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County Policy Causes Accident

Posted on Wednesday, September 01, 2004 at 12:00PM

When veteran Tuolumne County Corporal Mark Kerzich began pursuit of a speeding motorist in Tuolumne County, he didn’t expect to be involved in an accident. Kerzich probably had even less indication that by following Tuolumne County’s policies concerning emergency operation of department vehicles, he would be subjected to disciplinary action.

Corporal Kerzich is an eight-year veteran of the Tuolumne County Sheriff’s Department and has acted as a corporal for almost two years. One evening in June 2003, Kerzich observed a vehicle traveling at a high rate of speed. In an effort to catch the violator, Kerzich traveled at approximately 70 miles per hour in a 50 mile per hour zone. Kerzich did not, however, turn on his emergency lights or siren in accordance with department policy, which provides that “officers intending to stop a vehicle should, when possible, be within close proximity to the violator’s vehicle before activating the red lights and attempting a stop.” Many departments have similar policies which are generally adopted to discourage pursuit baiting.

As Kerzich rounded a bend in the road, he saw a van at a stop sign. Kerzich believed the van driver saw him and was going to wait for him to pass. The driver of the van, however, failed to yield to Kerzich’s right-of-way and drove out into the road causing Kerzich to make a last second adjustment to avoid a collision, veering into the on-coming lane of traffic which was vacant. Kerzich attempted to swerve back into his original lane, fearing a possible broadside collision. Unfortunately, Kerzich was unable to avoid striking the van, causing considerable damage to both vehicles, but no injuries that required immediate medical care.

The California Highway Patrol investigated the accident and determined it was caused by Kerzich’s decision to switch lanes, causing his vehicle to be in the wrong lane of traffic within 400 feet of an intersection.

The Sheriff’s Department concluded, without doing any analysis of Kerzich’s speed and his reliance upon department policies, that Kerzich should have slowed down upon approaching the intersection in order to better respond to the reactions of the van driver. Kerzich received a 10-hour suspension for misuse of county property and damage to county property resulting from misuse or negligence. Gary Messing, a partner in the Sacramento office of Carroll, Burdick & McDonough, demanded arbitration and presented Kerzich’s case to arbitrator Kathleen Kelly.

Arbitrator Kelly found that although Kerzich’s decisions were not optimal and he might have avoided an accident by slowing down, Kerzich could be faulted only slightly for his “split second” decision-making. Additionally, relying upon the expert testimony of San Jose Police Officer David Johnson, Kelly found that the underlying cause of the accident was the county policy itself.

David Johnson, a San Jose police officer for 20 years, and an experienced investigator of fatal vehicle collisions, was called as a witness by Kerzich. Johnson qualified in court as an expert witness and has assisted the city of San Jose in numerous cases regarding vehicle accident reconstruction. Johnson testified that the county policy requiring officers to gain proximity to vehicles they are attempting to stop before turning on emergency equipment was outdated and contrary to law. His testimony was that the clear majority of traffic stops do not involve the potential for escape, and therefore, it is safer to give the motorist the opportunity to slow down and stop in response to a siren. Johnson noted that without using emergency alert equipment, officers have no relief from the state speed laws and other traffic laws. In his opinion, Kerzich’s pursuit of the violator and allegiance to county policy was the underlying cause of the accident.

Tuolumne County Under Sheriff Leland Sanford testified that although the department’s policy allows discretion not to use a siren, Kerzich had the discretion to use the siren as well, and that he would not have been criticized for activating his emergency alert system. However, the arbitrator noted that “while this is true, it ignores the fact that the county policy and training discouraged him from activating his emergency alert equipment in this situation.” Sanford also conceded that after this accident, the department would conduct more training for deputies in vehicle pursuits.

In light of such testimony and Kerzich’s exemplary record (Sanford described him “as one of our stellar employees”), the arbitrator ruled that no more than a counseling was justified. Although the decision involved only a minor suspension, Kerzich stood on principle, not wishing to mar his spotless record. The Legal Defense Fund supported Kerzich in protecting his reputation and in challenging his department’s policies.

Departments with similar policies should revisit them to avoid putting officers in the position Kerzich found himself, exposing themselves and their departments to liability. Copies of the decision can be obtained by contacting Gary Messing at (916) 446-LAWS.

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