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CPOA California Peace Officer Winter 2012

TRANSCRIPT

California

Winter 2012

PeaceOfficer

Realignment | Public Pension Reform

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California Peace Officer | Winter 2012 | 3

FEATURES 6 Legislative Update

8 Public Pension Reform in California

11 Realignment

12 Making Public Safety Realignment Work

13 Realignment and Its Monumental Shift of Responsibility

14 Crisis Breeds Opportunity

15 The Most Significant Reform to Sentencing Laws in a Generation

18 A Look Back at CPOA’s Past Presidents

19 COPSWEST 2011: A Big Success

22 Mark Your Calendars for Law Enforcement Legislative Day

24 Critical Incident Stress Management

DEPARTMENTS 4 President’s Message

5 Executive Director’s Message

26 General Counsel

28 Legal Services Program News

30 Resource Guide

Opinions expressed are those of the authors or persons quoted and are not necessarily those of the CPOA state board, appointees, staff and its membership.

The publication of any advertisement by CPO or the California Peace Officers’ Association is neither an endorsement of the advertiser nor of the products or services advertised. Neither CPO nor CPOA are responsible for any claims made in an advertisement published in California Peace Officer.

© California Peace Officers’ Association. All right reserved. The contents of this publication may not be reproduced, in whole or in part, without prior written consent of the publisher.

The California Peace Officers’ Association is committed to developing progressive leadership for the California law enforcement community. This is accomplished by organizational networking, professional development, technology advancement and public policy advocacy. The purpose of California Peace Officer is to inform and educate CPOA members; to promote professional development; to generate interest in association activities and to foster a cohesive and involved membership.

table of contents

2011-2012 Executive Committee

PresidentSandra SpagnoliChiefSan Leandro Police [email protected]

1st Vice PresidentRick BrazielChiefSacramento Police [email protected]

2nd Vice PresidentRich LuceroCaptainFremont Police [email protected]

3rd Vice PresidentMark YokoyamaChief of PoliceAlhambra Police [email protected]

4th Vice President Scott JonesSheriffSacramento Co. Sheriff’s [email protected]

Treasurer David McGillLieutenantLos Angeles Police [email protected]

Immediate Past President Jim McDonnellChiefLong Beach Police [email protected]

Chair, Regional Advisory CouncilBrian EvanskiCaptain El Segundo Police Department [email protected]

Executive Director Carol Leveroni, [email protected]

PublisherCalifornia Peace Officers’ Association555 Capitol Mall, Suite 1495Sacramento, CA 95814(916) 263-0541Fax: (916) 520-2277E-mail: [email protected]

Managing EditorTricia Schomus(916) [email protected]

EditorLisa Kopochinski(916) [email protected]

Advertising ManagerCici TrinoAssociation Outsource Services(916) 990-9999Fax: (916) [email protected]

Layout and DesignLori Mattas

Printing and MailingCopeland Printing

4 | Winter 2012 | California Peace Officer

2012: A New Year Full of Challenges and Opportunities

C POA will be ringing in the New Year with a fresh focus, dusting off our stra-tegic framework which defines the guiding principles of the organization. The fall board meeting was held at the Argonaut Hotel in San Francisco. I

am pleased to report that in our ongoing efforts towards strategic planning, we have updated our Vision, Values and Mission statements. Under the leadership of Captain Eric Finn, and in partnership with Board of Directors, CPOA’s primary focus will be on “Building Law Enforcement Leaders.”

I want to thank CPOA 2nd Vice President Captain Richard Lucero, Fremont Police Department, who’s working tirelessly with CPOA’s Legislative Advocate on issues related to realignment. We have continued to participate on the regular teleconfer-ences and meetings with CDCR and share concerns not only with the impact on local government and law enforcement, but the ability to gain intelligence and track offenders being released. As we move forward, law enforcement success in dealing with out of custody offenders will in part be dictated by the integrity of our information systems. We are encouraging two dimensions of offender information access, use for field personnel as well as accumulation of data related to analyzing and assessing the results of realignment strategies.

CPOA 3rd Vice President Chief Mark Yokoyama, Alhambra Police Department, recommended support for the “Below 100 campaign,” which received full board approval. It’s been more than 65 years since the annual number of line-of-duty police deaths was fewer than 100. “Below 100” is an initiative that aims to reduce the line of duty deaths to below 100, a number not seen since 1944. As law enforcement profes-sionals, we need to take responsibility for the decisions and actions that contribute to safety. This means promoting a culture of safety throughout agency. CPOA strongly supports initiatives that enhance the safety of police officers and can impact policy and leadership decisions that do the same. The five tenets of Below 100 have been identified to make officers safer:

• Wear Your Seatbelt• Watch Your Speed• Wear Your Vest• WIN - What’s Important Now?• Remember:Complacency Kills!In November, CPOA along with California Police Chiefs, California Highway Patrol

and California Sheriffs’ Association, sponsored the Women Leaders in Law Enforce-ment. The theme this year was creating synergy. CPOA developed an award specifically designed for excellent service or an outstanding contribution by women in law enforce-ment. The annual award is appropriately titled, CPOA’s Trail Blazer Award, which was presented to Captain Alana Forrest with the Los Gatos-Monte Sereno Police Depart-ment. Captain Alana Forrest is a 28-year veteran of law enforcement.

Los Gatos-Monte Sereno Police Chief Scott Seaman said, “Alana is an inspiring leader, deeply committed to the profession, her career and the careers of others. For the greatest part of her career, Alana has mentored and helped others; her efforts becoming focused through two regional women leader seminars and ultimately as a key shaper of the Women Leaders in Law Enforcement training symposium. A life-

president’s message

By Sandra Spagnoli, Chief of Police San Leandro Police Department

“The achievements of

an organization are the

results of the combined

effort of each individual.”

—Vince Lombardi

continuedonpage30

California Peace Officer | Winter 2012 | 5

Answer the Call

T he end of 2011 brought our law enforcement members many challenges and few real wins. On the legislative front, we faced many issues including the initial inroads to pension reform and the roll out of realignment. On the front lines, we

saw more brazen attacks on law enforcement than ever before. The confluence of the continuing lag on the economy and the rising discontent with our legislature seems to have unleashed a nameless and evolving beast. What is clear is that 2012 will continue see this beast develop. However, what evolves really can be impacted by you—you just have to be ready to answer the call.

This issue is about legislative advocacy. It is always pertinent this time of year because the legislature is back in session and we are prepped to again dig through the hundreds of bills that will emerge that impact law enforcement.

Advocacy is a funny thing, especially in law enforcement. While it is true that your Chief or Sheriff typically are the voice of your agency, the “boots on the ground” experi-ence you each bring to the table can truly become impactful for the profession, and ultimately your agency. The process of vetting bills and getting legislators (or, more typically, their staff) to understand what a bill is really saying often comes down to a particular individual that “lives” that bill issue. Learning how you can become effective and useful to your professional association (and agency) is key, and a key need for CPOA’s Law and Legislation Committee.

