SUSAN R. JERICH
Rains Lucia Stern St. Phalle &
An 18-year veteran police officer of the City of Orange Police Department is back to work after being fired for 19 counts of misconduct, most of them involving alleged dishonesty. The staggering number of serious allegations were largely the product of a captain who had a longstanding and very obvious dislike of my client and who apparently believed that no arbitrator would require the City to prove each of the allegations with competent and credible evidence. The captain was wrong.
My client’s termination resulted from his reporting of a DUI/traffic collision investigation that occurred in June 2015. My client, to his credit, had agreed to relieve his partner early that day, allowing him to attend a family function. That was considerate and on its face not an issue but, in retrospect, it led to my client alone having to deal with a DUI arrest resulting from a collision.
In addition, this turned out to be a more complicated call because it involved an off-duty LAPD police officer who refused to provide a chemical or blood sample for the DUI investigation. The off-duty officer’s refusal meant that my client had to draft and present to a judge a so-called McNeely search warrant that would compel the LAPD officer to provide a blood sample. Our client was responsible for the traffic collision report as well as the DUI investigation. And, because it involved another department, the investigation seemed to take on greater importance than it would have otherwise. For my client, who was a traffic officer, this would be only his second time drafting a McNeely warrant. Our evidence established that the Department did not adequately train its officers in the preparation of these types of warrants.
The record further established that no one involved in the investigation or the disciplinary process — including the Professional Standards Sergeant, the captain who reviewed and directed the investigation, or the chief of police — had ever authored a McNeely search warrant. This still did not prevent the Department from condemning my client’s behavior.
Here, my client’s major mistake was including in the affidavit for the warrant his belief that the collision victim had identified the suspect as the driver that struck her (even though the Department also took issue with two other statements in the warrant). The investigation involved three separate interrogations of the client.
Our client assumed an in-field identification of the driver had been made based upon a discussion he had with two patrol officers who arrived before him at the scene. These were patrol officers the client had worked with for years. They were experienced and the client testified he had certain expectations of what they would and should have done before he and his other traffic officer partner arrived on scene as the investigation unfolded.
However, the in-field identification had not happened, which led the Department to decide that, because the client included this assumption in a search warrant affidavit, he had perjured himself. Perjury is an intentionally false statement made under oath, in open court or on an affidavit and, unlike a false statement made in violation of an employer’s policies, has criminal implications. Having determined that our client had perjured himself, the City forwarded the matter to the Orange County District Attorney’s office for investigation.
Thankfully, the district attorney’s office determined that there had been no perjury because there was no intentional deceit by the officer. The district attorney’s investigation began in October 2015 and concluded seven months later. On May 16, 2016, a senior deputy district attorney assigned to the Special Prosecutions Unit advised the Department in a letter that “upon review it does not appear to our office that the officer intentionally included information in the search warrant he knew to be false.” However, the captain would later question and criticize the motives and conclusions of the senior deputy D.A. who made that decision.
My client’s partner, the one my client relieved early so he could attend a family event, testified that he would have made the same decisions our client did regarding the DUI/traffic collision. This testimony displeased the Department and after the partner concluded his testimony, a sergeant advised him that the sergeant had been directed to write a “negative blue log,” or critical performance log entry, against him for his specific testimony. That same sergeant told the officer that he and his superior disagreed with that particular order (which came from a captain) and told the officer that rather than write a negative entry in his personnel file, they instead would have the officer provide training to the Department on — of all things — McNeely search warrants. Not only was this as close to provable retaliation as it got, but also it was an acknowledgment that there had been a lack of relevant training in completing McNeely search warrants, which was directly useful to the client’s appeal hearing. Adding to the Department’s upset, my client’s partner further testified that when his interview ended with the City’s outside investigator and the tape recorders were off, the investigator, a retired captain from a neighboring agency, stated, “I don’t know what they are looking for. There’s nothing here.”
If that weren't enough, two of my client’s supervisors told D.A. investigators doing the criminal investigation and the outside investigator doing the administrative investigation that they believed my client had simply made a mistake.
