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A MESSAGE FROM THE PRESIDENT

This section contains the latest news from Eric Schmidt, President of the Fresno Deputy Sheriff's Association, as well as an archive of past newsletters.
A Message from the President, November 2019
 
To view full President's Message  - Click Here 

Main topics - 

  • Bargaining and Health Rates
  • PORAC Conference of Members
  • Website

Eric 

A Message from the President, October 2019
 
To view full President's Message  - Click Here 

Main topics - 

Open Enrollment begins November 1, 2019 and ends November 30, 2019.  All changes must be made prior to the close of Open Enrollment.  

Changes to FresnoSheriff.org email 

The FDSA App is now available for download on your device.  This will come up as HQ App and is now available for you to review. 

*Members must be registered on the fresnodsa.org website PRIOR to using the app.  Website login credentials are the same to login to the app. 

iPhone user - 

https://apps.apple.com/us/app/the-hq-app/id1475652199?ls=1

Android user - 

https://play.google.com/store/apps/details?id=com.nep.hqapp

 

Stay Safe, Eric 

A Message from the President, September 2019

Passage of SB230

I have attached for all of you the passage Press Release of PORACs SB230 Use of Force bill. This has been a tireless effort by many of us in the law enforcement labor community. The endless amount of lobbying that has gone into this hasn’t even begun to be tabulated. This came down to two things: defeating the AB931 bill from last year – and creating our (law enforcement language) and be proactive with Use of Force. 

A great thanks to Senator Ana Caballero and her staff for carrying this bill for law enforcement.  As you will see on the press release, this was a coalition effort. PORAC was leading the bill, but this took efforts from all of us in law enforcement to preserve what we have and enhance for the future. 

I will have more as things transpire in 2020 when these two bills (AB392) and SB230 take effect. 

Shift Signups Oct 16, 2019

Patrol shift signups are Wednesday October 16, 2019. We will get started at 0730 hours for those coming off the graveyard shift. Once the seniority gets ironed out, we will be sending out the seniority list for those signing up. If you are not signing up – again no need to worry. The current key assignments are located in the STAR page under Shift Signups 2020. Make sure you take a look and if there are any questions reach out to me, so I can get them answered as quickly as possible. Some of you have done so already and we have resolved some of those concerns/questions. 

Vacation signups will come out shortly after signups for all of you in patrol. FDSA will be hosting the morning food and beverages during the shift signups. We will also have vendors there for any information regarding health insurance, AFLAC, Delta Dental, and Legal Shield. 

Those of you who still may need to sign up for the FDSA Website - there will have a couple laptop computers at the FDSA that morning to do so. I look forward to seeing you all on Oct 16 for signups. 

Bargaining

We have started bargaining with the County of Fresno for a successor MOU. I have received questions from some members if this process has started. I wanted to report out that we have started .  As soon as there is a tentative agreement, your board of directors will meet to discuss and call for the ratification meeting to occur. I appreciate your patience during this time, as it does become a pretty hectic ordeal between the multiple meetings that will occur during this process. 

New Bills signed by Governor Newsom

Governor Gavin Newsom signed into law two bills that focus on improving protections for California’s public safety works and post-traumatic stress for first responders. The bills will add post-traumatic stress suffered on the job as an “injury” for worker’s compensation purposes and ensure emergency services remain under public management for appropriate and consistent response to emergency situations.

SB 542, the Trauma Treatment Act, by Senator Henry Stern (D-Canoga Park), will provide first responders with workers' compensation while they recover from their mental health scars. SB 542 will improve mental health awareness among firefighters and law enforcement officers by establishing a rebuttable presumption of injury for firefighters and law enforcement personnel in instances where they sustain occupational post-traumatic stress.

SB 438, Emergency Medical Services: dispatch, by Senator Robert Hertzberg (D-Van Nuys) will prohibit a public agency from outsourcing its local emergency dispatch services to a private, for-profit entity – except when pursuant to a joint powers or cooperative agreement. It also clarifies that a public safety agency maintains the authority to determine the appropriate deployment of emergency resources within the agency’s jurisdiction in order to provide the highest and best level of emergency response for the community it serves.

Until next month – Take care of one another. 

Eric

A Message from the President, August 2019

On August 19, 2019, Governor Newsom signed Assembly Bill 392 into law. This Bill, which relates to and regulates the use of deadly force by peace officers in California will not take effect until January 1, 2020. The minute the press started to put headlines out on this bill, I knew there were going to be problems of interpretation from the public, followed by confusion from FDSA members and cops in general. The original language, as I have shared with all of you in my prior messages, was actively opposed and actively lobbied against in Sacramento and in our location legislative districts. The original bill would have crippled law enforcement and officers would have been hurt or killed because of it. 

There was substantial work by police labor organizations throughout California, including PORAC, the Los Angeles Police Protective League and the Association of Los Angeles Deputy Sheriffs. These organizations convinced the authors of AB 392 to make changes in the final language of AB392 to bring it into greater conformity with use of deadly force standards enunciated by the United States Supreme Court. Our belief is the final language within the Bill acknowledges the fact that many uses of lethal force arise in circumstances where life and death decisions have to be made in a fraction of a second.   