The CPOA Law and Legislation Committee meets monthly in Sacramento (begin-ning in January and usually running through the session in August). Currently the committee includes many other partner departments, like CHP, ABC, DOJ, in addition to specific agency representatives. We are beginning to rework the committee to make it more issue specific responsive. For example, when an issue comes up on use of force or traffic issues, we know who to call because those members have indicated their expertise as such. With the hundreds of bills that emerge each year, we would like to grow this “grassroots committee” to include as many people as possible in these various expertise areas. Members should be willing to commit to review and response on specific bills as well as be available if needed to provide testimony at the Capitol.

Also coming up is the annual Legislative Day on March 28, 2012 in Sacramento. This annual event comprises all major association partners who come together one day in Sacramento to get a read on what the emerging issues are and then to walk across the street to meet with your legislators to have direct impact conversations on these issues. It is a must attend for anyone in law enforcement who wants to help shape the future of the profession.

And that profession will continue to evolve in 2012. This year we will face the con-tinuing challenge on pensions, the realization of how realignment is actually performing, as well as a slew of bills and initiatives that will attempt to reshape how you do your job in the future.

We need your commitment to the call. Will you be there to answer it? r

By Carol Leveroni, CAE

executive director’s message

“Individual commitment

to a group effort—that

is what makes a team

work, a company

work, a society work, a

civilization work.”

—Vince Lombardi

6 | Winter 2012 | California Peace Officer

As 2012 dawns, so does the November election. There are 41 initiatives currently pending with the Attorney General and an additional 31 have

already been cleared signature gathering to qualify them for the ballot. These measures cover subjects ranging from genetically engineered food to pension reform and three strikes. The sheer amount of initiatives that has been submitted for title and summary illustrate the notion of “taking it to the people.” The initiative and referendum powers are contained in Article II of the California Constitution, wherein it states, “The initia-tive is the power of the electors to propose statutes and amendments to the constitution and to adopt or reject them.”

The increase in proposed initiatives is no surprise given that the low approval rating of the Legislature and the accessibility of the process. Only 19 percent of reg-istered voters approve of the job lawmakers are doing. There is a feeling out there that if they can’t do the job, the voters should do it for them. In order to file an initiative, the proponent need only draft a statute or a constitutional amendment and submit it to the Secre-tary of State along with a $200 fee. Although actually getting the proposal on the ballot requires signatures and funding, the process is fairly simple considering the policy issues at stake. Even the Daily Show recently fea-tured Democratic Party Chair John Burton in a spoof on how easy it is for voters to get measures on the ballot in California.

This election could potentially include a signifi-cant number of ballot measures that directly impact law enforcement. One proposal, “The Three Strikes Reform Act of 2012” would limit felonies that trigger the “third” strike to violent or serious crimes. Another proposal would require local authorities to issue con-cealed firearm licenses if certain criteria are met. An initiative to legalize marijuana is back again and would decriminalize marijuana use, possession, cultivation, transportation, distribution or sale for adults aged 19 and older and would exempt from regulation or taxa-tion up to three pounds of marijuana for personal use.

It comes as no surprise that a variety of pension reform initiatives are being proposed. One initiative would, for current employees, cap government contri-

butions to underfunded pension plans at 6 percent and 9 percent for public safety workers. For new employees, it would cap government contributions at 6 percent for most workers and 9 percent for public safety, limiting them to a 401(k) style plan. It would also prohibit pen-sion spiking. An alternative initiative would provide a “hybrid” benefit by combining a traditional pen-sion with a 401(k) style plan but it would cap annual pension payments at $100,000. This is similar to the Governor’s proposal, which he is hoping to get on the ballot. In a recent field poll, 51 percent of respondents supported raising the retirement age and requiring cur-rent employees to pay more toward their pensions.

And, of course, there is realignment. Triggered in October, realignment is now a reality. Multiple par-ties are seeking a constitutional guarantee of the current funding scheme created in the realignment legislation. These are intended to guarantee the stream of revenue from 1.0625 percent of the state sales tax and the 25.1 percent of the vehicle license fee dedicated to fund realignment.

The California State Association of Counties, the California State Sheriffs’ Association, and the Chief Probation Officers of California have submitted an ini-tiative that would constitutionally guarantee this funding mechanism. The measure would also guarantee funding of subvention programs, including the COPS program. The Governor also recently submitted an initiative that would temporarily increase the state sales tax and taxes on the wealthy for education. At the same time, the measure would guarantee the funding for realignment consistent with the scheme provided in the implementing legisla-tion. Discussions abound about the chances of success of the measures and whether a guarantee is enough or whether additional funding should be provided to cities for front line law enforcement. The politics of these mea-sures will be interesting to watch as we move closer to election time. By the time this article is published, there will be more clarity on what measures have qualified for the ballot and what the political dynamics are surround-ing each of them. The upcoming election year will decide the president, a host of legislative and congressional seats, and ballot measures that could change the landscape of California. r

Legislative UpdateBy Jennifer Wada

Jennifer Wada is an attorney, legislative advocate, and Chief Executive Officer of The W Group, LLC. She offers her clients a blend of strong advocacy, relationships at all levels of government, and a wealth of legislative and regulatory knowledge. She can be reached at [email protected].

legislative update

The increase in proposed

initiatives is no surprise given

that the low approval rating

of the Legislature and the

accessibility of the process.

Only 19 percent of registered

voters approve of the job

lawmakers are doing.

California Peace Officer | Winter 2012 | 7

Legislative UpdateBy Jennifer Wada

8 | Winter 2012 | California Peace Officer

C areer criminals, pedophiles and now greedy public safety employees all used to stir emotions of fear and resentment in the elec-

torate, but in reality used only to promote individual political agendas and to cover the mistakes of elected officials. Fear of career criminals and pedophiles spawned from the Determinate Sentencing Act, which Governor Brown signed into law during his first gov-ernorship, resulted in the passage of the Three Strikes Law. Governor Brown has since acknowledged in 2010 election that signing the Determinate Sentencing Act was a mistake.

Today, we are in the position of the career crimi-nal and pedophiles of the 90s and early 2000s. We are the new target, public employees, especially public safety employees—for the salaries and benefits that were negotiated and approved by the elected officials that govern our agencies. The top target is public employee pensions, something that causes anxiety for many of us, at least for this author it does. It is a reality we all accept. How did we get here? What might pension reform look like? Where do we go from here? For those of us reaching retirement age in the next few years, it really makes us start thinking about our futures in a different way. This author has asked himself several times; do I leave the career I love now or do I stick it out and see what happens? If you have not asked yourself these questions, then you have planned your life better than most of us have. Who would have thought after the outpouring of support we were shown following 9/11—after all, police and firefighters were the darlings of the media, politicians and the public—that we would ever be in this posi-tion? Not me.

How did we get here? Well, to steal a catch phrase from the 1992, “It’s

the economy stupid!” But the economy is affecting everyone, even us too, so why are we the demons? Think back to the 1990s, the private sector was boom-ing. Those of us who were around then recall many in law enforcement leaving for the big money and corpo-rate gymnasiums in private sector corporate security and investigations. Even though I was making less than $24,000 a year and my former co-workers were making six figures in the corporate world, I resisted the temptation to go corporate. Having been raised with a strong sense of public service and preferring the stability and benefits and knowledge that shortly after reaching age 52, I was eligible to retire with 75 percent of my salary (now 90 percent). Oh, and that 90 percent of salary, was thanks to the SB400 and the Santa Clara County Board of Supervisors.

