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By KC Law Group | October 2, 2024 | Posted in PORAC LDF News  Allegations and Demotion Overturned by Neutral Arbitrator KASEY A. CASTILLO, ESQ. Principal Attorney KC Law Group The importance of de novo review cannot be overstated. De novo review occurs when a neutral party conducts a hearing as though there had been no previous ruling or findings. An independent decision-maker must make factual findings subject to judicial review. “[T]he independent fact finding implicit in the concept of an administrative appeal requires at a minimum that the hearing be treated as a de novo proceeding at which no facts are taken as established and the proponent of any given fact bears the burden of establishing it” (Caloca v. County of San Diego, [2002] 102 Cal.App.4th 433). It is for this reason the decision of the chief of police doesn’t just stand; the department has to prove both the allegations and that the penalty imposed is not excessive. In this case, the appellant had been a lieutenant for approximately four years and was an almost 24-year employee of his Inland Empire police department, with no prior discipline whatsoever. The event that led to the allegations and disciplinary action took place immediately upon the appellant’s assignment to the Investigations Division in July of 2021, and during an approximate two-month period from July of 2021 through September of 2021. The Culture in the Department Related to Photos/Memes As far back as everyone could remember, the Investigations Trailer, and occasionally the main police department building, had silly photos, jokes or memes posted of employees of the police department. It was a part of the culture of the police department, especially in the Investigations Trailer. These displays were designed to lighten the often-serious nature of the work facing the police officer co-workers and were posted without any ill will. This practice of posting photos had gone on in the police department for decades , and under the supervision of multiple managers, including an assistant chief and the then-chief of police. Memes and other superimposed photos were in the cubicles and were done for humorous purposes. The photos with the altered pictures predated July of 2021, when the appellant himself was assigned to the Investigations Trailer as a detective, then later as a sergeant and then when he returned as a lieutenant. The silly photos had also been posted in the main stations of the police department, specifically in the patrol report writing room off and on, on the briefing board, on the report writing board, etc. In 2021, after the retirement of a lieutenant was announced, the police department solicited interest memos from sergeants for the acting lieutenant spot. It would be the first time an acting lieutenant spot lasted more than three months. Whomever was chosen would be taking on the full-time responsibilities of a lieutenant, rather than just acting as a short-term stand-in. One sergeant decided to apply for the acting lieutenant spot and, according to witnesses, boasted to his detective subordinates in a meeting that he was a shoo-in, bragging to everyone that he would beat out the competition. He did not, however, get the spot; another sergeant did. As a result, and in good humor, his subordinate detectives superimposed lieutenant bars on the photo of the selected sergeant and posted the photo throughout the Investigations Trailer, including in the other sergeant’s office. The intent of the photo was a little humble pie to the bragging sergeant. When the photos were put up, the appellant was not at work. None of the detectives or sergeants or civilian staff in the Investigations Trailer reported the photograph. Only one other lieutenant saw the photos of superimposed lieutenant bars on the sergeant posted in and around the main area of the trailer. At some point, and after the photos had been removed from the main area in the Investigations Trailer, the appellant first saw a handful of the photos in the sergeant’s office and understood their purpose was razzing the sergeant who didn’t get the position. He did not believe, in any way, that it was done to make fun of the sergeant who was hired for the acting lieutenant position. The appellant did not request that the sergeant take them down, but the photos were all subsequently removed. The Allegations Against the Appellant Although he did not edit the photo, post the photo or even work when the photos were posted, the appellant was charged with allegations amounting to failure to supervise and discriminatory harassment. Ultimately, after an evidentiary hearing that lasted over three days, during which multiple witnesses were called by each side, the allegations were overturned by the neutral arbitrator. The arbitrator reviewed the evidence de novo, treating no facts as established and holding the department to their burden of proof. Additionally, witnesses were able to give the arbitrator important feedback on the type of supervisor the appellant was, his work ethic, his passion for the position and his overall character. Four years of great evaluations as a lieutenant corroborated their testimony. Although the appellant, who was a supervisor, didn’t demand the photos immediately be taken down, the arbitrator saw that as an isolated decision on the part of the appellant for the purpose of a penalty recommendation. The appellant, a friend of the selected sergeant, owned his actions and never wanted to hurt any feelings. Ultimately, the arbitrator recommended the appellant be returned to his lieutenant position and be made whole. What Happened Next The disciplinary decision from the arbitrator was advisory to the city manager. Before it went to that next step, the appellant and the City settled the matter, resulting in an acceptable outcome to both sides. It took a while, but the appellant is proudly now back as a lieutenant. Two big takeaways from this case: Hold the department to their burden of proof, and remind the arbitrator that the standard is not deference to the chief’s decision, but de novo review. Secondly, the accused officer should assist as their own investigating officer! The appellant was a great help in obtaining documents, comparison photos and evaluations that were used in his defense. No one knows their case better than the person who lived it. About the Author Kasey A. Castillo, Esq., is the principal attorney of KC Law Group, where she handles first responder criminal and administrative defense, general counsel matters and police foundation/nonprofit compliance.