Although there will be more detailed analysis of the new law soon, for purposes of right now, this law changes the right of officers to use lethal force in the following major areas: 

  • Requires officers to evaluate each potentially deadly force situation to determine the availability of de-escalation tactics/techniques.
  • Reminds officers that individuals with mental health, developmental or intellectual disabilities may be less likely to understand or comply with commands from peace officers, and precludes officers from using deadly force against a person who poses only a danger to himself/herself.   
  • Permits the use of deadly force when death or serious bodily injury is “imminent,” which is when a reasonable officer would believe that a person has the present ability, opportunity and apparent intent to cause death or serious bodily injury which must be confronted/addressed at that very moment.
  • Permits the use of deadly force to apprehend a fleeing felon only when (a) the subject had committed a felony which resulted in death or serious bodily injury and (b) the officer reasonably believes that the subject will cause death or serious bodily injury to the officer or others unless immediately apprehended.
  • Requires that the use of deadly force be based on the “totality of the circumstances” confronting the officer, which includes consideration of the officer’s own pre-shooting conduct and tactical decisions.

As you can see by the four above bullet points – we are doing these now. This is conformity to the ever changing world of law enforcement practices and procedures. Sometimes although we change policy and procedure to mold with the community, laws at times, should be tweaked to make our job easier and the rules we follow for the public. 

This law also preserves some of the important and appropriate factors contained in previous statutory law and in Graham v. Connor for evaluating an officer’s use of force: 

  • It contains language that an officer need not retreat nor desist from making an arrest because of the resistance or threat of resistance of the person being arrested and permits use of force to effect an arrest, prevent escape, or overcome resistance.
  • It requires that the analysis of deadly force encounters depend upon circumstances known or perceived by the officer at the time rather than with the benefit of hindsight, and with the understanding that officers may be forced to make quick judgments about the type and amount of force to use. 

By far one of the most important portions is preservation of the two bullet points above. As more comes out on SB230 and more analysis of AB392 I will put out to all of you. 

Senate Bill 230 (PORAC’s Bill), which requires law enforcement agencies to implement use of force policies consistent with the requirements of AB 392, and which requires POST to implement training courses consistent with the requirements of AB 392, has not yet passed out of the Senate. We anticipate that SB 230 will be been presented to the Governor for signature within the next few months.

I have attached an analysis also by Missy O’Linn. Attorney Mildred (Missy) O'Linn is a trial lawyer with over 30 years of experience defending law enforcement. She is a senior partner and co-team leader of the Police Defense Team with the Los Angeles-based law firm of Manning & Kass, Ellrod, Ramirez, Trester. Missy is a member of the distinguished American Board of Trial Advocates and has been repeatedly recognized as a Southern California Super Lawyer and as one of the Top Women Attorneys in Southern California.  

Missy is a former peace officer, FTO, defensive tactics instructor trainer, academy manager and accreditation manager, and served as the legal and technical advisor for the Law Enforcement Television Network. She currently serves on the Legal Affairs Committee and the Professional Development Committee for the Major County Sheriffs of America and the PoliceOne editorial advisory board, and has served on numerous CA POST committees, including the LEOKA and LD20 committees.

The awards Missy has received include 2005 Los Angeles County Deputy Sheriffs Association's recipient of the Award for Civilian Leadership; 2006 Meritorious Service Award from the City of Gretna, Louisiana Police Department for her assistance to law enforcement in the aftermath of Hurricane Katrina; 2015 California POST Lifetime Achievement Award for Excellence in Law Enforcement Training; and 2016 induction into Safariland Training Group's "Monadnock Hall of Fame.

Analysis of AB 392 by Missy O’Linn

The bill amends California Penal Code § 835a (PC 835a), which regulates the use of force by peace officers in California.

Initially the legislative effort was drafted in a manner that was of grave concern in regard to the language and provisions that were proposed. Ultimately, as a result of enormous efforts by law enforcement labor organizations, associations and executive-level leaders, the law, as amended, simply does not “fill the bill” as inappropriately touted by law enforcement naysayers.

A section by subsection analysis provides clarity on some of the ramifications of the provisions of the amended statute as stated. Throughout the discussion of the amended statute, note that much of what has been enacted into law is merely what is contained in jury instructions, case law in the United States Court of Appeals for the Ninth Circuit and arguments of counsel in federal civil rights litigation. The new language of PC 835a is substantively the Graham v. Connor (1989) Fourth Amendment and Kingsley v. Hendrickson (2015) Fourteenth Amendment, and their progeny, “objectively reasonable” force standards.

The substance is that force must appear to be necessary under the totality of the circumstances as reasonably perceived by the officer – which is generally the equivalent of objective reasonableness. However, it is important to keep in mind that like any newly enacted consensus legislation, this statute is subject to judicial interpretation and thus, this battle is far from over.

“Sanctity of every human life”

PC 835a (1) states: “That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.”

This section is merely a feel-good platitude. As an example of conflated language, this section is limited to “physical force.” In law enforcement, the term “physical force” is usually limited to hands-on physical force and does not include intermediate force options or weapons. This section generally codifies a concept that has been used in law enforcement policies and in litigation by plaintiffs for decades citing “the sanctity of human life” provision from the California Peace Officer Standards and Training (POST) Basic Academy Workbook Series, LD 20 on Use of Force. The plus side is that the language as amended makes it clear that the concern is for “sanctity of every human life” and thus this could be construed as a positive for law enforcement because it clarifies that officers, civilians and suspects’ lives are all part of the issue. In fact, that concept has always been true for law enforcement and, as stated, counters the commonly used tactic that omitted the “every” human life provision.

“When necessary in defense of human life”

PC 835a (2) states: “As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.”