In 1999, “the Legislature passed and Gov. Gray Davis signed SB 400, by Democratic Sen. Deborah Ortiz … [allowed] a far more generous formula for calculating the pensions of state employees” (“The saga of SB 400,” 2007). This is what led to many of us getting 3 percent at 50 or 55 benefits. It allowed local government employees to bargain for these increased benefits to match those that had been provided to the CHP. This new benefit was allowed at a time when PERS was super funded and the member’s agen-cies, including the state, were on a “pension holiday” (only the employee contribution was made, not the employer contribution). In addition, changes in the Government Accounting Standards Board (GASB) rules requiring the reporting of unfunded liabilities by government agencies in the wake of the banking

Public Pension Reform in CaliforniaBy Edward Laverone

pension reform

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California Peace Officer | Winter 2012 | 9

industry meltdown, brought unfunded lia-bilities to the forefront of discussions, when it had been swept into the closet for years.

As former Assemblyman and now Stan-ford University Professor of Public Policy, Joe Nation, put it “SB 400 was an enor-mous mistake” and may result in employer and employee contribution rates of 50 per-cent to 70 percent to make up the unfunded liability (J. Nation, personal communica-tion, October 31, 2011). Professor Nation said, “Poor planning… [And] an unwilling-ness to recognize the problem” by PERS has resulted in the problem compounding and being far worse that it should have been.

What might pension reform look like? There are a myriad of forms pension

reform is taking. There are several factors effecting pension reform, local measures, ballot initiatives and the state legislature. Local measures abound as shown at the November 2011, for example “more than two-thirds of San Francisco voters in Tues-day’s election supported Proposition C, which would increase contributions by some city workers and raise the minimum retirement age for some others to save $1.3 billion over the next decade” (Dearen, 2011). Mayor Chuck Reed is moving toward a 2012 ballot initiative to reduce liabilities in the City of San Jose pension system, among the targets are the guaran-teed 3 percent COLA that city workers enjoy, rebates to retirees when the fund exceeds investments returns, retirement age and contribution amounts.

In 2011, the Attorney General cur-rently lists (http://ag.ca.gov/initiatives/activeindex.php ) ten active initiatives that have received or are pending title and summary to address pensions, collective bargaining or political activity by public labor groups. These measures take many forms and will produce the most harm to our agencies and us.

Comprehensive pension reform will most likely come out of the legislature, and hopefully will be not just politically expe-dient but provide good public policy. On October 27, 2001, Governor Brown issued a 12-point comprehensive plan. The plan calls for the following:

1. Equal Sharing of Pension Costs: All Employees and Employers

Employees and employers should share the funding of annual normal pension costs equally.

Intensified Focus on Pension ReformBy Jennifer Wada

Following upon stories of pension spiking

and massive underfunded liabilities, the

focus on pension reform has only intensified.

A recent field poll indicates increasing

support for reform, with 51 percent of

respondents supporting some sort of reform.

In 2009, a similar poll found that only 32

percent of voters felt public pensions were

too generous. The state of the public pension

system is one of the most prevalent topics

under the Capitol dome. Many wondered

how far reform proposals would get, given

strong union opposition. However, the

union-backed Governor’s plan indicates

a movement towards sweeping change.

Although some surmise the Governor

merely introduced the plan to enhance

his credibility as a government reformist,

he continues to strongly advocate for it

publicly. The Legislature has held a number

of hearings on pension reform indicating a

realization that Californians are hungering

for change. And ballot measures could

circumvent the legislative process entirely

and result in the people deciding what to

do on public employee pensions. Pressure

for change is coming from all angles. At the

end of the day, it could be narrow reform

to prohibit pension spiking; or it could be

broader reform to increase retirement age

and mandate employee contributions. One

thing we know is that something will happen

to change the current system.

—Chief Craig T. Steckler

10 | Winter 2012 | California Peace Officer

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PUBLIC PENSION REFORMcontinued from page 9

Captain Edward Laverone is a 25-year veteran of the Santa Clara County Sheriff’s Office. He serves as the chair of CPOA’s Law and Legislation Committee and is a member of the California State Sheriffs’ Association Legislative Committee, representing Sheriff Laurie

Smith. Ed is currently assigned as the liaison at Stanford University and is pursuing a PhD in Business Administration with with an emphasis in Public Relations. Ed is a former Mayor and City Councilmember. Ed can be contacted at [email protected].

2. “Hybrid” Risk-Sharing Pension Plan: New Employees For employees [safety] who don’t participate in Social Security, the goal

will be that the defined benefit component will make up two-thirds, and the defined contribution component will make up the remaining one-third, of the targeted retirement benefit.

The State Department of Finance will study and design hybrid plans for safety and non-safety employees, and will fashion a cap on the defined benefit portion of the plans.

3. Increase Retirement Ages: New Employees The retirement age for new safety employees will be less than 67, but

commensurate with the ability of those employees to perform their jobs in a way that protects public safety.

4. Require Three-Year Final Compensation to Stop Spiking: New Employ-ees

5. Calculate Benefits Based on Regular, Recurring Pay to Stop Spiking: New Employees

6. Limit Post-Retirement Employment: All Employees7. Felons Forfeit Pension Benefits: All Employees8. Prohibit Retroactive Pension Increases: All Employees9. Prohibit Pension Holidays: All Employees and Employers10. Prohibit Purchases of Service Credit: All Employees11. Increase Pension Board Independence and Expertise12. Reduce Retiree Health Care Costs: State Employees

My plan will reduce the taxpayer burden for health care premium costs by requiring more state service to become eligible for health care benefits at retirement.

Local governments should make similar changes. (http://gov.ca.gov/docs/Twelve_Point_Pension_Reform_10.27.11.pdf )

Where do we go from here? CPOA, along with our partners at the California State Sheriffs’

Association and California Police Chiefs Association, will continue to work together to make sure that our agencies are not put in a posi-tion where we cannot recruit qualified persons, yet at the same time promoting the fiscal stability of our communities. In addition, the financial stability of our pension systems must be protected or it really doesn’t matter what we worked for.

The reality is that there will be pension reform, and we can either be part of the solution or sit it out and take an active role in crafting bills and educating members of the legislature. Our successors and we will pay for the mistakes of the past.

To put this into perspective for all of us, the following is my personal experience. In 2011, I went from paying $0 in retirement contributions to paying over $20,000 into PERS and $5,000 more for medical insurance. Yet, in the end we still have great retirement benefits and we have jobs. We must recognize that many of our neighbors are unable to have that security. Yes, our jobs are hard and dangerous, the scars many of us carry and the pain we feel daily is a price we pay. If we are in this business because we believe in public service, maintain perspective and recognize that we are very fortu-nate, then we must acknowledge that we have to share in the financial pain of many others in our community. I do rest a little easier know-ing that there are many views holding that vested rights are secure and changing them would violate the contracts clause of the United States Constitution.

