Silver, Hadden, Silver & Levine
It was about 7:30 p.m. on the night of December 16, 2011. It was a cool but clear evening, with no precipitation. Kern County Deputy John Swearengin was sitting in the parking lot of a church in the Oildale area of Bakersfield attending to some paperwork when he heard a Bakersfield P.D. dispatcher broadcast an urgent call involving a stolen vehicle and officers’ foot pursuit of the suspect. He knew that his own agency would soon be sending him to help. As he had so many times previously in his eight-year career, Deputy Swearengin attentively followed the information being relayed and began rolling to the call to render assistance.
Deputy Swearengin knew the area well. He had grown up in the City of Taft and had regularly patrolled the Oildale community. He turned west on Norris Road, about two miles east of sheriff’s headquarters. As Deputy Swearengin began to pick up speed, he continued to monitor the roadway, securing route information while listening to his radio and scanner. He reached down for his microphone to contact supervision, intending momentarily to activate his lights and siren, as his speed was in excess of 70 mph in a 45 mph zone. His path appeared unobstructed.
But to his horror, Deputy Swearengin found that the roadway was not completely clear after all. Two young adults, one male and one female, both around 30 years old, were in the roadway — dressed in black clothing (against a black background) and apparently pushing a small, disabled motorcycle, all without a trace of reflective material. Deputy Swearengin survived the ensuing accident, but the young adults pushing the motorcycle did not.
The matter was referred to the Multidisciplinary Accident Investigation Team (MAIT) of the California Highway Patrol, which many months later concluded that Deputy Swearengin’s actions constituted “vehicular manslaughter with gross negligence.” The Kern County District Attorney’s office heavily relied upon MAIT’s findings and recommendations, and proceeded to file two counts of felony vehicular manslaughter with gross negligence, of which each count carried a penalty of two, four or six years in state prison per Penal Code Section 193.
The MAIT investigators persistently pointed to Deputy Swearengin and the speed of his unit as exclusively responsible for the accident. In doing so, MAIT discounted the facts that the male and female decedents had blood alcohol readings of approximately .14 and .25, respectively, and were — at distances tested by the investigators themselves in their own visibility study — virtually invisible to approaching drivers, due to their attire and the poor lighting conditions. MAIT investigators claimed that such circumstances were irrelevant to the legal issue of causation. They insisted that the decedents, as pedestrians, were at all times proceeding lawfully in the roadway before being subjected to Deputy Swearengin’s allegedly unlawful actions in exceeding the speed limit without the activation of emergency equipment, although the decedents were neither in a marked nor unmarked crosswalk.
Furthermore, MAIT conducted its own walking study, designed to show that if the decedents walked across Norris Road at a “normal” speed, they would have cleared the roadway without incident if Deputy Swearengin had been going the speed limit. The investigators used data from this study as a foundation for other calculations that they performed to try to demonstrate Deputy Swearengin’s alleged gross negligence, a determination which requires a finding that the defendant’s actions were with “disregard for human life.”
The CHP investigators magnificently compiled volumes of data, materials and photographs, but failed to properly perform some basic police work. They conducted interviews in a sloppy and untimely manner, failed to tape record critical witnesses who later disputed the CHP’s summaries of their conversations and, in the absence of information, sometimes simply made things up. For example, in its walking study, the investigators purportedly sought to establish how long it would take for two adults to push a similar motorcycle across a distance equivalent to the width of two lanes of Norris Road, postulating that the decedents walked at a normal pace from a particular point on the north curb of Norris Road to the point of impact. The problem was in the premise, as no one witnessed the decedents together at any point prior to the impact. There was simply no evidence that revealed their path of travel, their speed of travel, the length of time they were in the roadway or their presence anywhere on the north curb. Any designation of their path was therefore nothing but gratuitous speculation. Moreover, the tests were not conducted under circumstances remotely similar to the events in question, as CHP acknowledged that its test subjects were not allowed to become intoxicated. Thus, the assertion that the decedents were walking at all, as opposed to recklessly running or stumbling and falling, was mere guesswork — but, unfortunately, guesswork that the investigators relied upon to make more detailed and critical calculations in trying to establish Deputy Swearengin’s guilt.