Here, the “when necessary in defense of human life” would be of concern standing alone because it would arguably impose an ultimate subjective correctness standard as opposed to a Graham v. Connor (1989, Fourth Amendment “seizure”) and Kingsley v. Hendrickson (2015, Fourteenth Amendment) objective reasonableness standard. However, because the additional provisions of the amendment define how the determination of “whether deadly force is necessary” will be made, the concern is generally alleviated, although now open for more debate. An evaluation of “each situation in light of the particular circumstances of each case” is the totality of the circumstances as reasonably perceived by the officer component – which is discussed further and defined below.

The amendment language that states, “shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer” is new California law. However, it is in reality merely a codification of the Ninth Circuit perspective on alternative force options. This provision will likely result in further debate, litigation and judicial interpretation about what was and was not reasonably available to officers or in 20/20 hindsight which force options were arguably safer in various circumstances. For those of us embroiled in this battle of explanation and justification on a regular basis, it is something that is already part of the evaluation of officers’ actions. “Other available options” is a question that we have been dealing with for over a decade. What needs to be made clear is that the time available and opportunities to consider, transition and utilize other resources, techniques, risks, force options and quantum of force may arguably preclude officers from finding the optimal solution to a force event. Thus, the requirement is for officers to find a reasonable way to do everything – not the best way to do anything.

“Use force consistent with law and agency policies”

PC 835a (3) states: “That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.”

This provision will likely be used to reinforce allegations of failure to properly investigate and discipline officers. Also, by including “consistent with … agency policy,” this in effect conflates agency “policy” to a legally recognized standard. Thus, it is even more important to avoid department policies that are more restrictive than legal standards. Otherwise, this is not a substantive change to use of force law.

“Perspective of a reasonable officer”

PC 835a (4) states: “That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.”

The language of this portion of the amended statute is, in many respects a codification consistent with the Graham line of cases. This entire section is advantageous to the defense of officers and codifies beneficial provisions of case law.    

“Disability may affect their ability to understand or comply”

PC 835a (5) of the amended statute states: “That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.” This section states a fact that is well established and confirms the difficulty of dealing with such issues and it imposes no new requirements.

“Objectively reasonable force”

PC 835a (b) states: “Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.” The amended portion of this section adds the word “objectively” and that is an improvement because it is explicitly consistent with Graham.

“Officer reasonably believes”

PC 835a (c) (1) states: “Notwithstanding subdivision (b), a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons: …” 

This is generally paraphrased in a manner consistent with using deadly force under the Fourth Amendment standard of “objectively reasonable” under the totality of the circumstances.

The provisions under PC 835a (c) (1) (A) states that “such force is necessary for either of the following reasons: (A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.” This again creates a phrasing confusion between the words “imminent” and “immediate”. A careful review of Graham, Garner and their progeny use “immediate” not “imminent.” Both “immediate” and “imminent” appear in Garner, however, “imminent” is only used in footnote 15 in quoting an Indiana Court of Appeals decision.  However, arguably the use of these two words in this manner may be viewed as creating greater latitude for officers given that “immediate” means now and “imminent” means soon. Again, more opportunity for judicial intervention.

The provisions under PC 835a (c) (1) (B) states that “such force is necessary for either of the following reasons: (B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.” Note, here the drafters now use “immediate” rather than “imminent.” Next, the section uses the adjective “will” cause death or serious injury, rather than “may,” or a less rigid adjective. It is quite difficult to pre-determine what a subject “will” do. The fleeing felon rule (Garner) is generally interpreted as an imminent standard as to the suspect’s anticipated actions. The provision is generally comparable to the Model Penal Code’s more restrictive fleeing felon standard. The “where feasible” warnings provisions have been the clearly established law since, at least, Garner (1985) and are nothing new and already an issue of primary concern in reviewing use of deadly force in particular.

“Person does not pose an imminent threat of death or serious bodily injury”

PC 835a (2) provides: “A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.”

This section generally deals with responding to people threatening suicide and suicide-by-cop issues. I do not believe that this significantly changes the standard of care or the current law on use of force. This section will likely be used to reinforce the discussion in many circles currently about walking away from suicidal subjects who are only an imminent threat to themselves and avoiding lethal-force encounters that may result from trying to save those individuals from themselves.

“Tactical repositioning or other de-escalation tactics”

PC 835a (d) provides: “A peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force in compliance with subdivisions (b) and (c) to effect the arrest or to prevent escape or to overcome resistance. For the purposes of this subdivision, “retreat” does not mean tactical repositioning or other de-escalation tactics.” 

The amended language referring to tactical repositioning and de-escalation tactics is intended to place an additional burden on officers in my opinion. This is an attempt to conflate less than optimally perfect in 20/20 hindsight tactics or decision-making into excessive force. It does not affirmatively make that leap of turning negligence into an intentional tort (i.e., excessive force), but it probably cracks the door open a bit on that argument.

“Definitions”

PC 835a (e) provides: “For purposes of this section, the following definitions shall apply:

(1) “Deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.

(2) A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.

(3) “Totality of the circumstances” means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force."

The deadly force definition is the classic standard definition that officers are familiar with and thus generally a non-issue. Other than my own irritation over the confusion between the Garner and Graham “immediate” standard substantively (2) is relatively inconsequential.