When this article is published, there will likely be new bills addressing pension reform introduced and available for further analy-sis. Go to the CPOA.org website and Get Informed by clicking on the Advocacy page or by becoming an active member of the Law and Legislation Committee or other CPOA committee. r

References:Dearen, J. (2011). Pension reform measures watched across California. Retrieved from http://www.bakersfieldnow.com/news/local/133574888.html

The saga of SB 400. (2007). Retrieved from http://www.signonsandiego.com/uniontrib/20070529/news_mz1ed29middl.html

California Peace Officer | Winter 2012 | 11

realignment

Realignment and Law Enforcement in California By Sandra Spagnoli

Over the past year, CPOA leadership—and all our affiliated partners—have worked closely with the CDCR and

the Governor’s Office in talking through the finer aspects of this concept that emerged as “realign-ment.” Countless hours and conversations went into working through this concept. Now that realignment is in effect, we thought it would be interesting to go back to all our partners who sat around the table with us to see how the first few months of realignment were shaping up for their constituency members.

With input from California State Sheriffs’ Association, California Police Chiefs Associa-tion, California District Attorneys Association, and Chief Probation Officers of California, there seems to be a theme of both concern and hope-

fulness. Ultimately, there is agreement that this change will fail without proper and permanent funding. And that, of course, is the rub. The following months will reveal various initiatives and bills that will address this, but it remains to be seen how it will all play out. This is why our continued involvement remains critical to the process.

As a melting pot of law enforcement leader-ship, CPOA has always been well-positioned to not only have our finger on the pulse of the various thoughts and opinions of our diverse member-ship, but to bring those differing thoughts to the same table to be discussed in a collaborative man-ner. We remain committed to speak out and to do what is right for our members.  r

Sandra Spagnoli is the 2011-2012 CPOA President. She was appointed Chief of Police for the city of San Leandro in 2011 after serving as Chief of Police in the city of Benicia. She began her law enforcement career in 1983 as a Police Explorer. Sandra holds a master’s degree in public administration and a bachelor’s degree in human services management from Notre Dame.

As a melting pot of law

enforcement leadership,

CPOA has always been

well-positioned to not only

have our finger on the pulse

of the various thoughts

and opinions of our diverse

membership, but to bring

those differing thoughts to the

same table to be discussed in

a collaborative manner.

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12 | Winter 2012 | California Peace Officer

Making Public Safety Realignment WorkBy David L. Maggard, Jr.

Cities and counties throughout the state spent months preparing for the Octo-ber 1 implementation of Governor Jerry

Brown’s public safety realignment plan. Realign-ment is just what it says—the realignment of certain corrections and parole functions to the local level. Certain crimes that are classified as non-violent, non-serious, non-serious sex offense felonies now have their sentences served at the county jail level, rather than in state prison. After release from their sentences, non-violent, non-serious, non-serious sex offenders are supervised at the local level by probation and law enforcement.

Conversations regarding how prepared local agencies are to incarcerate and supervise offenders were as varied as the communities the offenders are now going to. The state gave counties flex-ibility to craft realignment plans that meet the particular needs of each county, which has con-tributed to the conversations. Some cities were successful in receiving some level of funding allo-cation to assist probation with supervision and suppression efforts. Some were less lucky. The experiences that the cities in Los Angeles will have as a result of realignment will continue to play out as implementation proceeds.

The California Police Chiefs Association was engaged with other public safety stakeholders in realignment discussions from the beginning. Because our members provide front-line law enforcement protection to 78 percent of Cali-fornians, the success or failure of realignment directly impacts our communities and we have an obligation and responsibility to work to ensure that it is successful. We believe that realignment has the potential to obtain better recidivism out-comes than the current system has provided and is a better response to the federal judges’ mandate to reduce the prison population than simply releas-ing prisoners.

The current system results in overcrowded prisons and unmanageable parole ratios and has failed–nearly 70 percent of people sent to state prison reoffend. And, the United States Supreme Court has recently directed that California reduce its prison population by at least 35,000 inmates.

Governor Brown’s realignment proposal will not result in the early release of a single inmate; and unlike current law, it provides for post-release supervision of all felons.

We believe that given the proper resources, local jurisdictions are better positioned to effec-tively supervise these felons and have a better understanding of available local resources to keep them from reoffending. There will be a flexibil-ity of response that is simply not available under the current system. With adequate, guaranteed funding, realignment has the potential to provide much better outcomes than we currently experi-ence.

That said, we are mindful of the enormous responsibility that will now rest on the shoul-ders of the local law enforcement community. Front line law enforcement plays a key role in realignment success. Factors important to success include:• Adequate funding and a permanent funding

source.• Proper use of realignment resources, includ-

ing funding for front-line law enforcement• Adequate supervision of post-release felons,

including home visits and no banked caseloads.

• Data sharing of offender information with local law enforcement.

• Necessary custodial capacity or adequate alternatives.

• Transparency and accountability to the public in the planning process.

While there may be some initial failures, we expect that the percentage of failures will be far less than the current 70 percent recidivism rate. Not enough time has passed yet for anyone to gauge any direct impact yet and it will likely vary county by county. The California Police Chiefs Association will continue to actively participate in the realignment process in order to assure that realignment in each county is implemented as effectively as possible. As the primary protectors of California’s communities, that is our funda-mental obligation.  r

realignment

We believe that realignment

has the potential to obtain

better recidivism outcomes

than the current system

has provided and is a better

response to the federal

judges’ mandate to reduce

the prison population than

simply releasing prisoners.

Irvine Police Chief David L. Maggard, Jr., is the President of the California Police Chiefs Association and has served on the board of directors for four years. He began his career in law enforcement with the University of California Berkeley Police Department and has been the Chief in Irvine since 2003.

California Peace Officer | Winter 2012 | 13

Making Public Safety Realignment WorkBy David L. Maggard, Jr.

realignment

Realignment and Its Monumental Shift of ResponsibilityBy Mark Pazin

California’s historic 2011 criminal justice realignment legislation has undoubtedly created significant challenges for local gov-

ernments since becoming operative on October 1, 2011. Despite these challenges, local government leaders have shown great leadership in helping to address the statewide budget deficit to improve criminal justice outcomes through the realignment of public safety functions.

It is important to note the context in which realignment was enacted:  an overwhelming and continued state budget deficit; expiring tax revenues for law enforcement (VLF); a federal three-judge panel ruling on overcrowding; and a lack of biparti-san cooperation, which limited many other options. The confluence of these factors played a major role in necessitating the California State Sheriffs’ Associa-tion (CSSA) and many of our county partners, to be a part of a statewide solution.

It is too early to cite specific successes as a result of realignment.  Moving forward, the California Department of Corrections and Rehabilitation’s (CDCR’s) population is expected to begin its decline, moving toward the targeted reduction imposed by the U.S. Supreme Court.  It will take much more time to determine whether or not realignment will successfully cut costs, improve local law enforcement supervision, or improve offender outcomes.  Those issues will likely be studied by government agencies, scholars and sociologists for years to come before there are any conclusions as to the real successes or failures as a result of realignment.

