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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- 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.
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Paul Barrolaza Twin Cities POA
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- Scott Hamilton San Bernardino Co SEBA
Don't go to work without LDF!
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. 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!
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- 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.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- 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.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- 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].
- James Hika Border Patrol Supervisors Association
They did a great job!
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- 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
- James Walker Yakima Police Patrolsman Assn
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.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- Greg Harman Kensington POA
[My representative] is the best!!
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Joseph Barrett LA Airport POA
I was very well represented by a professional. I felt well represented and got great advice.
- Erick Gaunt Palos Verdes POA
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Tai Pena-Hornung Oakland POA
Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- 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.
- 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!
- William Jackson Santa Maria POA
Keep up the great work.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- 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!
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Michael Sexton Manteca POA
[My representative] was awesome.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Jonathan Smith San Diego D.A. Investigators
I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- 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!!
- 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].
- 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!
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- 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.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- 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.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- 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.