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Phoenix Police

SEPTEMBER/OCTOBER 2017

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Officers’ Ball

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Representing Phoenix Police Officers Since 1975

PHOENIX

LAWENFORCER OFFICIAL PUBLICATION OF THE PHOENIX LAW ENFORCEMENT ASSOCIATION

Phoenix Law Enforcement Association, Inc. 1102 West Adams Street, Phoenix, AZ 85007 Phone: (602) 246-7869 Fax: (602) 246-0226 www.azplea.com

The Board of Trustees Tim Baiardi Chairman of the Board Ken Crane President Mike “Britt” London Vice President/Grievance Chair Frank Marino Secretary Darrell Kriplean Treasurer Toby Sexton Trustee/Vice Grievance Chair Tim Baiardi Trustee/Vice Grievance Chair David Barrios Trustee Jeff Cichosz Trustee Shane Forbes Trustee Barry Jacobs Trustee Frank Smith Trustee

PLEA Legal Resources Michael Napier Legal Counsel Anthony Coury Legal Counsel Kathryn Baillie Legal Counsel Eric Wilson Legal Counsel Cassidy Bacon Legal Counsel (602) 248-9107 • www.napierlawfirm.com

Legislative Liaisons Levi Bolton Lobbyist Williams & Associates Lobbyist

The PLEA Office Staff Becky Maldonado Office/Accounts Manager Liz Swick Membership Services Ashley Brown Membership Services Karyn Love Membership Services

Phoenix Law Enforcer Staff Frank Marino Editor

PLEA Accounting Resources Winters CPA, PLLC Christy Winters

PLEA Marketing Consultant

CONTENTS BOARD OF TRUSTEES Updates From the President’s Desk ................................ 4 They Said I’m Only a Witness .......................................... 6 Time Machine or R40? Neither … It’s the PPD ............... 8 2017 PLEA Board Elections ............................................ 10

ALSO INSIDE Contest Winners.............................................................. 10 Second Annual Police Officers’ Ball ............................. 12 Superhero September Will Be One to Remember ...... 15 New Members ................................................................. 16 Taking Care of Our Own: Wolfenden Fundraiser a Success ...................................................... 17 Use of Force Legal Update: County of Los Angeles v. Mendez ................................................... 18 See the Complainant ...................................................... 20 Training & Classes........................................................... 22 Fallen Heroes ................................................................... 23

Leibowitz Solo David Leibowitz (602) 317-1414 • www.leibowitzsolo.com Phoenix Law Enforcer is the official publication of the Phoenix Law Enforcement Association (PLEA) and published bimonthly under the supervision of its Board of Trustees. Opinions expressed by individual board members or any other writer in this publication do not necessarily reflect the opinion of the entire Board of Trustees. DISCLAIMER: The advertisements contained in Phoenix Law Enforcer are not endorsements of these products and/or services. PLEA makes no warranties or representations, express or implied, as to any manner regarding the products and/or services provided by these businesses.

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PRESIDENT’S MESSAGE

Updates From the President’s Desk

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PLEA Election

KEN CRANE President [email protected]

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We have communicated to the Chief our concerns that booking times will double or triple, creating a domino effect.

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’d like to take a minute to thank PLEA members and candidates alike for their participation in the latest election process, which formally concluded on July 31. Some elections are more contentious than others, and this one certainly did not disappoint in that regard. Two Executive Board positions were in contention and there was one of the largest fields of candidates we have ever seen for trustee positions, with 16 candidates running for seven positions. Voter turnout was 56.9% of the membership, an unprecedented level of participation. I believe this was due to the new method of electronic balloting used, which made the voting process effortless. By going paperless, the process was more secure and efficient, and saved virtually thousands of dollars over the old method of printing and mailing paper ballots. This, combined with constant email reminders to those who forgot or waited late in the game to vote, drove participation rates to much higher than those seen in previous elections. Special thanks to Steve Mead from K-9 and recently retired Detective Bob Fuller, who once again agreed to step up and serve as your Election Committee. Steve and Bob are senior, experienced and well respected within the organization. Both have served numerous times in the past as the Election Committee and know what they are doing. It is a thankless volunteer task that can entail some long hours; so again, thanks to both for their efforts in managing and keeping the election process on track.

Use-of-Force Issues

PLEA has seen some recent Use of Force Board decisions that cause us great concern. Unfortunately, in the day and age we live in, it seems more and more that outside issues creep into the decision-making process when it comes to a recommendation of in or out of policy on use-of-force

incidents. Tactics are frequently becoming a factor in finding folks out of policy, even though tactics should remain separate from the actual application of force. When the Tactical Review Committee was formed well over a year ago, PLEA was told that tactical errors would not be disciplinary in nature and would only be used to determine if there were shortcomings in the Department’s training or policies, or to determine if the involved employee needed more training. PLEA recently was successful in asking for a modification to existing policy that allows for a one-on-one meeting with the Chief anytime the UFB renders a recommendation of “out of policy” prior to a Disciplinary Review Board being scheduled. Before this, the Chief would be given a brief one-to-two-page document providing a recommendation of in or out of policy from the UFB with no foundational support. Often, the UFB cites policy violations that are not policy violations at all. To top it off, police administrators will often sign off on outof-policy recommendations as a seemingly routine matter. We believe out-of-policy recommendations should be a huge red flag that should give everyone pause and force a re-evaluation before a final decision is rendered.