What is much easier to identify in the first few months following enactment are the hardships on local governments. Most notable among them is a tangible increase in jail populations from the influx of realigned offenders since October 1.  In the planning stage for realignment, the California Department of Finance (DOF) made estimates for population increases that sheriffs’ departments could expect as a result of realigned inmate populations including new offenders and parole violators.  A significant number of counties have reported jail population increases at a much higher rate than were expected based on DOF projections. It is possible this is the result of a short term bubble or it could be a sign of something more troubling and systemic. 

Other issues that have risen over the past few months include: the number of parole violators occupying jail beds, medical issues and associated costs from realigned offenders, and the aggregate length of jail sentences.  Due to “consecutive” sen-tences for multiple felony charges, some counties are already experiencing ten to 12-year sentence lengths for realigned inmates.

Realignment is a monumental shift of respon-sibility from the state to local governments.  This legislation will only be successful if the state pro-vides full, permanent and constitutionally protected funding to support the realignment process and corresponding program requirements.  At a state-wide realignment training on September 21, 2011, California sheriffs, along with probation, police and county administration officials applauded Governor Brown when the Governor said, “I am not leaving Sacramento until we get a constitutional guarantee to protect law enforcement and the whole realign-ment process so you get the funding you need to make the thing work.”  The Governor’s commitment to permanently fund this legislation is an important step in realignment’s success.

In a continued effort to obtain and secure a proper funding mechanism in perpetuity, on November 1, the California State Sheriffs’ Asso-ciation, along with the California State Association of Counties and the Chief Probation Officers of California, filed the Local Taxpayers, Public Safety and Local Services Protection Act of 2012 with the California Attorney General’s office. This statewide constitutional amendment, aimed for the November 2012 ballot, would protect existing revenues that are currently dedicated to fund public safety and other local services that were shifted to counties and local governments as part of the 2011 realignment legis-lation. The measure would prohibit the State from raiding or redirecting these funds in the future, and prohibit the legislature from shifting more responsi-bility to local governments unless the state provide funding to pay for the services. 

Provided realignment is fully and permanently funded, California sheriffs and their personnel stand ready to meet the challenges ahead, and work to make this sweeping reform successful. r

It will take much more time

to determine whether or not

realignment will successfully

cut costs, improve local law

enforcement supervision, or

improve offender outcomes.

Sheriff Mark Pazin has been the Merced County Sheriff-Coroner since 2002. He has been with the Merced County Sheriffs’ Department since 1981. He is currently the President of the California State Sheriffs’ Association. He received a Master of Arts degree in national security studies from American Military University.

14 | Winter 2012 | California Peace Officer

Crisis Breeds OpportunityBy Linda Penner

Clearly it is not news to anyone to say that realignment is a historic change in our criminal justice system, probably the largest change in our careers. It was embarked upon also for extraordinary reasons,

primarily to avoid an early release of 33,000 offenders from our state prison system or a cap on the prison population that would have backed that num-ber into our communities without resources to hold offenders accountable. That is what California was facing due to the U.S. Supreme Court ruling. As a result, this set an aggressive timeline in motion in which all of the system’s stakeholders had to develop a plan that could give us a fighting chance to comply with the order in a way that could keep our communities safe.

Sometimes crisis breeds opportunity. As structured, realignment could lead to a system with better outcomes, which simply means less victimiza-tion in our neighborhood. CPOC has always maintained the position that if appropriately funded and allowed to plan collaboratively, the current system could be improved.

So, in the first 60 days has some of this opportunity been realized? Of course it is too early to judge adequately. However, there have been posi-tive developments revealed in these early stages. One of those positive developments sounds simple, but will make a huge difference in our system—communication among state and local entities is at an all-time high. It clearly transcends beyond just words. Moving from a system that had two distinct jurisdictions that had their own “language” to a seamless system where the offender might be moving from one part of the system to another takes hard work and a lot of patience and “translation.” There is still a lot of work to be done, but early indications are good. The state is in a constant dialogue and solution-mode. More process and protocols need to be refined, but the state and local cooperation is at an all-time high.

We cannot ignore the ongoing challenges that lay ahead. First and foremost, will there be appropriate and stable funding to ensure locals can achieve the primary goal of making our communities safer? The Governor has been steadfast in his commitment to this goal; however, we all fell short of securing a Constitutional Amendment to truly protect the funding. We also cannot ignore that when realignment passed, much of the statutory and budget structure was developed around projections and estimates based on how we assumed the system would react to this massive change. We must be sure we are all assessing these projections. Early on there are some counties experiencing higher numbers than expected. Finally, we have to continue to educate all involved on all the statutory changes and the best practices in each of our roles as part of the system. We have to do what we know works, measure it and replicate it. r

realignment

As structured, realignment

could lead to a system

with better outcomes,

which simply means

less victimization in our

neighborhood.

Chief Linda Penner is the President of the Chief Probation Officers of California (CPOC) and the Chief Probation Officer of Fresno County Probation Department. You can contact Chief Penner at (559) 600-1294 or via email at [email protected].

California Peace Officer | Winter 2012 | 15

Crisis Breeds OpportunityBy Linda Penner

realignment

Realignment: The Most Significant Reform to California Sentencing Law in a GenerationBy Gregory Totten

On October 1, 2011, legislation enacting a massive criminal justice realign-ment went into effect. “Realignment” represents the most significant reform of California sentencing law in a generation and profoundly

changes the way many felony cases are handled. As realignment is implemented, our greatest challenge is to develop wide-ranging strategies to minimize negative effects and safeguard our communities from potential increases in crime.

To help prosecutors with this transition, the California District Attorneys Associ-ation (CDAA) produced a comprehensive legal summary of the changes realignment brings. CDAA has also participated in joint trainings on the topic of realignment with our justice partners and has held prosecutor-specific seminars to ensure that the law enforcement community has the necessary information and knowledge to implement this new way of doing business. These and related training materials are available online at www.cdaa.org.

Though realignment is still in its infancy, a few things have become clear. First, several counties have “received” significantly more offenders than was initially expected. And while we understand that advance population projections are nec-essarily imperfect, the second concern becomes amplified: the necessity of proper funding.

We must also make certain that the changes made by realignment do not impede the payment of victim restitution. The authority and infrastructure available to state corrections officials to help collect these funds must be extended to local gov-ernment. Restitution is a promise made to crime victims, and we must not permit realignment to break that promise.

In decentralizing state corrections, realignment has also created a void in terms of offender record-keeping and identification because there is no statewide equiva-lent to a California Department of Corrections and Rehabilitation (CDCR) number that follows each felon. This will present a number of issues that could be especially problematic for prosecutors when it comes to securing and proving prior convic-tions. This problem will be magnified by a system full of offenders with felony convictions who have never been incarcerated in a CDCR facility. A comprehensive arrangement that allows all law enforcement stakeholders to communicate and share information about offenders is vital to ensuring appropriate punishment for repeat offenders.

Measuring the successes and failures of realignment will be crucial. Prosecutors acknowledge the need for appropriate data collection.