In life, and in police departments, it is better to keep your friends close and your enemies closer. That is the first lesson this case illustrates. Our client had made a powerful enemy within his department — the captain — who ultimately laid the groundwork, as he apparently had been trying to do for years, for the officer’s termination.
The second notable takeaway here is that it is imperative to take the time necessary to secure a good arbitrator or hearing officer. Here, we were fortunate to present our appeal hearing before a neutral, intelligent arbitrator who found “[t]he City has not met its burden with respect to the alleged policy violations. The level of discipline imposed (termination) for conduct associated with the officer’s unsatisfactory performance is not appropriate.” The officer was ordered reinstated with “back pay to the position and seniority he had at the time of termination.”
A final takeaway from this case is the legal standard used to evaluate whether the City had met its burden of proof when it terminated our client. The arbitrator stated, “[D]ue to the implication that termination for making false statements may have on an employee’s future employment, especially in a law enforcement career, the appropriate burden of proof an employer must show is that termination was warranted by clear and convincing evidence.” The arbitrator noted that even under the lesser standard of preponderance of the evidence, the City had not met its burden in this case. Typically, the legal standard a city has to meet to uphold its burden in administrative proceedings is “preponderance of the evidence,” which means that the evidence in support of the City’s case has to just slightly outweigh the employee’s evidence. Here, we argued and the arbitrator adopted a “clear and convincing” evidence standard to determine if the City had met its burden of proof. It is important to remind arbitrators that this should be the controlling standard in termination cases involving law enforcement officers.
There were a lot of issues to address when we appealed the client’s termination, and there were many good lessons to take away from the matter. I would be remiss to not mention that our client was terminated in 2017, so he lived for a year without a job and benefits, having been branded a liar. Fortunately, he has a good support network. He stated that “God and his faith was the foundation for his ability to keep himself together and deal with the matter.” Next, he gave thanks to his wife “for her never-ending support and belief in my honesty and morals for serving the community in the manner that I have and have always wanted.”
I am humbled to add that he thanked the Legal Defense Fund for its support and me, his attorney, saying among other things, “Susan’s grit and energy was inspiring and always comforting … she always listened to me and treated me with dignity and respect. Susan really worked for me and my quest for redemption.”
It is always an honor to be a part of reinstating someone improperly terminated, and seeing that the right thing happens even when the allegations are both numerous and serious. As Winston Churchill said, “The only way to get through hell is to keep marching.” In this case, it was a march resulting in both justice and victory!
Susan R. Jerich is a member of the Rains Lucia Stern St. Phalle & Silver Legal Defense of Peace Officers Practice Group. She represents officers in administrative investigations, disciplinary appeals, criminal investigations and prosecutions and Brady list appeals.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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- James F. Beland Lake County SDA
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- 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.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- 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 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.
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- 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].
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Micheal Chad Heiser Santa Rosa POA
LDF is a valuable resource that no law enforcement officer should be without.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- 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.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- 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.
- 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
- 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.
- Ron Ruddy Riverside POA
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Noe Cordero San Diego POA
Thank you for your help. I feel very secure as you assisted me.
- 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.
- Gilbert Salazar Montebello POA
Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
- Heather Fontes San Joaquin Co POA
I appreciated the thorough follow up by LDF staff. Many thanks and blessings for the work by LDF.
- 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.
- 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!
- 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!
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- 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.
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Ronald J. Danison El Monte POA
The LDF is a tool available to me which I hope never goes away. It makes me feel that much more confident to do my job knowing LDF has my back when police work gets ugly. And it usually does..
- 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.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- 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.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- 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.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Russell Wise Alameda POA
- James Hika Border Patrol Supervisors Association
They did a great job!
- Gina Reyes Broadmoor POA
[My representative] was wonderful! Even though my situation didn't end in my favor, he was very supportive, informative & patient. He always answered every email in a timely fashion and was very accessible. I appreciated everything he was able to do for me.
- 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].
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- 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.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- 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.