Central Booking Changes

The Department, as a cost-savings measure, decided to cut back on and move Central Booking staff to the jail instead of Southern Command Center. There were no committees, and it was as much a surprise to PLEA as to everyone else. Department management, when asked, told us the City had ordered every department to cut 1.5% out of their budget. For the Police Department, this equates to about $8.3 million. Since most of our budget is tied up in pay and benefits, management had to come up with alternate ways of cutting costs. Apparently, those who don’t have to book prisoners and

who haven’t had to stand in line for hours at the jail believe that closing Central Booking and making all officers take their prisoners straight to the Fourth Avenue jail is a good idea. It always pays to talk to end users prior to making decisions like this. This could turn into one of those situations where we save a little on the front end while we pay out double or triple on the back end. In our conversations with the Chief, we have communicated concerns that booking times will double or triple, which will create a domino effect leading to calls stacking and response times going up. Field supervisors will understandably be very frustrated. The Chief indicated that if our prediction proves to be true, the Department may have to go back to the old system.

Supervisors who didn’t have information but wanted to help tried to do their best, which meant, in many cases, that bad info was being perpetuated. PLEA’s stance on this is that any new changes to this program should fall under a “bright-line” policy. In other words, once the new policy goes into effect, the newly established rules should apply to employees who get injured from that day forward, and all others currently on light duty should be grandfathered in based on years of past pattern and practice. We will let you know how things develop from our end.

Transitional Duty

PLEA recently posted information on our website and Facebook page regarding forced changes to the PPD immigration policy known as Ops 4.48. A panel composed of five left-leaning activist groups recommended changes that the PPD was ultimately forced to implement. The changes essentially gutted what was a very sound and effective policy. The groups involved were: The Center for Neighborhood Leadership (CNL), headed up by local ACLU attorney Will Gaona. CNL has pushed for the Phoenix municipal ID card as a first step to legitimizing the presence of those illegally in the country. The Puente Human Rights Movement, a grassroots group formed in 2007 to combat cooperation between local police and federal immigration authorities, and to oppose SB 1070. Justice that Works, a grassroots group that believes police, prisons and deportation are unnecessary. Black Lives Matter (BLM), an activist group that on a national level has called for attacks on, including the murders of, police officers. The American Civil Liberties Union (ACLU), a group that has concentrated much of its efforts in Arizona on litigation regarding the support of illegal immigration. A panel like this is going to be overwhelmingly biased and agenda driven, and will in no way provide a balanced perspective. This got me to thinking. What would happen if a group of equally right-leaning organizations such as the Goldwater Institute, Americans for Prosperity, Judicial Watch, the Cato Institute and the Family Research Council approached the mayor or City Council members demanding to restructure a Police Department policy? The answer is obvious, they would probably be told to pack sand. The significant and alarming concern that most people miss here is far greater than the policy change itself. It is, rather, the fact that City politicians and the Police Chief are letting activist groups dictate changes to Police Department policies. This is a Pandora’s box. The question now becomes, where do you draw the future line when activist groups that don’t understand the jobs of police officers want to dictate changes to, let’s say, use-of-force policies? More importantly, what happens when politicians pandering to select voting blocks and community groups allow it to happen? Changes like this that occur in a vacuum come easily to neighborhood activists and politicians who never walk point and face the gunfights that cops do. Police department policies should be driven by common sense and the rule of law. Policies made to satisfy a political agenda are dangerous and usually translate into increased risk for police officers and citizens alike. PLEA

Many of you have already heard the rumblings about changes to the light-duty/permanent light-duty program. The most obvious change is that policy is being rewritten and the name is being changed to Transitional Duty. The Phoenix Police Department has, over the years, allowed injured officers to work to the 20-year mark and beyond and participate in the DROP program if eligible. Phoenix is unique in that we were the only agency in the state, and apparently the only entity in the City, operating in this manner. PLEA was a big part of convincing the City years ago to protect injured officers by allowing them to continue working in a light-duty capacity until they could retire. It seemed the least we could do to protect employees in a profession where folks are expected to put their lives on the line daily to protect the #7527 public. Fast-forward to the present. The City asked how many employees were on light-duty status, but after years of having light-duty folks spread across the Department, the Department didn’t have a firm answer. They were directed to get one, which led to an evaluation of all work units within the Department. The Department decided to route anyone on light duty through Callback to assess their work status and medical restrictions. Once completed, the employee is placed in a work assignment where the Department can best utilize them based on their current medical restrictions and their skill sets. In some cases, this could mean a light-duty person being rotated right back into their current job, and in others, maybe not. The City is pushing to force the Police Department to align with how things are done for the rest of the City departments, as well as other police departments across the state: A program where an officer, when injured, will be allowed six months to come back to full duty. The officer will be assessed at the six-month mark and, if necessary, be given an additional six months to demonstrate whether they can get themselves back to full capacity. If, after a year of rehabilitation, an officer is unable to perform the functions of a police officer as outlined in the City job description, the City, under the new policy, would then separate them from employment. This could come in the form of a medical retirement, or in some cases, might involve allowing the employee to transition into some type of civilian job with the City. Unfortunately, the City and the Department, as is often the case, did a horrible job of getting information out to the Department. Information that did trickle out was not always reliable and, as is usually the case, the rumor mill kicked into high gear. PLEA received numerous calls from panicked members wanting to know what was happening.