Only time will tell whether this fundamental shift in sentencing policy is effec-tive in reducing recidivism and protecting the public. As prosecutors, we must remain vigilant to use the new law as effectively as possible. CDAA will continue to be engaged on all fronts because we are faced with an untested system with lives and public safety on the line. r

CDAA will continue to be

engaged on all fronts because

we are faced with an untested

system with lives and public

safety on the line.

Gregory D. Totten is the Ventura County District Attorney and president of the California District Attorneys Association. He can be reached at (805) 654-2500.

Live

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On the job, you need all the support you can get. The all-new Ford Police Interceptors are purpose-built to deliver. And deliver. The optional EcoBoost™ engine generates an impressive 365 hp. A new All-Wheel-Drive System manages that power to meet the rigorous demands of law enforcement and give offi cers the confi dence they need. And with a choice of two bodystyles that share common components, Police Interceptors can meet any agency’s vehicle needs. See just how well we’ve got you covered at fordpoliceinterceptor.com.

ALL-NEW POLICE INTERCEPTOR

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D19794-01017951FFLE 00263Consumer SpreadPark Prepress

2011 Police Fleet Ad

S. WatzN/AN/A

J. Wilson / trThe Park

14.75" x 9.5"15.75" x 10.5"18.5" x 11.5"CMYK

297 dpi100%100%

FFLE00263_D197940_CSpd_R07.inddN/AP. KirnerS. MillerN/A

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On the job, you need all the support you can get. The all-new Ford Police Interceptors are purpose-built to deliver. And deliver. The optional EcoBoost™ engine generates an impressive 365 hp. A new All-Wheel-Drive System manages that power to meet the rigorous demands of law enforcement and give offi cers the confi dence they need. And with a choice of two bodystyles that share common components, Police Interceptors can meet any agency’s vehicle needs. See just how well we’ve got you covered at fordpoliceinterceptor.com.

ALL-NEW POLICE INTERCEPTOR

18 | Winter 2012 | California Peace Officer

Dwight O. “Spike Helmick, Jr. began his law enforcement career with the Cali-fornia Highway Patrol in 1969. He served as an officer in Glendale until promoted to Sergeant in 1974 and transferred to South Los Angeles. In 1975,

he was selected to work in the patrol’s legislative office and came to Sacramento for that purpose.

Spike, as he came to be known by all of his colleagues, served in the legislative office for 11 years during which he was promoted to Lieutenant, Captain and Assistant Chief. In 1986, he was transferred to San Luis Obispo as Assistant Division Commander for the Coastal Division. In 1989, he was promoted to Deputy Chief and became Commander of that Division. Within a month of that promotion, he was selected by then Commis-sioner Maury Hannigan to serve as the department Deputy Commissioner. He served in that capacity for six years and, in 1995, was appointed as Commissioner by then Gover-nor Pete Wilson. He was reappointed to the Commissioner’s position by Governor Gray Davis in 1998 and again by Governor Arnold Schwarzenegger in 2003.

Service to CPOACommissioner Helmick joined the California Peace Officers Association in 1974.

He was an active member of the Law and Legislative Committee and assisted the asso-ciation in training law enforcement officers throughout the state as new legislation was adopted. He served on the Board of Directors from 1995 until 2003 when he assumed the presidency. During his term as President he enhanced the COPSWEST trade show and provided numerous leadership training classes.

Accomplishments Following his Tenure as CPOA’s PresidentCommissioner Helmick retired from the California Highway Patrol in 2004. In

retirement, he has been an adjunct professor at California State University, Long Beach, and has served as a consultant for a variety of organizations including the national Moth-ers Against Drunk Drivers organization. He serves on the Sacramento County Cordova Advisory Planning Commission and on the board of directors of four non-profit orga-nizations. r

A Look Back at CPOA’s Past Presidents

Dwight O. “Spike” Helmick, Jr. 2003-2004 CPOA PresidentBy Sal Rosano

Sal Rosano, retired Chief of Police of Santa Rosa Police Department, was the CPOA President from 1984-85. He is actively gathering CPOA historical information. If you would like to contribute, contact Sal at [email protected].

past presidents

continued on page 18 continued on page 20

California Peace Officer | Winter 2012 | 19

A Big SuccessBy Marc Shaw and Chris Eldridge

The 2011 COPSWEST was once again a success. If you were not able to attend, you missed out on a fantastic opportunity to learn about the most

cutting-edge products and services available to the public safety community.

The “Best of COPSWEST” awards were presented at the DoubleTree Hotel in conjunction with Monday’s Leadership Training Day. We had a record setting number of entries with a total of 43 entries this year. This year’s winners were:

Best Badge/Patch DesignOrange County Sheriff’s Department

Best Go Green EffortTacoma Police Department

Best Cold Case SolvedOrange County Sheriff’s Department

Best Specialty VehicleArroyo Grande Police Department

Best Cruiser DesignCitrus Heights Police Department

Best Motorcycle DesignCalifornia Highway Patrol

Best Canine CaptureLong Beach Police Department

A special thanks to the judges from the state of Utah: Chief Rich Gregory, Provo City Police DepartmentSergeant Cameron Platt, Salt Lake City Police DepartmentChief Wade Carpenter, Park City Utah Police Department

On opening day of the show, the 4th Annual Char-ity BBQ was held and 850 people enjoyed a sampling of items prepared by nine local law enforcement teams. Competing police departments included:

•Ontario Police Department•Redlands Police Department•San Bernardino Police Department •Banning Police Department•California Highway Patrol •Montclair Police Department•San Bernardino County Sheriff’s Department –

Yucaipa Station•San Bernardino County Sheriff’s Department –

Rancho Cucamonga Station•San Bernardino County District Attorney’s Office

PHOTOS COURTESY OF JOHN STANDISH

20 | Winter 2012 | California Peace Officer

VONS Supermarket donated hundreds of pounds of ribs and chicken. Mark Christopher Chevrolet and many other local establish-ments supplied side dishes, drinks, paper products and soft serve ice cream. After the proceeds were calculated, each BBQ team earned almost $1,000 for their selected charity! This event has become a COPSWEST tradition where it’s a win-win for all involved. Thank you Barbara White at Ontario Police Department for coordinating the donations and the chefs!

Placing 1st to 3rd place in their tri-tip were the following:1st place – Redlands Police Department2nd place – San Bernardino Sheriff Department (Rancho Cucamonga Station)3rd place – San Bernardino District Attorney’s OfficeThis year, COPSWEST had 260 vendors occupying more than 400

booths and over 2,000 registered attendees representing law enforcement agencies from 19 states and Canada. Whether they were there to partici-pate in the various training opportunities, attend emerging technology presentations, walk the tradeshow floor or network with other public safety professionals, it was obvious that the show provided something for everyone. As the tradeshow drew to a close, the excitement moved to the Auto Club Speedway in Fontana, where the 2011 Los Angeles County Sheriff’s Annual Law Enforcement Vehicle Test was held for the

third year. Sam Davis (Federal Signal) coordinated the track portion of this year’s event and did a remarkable job!

“Our 2011 vehicle test went well again this year,” said Max Thomp-son, Contract Program Monitor and LASD Law Enforcement Vehicle Test Manager. “We received positive feedback from the OEM’s, vendors and attendees,” he added.