Finally, in regard to the definition of totality of the circumstances under subpart (3), this provision is arguably a codification of the Ninth Circuit’s “provocation” theory that the U.S. Supreme Court rejected in the Mendez v. County of Los Angeles (2016) decision. However, between the Ninth Circuit re-addressing the issue on remand in Mendez as “proximate cause” and the Hayes v. County of San Diego (2013) decision on negligent tactics and decision-making, we have had to deal with these issues administratively and civilly prior to this amendment.

Thus, with the passage of this amendment it is highly foreseeable that there will be more questions asked, more debates, greater need for judicial interpretation and more discussion about whether there were other options available to an officer, in particular when deadly force was used. In my opinion, the language of section (d) above, referring to “retreat” does not mean tactical repositioning or other de-escalation tactics,” and the definition of the totality of the circumstances are primarily what we will be dealing with substantively in litigation.

Finally, it is important to understand what this amended law does not say. The language clearly does not mean that force must ultimately be necessary. Objectively reasonable force by definition must appear to be necessary. There are so many times that this distinction is absolutely critical in evaluating officers’ actions that the importance simply cannot be overstated. Additionally, while officers will be critically and strenuously second-guessed and interrogated about what alternatives were available to them, it is important to keep in mind that this amended statute does not require officers to find the best way to do anything. Caution should be used in policy language, administrative proceedings and training materials not to inadvertently expand that burden to finding the least intrusive alternative.

Stay safe out there. 

Eric Schmidt

A Message from the President, July 2019

Deputy John Erickson Recovers

A call for service on Tuesday, July 2, 2019 changed the lives of Deputy Sheriff John Erickson and his family forever. The events which took place that day, also greatly impacted Deputy Gary Davenport. Gary responded to the call with Erickson, engaged and immediately began caring for his injured deputy, until help arrived. Miraculously, a brave ride along, who was with Deputy Erickson that day, narrowly escaped bullets and followed the deputies instructions while ducking for cover. The area was remote and the armed suspect was firing repeatedly at them. Deputy Erickson was shot multiple times. 

Before the deputies and ride along were faced with a barrage of bullets, the call and shift seemed routine. Deputy Erickson and Davenport were responding to a call in the area of Tollhouse in an attempt to solve a quarrel among neighbors. However, it was a day the suspect didn’t care about law and order. The suspect not only fired at the deputies, he also left Erickson’s patrol truck riddled with bullet holes. It was a blatant disregard for him and law enforcement in general. The neighbor quarrel was overshadowed by the efforts to kill a deputy sheriff. 

Deputy Erickson was rescued from the scene by patrol deputies who put together a downed officer rescue. Under pressure and difficult terrain, deputies carried him for yards until they were able to get him to safety. Deputy Erickson was loaded in CHP H40 and flown to CRMC for care in the trauma unit. 

Many sheriff’s personnel rushed to the hospital to support Erickson and his concerned family. It was a moment filled with nervousness and anxiety. We all felt it that day. Worry, hope, sadness, and tremendous gratefulness that Erickson’s life was spared. 

The initial prognosis given to Sheriff Mims and Erickson’s family was a broken right leg. However, when doctors were able to take a closer look, they discovered internal damage. During an intricate surgery, that lasted about seven hours, surgeons repaired his broken leg and removed bullet fragments from his large intestine and liver. He also suffered a small amount of damage to his vertebrate, that was repaired. 

Deputy Erickson is a survivor and a fighter and his valiant spirit has been shown over the past weeks. He was released from the hospital after nine days to recover at home with his family. 

It’s been an emotional time, filled with laughter, tears, reminiscing and joy.

Please accept my heartfelt thanks to everyone of you, who has contributed in a big or small way to helping Erickson and his family over the past weeks. From the California Highway Patrol’s H-40 crew who assisted with an 8 minute flight to CRMC that day, to each deputy and friend who stopped in the hospital to say hi and offer a hug. It has all meant so much. Every phone call, flower arrangement, bag of candy, and card has been special. It reminded us we are all a large family. No one is left behind or forgotten in this family.

A special thank you to Deputy Sheriff Patrick Hanson, who selflessly spent each night with John. Some of you were so gracious and wanted Deputy Erickson to feel supported and loved, that you cancelled or postponed vacations with your own family to be there for him. Thank you.

Many of you have stepped up to help with meals for the Erickson family. They are forever grateful for this gesture of love. Your visits are feeding his family and nurturing his soul. They remind him we care and we are here for him. 

I also want to thank everyone onscene that day. Whether you were on the radio, in the air, at the hospital or assisting the Erickson family in some way over the past weeks- they are grateful and we are grateful. 

POST Certificate information

Since we have many newer employees, below is a chart that reviews the requirements to obtain your POST Certificate at the Intermediate and Advanced levels. 

I field a lot of questions about educational incentives, including dollars for Masters and Bachelor degrees.

If you look at the chart below, you will see how those are factored into to how you can ultimately expedite your POST incentive pay from the County of Fresno. 

Remember this POST pay is compensable – meaning it is computed into your final compensation for pension purposes. 

Currently as it stands the Intermediate POST pays 2.5% and Advanced POST pays 5%.

