to report use of force.

The San Bernardino Police Department (SBPD) administration allowed deployment of a discredited officer rather than taking appropriate and timely action. Knowing the unnamed officer was not trusted by his peers and was under investigation (which ultimately lead to his dismissal), the command staff nevertheless deployed the officer to patrol duties. Macias was aware of these issues and, as luck would have it, was sent on a hot call with this officer.

Having this distraction, Macias nevertheless tracked a felony suspect on foot through high-risk residential areas, where the suspect was ultimately found concealed in a tree house-type shed.

Making a high-risk entry into the confined, very dark quarters with a very dangerous background silhouetting Macias, he nevertheless made the arrest after the requisite struggle with the suspect. Given all of the above, Macias’ stress level was highly elevated even for a veteran officer with his background.

So far, so good. Later, the department discovered what it believed to be an unaccounted for “asp” mark on the suspect’s back. Macias had not reported any use of force. His belief was that he had not used any reportable force in making the arrest.

When confronted about his use of force, Macias maintained he had not used any. He repeated this over a period of some weeks in “impromptu” contacts by his superior officer. Macias did not see, and the other officer denied, the use of an asp.

At the formal I.A., Macias was confronted with photographs of the asp mark predicated on a round mark at what appeared to be the top of some bruising. This was only later determined to be a pre-existing mole.

Macias, now confused and bewildered, stated that he must have hit the suspect; he just did not remember. Then, filling in the blanks in his own mind, Macias thought it proper to look at what the evidence appeared to be and ultimately stated that he had struck the suspect with the asp. In fact, he was trying to take responsibility for something that either never happened or, if it did, he could not remember.

As the I.A. concluded and the case moved forward, as his attorney, I called on some experience I have seen in the past on memory loss, or no memory at all, in critical incidents. On behalf of Macias, I shared this information with the disciplinary review board (captain and lieutenants), who we learned later (notwithstanding tons of literature, including some in Police Chief Magazine in support of our contentions) dismissed outright our position.

Instead, Macias was sent for a fit-for-duty examination by one of the usual “cop” shrinks commonly used by the department. This was not the examination that under the circumstances would have been required. Of course, Macias was found fit for duty and the ill-informed often used shrink found our contention “far fetched”. So if you are fit for duty, the department deducted, you must be dishonest as to your version. The Disciplinary Review Board (DRB) therefore recommended termination.

Undaunted, we raised the same contention to the chief of police during the Skelly hearing. We requested an examination by a competent police psychiatrist on point. Instead, Macias was sent to a second psychiatrist with woefully inadequate experience in the area of police critical incidents. This second shrink had in fact been recommended to the department by the first shrink. Needless to say, shrink two agreed with shrink one calling our contentions “unlikely and far fetched”, very similar to the lay opinions reached summarily by the police command staff. The chief upheld the termination and we appealed.

Factual Scenario II: Unauthorized use of taser device.

While the above scenario was playing out, months later, Macias, who was still on duty, became involved in the violent apprehension of a very large, very strong, amped-up 5150.

During this fight, the 5150 male was eventually handcuffed by Macias and his partner. That had little effect on his willingness to cooperate or ability to fight (we have all been there . . . remember?) The command staff at SBPD had a shorter memory of the realities of cop work and winning fights.

Macias (remember he is a taser instructor) used the latest model of the taser in a drive-stun mode. The suspect immediately complied, then fought again, was stunned again, until he was finally confined to the police car. No injuries were sustained through the use of the taser, but a lot of scrapes and bruising occurred as the result of the rest of the fight.

When the sergeant came to the scene to investigate the reported use of force by Macias and the partner, including the taser, the sergeant found the actions to be within policy.

This sergeant went so far as to consult two other sergeants in reaching his conclusion. One, a use of force expert, the other a use of force expert and taser instructor. Both concluded the use of force, including the use of the taser, was consistent with training and policy.

Then, the captain-level review occurs, ultimately leading the collective command staff (including the DRB and chief of police) in the process described in Scenario No. I, to find the taser use out of policy and adds this incident as a cause for termination. Needless to say, we appealed.

Successful Defense to the Memory/Dishonesty Charges:

For those willing to stay current, there is an abundance of scientific studies by real police shrinks nationwide on the specific issue of officers’ lack of memory in critical incidents. The materials specifically warn against police managers and investigators jumping to conclusions that an officer is not being truthful when they simply do not remember something administration thinks they should remember. Moreover, the studies show that when an officer in a highly-charged critical incident (NOT JUST SHOOTINGS) can’t remember because the information never made it to the brain, much like the shutter of a camera if closed cannot take and therefore cannot give a picture, it is normal for the officer to “fill in the blanks” with what makes sense to that officer or, what the evidence seems to show.

This is precisely what happened to Macias. When it was our turn, we employed the services of Dr. Kris Mohandie, Ph.D., Pasadena, California – a real police psychologist with extensive and unimpeachable credentials.

Dr. Mohandie was also familiar with all of the studies and their authors mentioned above. His testimony at the civil service hearing was riveting. He made the complex crystal clear, backed his testimony with the data and studies. He was, in my experience, the most impressive witness I have ever questioned.

Mohandie worked with me extensively in the preparation of Macias’ defense case. He actually gave Macias the proper examination we had been seeking and concluded, as I had almost from the start, that Macias was being truthful in not remembering the asp strikes if indeed they occurred at all.

The civil service board listened intently to Dr. Mohandie and believed him, the studies, and the evidence. They also heard from the city psychiatrist that he had never heard of any of the studies, data, articles or, incredibly, their authors. He stayed with his high-tech “far fetched” diagnosis, a diagnosis rejected by the civil service board as it should have been by the department management.

Successful Defense to the TASER:

It was proved during the hearing’s defense case that the department command staff was wholly out of touch with the new taser devices, training in the use of the new taser, and had done nothing over the past few years these devices have been in service, to update department rules and regulations relative to their use. That is, until after they fired Macias. The command staff then amended the rules and regulations to prohibit the use that Macias employed. The board saw right through this and exonerated Macias.

The sergeants who came forward prior stood their ground at the hearing as did the officers. Through their collective testimony they painted a very clear picture. That picture was that the actions vis-à-vis use of the taser was consistent with the most recent training, as well as the past rules and regulations. By recent, we mean that we established a period of least two years that the command staff and chief were lagging behind.

Some Lessons to Learn:

A. Never assume an officer involved in a critical incident who does not remember key information, or even all that occurred, is being dishonest. Keep an open mind. Get a qualified police psychologist to do more than the old and tired fit for duty examination. Our weapons and other technology have evolved into the 21st century, so should our knowledge of human behavior. And yes, cops are still human.

B. If your department has changed its technology, someone should remind management to conform the policy to the most recent policies and training.

The entire ordeal of Officer Macias was avoidable. Maybe, just maybe, lessons can be learned by all who read this article.

ABOUT THE AUTHOR: Bob Krause is a partner in the Law Offices of Castle Petersen & Krause LLP, Newport Beach, California. He has been representing police officers and other public employees for over 20 years. Krause is a retired sergeant from the Oceanside Police Department, where he served for many years on the association board of directors and as its president.

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