Concerns Over Changes to Immigration Policy

SEPTEMBER/OCTOBER 2017

PHOENIX LAW ENFORCER

5

VICE PRESIDENT’S MESSAGE

They Said I’m Only a Witness

S MICHAEL “BRITT” LONDON Vice President/Grievance Chair [email protected]

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Have a PLEA rep with you when being interviewed by management, whether you are the subject officer or not.

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o, you come into briefing one day and the boss says, “Hey, Sergeant Friendly at PSB needs you to show up for an interview at 1500 hours.” Really?! Thanks a lot; good way to start the shift. You ask the next logical question, “What’s it about?” The boss tells you not to worry about it. PSB says you are only a witness. Don’t worry? Maybe you should think about that. When PSB interviews you as a witness, there is no NOI issued and you are normally not notified of the allegation or allegations against other officers. But the potential for you to say something that can change your involvement in the investigation exists. If that does happen, you are issued an NOI and Sergeant Friendly’s questions of you are now asked for a different purpose. There are a number of officers who have never endured a misconduct investigation, so when someone is told to go to PSB as a witness, questions may arise. Does an officer who is initially being asked questions as a witness in an administrative investigation (think of Department or City rules) have to answer those questions? The answer is yes. In short, your employer requires you to submit to questioning and participate in an investigation, or face consequences. Is an officer allowed representation during an administrative witness interview? Absolutely. It is just a good practice to have a PLEA representative with you when being interviewed by management, whether you are the subject officer or not. If you begin the interview without representation and later feel you need a rep, all you have to do is ask for one. All PSB personnel are familiar with ARS 38-1105 (the Arizona Peace Officer Bill of Rights), which deals specifically with witness officers. They are also aware of your Weingarten rights (NLRB v. Weingarten, Inc. 1975, if you would like to learn about

them), and field supervisors should be, too. To be brief, Weingarten allows you to have Association representation during an investigatory interview if you have a reasonable belief that what you say may result in discipline for you. This includes witness interviews. ARS 38-1105.A reads: “If a law enforcement officer is designated as a witness by the law enforcement officer’s employer in an investigation that could lead to another law enforcement of f icer’s dismissa l, demotion or suspension, the witness law enforcement officer may request to have a representative present at no cost to the employer during the witness interview.” The Weingarten rules and ARS 38-1105 can potentially have different applications, but what they have in common is that representation must be requested by the witness officer. The Department has no obligation to ask if you want representation. What happens if the investigator denies your request for representation? If, during an interview, your request for representation is denied and the investigator continues to ask questions, you should continue to cooperate. However, you need to contact PLEA as soon as possible so that we can file an Unfair Labor Practice or lawsuit for a violation of ARS 38-1105. Keep in mind that a situation such as this is a rarity for our Department, but in the event that it does happen, you know what action you need to take. Hopefully, this has given a bit of #8722 helpful information. If you have the happy occasion to participate in an administrative investigation in any capacity, remove any doubt you may have and request a PLEA representative. Call the PLEA office or, if it is after business hours, the radio supervisor to obtain the on-call PLEA representative’s number. PLEA

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SECRETARY’S MESSAGE

Time Machine or R40? Neither … It’s the PPD

I FRANKLIN R. MARINO Secretary [email protected]

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Some recent changes in Department policies and procedures are literally taking us back in time.

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n August 2010, I took my family to Las Vegas to see one of my favorite rock bands, Rush, perform on their Time Machine Tour at the MGM Grand Garden Arena, since they bypassed Phoenix. I saw them again in 2011 when they returned to Phoenix on the second leg of the tour. A recurring theme in live Rush shows is the band’s sense of humor and Time Machine included concept tour videos of the band members featured as different characters. The first two videos included a “time machine” as an integral part of each video. The second video, crafted around their hit song “Tom Sawyer,” centered on a band audition. As a button on the time machine was pushed and the date changed, the characters in the band would change correspondingly. Changes ranged from a group of young men, to boys, to infants, to chimpanzees and medieval wizards. Adding to the humor were band members Geddy Lee, Alex Lifeson and Neil Peart playing other than their own instruments in some scenes. Fast-forward to 2015 at the former US Airways center in downtown Phoenix, where Rush played one of the last stops on their R40 40th anniversary tour, which would, at this point in time, be their last tour. True to form, they delivered, and once again, their humor was reflected. Perhaps the most ingenious aspect of the show was a reverse-order set list from their most recent album, Clockwork Angels, to their debut album, Rush, while roadies continually deconstructed the set as the #8288 show progressed. They removed props, speakers, instruments and other key parts of the set, and by the end of the show, the set represented a 1974 rendition of their first tour. Two amplifiers and speaker cabinets were perched on chairs, keyboards and synthesizer pedals were gone and to add to the effect, front man Geddy Lee introduced their “new” album to the crowd. What do the Rush Time Machine and R40 tours have to do with the Phoenix Police Department of 2017? The Department, like