Intermediate Certificate Award Requirements 

Applicants for the award of an Intermediate Certificate shall: 

(1) Satisfy the requirements specified in Regulation section 9070(d) for all certificates. 
(2) Possess or be eligible to possess the Basic Certificate for the current position
(3) Satisfy one of the following eligibility combinations:

Degree or Education Points

Law Enforcement Experience 

Training Points 

Bachelor Degree 

and 

2 years 

plus 

Associate Degree 

and 

4 years 

plus 

45 Education Points 

and 

4 years 

plus 

45 

30 Education Points 

and 

6 years 

plus 

30 

15 Education Points 

and 

8 years 

plus 

15 

Advanced Certificate Award Requirements 

Applicants for the award of an Advanced Certificate shall: 

(1) Satisfy the requirements specified in Regulation section 9070(d) for all certificates.
(2) Possess or be eligible to possess the Intermediate Certificate. 
(3) Satisfy one of the following eligibility combinations:

Degree or Education Points

Law Enforcement Experience 

Training Points 

Master Degree 

and 

4 years 

plus 

Bachelor Degree 

and 

6 years 

plus 

Associate Degree 

and 

9 years 

plus 

45 Education Points 

and 

9 years 

plus 

45 

30 Education Points 

and 

12 years 

plus 

30 

Before I close this message, I want to remind you of our upcoming golf tournament on October 18th at Eagle Springs Golf Course. Already the annual event is sold out. This is our biggest fundraiser – that benefits the FDSA Peace Officer Memorial Fund. This fund supports families of the fallen and those injured in the line of duty. Over the past month, we have been reminded of our mission and our purpose- to serve our members, and assist each other. We are here always to help our law enforcement family and their families during difficult and tragic times.

Truly,

Eric

A Message from the President, April 2019
Each April, the National Peace Officer Memorial Foundation begins the process of intricately engraving new names of fallen officers onto the marble walls of the National Law Enforcement Officers Memorial. It is a solemn time, for each new name carved on the wall is another tragic story of an officer who made the ultimate sacrifice for their community. Those stories will always be remembered on this wall.

This year, the names of 371 fallen law enforcement officers will be added—158 of which are the names of officers we lost in the line of duty last year. Two hundred and thirteen are the names of officers who fell in years prior who are now being recognized.

On May 13, the names will be officially dedicated during the 31st Annual Candlelight Vigil. Those who can’t make it to Washington, DC to experience the Vigil in person can still honor a fallen law enforcement officer by lighting a Virtual Candle and leaving a personalized message.
After you light a virtual candle in honor of a special officer make sure to register to watch the Vigil webcast with your friends and family on May 13. The Vigil webcast will be available live on Monday, May 13, at 8:00 pm ET. 

Help us honor the 900,000 law enforcement officers who put their lives on the line every day for the safety and protection of others.


Support for SB230

Paul Kelly, President San Jose POA and Rob Harris is President of Protect California.
A safe and respectful encounter. Every single time. California public safety officers have this goal in mind whenever they interact with a member of the public or respond to an emergency. Period. To continue to improve outcomes for officers and the community, we believe that the best path forward is to modernize police training, establish clear use of force standards, and create holistic policies to ensure neighborhood safety.

Currently, there are competing bills in the California Legislature focused on use of force. Only one of those bills is part of a comprehensive plan that will reduce uses of force and officer involved shooting incidents. The other is focused on further criminalizing split-second decisions made by public safety officers in crisis situations. One is based upon factual data and science with the goal of preventing as many tragic incidents as possible, while the other is based upon retribution and second guessing after a tragic incident has occurred.

We support Senate Bill 230, authored by Sen. Anna Caballero, D-Salinas, because this legislation is designed to reduce uses of force by mirroring policing best practices and training. It also modernizes California’s use of force law to fully comply with existing U.S. Supreme Court rulings on when force is legally allowed.

Creating good public policy begins with good data. The Washington Post’s fatal police shooting national database, started in 2015, is often cited as the authority for tracking the number of officer-involved shooting incidents. Nationally, between 2015 and 2018, the number of these incidents has remained stable at just under 1,000 each year.

To put these numbers in context, according to criminologist Justin Nix from the University of Nebraska Omaha, in 2015 there were 50 million occasions where officers engaged with the public. Of those 50 million occasions, 995 resulted in a fatal encounter. That is 0.00002 percent of interactions with the public.

In California specifically, there was a 40 percent decrease in fatal police shootings between 2015-2018. These incidents were tragic and many involved individuals experiencing a mental health crisis. Although this decrease is good news, we must strive to do more.

That is why we worked with Caballero on SB 230. It establishes a clear and enforceable standard for authorizing the use of force, standardizes use of force training and enacts evidence-based policies to minimize use of force in California. For example, SB 230 mandates that all law enforcement agencies adopt policies on de-escalation, mental health training and requirements that an officer intercede if they witness excessive force.

We can do more

Protect California, a non-profit organization, believes we can reduce dangerous encounters and improve the safety of our neighborhoods by taking a more holistic approach to crime reduction. Our plan addresses the root causes of crime by pulling virtually every public policy lever available to ensure positive outcomes between public safety officers and the communities they serve.

As a state, we must do more by:

  • Creating economic and educational opportunities in communities disproportionately impacted by crime and poverty.
  • Adequately funding the delivery of treatment and services for those diagnosed with mental illness.
  • Equipping public safety officers with the necessary tools and training to safely respond to and manage dangerous situations and individuals with mental illness by adopting the rigorous training standards set forth in SB 230.

Policing is complicated. We should stop pretending that there’s one single solution to reduce police use of force incidents. If we address the root causes of crime, provide officers with high-quality training and enact strong policies, and reduce access to guns by violent criminals and the mentally ill, we will make California safer for everyone.


I Was Shot and My Partner Died. Here is Why I Oppose AB392
Julie Robertson is a Sacramento County Sheriff’s Deputy.
Bullets travel 2,500 feet per second. That doesn’t leave much time for police to debate various response scenarios and second-guess their decisions when confronted by deadly force.