The Los Angeles County Sheriff’s Department (LASD) has con-ducted specialized and in-depth testing of motor vehicles promoted for use in the law enforcement community since 1974. It is one of only two nationally sanctioned and recognized law enforcement vehicle tests. LASD’s testing procedures remain the most comprehensive and strenu-ous on the vehicles.

This one-day event is only part of the entire LASD vehicle testing procedures. Over 500 attendees were there to watch all of the new cars and motorcycles run on the high-speed course close by the course route. Attendees could also view the action inside a nearby large tent with a video feed being provided with Panasonic HD Broadcast cameras cour-tesy of Panasonic’s Broadcast Engineering Group.

We must thank our dedicated volunteer committee that made the show a success. Committee members included Craig Bassett (Bassett Sales Corporation), Sargeant Joe Chavez (California Department of Insurance Fraud Division), Sam Davis (Federal Signal Corporation), Ben Dawson

PHOTOS COURTESY OF JOHN STANDISH

California Peace Officer | Winter 2012 | 21

Thank You SponsorsCOPSWEST could not bring you the experience you’ve come to expect at the show without the support of our sponsors. The following companies

support law enforcement all year round and we hope that when you’re making purchasing decisions you’ll think of our sponsors first.

Thank you to the following COPSWEST sponsors:

PLATINUM SPONSOR

Panasonic Computer Solutions Company

BRONZE SPONSOR

Raytheon

FRIENDS OF COPSWEST

Ruger Law Enforcement

SymbolArts

(Sun Badge Company), Deputy Sheriff Mike Eckert (Los Angeles County Sheriff’s Department), Sergeant Tom Graham (California Highway Patrol), Lieutenant Phil Holder (Banning Police Department), Larry Hous-ton (Versatile Information Products, Inc.), Ken Kennedy (General Motors), and Captain Dexter Thomas (Ontario Police Department), as well as CPOA staff.

For those who participated in this year’s show, we certainly hope you found the experience worthwhile and enjoyable. If you were not able to make it to this year’s show, you missed out! In either case, mark your calendar for October 16 and 17, 2012, and plan to attend the 2012 COPSWEST show at the Ontario Convention Center.

Chris Eldridge currently is the Fleet Manager of the Western United States for Ford Motor Company.  He serves as the 2012 COPSWEST Tradeshow Committee Chairman. Chris is a graduate of Appalachian State University and has worked 23 years with Ford Motor Company, Marketing Sales and Service.  Chris has held multiple positions in Ford Sales Division and Ford Customer Service Division and he has worked directly with law enforcement for nine years.

California Highway Patrol Captain Marc Shaw, Commander of the Baldwin Park area, served as the 2011 Chair of the COPSWEST Tradeshow Committee and is a member of the CPOA Board of Directors. Captain Shaw holds a Bachelor’s degree in Management from Saint Mary’s College of California and is currently attending POST Command College Class 50.

PHOTOS COURTESY OF JOHN STANDISH

22 | Winter 2012 | California Peace Officer

T he event is happening Tuesday and Wednesday, March 27-28, 2012 in Sacramento. A legislative reception will kick off the program on Tuesday, March 27 from

5:00 p.m. to 6:30 p.m. The day-long program begins at 8:00 a.m. on March 28 at

the Sacramento Convention Center in downtown Sacramento. The collection of political expertise presenting at this estab-lished event in years prior has included the Governor, Senate President Pro Tem, Attorney General, CDCR Secretary, Cali-fornia Legislative Analyst, Director of Finance, as well as very informative legislative panel presentations. The day includes a luncheon and the presentation of the Bud Hawkins Memorial Law Enforcement Professional of the Year Award.

Time is built into the program from 2:00 p.m. to 5:00 p.m. on both days for attendees to go to the Capitol and meet with their legislators. These visits are strongly encouraged.

Legislative Day draws more than 250 law enforcement leaders and legislative coordinators.

Sponsors include:•CaliforniaPeaceOfficers’Association•CaliforniaPoliceChiefsAssociation•CaliforniaDistrictAttorneysAssociation•CaliforniaStateSheriffs’Association•CaliforniaNarcoticOfficers’Association•CaliforniaHighwayPatrol

Co-sponsors include:•CaliforniaReservePeaceOfficers’Association•CaliforniaLawEnforcementAssociationofRecords

Supervisors•ChiefProbationOfficersofCalifornia•PeaceOfficersResearchAssociationofCalifornia•CaliforniaCampusandUniversityPoliceChiefsAssocia-

tion•CaliforniaProbation,ParoleandCorrectionalAssociation•SouthernCaliforniaPublicSafetyDispatchers•CaliforniaDistrictAttorneyInvestigators’Association•CaliforniaCorrectionalSupervisorsOrganization•CaliforniaSexualAssaultInvestigatorsAssociation•CaliforniaAssociationofCodeEnforcementOfficers•CommissiononPeaceOfficerStandardsandTraining

Learn how the legislative process works, what critical legis-lative issues are facing public safety this year and how you can personally influence the outcome of key bills that will affect your agency and the profession.

For More InformationVisit the CPOA web site at www.cpoa.org for further details,

hotel information and a registration form. If you have any ques-tions, please contact the CPOA office at (916) 263-0541.

2011 Legislative Update ManualYour source for immediate information on close to 100 bills

signed into law last year that affect law enforcement. We’ve taken the guesswork out of changes in statutory law. A special section on important court decisions is included. Cost: $20 plus tax and shipping. Order online at www.cpoa.org under publications in the bookstore. r

Mark your calendars for the

20th Annual Law Enforcement Legislative Day

legislative day

Turning Challenges Into

OpportunitiesMonterey, CA

MAY 22-24, 2012

CAlIfornIA peACe offICers’ AssoCIATIon’s 2012 AnnuAl leAdership suMMit

www.cpoa.org

Mark your calendars for the

20th Annual Law Enforcement Legislative Day

24 | Winter 2012 | California Peace Officer

Preserving and enhancing the law enforcement human resource is a difficult enough task in the face of the normal stress and strain of

living in the post-9/11 world, but it becomes even more challenging when the employee routinely faces risks and working conditions well beyond the nor-mal realm of human endeavor. Today’s reality for law enforcement also includes threats to their security and well-being in the form of increasingly negative pub-lic perception, challenges to benefits and retirement funding (long part of the compensation for associated risk in the field), and diminished staffing and training opportunities as agencies struggle to fulfill the public mandate amid budget shortfalls.

Most readers would agree that law enforcement is a uniquely challenging and dynamic career field. Urgent warnings and dire predictions abound con-cerning the negative impact of stressors inherent in the profession. Law enforcement requires the officer to possess a myriad of skills and personality traits and to judiciously use them in a variety of unpredictable, demanding and threatening situations. Few would be willing to argue with the assertion that these indi-viduals find themselves in uniquely stressful, high risk and potentially traumatizing pursuits as part of their careers. As a result, most law enforcers can cite the statistics demonstrating the all too high cost of doing business in this industry. But, do we have to accept the disproportionately high rates of divorce, sui-cide, substance abuse and heart disease among other negative outcomes when choosing to stand with the badge?