the band, has evolved over time, and with evolution comes change, both good and bad. By the time you read this, Chief Jeri Williams will have nearly one year of experience as the head of the Phoenix Police Department, and some recent changes in policies and procedures are literally taking us back in time. I, along with other members of the PLEA Board, believe that many of these decisions are detrimental to rank-and-file officers who are out on the street and detectives doing investigative work. • In February of this year, we went through yet another rebid to redistribute manpower in patrol, but a major factor in this rebid was a “deconstruction” of investigative and patrol specialty details where positions were eliminated to fill critical patrol vacancies caused by our six-year hiring freeze. • Once again, after a long fight of five years, we finally have an optional utility uniform for patrol. It isn’t exactly what many of us expected or preferred, but it’s a start. The bigger battle was being able to move the radio and Taser from our gun belts to our outer vest carriers, regardless of whether you wear a Class C or Class D uniform. • PLEA has advocated for going back to the pre-“Disciplining With a Purpose Discipline Matrix” and a maximum suspension of 80 hours, which is what all other City employees have, but was taken away from us five years ago. Chief Williams believes we are different because we are held to a higher standard, so as a result of our April Labor–Management Retreat, we have reached a tentative compromise of 120 hours for the most severe violations, excluding those that may result in termination. • Central Booking has closed, taking us back in time at least seven years. No more “drop and go,” but instead, despite MDCs that allow us to do most of our “paperwork” on the street, we will once

again have to take prisoners back to the precincts or substations to fingerprint and photograph them. Plus, we get to make multiple phone calls before we can hand them off to personnel at the jail who will book them, only after final approval from R&I. • Coupled with the closing of Central Booking is the end of the citywide wagon program, which allowed officers to turn prisoners over to wagon officers who transported them to Central Booking. This not only allowed a quicker turnaround to go back into service, but also eliminated multiple units from precincts farthest from Central Booking having to make the trip downtown, saving fuel and wear and tear on already high-mileage patrol vehicles. It looks as though we may go back to riding the wagon on double squad days, like many of us did back in the day. • Callback was resurrected to handle the number of increased Priority 3 calls since patrol staffing has dropped from 1,342 officers in 2009 to just below 1,100 as of mid-July. The means that allowed the Department to re-implement Callback is our new Transitional Duty program, formerly known as Light Duty. Now, light-duty personnel, who were already in positions they have been assigned to for some time, are being routed to Callback before a determination will be made if they can go back to those positions, move to others, or in some cases, are being told to consider medical retirement. • Despite no complaints of racial profiling or biased policing since its inception, Operations Order 4.48 is essentially being

gutted and will hamstring officers who may have to contact ICE if, during the course of their normal duties, they come across individuals who may be in the country illegally. This will take us back to the former Chief Harold Hurtt era of 1998–2004, which can be considered a sanctuary city. • Decentralization of the Traffic Bureau has taken us back to the early 1990s, when Motors worked out of the precincts instead of Resource Bureaus/Command Stations. The problem is that Motors are already spread out thinly, since we have fewer than 40 citywide and the Central City Precinct doesn’t have any, so they rely on DOU to provide Motor support. • When one DOU officer exercised his right to file a grievance over fair treatment, DOU went back to the time when they didn’t have motorcycles for almost six weeks. This was due to what the Chief claimed was her decision to park every DOU motorcycle. This decision forced DOU Motors to use vehicles, including a crew cab dually pickup truck and a recreational utility vehicle to maneuver through crowds and traffic during Downtown special events instead of the more practical and versatile platform of a motorcycle. • Our Grievance Camp is seeing more investigations that would normally be handled at the precinct level being shipped over to PSB. Continued on page 14 >>

We deal in hope.™

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TREASURER’S REPORT

2017 PLEA Board Elections

T DARRELL KRIPLEAN Treasurer [email protected]

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This year’s electronic voting process was much easier and much more convenient for the members.

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he 2017 PLEA Board election cycle has ended. Regardless of how your candidates fared, the election process itself was a resounding success. As you all know, this election cycle we contracted with an independent, third-party company named Simply Voting to conduct the election, and switched from traditional paper ballots to electronic voting. With traditional paper ballots, approximately 15% of the membership participated in deciding who the governing board would be made up of. Traditional paper ballots were also expensive, costing the membership approximately $6,500 between the printing, mailing and providing return envelopes. Additionally, the process for tabulating the ballots was extremely time-consuming, taking the election committee the better part of an entire day to verify and count the votes for each candidate. This year’s electronic voting process was much easier and much more convenient for the members; you were able to cast your vote from anywhere in the world as long as you had access to your email account. A record 1,179 members, or 56.9% of the membership, participated! The election was also more cost-effective, saving

the membership approximately $4,750 compared to the previous election. Because Simply Voting handled the vote tabulation, we were able to have the results within minutes of the election being closed. Verifying membership was as easy as providing Simply Voting with the membership roster and associated personal email addresses. A side benefit to the electronic elections is that we now have most of our membership’s personal email addresses, which helps with our communications. When important, time-sensitive issues need to be conveyed, the mass group email is the easiest way for us to reach everyone. Before the election, we would have hundreds of “bounced” emails, as the addresses were not up to date. We now experience approximately 50 bounces. An informed membership is key #9545 to the success of the Association. Thank you to everyone who participated in the process to choose the next Board of Trustees. Your elected Board will continue to work hard to represent you in every way that we can. It is truly an honor to serve as your treasurer. If you ever have any questions, please feel free to call the office or email me at dkriplean@ azplea.com. PLEA

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Phoenix Police Officers’ Ball S E C O N D A N N UA L

Saturday, October 14, 2017 Arizona Grand Resort & Spa | Phoenix, AZ

PROVIDING FOR POLICE, CARING FOR COMMUNITY It’s almost here! The second annual Phoenix Police Officers’ Ball will be hosted by PLEA and is open to all of Arizona’s sworn and retired officers. Join us at this gala event as we celebrate the law enforcement profession while supporting PLEA Charities.