But that’s precisely what Assembly Bill 392 would require. The lawmakers backing this misguided legislation are demanding that we do the impossible — or die trying. If we don’t, AB 392 threatens us with prison for making split-second decisions when lives are at risk. This is dangerous and unreasonable. I know from personal experience.

I’m a Sacramento County Sheriff’s deputy who survived a “split-second” encounter in which I was shot and my partner was killed. It happened fast, but it’s a nightmare that will haunt me for the rest of my life.

My partner and I had responded to a call about a disturbance at a local auto store, in which an unruly customer was causing trouble. When we arrived on scene, we approached the subject inside the store. There was no indication he was armed or had a weapon.

As we approached, he immediately backed up and began moving erratically, as though he were preparing to run. My partner headed toward the front door to block him, while I tried to stop him from the opposite side. Suddenly, there was a gun, followed almost immediately by a deafening boom as the suspect fired.

What followed was a terrifying and deadly firefight. The subject shot my partner in the head and back, then continued firing. I immediately returned fire and took action to defend my partner, the store’s employees and customers, and people in the neighboring stores. I was shot but kept fighting. Like every cop I know, I take my sworn oath to protect and serve seriously.

But under AB 392, my decision to stay and protect customers and other “innocents” could be challenged and second-guessed, with criminal prosecution a very real possibility for me. Why didn’t I retreat? That was clearly an option.

Perhaps the shooter would have simply left. Of course he might also have shot every other person in the store, then continued his deadly rampage in neighboring stores. I had seconds to decide without the luxury of hindsight, under deadly and chaotic circumstances in which people were dying.

AB 392 is Monday-morning-quarterbacking at its worst — legislation that second-guesses public safety decisions based on emotion rather than reality. Rather than helping police make better decisions by improving training and clarifying use-of-force policies, AB 392 takes a punitive approach that turns cops into criminals while eroding our fundamental right to defend ourselves.

By slowing police decision-making in deadly situations when split seconds count, AB 392 endangers the lives of police and the safety of the people and communities we protect. AB 392 pretends to be about reforming the system. Instead, what it really does is ask officers to protect the public with both hands tied behind their backs.
 
I have shared many articles about SB230 and opposition to AB392 over the last couple months. These two bills are some of the most important we have dealt with in our profession in many years. Its sad to think – that politicians with a political agenda are willing to forego the safety of the people who elect them. Their political bank accounts intimidate others in their party to just ‘go along,’ with the majority. We must organize and stand up against that.

I commend the Fresno County Board of Supervisors, who on April 9, took a position and adopted a resolution in favor of SB230 and opposition of AB392. Similarly, the Fresno City Council passed the same resolution on April 25. The hope is these two resolutions send the message to Sacramento - the Fresno region doesn’t agree with your political rhetoric in the leftist party. Their message is all cops are corrupt and commit homicides. I’m sorry, but if Assemblywoman Ms. Shirley Weber sat as an elected in our region – this association would create a special project to get her unseated and expose her real agenda.

I hope to see many of you at the Peace Officer Memorial in Courthouse Park – Noon May 2, 2019 honoring our fallen officers. Also remember the FDSA will host our annual Peace Officer Memorial Event at the FDSA that same day from 5:30pm-8:30pm. This is a time for family of our fallen and co-workers to come together in our own special remembrance.
 

Take care,

Eric
A Message from the President, March 2019
Governor Newsom and the death penalty
Governor Gavin Newsom's recent executive order declaring a moratorium on the death penalty is a test of the boundaries of executive privilege. California Constitution Article 5, Section 1 states, "The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully enforced." But does the governor have the authority not to enforce laws?

The governor's moratorium consists of three provisions. The first is a reprieve for all currently condemned inmates. Although the language of the written order does not include the word "temporary," the governor represented in his comments that he intends the reprieve to be for the term of his office. The second provision of the governor's order is to repeal California's lethal injection protocol. The third provision is the immediate closure of the execution chamber at San Quentin (the order refers to it as the "death chamber").

California Constitution Article 5 Section 8 grants the governor nearly unlimited authority to issue reprieves, pardons and commutations of sentenced persons. Using his constitutional authority, the governor could have taken more drastic measures. He could have made permanent and irrevocable orders of commutation or clemency for every person on death row. He could even have granted full pardons. But there are some limits to his authority. The governor cannot prospectively issue reprieves or pardons in future cases, so prosecutors are still able to pursue death sentences in court. To pardon or commute the sentence of a person who has two or more felony convictions, the governor requires a majority recommendation from the Supreme Court.

The governor's orders to "close" the execution chamber and repeal the execution protocol are more legally problematic. Nearly all currently effective death penalty statutes were enacted via ballot initiative, most recently by Proposition 66 in the 2016 election. FDSA had an active roll in helping with the passage of this Proposition. This was subsequent to Prop 62 in 2012 – again and active roll with the campaign. 

Any change to those laws, which were enacted by voters, require more than a simple majority vote of the legislature or executive order. The language of each initiative generally calls for at least a two-thirds majority vote of the Legislature or a new ballot initiative. An amendment to Proposition 66 requires a three-fourths vote of the Legislature.

Proposition 66 added subsection (e) to Section 3604 of the Penal Code. That subsection requires the California Department of Corrections and Rehabilitation to "maintain at all times the ability to execute such judgments." The governor's orders to repeal the execution protocol and "close" the execution chamber are in direct contradiction of that law.

