“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 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.
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.
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.
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.
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.
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.
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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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This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Kim Prout Upland Firefighters Assoc
It was great comfort to know somebody would be there for me in this matter. I was able to finally sleep @ night & wake up with confidence that I would be ok. Thanks.
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- 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.
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Scott Hamilton San Bernardino Co SEBA
Don't go to work without LDF!
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- 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.
- 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].
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Brent Teasley ERS/Reno PSAEA
[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Jurell Snyder Oakland POA
My LDF representative had a power point presentation, which was extremely professional.
- James F. Beland Lake County SDA
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- Christopher Wells Hollister POA
My rep was great.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- 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.
- 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.
- William Jackson Santa Maria POA
Keep up the great work.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- 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.
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Sean Tinney Berkeley PA
[My representative] was very attentive to my case and thorough with his investigation. I would request [him] again in the future.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Christopher Boyd Carlsbad POA
[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
- Paul Barrolaza Twin Cities POA
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Russell Wise Alameda POA
- 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.
- Steven Moorehouse Redding POA
Thank you for your help.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- 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.
- 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.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- 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!!
- 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.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- 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.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- 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 !!
- 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.
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- 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.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Heather Fontes San Joaquin Co POA
I appreciated the thorough follow up by LDF staff. Many thanks and blessings for the work by LDF.
- 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].
- 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.
- 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!
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Greg Harman Kensington POA
[My representative] is the best!!
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- 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.
- William DeWitt CPPA
Everything was awesome...could not be happier!