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

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

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:

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:

Before I close this message, I want to remind you of our upcoming golf tournament on October 18^th 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

• 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.