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San Joaquin County Deputy Sheriff Prevails in Arbitration Over Excessive Force Charges

Posted on Friday, April 01, 2011 at 12:00PM
Posted by Christopher W. Miller

“Never shall I fail my comrades. I will always keep myself mentally alert, physically strong, and morally straight and I will shoulder more than my share of the task whatever it may be, one hundred percent and then some.” — U.S. Army Ranger Creed

Former Army Ranger and San Joaquin County Deputy Sheriff Marcus Smith won reinstatement last December after an arbitrator ordered his termination reversed and “entirely removed from his records along with any reference thereto.” The binding arbitration award came after nearly two years of criminal and discipline proceedings arising from Smith’s apprehension of a fleeing parolee at large in February of 2009.

In the incident, Smith was confronted in a residential backyard by an absconded parolee who had just fled from another officer and would not comply with orders that he give himself up. Smith, a veteran Deputy and SWAT team member, was left alone to detain and arrest the combative suspect while two other deputies sat on a wall overlooking the backyard and did nothing to assist him.

Deputy Enters Backyard to Apprehend Suspect

Deputy Smith and his partner were working in an unmarked vehicle on February 20, 2009, when they heard another deputy call out a foot pursuit. The suspect had taken off running after the deputy stopped the car in which he was a passenger. Racing to the scene, Smith and his partner located the pursuing deputy and parked.

Smith’s partner got out first and ran to a long, six-foot high cinderblock wall bordering the backyard into which the suspect had fled. He looked over the wall, saw the suspect and signaled to Smith that the suspect was in the yard. In the meantime, the other two deputies had arrived and climbed atop the wall, where they drew firearms and pointed them at the suspect. Those officers did not communicate to anyone that they were “covering” the suspect.

Fearing the suspect could threaten the homeowner, flee into other backyards or arm himself with weapons from the yard or the house, Smith vaulted over the cinderblock wall and into the cluttered backyard. He did not know the other two deputies were atop the wall. No other officer entered the backyard.

Other Deputies Fail to Assist

As Smith ran toward a small open area of the yard, he encountered the suspect, Charles Inderbitzen. Inderbitzen was dressed in a heavy denim jacket and had his hands at his side. Smith heard at least one other officer giving Inderbitzen commands to “get down, get down,” and Smith also yelled at Inderbitzen to surrender. When the suspect did not comply, Smith kicked him once in his mid-section to bring him down. Inderbitzen went to the ground, but kept his hands underneath him.

Smith, a trained SWAT Officer, got on top of the suspect to keep him from rolling over and pulling out a weapon. He yelled at Inderbitzen to give up his hands, but the suspect continued to resist. When Inderbitzen would not give up his hands, Smith used distraction strikes to the suspect’s face, head and shoulders to gain compliance. Finally, Smith used a knee kick to lift Inderbitzen up and allow him to grab Inderbitzen’s arm and handcuff him.

By that time, Smith’s partner had entered the yard. Smith and his partner stood Inderbitzen up, walked him to a gate and sat him outside the yard on the curb. Inderbitzen, who suffered scrapes and bruises, did not complain to responding paramedics or to any of the officers about any injuries. The deputies took Inderbitzen to the hospital to be medically cleared and afterward took him to jail. Later, one of the deputies requested a technician take photographs of Inderbitzen at the jail to document his injuries.

The officers on the wall, a field training officer and a six-week trainee, never came into the yard to assist Smith throughout his confrontation with Inderbitzen. The field training officer reported to the shift sergeant that Smith and his partner had used excessive force in detaining Inderbitzen. His false complaint launched criminal and administrative investigations that would consume the next two years of Smith’s life.

District Attorney Obtains Grand Jury Indictment

Within a few months of the incident, the San Joaquin County District Attorney’s Office convened a grand jury to indict Smith on a felony charge of assault likely to produce great bodily injury. Smith did not testify at the grand jury. After testimony from Inderbitzen and the deputies who had observed but not assisted in the detention, a felony indictment was issued against Smith.

The PORAC Legal Defense Fund stepped in to provide full coverage for Smith in the criminal case. The Fund Administrator authorized the assistance of noted Private Investigator Jesse Zuniga and use-of-force expert Don Cameron to assist in Smith’s defense.

Local media attention to the case caused me to file a motion to seal the grand jury transcript. I also filed a motion to set aside the indictment because there was evidence the prosecution should have presented that Smith had used appropriate force. The court agreed to seal the transcript, but would not dismiss the indictment.

