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Stockton Police Officer Reinstated After Fatal Code 3 Collision

Posted on Saturday, June 01, 2019 at 12:00AM

JOSHUA A. OLANDER

Senior Associate

Mastagni Holstedt, APC

On February 14, Stockton Police Department Officer Joseph Ciccarelli was ordered reinstated after he was terminated for an alleged violation of the police department’s emergency driving policy when he was involved in a collision that resulted in the death of a civilian. Arbitrator David Weinberg completely overturned the department’s findings and determined that Ciccarelli did not violate any department policies, and thus the City lacked the just cause required for termination.
On August 31, 2017, Ciccarelli and his partner were responding Code 3 to assist another officer with an occupied stolen vehicle when Ciccarelli collided with another vehicle, resulting in the death of the driver. As Ciccarelli explained throughout the investigation and at his arbitration, during his Code 3 response, he took into account all the relevant factors in any Code 3 response, most importantly the seriousness of the call and the weather, traffic and road conditions. Not only was it daylight and dry at the time, but Ciccarelli exhibited restraint throughout his response when the traffic conditions required he do so.
For example, Ciccarelli would turn off his siren at congested intersections to avoid causing panic to other drivers and wait for the light to change before continuing his Code 3 response. Ciccarelli only began driving at a high rate of speed when he had the right of way and perceived that the vehicles travelling in both directions were yielding. Within seconds of increasing his speed, the civilian accelerated from a stop sign into Ciccarelli’s path of travel. Unfortunately, he was unable to avoid the collision. Despite the efforts made by Ciccarelli, his partner and other emergency personnel to provide medical aid, the driver succumbed to her injuries.
After investigating the collision for nearly an entire year, the California Highway Patrol’s Multidisciplinary Accident Investigation Team (MAIT) concluded that Ciccarelli was at fault due solely to unsafe speed. MAIT determined that within five seconds of the collision, Ciccarelli was driving at speeds between 82 and 86 mph in a 35 mph zone. MAIT further concluded that had Ciccarelli been driving at a constant speed of 68 mph or less, he would have avoided the collision entirely. Despite MAIT’s recommendation that Ciccarelli be charged with misdemeanor vehicular manslaughter, the San Joaquin County District Attorney’s Office declined to file any charges. The Stockton Police Department, however, determined that termination was warranted for an alleged violation of its emergency driving policy.
Numerous Stockton Police Department officers testified regarding Ciccarelli’s training, excellent reputation and quality of work, and unanimously testified that Ciccarelli was an outstanding, respected officer with a bright future. Further, the witnesses testified that Ciccarelli operated his vehicle within his training and policy. As the arbitrator noted in his award:
“The testimony of multiple longtime senior members of the Department has been persuasive to convince me that the grievant did not violate [policy], given the training the grievant received regarding this General Order and the need for due regard in operating his vehicle Code 3. While it is not determinative, the evidence also shows the grievant in his limited time with the Department has shown himself to be an outstanding Officer who took this accident to heart and was attempting to learn from this incident, and I believe he can be an asset to the City.”
Applying a Graham v. Conner-type analysis, arbitrator Weinberg further stated that:
“A police officer in the line of duty must at times make split-second decisions, which can impact citizens and their safety. These decisions cannot be solely judged by looking backwards with the certainty that is informed by data gathered after the incident has concluded. Rather, the arbitrator must judge whether the grievant violated rules and procedures which he should have reasonably followed given the conditions he was facing and the training he had received.”
The arbitrator concluded that the department failed to meet its burden of proof and Ciccarelli’s emergency driving on August 31, 2017, was neither in violation of department policy or contrary to his training. Ciccarelli was ordered returned to duty with full seniority and made whole. Without the unwavering support by the PORAC Legal Defense Fund, this exceptional victory would not have been possible.
When operating an authorized emergency vehicle Code 3, California public safety officers are exempt from the rules of the road under California Vehicle Code Section 21055. However, this exemption is not absolute. When responding Code 3 to an emergency situation, officers must still exercise “due regard” for the safety of the public. As stated in Vehicle Code Section 21056, “Section 21055 does not relieve the driver of a vehicle from the duty to drive with due regard for the safety of all persons using the highway, nor protect him from the consequences of an arbitrary exercise of the privileges granted in that section.” Unfortunately, there is no precise definition of the concept of “due regard.” Thus, public safety officers must be mindful when they are responding to emergency situations and take into account the nature of the call, the weather, road conditions, traffic, time of day, whether other officers are also responding and any other factors relevant to their response.
According to the National Institute for Occupational Safety and Health, between 2006 and 2016, on average, more than one officer per week was killed on the road, equating to 30% of officer deaths within that time period. In 2018, 50 officers lost their lives in the line of duty due to vehicle accidents. These statistics do not include the voluminous number of injuries not resulting in death that officers suffered from vehicle accidents. This cautionary tale will hopefully remind you that while you can control your actions, the actions of others are not within your control. Be aware, be safe and always be represented.

About the Author
Joshua A. Olander is a senior associate attorney in the labor and employment department at Mastagni Holstedt, APC. He represents public-sector employees in administrative and disciplinary investigations, hearings, critical incident investigations and criminal defense. 

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