EVENING PROGRAM 6–7 p.m. Cocktail reception 7 p.m. Dinner, dancing and entertainment, featuring Master of Ceremonies Mike Broomhead, live music and much more.

Tickets: $105 each or $1,000 for tables of 10. All event proceeds benefit PLEA Charities, a nonprofit 501(c)(3).

Purchase your tickets today at www.AZPLEA.com Sponsorship opportunities are also available.

WE’LL SEE YOU THERE!

Secretary’s Message Continued from page 9 >>

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• We are seeing more use-of-force incidents, particularly officer-involved shootings, being found out of policy. • In the aftermath of much hoopla over the City having a balanced budget with a surplus, which allowed the City to hire 16 Police Assistants and 22 Park Rangers, it appears the Phoenix Police Department has been told to cut $8 million from our budget. We are being told this is one of the reasons for the closure of Central Booking. Budget cuts and slashing overtime were the rage from 2010 to 2016, when we endured six years of contract concessions. Contributing to this time travel are a mayor, City Council and City manager who love to tout a city that has surpassed Philadelphia and is now the fifth-largest city in the country, with a population of nearly 1.6 million people and a geographical footprint of 530 square miles. However, they are content to set a staffing goal of 3,125 officers by next July, which is 260 fewer officers than we had a decade earlier. Unlike the deconstruction of the set on the R40 tour, Phoenix is experiencing growth, with numerous multifamily housing units going up in and around Downtown and a resurgence of multifamily housing and single-family-home subdivisions in other parts of the city as the market rebounds. While the Time Machine and R40 tours were enjoyable and memorable events for me and my fellow Rush fans, when it comes to my fellow officers and the citizens we serve, the current state of the City and the Phoenix Police Department are far from it. There is a difference between entertainment and reality, especially when human lives are at stake. Slow down, wear your vest, stop advising on calls and stay safe! PLEA

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T

Superhero September Will Be One to Remember

his September 2 marks the third year of the Phoenix P.D.’s Superhero September, a fundraiser benefiting the abused and neglected children who receive services at the Childhelp Center. In the November/December 2015 issue of the Phoenix Law Enforcer, we featured Detec- Detective Sean Reavie (front) and tive Sean Reavie and the many Sergeant Vince Lewis promote community and Department Superhero September on KTAR radio. members who helped make Superhero September a huge success right out of the gate. With the continued support and enthusiasm from officers, various nonprofit organizations, sponsors and the community alike, this year’s Superhero September: Rise of Champions looks to be the biggest fundraiser yet. All month long, there will be a number of fun-filled events to raise awareness and support for at-risk children. The Super Main Event kickoff will feature live music,

over 30 costumed heroes and the chance to see two super-powered vehicles belonging to Batman and Wonder Woman. The Superhero Shopping Spree, which has grown to offer not one, but three sprees since its inception, will give a select group of children the opportunity to shop for toys and comic books alongside their favorite superheroes. At the time this issue was going to press, Detective Reavie reported that the goal of raising $10,000 was close to being met, 70 volunteers had been enlisted, and donations were pouring in. PLEA is proud to be this event’s very first sponsor and to provide our continued support. Stay tuned for the next issue when we feature Last year’s events drew large crowds; coverage of this incredible this year’s are expected to be even bigger. event. PLEA

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PHOENIX LAW ENFORCER

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SUBSTANCE ABUSE PEER SUPPORT GROUP

Welcome, New Members! Marissa Dowhan

Barrett Pluskat

Travis Funston

Jake Ramsey

Justin Garr

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Jennifer Rich

Haseda Makic

Jared Rodriguez

Mark McKnight

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Nicholas Pinder

Save your life and career! We are fellow law enforcement officers who have been there, know what you are going through and are here to help. Meetings are confidential and anonymous. Just call us: Mike (928) 434-0192, Dan (602) 413-4558 or Jerry (602) 904-1088.

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DON’T MISS

“An Exciting Historical Experience” at the

PHOENIX POLICE MUSEUM STOP IN TODAY TO SEE OUR NEW MERCHANDISE!

Support the museum and display your police pride with the great selection of logo merchandise and keepsakes from our gift shop. We have branded hats, jewelry, tie tacks, bags and more!

Open Mon.-Sat. 9 A.M. – 3 P.M. | Located in Historic City Hall (602) 534-PAST | www.phoenixpolicemuseum.com 16

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Taking Care of Our Own:

O

Wolfenden Fundraiser a Success

n Monday, July 17, PLEA hosted a benefit cookout on behalf of Phoenix Police Officer James Wolfenden, who was critically injured in an on-duty vehicle collision earlier this year on Father’s Day. Facilitated by officers from the Cactus Park Precinct, the fundraiser ran from 11 a.m. to 11 p.m. to accommodate all three shifts, including Officer Wolfenden’s squad.