Proposition 66 also provided broad standing for sentencing courts, district attorneys and victims of crime to enforce this provision. It added Penal Code Section 3604.1 which provides in subdivision (c), "If the Department [of Corrections and Rehabilitation] fails to perform any duty needed to enable it to execute a judgement, the court which rendered the judgement of death shall order it to perform that duty on its own motion, on motion of the District Attorney or Attorney General, or on motion of any victim of the crime as defined in article I, section 28, subdivision (c) of the Constitution."

Realistically, the governor's second two orders are without practical effect given the first order. "Closing" the execution chamber means what? Taking a gurney out of a room that has windows for viewing? Disassembling the unused gas chamber for a method of execution that the state no longer uses? Unless the governor directs the Department of Corrections and Rehabilitation to tear down the entire building in which the execution chamber is contained, the execution chamber remains there as a room with windows. 

As for "repealing" the lethal injection protocol, the protocol is a regulation memorialized in writing that describes all the steps to be taken to perform an execution. It is a document that has been publicly published on the internet. "Repealing" it is without practical effect when the document is readily available and can just as quickly be reinstated as a regulation. This is particularly true now that the execution protocol is, due to Proposition 66, exempt from the public commentary requirements of the Administrative Procedures Act.

If the second and third items of the governor's executive order are, as some have argued, within the governor's authority, then the governor has absolute authority to declare or invalidate any law by executive order. He could, for example, unilaterally outlaw paper towels.

The concerns the governor articulated about the death penalty have long been part of the debate over capital punishment. But those issues were part of the public debate that occurred during the 2012 and 2016 elections. The voters weighed those considerations and chose to keep the death penalty. Prior to being elected, Gov. Newsom promised that although he does not support the death penalty, he would not interfere with the will of the voters. He has violated that promise by issuing an executive order that usurped the legislative authority of the voters.

At last count, there were 43 cop killers on death row in California. Granted, this is small percentage of the 740 convicted killers who currently are awaiting execution. The families are the ones left holding the burden and the wiping tears.  Co-workers and departments will always remember those officers killed at the hands of another. However, nobody pardoned our fellow cops from death as they each took their last breath. 

This move by Governor Newsome has taken a complete shot across the bow of all law enforcement in California. Whether you believe in the death penalty or not – it is the law in this state. As law enforcement officers we have to follow the law – if not, there will be consequences. Governor Newsome needs to follow the law, specifically this law, what the will of California voters who elected to keep punishment by death in our state.  

The frightening part of all this, and the fear many of us will wonder - by essentially freezing executions, will this give criminals the green light to kill cops in California knowing there is life without parole under our current administration rather than punishment by death? We will continue to support groups like COPS and Crime Victims United – who urge the Governor to follow the law in California when it comes to capital punishment. The voters of California have spoken – not once but twice. 


— Eric
A Message from the President, February 2019
SB230 PORAC Legislation
I have attached the below a link to this newsletter, as well as two bills, as a single PDF for all you to review. Late 2018 PORAC was able to defeat AB930. Many of you remember the bill from my August 2018 newsletter. The intent of this bill was taking the use of force decision making away from cops throughout the State of California. Assemblywoman Shirley Weber (San Diego) essentially wants a free society — meaning no law enforcement unless it is needed by the People of the State. Her bill then named AB931 reflected a substantial change to PC 835a.

After PORAC was able to defeat the bill at the Capital, the clock was ticking to introduce our own bill to fix some outdated statutes and remain solvent with the citizens of California. Law enforcement must get in front and take an offensive position in order to essentially maintain peace officer status in regards to protecting PC 835a.

California law enforcement is engaging in an important effort to deal with the issue of our law enforcement officers' ability to use appropriate force when facing dangerous encounters. PORAC, along with nearly every law enforcement association in California, have introduced Senate Bill 230 by Senator Anna Caballero (D-Salinas). In addition to Senator Caballero, we have 17 legislators who have signed on to co-author our measure. You will see these names on the attached bill.

At the same time, Assembly member Shirley Weber (D-San Diego) has re-introduced her use-of-force bill from last year, which would criminalize an officer's split-second decisions if a judge or jury later deems the force was unwarranted or excessive. Assembly member Weber's bill is AB 392 and poses a serious threat to both our officers and the public. There is not a shadow of a doubt — Weber and all her co-authors are here to turn law enforcement officers into criminals. You will read in her introduced bill I have attached.

To begin this effort, PORAC is creating a Chapter Outreach Program for the month of March, wherein, all 14 chapter and association leaders set meetings with their legislative representatives to discuss these very important issues. Our team, which includes PORAC staff, Aaron Read & Associates, and our communications consultants, Fiona Hutton & Associates, will put together packets that will include the bills, our talking points, and position letters. Furthermore, if associations feel they need additional support with meetings, contact information, or materials, members of our team may be able to assist.

Fresno DSA is taking a position to conduct a full court press on our local delegation, and taking it a step further to assist other jurisdictions who need the support we can lend them. As I receive the materials from PORAC, I will be disseminating it out to the FDSA membership.


Update to SB1421
Fresno DSA filed a stay order (Temporary Restraining Order essentially) to block the many Public Records Request (PRA) being submitted since Jan 1, 2019. Again, as I mentioned in my previous newsletter, the bill was silent to the retroactivity of the information being requested. Many agencies were, along with the Sheriff's Office, being asked for documents relating to many employees who are no longer working here. As long as they were meeting the criteria set forth in the bill, the information was being asked for.