District Attorney Dismisses Criminal Case

As the case moved toward trial, I filed a Pitchess motion against the complaining officer, who was known to have engaged in questionable conduct toward a female employee of the Sheriff’s Department. Mr. Zuniga had discovered additional information about the deputy which was likely to impeach him at trial. The motion prompted an investigation by the district attorney into the credibility of its “star witness.”

The prosecution’s investigation revealed extensive uncharged criminal conduct by the complaining deputy, including trespass, vandalism and stalking. Prosecutors also learned what we already had discovered through Department sources: the Department’s primary investigator in the criminal case against Smith was now dating the same woman who had been the complaining deputy’s victim! Within days, prosecutors dismissed the charge against Marcus Smith.

Department Fires Smith for Excessive Force

The San Joaquin County Sheriff’s Department, however, did not hesitate to fire Smith for alleged excessive force once the criminal case had been dropped. The Department proceeded with termination despite the primary witness’s credibility issues and clear evidence that Smith’s actions were consistent with the use-of-force policy.

Smith’s military experience and law enforcement training had prepared him for his encounter with Inderbitzen, but nothing can prepare a career law enforcement officer for the devastating emotional and financial impact on himself and his family of an unwarranted termination. The San Joaquin County Deputy Sheriffs’ Association (DSA) committed to defending Deputy Smith throughout his administrative appeal. The DSA retained investigator Zuniga, as well as Don Cameron, to assist with Smith’s defense in the discipline case.

Mr. Zuniga’s thorough investigation in preparation for the criminal case provided us with a solid foundation for Deputy Smith’s defense. One piece of that defense was an in-car camera video the prosecution provided to us after we learned of its existence. Ignored or overlooked by the Department’s investigators, the video helped establish Smith was the only deputy to enter the yard to apprehend Inderbitzen and contradicted sworn testimony from one of the “bystander” deputies about his own actions after the arrest.

Arbitrator Rejects County’s Case

Armed with evidence from the criminal case, as well as with the in-car camera video and expert testimony on use of force, we proceeded to arbitration before Arbitrator William Riker. In the hearing, the complaining deputy’s story changed yet again. He admitted to “inconsistencies” in his statements to investigators, his grand jury testimony and his testimony at the hearing. He also acknowledged the serious credibility issues we had raised in the criminal case. The trainee who had been on the wall conceded in his testimony that what he at first had described as excessive force was in fact an appropriate use of force to detain the suspect.

These “bystander deputies” contradicted each others’ testimony in significant ways. One described Smith running up to the suspect and punching him in the face while the other had Smith kicking the suspect in the leg and abdomen. Both, as noted by the arbitrator, “did not take action to intervene or assist in subduing the suspect by helping Deputy Smith … in that they were willing to use lethal force but remain out of harm’s way from atop the cinderblock wall.”

Using a sequential series of photographs re-enacting Smith’s encounter with Inderbitzen, as well as Smith’s own testimony about his actions and training, we were able to show his use of force was consistent with the Graham v. Connor “reasonableness” standard.1 The suspect’s behavior — fleeing from the car stop, running into a backyard that was not his own, failing to comply with officers’ commands, refusing to give up his hands — had dictated Smith’s actions.

Both the SWAT Team Sergeant, who was one of the original members of the Sheriff’s Department SWAT team and a use-of-force trainer, and Don Cameron, the use-of-force expert, testified Smith’s actions were appropriate. Key to these witnesses’ testimony was their explanation that even if many of the events had occurred as described by the complaining witnesses, Smith’s actions still fell within the Department’s use-of-force policy and Smith’s training. Cameron used photographs of suspects from similar encounters to show Inderbitzen’s injuries — described as cuts and abrasions — were nothing more than scrapes he had suffered from the brick patio while he was resisting.

The tragedy of this case is that what in many ways had been a textbook demonstration of detention and arrest techniques by a skilled peace officer was twisted into a felony indictment and an unwarranted termination by the exaggerated claims of a single deputy. As the arbitrator put it, the deputies who had failed to act “[i]ronically … were the primary accusers who raised questions about the appropriateness of Deputy Smith’s actions.”

Arbitrator Riker ordered immediate reinstatement with back pay and other employment benefits restored, and ordered the Sheriff’s Department to remove all references to the disciplinary action from Deputy Smith’s records. This result in the arbitration case, and the dismissal of the criminal case, could not have been accomplished without the unfailing assistance of the PORAC Legal Defense Fund and the San Joaquin County Deputy Sheriffs’ Association.

Christopher W. Miller is a former prosecutor and is managing partner of the Labor Department at Mastagni, Holstedt, Amick, Miller & Johnsen. He represented Marcus Smith throughout the criminal and arbitration proceedings in this case. 

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