Nearly $10,000 was raised from contributions received at the cookout as well as online donations made through PLEA Charities. Thank you to everyone who attended the cookout or made a donation. A special thanks goes out to the dozens of individuals, businesses and groups that assisted at the event, donated raffle prizes or otherwise provided resources. PLEA

SEPTEMBER/OCTOBER 2017

PHOENIX LAW ENFORCER

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LEGAL

Use of Force Legal Update: County of Los Angeles v. Mendez By Cassidy L. Bacon Associate Attorney, Napier, Coury & Baillie, P.C.

P

icture this scenario: Officers receive word that a homicide suspect is hiding out at a certain residence. They secure a search warrant. It’s dark when they arrive, and no one comes to the front door when they knock. They break down the front door and begin to clear the residence, room by room. When they enter the bedroom, they see a man crouched in the corner pointing a handgun towards them. Fearing for his own safety, as well as the safety of his fellow officers, one of the officers opens fire, striking the man three times. Under those circumstances, the officer was entirely justified in pulling the trigger. It would be nearly impossible to argue otherwise. The objective reasonableness standard outlined in Graham v. Connor, 490 U.S. 386 (1989), is satisfied to a T. As a result, any attempt to find the officer liable for injuries sustained in the shooting would likely be unsuccessful. But suppose the officers had made a mistake. Suppose they had entered the wrong home. Suppose the man who was shot had heard someone come through the front door, thought someone had broken in and grabbed his gun for protection. What happens then? Most courts have held that an officer is not liable so long as the use of force itself is reasonable and not excessive under the Graham standard. The Ninth Circuit, on the other hand, which has jurisdiction over Arizona, had adopted the “provocation doctrine.” This doctrine provided that “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.” Billington v. Smith, 292 F. 3d 1177, 1189 (9th Cir. 2002). Thus, in Arizona, under the circumstances described above, the officer would be liable for any injuries sustained in the shooting. On May 30, 2017, however, the United States Supreme Court, in County of Los Angeles v. Mendez, 581 U.S. __ (2017), issued a unanimous decision rejecting the provocation doctrine. In Mendez, a confidential informant alerted the Los Angeles County Sheriff ’s Department that a potentially armed and dangerous parolee-at-large had been seen in front of a residence. A team of deputies responded to the residence, and two of them were tasked with clearing the backyard. Without a warrant, the deputies entered through a gate and made their way to the rear of the property where a small shack was located. Upon entering the shack, they saw Mendez holding what appeared to be a small caliber rifle pointed in their general direction. When one of the deputies yelled, “gun,” they immediately opened fire, striking Mendez and his pregnant girlfriend several times.

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The couple filed a Section 1983 lawsuit against the deputies and the County, alleging excessive force in violation of the Fourth Amendment. The trial court found that although the officers’ use of force was reasonable under Graham, the provocation doctrine applied. The court found the officers liable and awarded the plaintiffs $4 million in damages for their excessive force claim. On appeal, the Ninth Circuit affirmed, holding that even though the shooting was reasonable at the moment it occurred, it ultimately had to be considered unreasonable because the officers had recklessly provoked the incident by entering the shack without a warrant. The Supreme Court accepted review of the case to answer the following question: “If law enforcement officers make a ‘seizure’ of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries on the grounds that they committed a separate Fourth Amendment violation that contributed to their need to use force?” Mendez, at *5. The Court answered this question in the negative, reasoning that “[a] different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure” (Id.). The problem with the provocation doctrine, in the Court’s view, was that it was incompatible with earlier excessive force rulings — Graham and its progeny. In excessive force cases, courts must ask whether the use of force was objectively reasonable given the totality of the circumstances. Under the objective reasonableness standard, the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene and based on the information the officer had at the time, rather than with the 20/20 vision of hindsight. The provocation doctrine combined an excessive force claim with other, distinct Fourth Amendment claims, which the law does not allow. In the words of the Court, “If there is no excessive force claim under Graham, there is no excessive force claim at all.” Mendez, at *14.

PLEA’s legal team at Napier, Coury & Baillie, P.C., is available to assist you with a wide range of legal services. (602) 248-9107 | www.napierlawfirm.com

As the Ninth Circuit’s provocation rule was binding on Arizona courts, this decision may directly affect members of the Phoenix Law Enforcement Association. Be assured that you will not be held liable for an excessive force claim if the shooting was objectively reasonable under Graham.1 This is not to say, however, that you cannot be found out of policy and disciplined. As you well know, Department policy is always subject to change. And despite that its current iteration closely mirrors state and federal law, and despite that your use of deadly force training has always focused on complying with state and federal law, recent decisions by the Use of Force Board and command staff demonstrate that adherence to Graham’s objective reasonableness standard is not always good enough to avoid discipline. Some officers have been disciplined for the tactics employed leading up to a use-of-force incident. Others have been disciplined for the use of force itself, despite a determination that the incident complied with Graham. In many of these cases, PLEA and your attorneys have been able to successfully mitigate or overturn discipline. Please notify your PLEA representative immediately if you are involved in a use-of-force incident so they can ensure your rights are protected.