That was hardly the end of the story. One would have expected that of all agencies, CHP investigators would have been especially familiar with the provisions of the Vehicle Code. That was not the case here. Had the MAIT investigators reviewed the Vehicle Code and Section 305 in particular, they would have found that each of the decedents was not, under the law, a pedestrian but instead a “driver,” which is defined therein as one who is “in actual physical control of a vehicle.” Thus, CHP overlooked the critical fact that the decedents were, by law, drunk drivers, who were moving a vehicle across traffic lanes at night with black clothing and no reflective material against a completely darkened background, as if a black hole moving through space.
The matter came to trial before Judge John Lua, who was tasked with ruling on pretrial motions of both sides in regard to numerous issues, including those related to the driver/pedestrian status, alcohol consumption and a prior disciplinary letter of reprimand received by Deputy Swearengin for a low speed, one-car minor accident that occurred a year before the incident in question — a letter that the prosecution sought to put in front of the jury. The prosecution had described the prior disciplinary action as particularly critical to its task of proving gross negligence, hoping that jurors would be thereby persuaded that Deputy Swearengin’s efforts to rescue another officer on the night in question constituted a disdain for human life.
After carefully analyzing the issues, Judge Lua found that the “pedestrians” were, in fact, “drivers” under the Vehicle Code, based on facts even as offered by the prosecution, and held that the decedents’ alcohol ingestion would at least be allowed to be discussed before the jury. In addition, Judge Lua found that the prior disciplinary action was significantly dissimilar to the circumstances of the case at bar, and its introduction would be substantially more prejudicial than probative; accordingly, he excluded it pursuant to Evidence Code
Prior to the remainder of the motions being resolved, the prosecution again reflected on its ability to prove the gross negligence factor as alleged from the outset by CHP, which, again, would have required the DA to show that an on-duty deputy coming to the aid of another officer in trouble somehow had callous disregard for human life, understanding that based on Judge Lua’s rulings that the pedestrian/victims would be identified by law as intoxicated drivers. The prosecution concluded that the case could be more fairly resolved with an offer to the defense of a misdemeanor plea of one count of vehicular manslaughter with ordinary negligence, with no jail time and 480 hours of community service, which Deputy Swearengin accepted. Judge Lua formally adopted the plea agreement on September 4, 2014, at which time Deputy Swearengin gave an emotional apology to the family members of the decedents for the tragic accident that changed all their lives forever. The felony charges were dismissed.
The case was defended jointly by Bill Hadden of Silver, Hadden, Silver & Levine in Santa Monica, and the Law Offices of David Torres (separately retained) in Bakersfield, with David, Monica Bermudez and Alekxia Torres all doing great work in the courtroom to achieve the final result. The case could not have been fought without the support of Ed Fishman and Rebecca Mann of LDF, who provided us with accident reconstruction expert Paul Herman, human factors expert Dr. Tony Stein, jury expert Jan Spaeth and private investigator Jeff Niccoli. Deputy Swearengin is deeply grateful for the support he has received from LDF and other sources, and is hopeful that he may soon continue his law enforcement career.
About the Author
Bill Hadden joined what is now Silver, Hadden, Silver & Levine in 1982 and became a partner in 1986. A graduate of Loyola Law School, Hadden has primarily handled the firm’s high-profile criminal and administrative cases for over a quarter-century. Hadden has also represented countless public safety members in all phases of litigation and frequently lectures and writes about prominent legal issues pertaining to law enforcement.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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- 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.”
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- John Dougherty National City POA
My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- 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.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- 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.
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- 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.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- 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.
- 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.
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Anthony Zack Vernon POA
This was the first time in my twenty-five year career that I had to use the services of my legal defense fund. My LDF Representative was extremely courteous, informative and professional.. She addressed all of my concerns and answered all of my questions. She did an overall outstanding job of representing me and handling my case. I could not have been any more pleased or satisfied with the job she did! I would definitely request her to represent me in the future if I needed representation.
- 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!
- 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.
- 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.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Emery Eccle Culver City POA
LDF is THE most important asset / resource that police officers have. "Thank you" to all involved and keep up the good work!
- 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.
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Douglas Mansker Bakersfield POA
(My attorney) is a very good attorney, despite his young age. He kept me well informed throughout my legal matter and returned phone calls in a prompt manner. I was very satisfied with his performance and would not hesitate to be represented by him again.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- 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.
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- James F. Beland Lake County SDA
- 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.
- 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.
- 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.
- 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
- 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!
- 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!
- 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.
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- 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.
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- 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.
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Jason Kearsing Elk Grove POA
Very happy with LDF.