By KC Law Group | September 5, 2024 | Posted in PORAC LDF News Use of Force Captured on Video Surveillance Goes to Jury Trial KASEY A. CASTILLO, ESQ. Principal Attorney KC Law Group It took almost three years to get to trial. Negotiations toward dismissal included PORAC LDF flying out our use-of-force/video forensics/human factors expert from Northern California to assist us in a video presentation to the assigned DDA, her supervisor and an investigator. We laid it all out on the table why the prosecution was unsupported and without legal sufficiency. In the end, they demanded a felony, no jail. And so, we went to jury trial. That decision paid off. After a monthlong trial, the jury hung first 6–6, then 7–5 for not guilty, then 7–5 for guilty. After a motion to dismiss in the interest of justice was made, the court made a very clear record: “I think that subsequent trials are going to result in the same decision: It’s going to be a hung jury. And I went into this case thinking it might be a hung jury, and the reason for that is because of that first text message that was sent to all law enforcement officers about the — if it was [the suspect] — having been strapped. I think with that information, 12 jurors would have a very difficult time, under a reasonable, objective officer standard, in not believing that Mr. Smith’s actions were appropriate. And I just believe that there is legally insufficient evidence to support a conviction in the future based on that issue. And so, especially in consideration that when Mr. Smith did his actions, he immediately was asking, ‘Where’s the gun? Where’s the gun? Where’s the gun?’ which, obviously, confirms his state of mind that he felt [the suspect] had a gun at the time.” The Case: People v. Corie Smith In June of 2021, San Bernardino County Sheriff’s Deputy Corie Smith was assigned to the Victorville Station. He was working routine patrol on the graveyard shift when his patrol sergeant conveyed information from the regional gang sergeant to his team that a subject with specific clothing was at the gas station and believed to be “strapped.” ( “Strapped” is a term commonly used to mean carrying a firearm. ) The gang task force sergeant confirmed that the subject was associated with the local motorcycle club that was having a party that evening. It turned out the subject was also wearing a Prospect vest. Another deputy located the subject and attempted a traffic stop after he left the gas station on his motorcycle. The suspect failed to yield, leading deputies on a high-speed pursuit, sometimes driving on the shoulder, going into opposing lanes of traffic where he almost collided with other motorists. The deputies lost sight of the subject, even with CHP and additional resources, including the Sheriff’s helicopter, responding. The suspect crashed his bike and ditched it, foot bailing to a nearby Toyota dealership. You may have seen the surveillance footage, which was leaked to TMZ. The now-wanted felon hopped the fence and ditched his sweatshirt and helmet to change his appearance as he hid among the cars, trying to conceal himself. He didn’t ditch the 4XL Prospect vest, however. Instead, he folded that up and concealed it under his shirt and in his waistband. Alerted by the live feed being monitored by the dealership’s security company, Deputy Smith and his fellow officers made their way to the dealership in search of the suspect. Deputy Smith made it over the fence first and believed the other officers were right behind him. Deputy Smith located the suspect — now wanted for the reckless vehicle pursuit and possible firearm — first. He approached the suspect, firearm drawn, and gave several commands, including identifying himself as the Sheriff’s Department, for the suspect to show his hands, and for the suspect to get on the ground. As he gave the commands, Deputy Smith noticed what he believed to be a “bulge” in the suspect’s waistband. Based on his training, experience, information related to motorcycle prospects and the credible information given to him by the gang sergeant, Deputy Smith reasonably believed the suspect was armed with a firearm that was appendix-carried. The suspect put his hands in the air and appeared as if he was going to comply … until he didn’t. He went into a prone position, bringing his right hand toward his waistband and the location of the bulge. Deputy Smith lost sight of the suspect’s right hand. Relying on the information that the motorcycle prospect was believed to be armed, then seeing the movement he recognized to be toward the waistband — where he saw the bulge — while losing sight of the suspect’s hand, Deputy Smith had no choice but to act and make a split-second judgment call. In lieu of shooting the subject he believed was going for a firearm, Deputy Smith reacted quickly and opted for a lower level of force. He kicked the subject once in the left shoulder, kicking out how the suspect was propped up, effectively flattening the suspect against the ground and pinning the believed firearm underneath him. This action was successful in knocking the suspect flatter and bringing his right hand out in front and within view. The surveillance video conclusively showed Deputy Smith’s first kick did not kick the suspect in the head, as alleged by the prosecution. The kicking action was effective for the right hand, but the left arm was still out of sight near the waistband. A second sweeping kick in quick succession solved that problem and both arms were now visible. No further force was used by Deputy Smith. As he went hands-on to handcuff the subject, Deputy Smith immediately yelled, multiple times, “Where’s the gun, where’s the gun?!” The suspect was then carefully