1

Note that the Court remanded to determine whether another legal avenue would allow the plaintiffs to recover damages for their injuries. We will update you on the outcome of the remand in a later issue of the Phoenix Law Enforcer.

This article is not intended to be used as a substitute for legal advice. If you have any questions about this article or Mendez’s applicability in a particular situation, please contact me at clbacon@ napierlawfirm.com. Please also contact me if you have a legal topic you would like to see addressed in a future issue of the Phoenix Law Enforcer. PLEA

About the Author Cassidy L. Bacon is an associate at Napier, Coury & Baillie, P.C., representing clients in various public-sector employment and personal injury matters. She received a Bachelor of Science summa cum laude in 2009 and a J.D. cum laude in 2013 from Arizona State University. Bacon clerked at the Napier firm during her second and third years of law school and returned in 2014 following a one-year judicial clerkship for the Honorable Patricia K. Norris on the Arizona Court of Appeals.

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SEPTEMBER/OCTOBER 2017

PHOENIX LAW ENFORCER

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RETIREES

See the Complainant Editor’s note: On our Phoenix P.D. Retirees Facebook group, we encourage officers to share stories of their days as a Phoenix police officer. This submittal is from retired Lieutenant Leonard Zingg, #954.

I

n the early ’60s, calls were dispatched without the responding officer knowing what the problem was. You were just given a call to “see the complainant” at a certain address. If it was something big, you were told to call radio and they would give you the details over the phone. The press monitored all police calls, so this procedure was followed to prevent the press from beating us to the scene, questioning victims and witnesses, and possibly contaminating or destroying evidence. Not knowing what kind of situation they were walking into was not safe for the responding officers. I don’t know how long the procedure was in place where the type of call was not disclosed. I only know that on two occasions, I would have liked to know what kind of call I was going on. I was working day shift out of Sunnyslope, the 700 District briefing station located at Third Street and Dunlap, which is now part of Honor Health’s John C. Lincoln Medical Center. As I recall, there were only three districts; 700, 800 and 900. It was nearing noon when I received a call to “see the complainant” at a house on the northwest side of town that was home to more cactus, sagebrush and scorpions than people. The complainant couldn’t give a specific address. She just said it sat alone in the middle of a cotton field. After some searching, I discovered the only road into the place was a bumpy farm implement trail that paralleled an irrigation ditch. It was a big old house with a dirt yard. I parked my patrol car under a large cottonwood tree, which provided much-needed shade from the summer sun. It was a blistering hot day and none of the old police cars had air-conditioning. I was unlucky enough to have drawn one of the oldest cars that day. Not having air-conditioning in the car had consequences when it came to writing reports. I don’t ever recall going into a restaurant to write one. It was always done in the car, and there were plenty of times when I would have to rewrite a report because the paper got too wet from the sweat dripping off my arms, face and hands. Accident reports were the worst, as they required painstaking drawings and took longer. Whenever there was sufficient manpower, someone would be assigned to the accident car. That unit would roam the squad area, take all the accident calls and sometimes make backups. I often drew that assignment and can’t begin to tell you how many times I had an accident report almost completed, but had to start over because the paper got too wet and the ink smeared. I gingerly opened the metal box containing a variety of report forms

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that most officers carried on the front seat of their car. The box was so hot, I think I could have fried an egg on the lid. I dug out a general report form from the box, attached it to my clipboard and made sure my pen was working, as I didn’t want to traipse back across the dusty yard just to get a pen that worked. I reluctantly left the shade of the tree and walked up to the front door of the house. I noticed the inner wooden door was closed, but there was a screen door that was pretty well beaten up and hanging at an odd angle. The screen was missing, and all that remained was the frame with the middle bar and the bottom foot plate that was about 8 or 10 inches high. I knocked on the frame of the screen door and it rattled loudly. After a minute or two with no answer, I banged harder. I was about to give up and check with radio for more information when a woman stuck her head out of a window and said, “Be careful, officer. That snake is right there by your feet.” I looked down to see a large snake coiled between the inner door and the footplate of the screen door. Its head was above the footplate and only a few inches from my leg. The snake had apparently been lying flat, as I didn’t see it when I walked up. The sudden disturbance of the screen door rattling must have caused it to coil. For a few seconds, I froze; my legs were paralyzed and I couldn’t move. When the rational part of my brain kicked in, I slowly backed away and returned to my car, where I climbed in and attempted to return my blood pressure and respiration to normal. I didn’t know what kind of snake it was, but it really didn’t matter. A snake is a snake and I don’t care what kind it is. For all I knew, it could have been an anaconda or a cobra. By this time, my uniform was soaking wet. While some sweating was caused by the incessant heat, most was terror-driven sweat, the kind that comes as the result of a nightmare. Of course, the heavy, dark material that made up our uniforms in those days didn’t help matters any. When I was able to speak without my voice cracking, I asked radio to send animal control. Animal control showed up and took the snake. In those days, if the police department called one of the other service organizations, they showed up without question. However, they weren’t happy with me on this occasion, as it was only a non-poisonous gopher snake. After that call, I made sure that I looked carefully at the ground before walking up to a house. That extra precaution, however, didn’t help much on another “see the complainant” call in the same area a few weeks later. I arrived at the complainant’s house to find him sitting on the steps of the front porch. A large tree by the house provided shade, and it