After consulting with our firm, Messing, Adam, and Jasmine — the decision was made to move forward with language requesting a stay order from Fresno Superior Court. The motion was filed on Friday, February 22, 2019. The court hearing was Thursday, February 28, 2019. At this hearing the stay order was granted by Judge J Hamilton. This is a glimpse of good news for the DSA and the agency itself.

As of the 28th, no records pre-Jan 1, 2019 can be released related to personnel in regards to use of force, dishonesty, sex harassment, and officer involved shootings. As we get more information in the future, I will pass on the information to the membership so everyone is updated to potential changes. The stay order is effect until September of 2019.

Please see the attachments below for SB230 and AB 392. I have also attached the petition for the TRO and order under the SB 1421 issue.


Thank you and please stay safe.

— Eric

A Message from the President, January 2019
I have had inquiries from some of you in recent months regarding the salary reopener that is written in our current MOU. I have attached the language as a refresher;

One time reopener effective no sooner than July 2018:
Salary Comparison: County of Fresno top-Step Deputy Sheriff III will continually be compared to Top-Step of City of Fresno Police Officer through the term of the contract. If base salary for Deputy Sheriff III should go below that of a top step Police Officer, both parties agree they will meet and agree if changes or adjustments shall take place. This agreement is only for increases. If the salary were to decrease, there would be no reason to meet by either party. Any increases, if they should occur, both parties agree the salary will not exceed that of an addition 5%. Consideration will be given of recruitment and retention of Deputy Sheriffs at that time.
Having this language in our contract gives protections to the salaries of all personnel – and basing it off the classification of deputy sheriff vs police officer with the City of Fresno. The purpose of the language at the time of the finalizing of our contract, was to ensure protection since Fresno POA was at the bargaining table during the time we were concluding our negotiations with the County of Fresno. There was still an unknown, as to what Fresno POA would be finalizing with the City of Fresno. The intent of the above language, was to put specific salary language in our contract in an effort to protect what we had just negotiated for all of our salaries. Since Fresno POA was still negotiating a labor contract with the City of Fresno.

The Fresno County Board of Supervisors were clear in their message - they wanted the base salary of a top step deputy sheriff to be the same or more with that of a top step police officer who works at the City of Fresno.

Fresno POA negotiated a successful contract with the City of Fresno. However, that contract fell short of what Fresno DSA negotiated with the County of Fresno.

The salary increases were as follows;

City of Fresno: 2 year contract (June 2017 – June 2019) worth 3% and an increased step for senior officers.

County of Fresno: 2 ½ year contract (March 2017 – December 2019) worth 15% in salary enhancements. (5%, 5%, 5%)

The Fresno County Board of Supervisors recognized the County of Fresno was behind in salary when comparing with the City of Fresno. The BOS voted to authorize the increases, in an attempt to put us all on a level playing field when it came to recruitment specifically, and retention as well for the employees working in the trenches.

Since the passage of our current contract, we have had meetings with County Labor to monitor the salaries enhancements within our contract, and where they compare to the City of Fresno. Below is a salary comparison based on the current salaries of Deputy Sheriff III and Police Officer II.

Police Officer Top Step at their new step increase at the end of their contract will be $7290.00

Deputy Sheriff III top step at the end of FPOA contract and our last increase will be $7338.00

FDSA Board of Directors will be sending something out to all members in the coming months regarding bargaining with the County of Fresno. We will be looking for feedback from our membership in regards to bargaining. Your participation plays a key part in how we negotiate in 2019.

The Fresno POA’s labor contract expires July 30, 2019.

Fresno DSA’s labor contract expires December 15, 2019.


SB 1421 Update

Last September, then-Governor Brown signed Senate Bill 1421 into law. SB 1421 provides that, effective January 1, 2019, certain police personnel records will now be available to members of the media and the public by request under the California Public Records Act. As expected, law enforcement departments throughout the state have received a wave of requests for records created prior to January 1, 2019. However, the law on its face does not provide for retroactivity.

As has been reported in the media, law enforcement unions in both Northern and Southern California have been filing actions to enjoin the release of police personnel records on a retroactive basis. For those actions that have already gone to hearing, the courts have granted temporary restraining orders to prevent pre-2019 records from being released until full litigation of the issue can occur. At least one city, Berkeley, is also taking the position that SB 1421 does not apply retroactively.

To date, the City of San Jose has received a substantial number of requests for SB 1421 records but has not yet taken a position on when or whether the City will provide retroactive records. We are observing the situation carefully and monitoring the City's response to SB 1421. At this time, the City Attorney's Office has not yet taken a position on the question of retroactivity. It is tracking developments in other cases.

We, too, await to see if a decision issues that will provide guidance on whether the law operates retroactively. That said, we are prepared to take action similar to that taken by our law enforcement brothers and sisters should the City decide it plans to release pre-2019 records before the courts interpret its obligation under the statute.

Your safety and your privacy matter to us and we take that very seriously when it comes to your personnel records. As more information arises from all of this, I will be updating the membership. Should you have any further questions please direct them to me, as I can get the answers for you.

Lt. Ron Hayes has been directed by the Sheriff to handle all such inquiries coming from the public. As those come in and as we get further into this SB 1421 issue there will be updates to how these are being processed. Please do not reach out directly to Lt. Hayes, as he will be directing folks to the FDSA.


Stay safe out there.

Eric Schmidt

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