searched. The bulge Deputy Smith saw in the suspect’s waistband turned out to be the precious Prospect cut, folded into quarters and stuffed into his waistband. A search of the dealership located the suspect’s hidden helmet. Deputy Smith and his co-workers continued to scour the pursuit route and the dealership for the missing firearm. Deputy Smith even went back the next day and had the truck near where the suspect was hiding lifted so he could search underneath. While the building surveillance video showed clearly that the first kick did not hit the subject’s head, and the second sweeping kick was inconclusive, any contact to the head would have been unintentional. The suspect said he was kicked in the head, although he did not suffer any injuries consistent with being kicked hard in the head or face, on the side where Deputy Smith made any contact. At the scene, to medics from American Medical Response, then to the doctor and nurse at the hospital, and then again to the jail nurse, the suspect declined all medical attention and denied any injuries. In June of 2021, the San Bernardino County Sheriff’s Department did not have body-worn cameras. The only footage of the event came from the surveillance cameras mounted on top of the nearby building, and the video camera angles were all ones that were dramatically different than the perspective of Deputy Smith. The Sheriff’s Department did not conduct any investigation into the pursuit or the resulting motorcycle crash to rule out injuries therefrom. No photos, no diagrams, nothing. The motorcycle itself was immediately released to the suspect after his arrest. Deputy Smith provided a full and cooperative voluntary statement to Sheriff’s Homicide investigators. In October of 2021, the San Bernardino County District Attorney’s Office filed one count of Penal Code Section 149. At trial, the prosecution called the alleged victim (who, at that time, even three years later, had to be given immunity for his still-pending pursuit felony) and the investigating officer. The defense team of attorneys Kasey Castillo and Michael Selyem called almost all the other deputies present. The deputies testified about the dangerous high-speed pursuit, the foot bail of the suspect, and the credible information related to the armed description of the suspect. The defense, in its case-in-chief, called expert witness Jeffrey Martin. Mr. Martin testified to the video exhibits he prepared, his review of the scene, human factors, forensic video analysis and police use of force. The prosecution, in its rebuttal case, then called Mr. Martin’s former co-worker, Edward Flosi, who was neither a video forensics expert nor a human factors expert. The two went back and forth regarding the reasonableness of Deputy Smith’s actions, albeit the prosecution’s expert also agreed, “If the jury believes that Smith reasonably perceived that [the suspect] was armed and trying to access a gun based on the totality of facts and circumstances at the time of each kick, both kicks would be consistent with current law enforcement training based on the standard of an imminent threat of serious bodily injury or death.” Ultimately, after the monthlong trial, the jury hung, and the case was dismissed in the interest of justice. The prosecution repeatedly pointed out that, in hindsight, the suspect was not found to be armed at the time, despite the well-settled law regarding not utilizing the benefit of 20/20 hindsight. As a result of this, some of the jurors had an issue with the mistake of fact regarding the suspect’s possession of the firearm. The San Bernardino County District Attorney’s Office has confirmed they will not be refiling the case. The next step for Deputy Smith is an administrative appeal on his disciplinary action. Of note, over the course of this long, arduous pre-trial and trial litigation period, the defense requested approval of multiple items: an investigator to take photos in evidence, two use-of-force consultations, a trial expert, transcripts and the prosecution expert’s prior testimony analysis … and PORAC LDF approved it all to benefit the deputy in his time of need. The war is not necessarily over, but a battle over this video surveillance case was won. About the Author Kasey A. Castillo, Esq. is the principal attorney of KC Law Group, where she handles first-responder criminal and administrative defense, general counsel matters, police foundation/nonprofit compliance, SB 2 decertification proceedings and training for law enforcement.

RANCHO CUCAMONGA - After a month-long trial, the criminal case for felony assault by a public officer against San Bernardino County Sheriff’s Deputy Corie Smith was dismissed in the interest of justice by Judge Ingrid Uhler on June 7, 2024. The jury hung after days of deliberation, failing to reach a verdict related to the arrest of a fleeing suspect. The defense team of Kasey A. Castillo of KC Law Group and Michael S. Selyem of Visco & Selyem worked tirelessly to present the strongest case to the jurors regarding intricacies of police use of force. Aiding counsel in that endeavor was Jeffrey Martin, Esq. of DSI Consulting, LLC, an expert in human factors/forensic video analysis/police use of force. On July 24, 2024, the San Bernardino County District Attorney’s Office confirmed it has declined to re-file and retry the case, and for good reason. The court opined the case, which involved video surveillance of the arrest, would end in the same result no matter how many times it was tried. ### Kasey A. Castillo, Esq. is the Principal Attorney of KC Law Group where she handles first-responder criminal and administrative defense, general counsel matters and police foundation/non-profit compliance.