An inmate named Daniel Leonard was apparently angry because he did not have any toilet paper. He yelled threats to the deputies that he was going to "gas" them (you all know that means throwing feces and urine at deputies). It was decided because of the threat, to move Leonard to a different cell, so that if he tried to throw feces and urine, his "window of opportunity" would be minimized because of the location of the cell. Several deputies accompanied Mike Vernal to move Leonard to the other cell. The idea was simple: go in, restrain and cuff Leonard, and move him without incident to the other cell.

Well, Leonard was having none of that. He was aggressive and non-compliant, even after handcuffing, requiring Vernal to "pin" him against the wall and a glass window. This forcible maneuver caused Leonard's face and body to violently contact the wall and glass. This wasn't intended, but neither was it unexpected. Such injury mechanisms frequently are involved when a resistant inmate is forcibly "pinned" against a wall.

The question always comes down to this: unintended injury as a result of a reasonable use of force; or, gratuitous infliction of injury for the purpose of punishment or retaliation for some perceived insult?

And you know, after 30 years of defending these kinds of cases, it always come down to the same question: reasonable use of force or summary punishment? For the decisionmaker, be it the Chief or Sheriff, an arbitrator, a prosecutor, a judge or a jury - - it's always the same question. The answer means either, "no misconduct," or, "a crime."

What does all of this mean for you? Let's assume you are a typical deputy or officer, out there every day, trying to do the job the best way you can. Sure, you rail against laws and court decisions that overly emphasize criminals' "rights" and that de-value the community interests in safety and peace. You are sick to death of having to put up with assaults, insults, threats and even greater crimes committed against you by criminals, just because you are doing your job and your duty. But you don't move the line. You are not about to forsake the public trust and the badge of your office. You aren't going to "fudge" on probable cause. You're not going to write any false reports; you aren't going to use excessive force, even when you can, because some force is required, but more is not "better," nor is it legal; you will restrain yourself in the temptation to "teach lessons" even when they seem to be the most pragmatic way to get your point across to a knucklehead; you recognize that when a cop begins to perceive a blurring of the lines between right and wrong, the process of corruption is underway; it isn't always about money and financial profit - - morals can be corrupted by much more than money; sometimes it is as simple as "the ends justify the means," or more to the point. "it's the only justice this jackass will ever be dealt." But you are one of the ones we call "untouchable." You will not move the line. Regardless of profound provocation, you are going to do it the right way. That's what you are paid to do. And, that's why we all need you, more than you will ever know. You recognize wrongdoing immediately. You have conditioned your response to wrongdoing according to your own moral compass. When you see wrongdoing, you know it, and you know what to do. You do it because you demand it of yourself. You don't need direction from a supervisor.

So there you are, a typical deputy or officer, like Mike Vernal. You deal with "Daniel Leonards" hundreds of times throughout your career. Otherwise, you go about your duties, always trying your best to do the right thin. But then somebody, who has the authority or power to say "No, this was excessive; this was misconduct; this was a crime," decides that is so. Suddenly, you are thrust into the systems, both administrative and criminal. Your job is threatened as well as your livelihood, and your liberty.

Simple misjudgments by decisionmakers along the way; lousy, result-oriented or biased investigations; personal agendas; reckless charging decisions; failures to apply objective analysis - - all or any of these can send you down a long road like the one traveled by Mike Vernal, who was, after all, just the "typical deputy" described at length above.

After Leonard was secured in a better location, Vernal made the customary reports and went to clean up and sanitize the blood drops which emanated from Leonard's collision with the wall and glass. Nothing much to it, but why leave blood-borne pathogens unattended? No big deal. That simple act became Count Two in the criminal case - - "Destruction of Evidence." The first Count was Penal Code § 149, a felony, "Assault Under Color of Authority."

The criminal investigation which triggered the criminal prosecution is what it is. Its defects are apparent to all. But when the Sheriff's special team of Administrative Investigations Unit (AIU) investigators went after the case, the result was, shall we say, "180 degrees the other direction." What looked like a sure termination case based on the felony criminal submission, turned out to be a "no misconduct case" on the force issues. Mike was reprimanded for a policy violation (not notifying a supervisor before he pulled Leonard out of his cell). What was a termination case was stopped in its tracks by the Sheriff. Mike was reinstated to duty in the same jail facility, and since was promoted to Senior Deputy, winning a coveted assignment in gang intelligence and monitoring, where he commonly supplies the District Attorney's office (the same one that was prosecuting him) with audio tapes and intelligence on gang inmates!

Now, one would think that when the persons in charge of Mike Vernal's prosecution were made aware of the "new investigation" and results, some thought would be given to reconsideration of the merits. Sadly, it was not the case. Then, Mr. Leonard, while in state prison, called a watch commander at RPDC, and in a taped conversation, offered to "forget" everything about the incident, if the Sheriff's Department would help him get out of an unrelated criminal and/or civil TRO matter. We gave that tape to the District Attorney. "Ok, now will you consider a disposition?" No response.

So, on June 5, 2009, we answered "ready for trial." The People answered, "We will not take this case to trial." Judge Edward D. Webster dismissed the case "in the interests of justice." What? Justice delayed is justice denied. "Interests of justice??" How can this happen? Four years. Mike was charged on June 23, 2005. The case was dismissed on June 5, 2009.

But for the objectivity of the Sheriff's AIU investigation, and the courage of the Sheriff to call it right and reverse the Department action against Mike, this good deputy would have been out of a job, and tormented for four years with a serious felony prosecution. It turns out that he was still tormented by the prospect of a criminal trial for four years, but at least his career was saved.

WHAT SHOULD BE DONE ABOUT CASES LIKE THIS?

You know, we are all familiar with Skelly v. State Personnel Board (1975) 15 Cal 3d 533, Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532 and Arnett v. Kennedy (1974) 416 U.S. 134. We know that before you take a cop's job away, you have to comply with certain pre-removal safeguards. The idea is to prevent mistaken or ill-advised administrative decisions that cost the employee his livelihood. Great stuff.

But do we, can we, should, we employ the same safeguards before launching a criminal prosecution against a cop or deputy that could cost the officer his or her liberty? Doesn't it make sense that before we present a case to the prosecutor recommending a criminal prosecution against our employee, we activate the same or substantially similar safeguards that we are required to invoke before we take his or her job away? Shouldn't we undertake a thorough administrative investigation before we refer the case to a prosecutor? Sure, we have to be careful about contaminating the criminal case with compelled statements from the accused. But if our administrative investigation discloses evidence that is exculpatory, don't we need to give that to the prosecutor? Isn't that Brady material??

Can we assign a process, similar to Skelly (or Loudermill for you non-Californians) that insures high-level staff review of a criminal case, supplemented by internal investigatory fruits before the case is referred to prosecutors? Why do we adhere to this meat-axe approach, walling off the "criminal" and the "administrative," even at the risk of ignoring "the truth of the matter?" And, worst of all, delay the administrative investigation until the criminal is "resolved?"

In my view, no case should be presented to a prosecutor until the Department has thoroughly investigated every aspect of the case, whether by criminal or administrative means, and is therefore confident that the prosecutor has all the information, before deciding to file, subject to Constitutional requirements imposed by the Fifth Amendment. You know, that process, had it been invoked, would likely have saved Mike Vernal four years of torment for which he will never be compensated. Think about it.

STAY SAFE!
Michael P. Stone
June, 2009
Pasadena, CA

Michael P. Stone is Stone Busailah, LLP's founding partner and principal shareholder. He has practiced almost exclusively in police law and litigation for 30 years, following 13 years as a police officer, supervisor and police attorney.

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