was early enough in the day that the temperature was still bearable. We exchanged greetings and I sat down with him on the steps, where we carried on small talk for a few minutes. I finally asked what I could do for him. He told me to come in. I followed him into the house and down the hall to a back bedroom, where he pointed to a closet. “In there,” he said. I opened the closet door to see a man hanging by his necktie. His face was purple and his tongue protruded from his mouth. He was obviously dead. The closet was so small that his face was almost against the door. I resisted the urge to jump back and scream, “Holy crap. What the hell is this?” But I remained calm enough to ask the complainant for details, including why he didn’t tell me there was a dead man hanging in the closet. He said he had told the person he spoke with when he called it in and he assumed they had told me. The complainant said he lived down the #8560 road, and earlier that morning, the dead man’s kids, the oldest being about 6 years old, came to his house and said their daddy was sick. They led him back to the house, where he found the man hanging in the closet. The kids had found him and didn’t understand what had happened. The complainant took the kids back to his house before returning to the scene to wait for the police. He said he didn’t know the dead man well, but he would keep the kids until other relatives could be contacted. He said the man’s wife had passed away some time ago. While looking around the room, I noticed a number of bank notices of insufficient fund checks on the dresser. The complainant said the

family had been going through some tough times and he supposed the man thought the kids would be better off with someone else. I think the Department finally received so many complaints from officers that they decided to develop a code sheet so the responding officers would know what to expect. I was one who wrote a complaint. I’m not sure it would have been a good idea to have told me I was being sent on a “snake disturbing” call, however. I may have suddenly manufactured an emergency that would have prevented me from responding. This was just another day in the life of a patrol officer in the ’60s, driving a patrol car with no air conditioning in the middle of summer in Phoenix. PLEA

CALLING ALL RETIREES! PLEA wants to stay in touch and needs your up-to-date contact information. Please send your name and email address to [email protected]. Thank you!

SEPTEMBER/OCTOBER 2017

PHOENIX LAW ENFORCER

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Representation Committee CHAIR

VICE CHAIRS

Mike “Britt” London

Toby Sexton Tim Baiardi

REPRESENTATIVES Jeff Anders

Rick Flum

John Maxwell

Desiree Sanchez

Brandy Willingham

Ken Barton

Greg Gibbs

Chris Mendez

Dennis Smith

Kevin Wilson

Joe Brown

Eric Gunnels

Bobby Metrick

Matthew Teerink

Keith Yingling

Brent Bundy

Bertie James

Anthony Navas

Jim Vonada

Michael Yoho

Frankie Contreras

Jesse Jansma

Steven Perrotta

Brian Walsh

Frank Duran

Michael Kuehler

Santos Robles

Tim Wheeler

If You Have a Grievance First: Attempt to resolve the matter informally with your supervisor. Second: If you cannot resolve this with your supervisor, contact one of the representatives above. Remember: There are time limits to initiate a written grievance.

If You Are Being Investigated Record: All interviews once you have been given an NOI. Copy: All memos or paperwork related to the investigation. Truthfully: Answer all questions related to the investigation.

If you are called by Professional Standards Bureau or any police supervisor regarding an investigatory interview or interrogation, you may have PLEA representation during that interview. Call for representation as soon as possible.

For your convenience, a PLEA Board member and representative are available 24/7. During normal business hours, please contact the PLEA Office at (602) 246-7869. During weekends, holidays and after hours, contact the Radio Supervisor.

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Please check Training and Classes in the Members Only section of the PLEA website for information on upcoming seminar dates and discounts.

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FALLEN HEROES

PHOENIX POLICE DEPARTMENT OFFICERS FALLEN IN THE LINE OF DUTY Officer Leonard L. Kolodziej

Officer Kevin W. Forsythe

Officer Beryl Wayne Scott

EOW: Wednesday, September 4, 1991

EOW: Friday, September 7, 1984

EOW: Tuesday, September 10, 2002

Responding to a 9-1-1 emergency call, Officer Kolodziej was shot and killed by a sniper barricaded in a Phoenix home. Officer Kolodziej was a 19-year veteran officer.

While working off-duty directing traffic, Officer Forsythe was struck by a semi truck and killed. Officer Forsythe was a seven-year veteran of the PPD and active in the police officers’ union.

While Officer Scott was en route to assist in a DUI/ fatality investigation, a driver pulled out in front of Scott’s motorcycle, killing him instantly. Officer Scott had served as an El Mirage P.D. officer prior to joining the PPD.

Officer Nicki “Nick” James Erfle

K9 Dax

Officer Shane Cory Figueroa

EOW: Tuesday, September 18, 2007

EOW: Thursday, October 20, 1994

EOW: Saturday, October 25, 2008

Officer Nick Erfle was shot when he and his partner attempted to take a felonious suspect into custody. Officer Erfle was rushed to the hospital but did not survive. He had served on the Department for eight years.

K9 Dax was shot and killed while assisting the Special Assignments Unit in searching the home of a homicide suspect, who wounded two additional officers before himself being shot and killed by police.

Officer Figueroa was responding to a “shots fired” call when a truck turned in front of his patrol car. Officer Figueroa died from his injuries shortly thereafter. He had served with the PPD for more than two years.

Phoenix Law Enforcement Association

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