Gordon Graham, former officer, attorney and co-founder of Lexipol, is quoted as saying, “If it’s pre-dictable, it’s preventable,” thus putting us of all on notice that these predictable outcomes of law enforce-ment stress must be conscientiously addressed to ‘shield’ law enforcement personnel from the prevent-able aspects of stress exposure. Fortunately, the last

couple of decades have increased our understanding of the influence of these stressors and several profes-sion specific protocols have been developed to address these predicted outcomes. Psychological services are not optional, they are essential in the law enforce-ment climate of this century if an organization wishes to function optimally and safeguard the social, emo-tional and physical well-being of its personnel.

Most agencies know something besides a protocol investigation should take place after critical inci-dents, such as an officer-involved shooting, death of a child, etc., but too often when we call for emo-tional back up, we simply lift the phone and utilize our “1-800-help-us-now!” line with little regard to the quality of care and credibility of the offered pro-vider. Research and practical field experience endorse an approach to Critical Incident Stress Manage-ment (CISM) programs and crisis intervention that enhance service delivery in this highly specialized field.

Every field develops through practice and policy a standard of care. Establishing an effective CISM pro-gram requires attention to five areas of development:

First, CISM programs should be comprehensive in nature identifying multiple tactical stress interven-tions, utilizing such interventions in combination to provide support to impacted employees, and covering the functional timespan of the critical incident event systematically so events do not get overlooked.

Second, research suggests that CISM services targeting highly specialized employee groups (think first responders) are best served by utilizing specially selected, trained and supervised peer support person-nel to enhance credibility and consistency within the program. The importance of a thoughtful approach to peer selection and the consistent training of peers within a recognized CISM paradigm is integral to acceptance by rank and file.1

Third, the research is unanimous in declaring that

Critical Incident Stress Management: The Standard of Care in Law Enforcement Support ServicesBy Elizabeth Dansie

Law enforcement

requires the officer

to possess a

myriad of skills

and personality

traits and to

judiciously use

them in a variety

of unpredictable,

demanding

and threatening

situations.

California Peace Officer | Winter 2012 | 25

no reactive response to crisis can replace the value of pre-incident training and preparation. Expos-ing law enforcement personnel to pre-incident stress awareness and resiliency training provides the most effective risk prevention in the CISM field. Addi-tionally, an informed employee becomes a partner and participant in their own recovery in the after-math of an incident, as well as being better prepared for a resilient response to traumatic events.

Fourth, provision for mental health consulta-tion and direction from a culturally appropriate and trusted source will do more to enhance CISM ser-vices than virtually any other procedure. Without this therapeutic alliance, peer support has no backup, individuals in crisis will often struggle to find assis-tance and clinical guidance will be lacking. Even smaller agencies can attain this standard of care by engaging a law enforcement specialized clinician for a limited number of hours or by joining a consortium of agencies utilizing a single clinician or group.

Fifth, CISM practice needs to be integrated via departmental policy into operational directives. Provision for the training of supervisory and com-mand personnel will ensure that critical incidents are addressed systematically, in a timely fashion and in a matter supporting impacted personnel. A program that is addressed in policy promotes acceptance by employees, answers questions related to protocols and endorses the confidentiality of the CISM setting.

Police officers are expected to make life and death decisions, with only seconds to assess the threat. Personnel routinely encounter belligerent, even dan-

gerous individuals and are expected to stifle any of their own human reactions to scenes that involve the worst that humanity has to offer. They do all of this on a daily basis in the context of their own lives and families. They are expected to listen patiently and react appropriately to the problems of a teen-age child or the stresses of their own relationships. Family members are not exempt from the reality of the challenges encountered by the law enforcement employee—a healthy employee is better able to man-age the significant challenges presented in the life of today’s law enforcer. We are all aware that the func-tional line between emotional well-being at home and on the job is blurry at best. The enhancement of our most valued human resource by providing sup-port in times of need is just good business sense.

CISM programs provide tremendous advantage to today’s law enforcement personnel, enhancing their sense of well-being, promoting resiliency and stress resistance2, increasing job satisfaction and providing support when the world seems to tilt on its axis. In a recent California Peace Officer, in an article titled, “Law Enforcement Budgets in a Falling Economy,” the authors state, “… as our departments decline numerically and programmatically, we will be more dependent than ever on the skills and abilities of the individual.”3 In an era where almost every-thing seems fair game to the parsimonious grappling of our budgetary woes, we can least afford to let our first responders down. In the words of Coach John Wooden, “Do not let what you cannot do interfere with what you can do.”4 r

Elizabeth Dansie, M.A. is the Owner of The Psychological Services Group serving as a Consultant, Responder and Trainer for Critical Incident Stress Management and Peer Support services to numerous law enforcement agencies in Northern California.

1 ICISF.ORG2 Kaminsky, et al. (2005) RESISTANCE, RESILIENCE, RECOVERY.3 California Peace Officer Fall 20114 The Wisdom of Wooden: My Century On and Off the Court 2010

26 | Winter 2012 | California Peace Officer

general counsel’s message

For years, law enforcement was provided with, basically, three types of “force” to be used—verbal orders, batons and guns.  That resulted

in significant litigation, in particular, and obvi-ously, regarding the use of deadly force. Over time, however, other weapons were developed to provide alternatives, primarily to the use of deadly force.  The bean bag shotgun, OC sprays, nets, electronic control devices (ECD), and pepper balls, to name a few, became standard equipment for officers.  None-theless, litigation regarding the use of force persisted and, in many cases, the allegation was the misuse of those very tools designed as alternative means for officers to deal with aggressive persons.

 Over the past decade but, in particular, over the past few years, federal courts throughout the country have evaluated cases which involved law enforce-ment’s use of many of those weapons designed to be less than lethal.  The primary issue in the litigation focused on whether force was appropriate and, if so, was the nature of the force used, justified under the circumstances?

  One of the most significant decisions in use of force cases  is Graham v. Connor, 490 U.S. 386 (1989),  wherein the United States Supreme Court  established criteria to consider when the government, through its agents, uses force on indi-viduals.   In Graham, the Supreme Court held that “the reasonableness of a seizure turns on whether officers actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them. . . .” 

The Supreme Court identified the three core fac-tors to be considered to determine the use of any force by law enforcement.  The Court held that “in evaluating the government’s interest in the use of force we look to: ‘(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight’.” 

The Graham court further noted that, “our inquiry is not limited to these factors. Rather, rec-ognizing that the ‘facts and circumstances of every excessive force case will vary widely,’ . . . our ulti-

mate inquiry addresses whether the totality of the circumstances justifie[s] a particular sort of seizure.” (Emphasis added.)

Pepper Spray and BatonsThe Ninth Circuit U.S. Court of Appeal held

that the use of OC spray, applied by Q-Tip to the eyes of passive demonstrators protesting a logging operation, was excessive.  In the case of Headwaters Forest Defense v. County of Humboldt, 211 F. 3d 1121 (2000) the court found that pepper spray “is designed to cause intense pain,” and inflicts “a burn-ing sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx,” as well as “disorientation, anxiety and panic.”

In the case of Doerle v. Rutherford, 272 F. 3d 1272 (9th Cir. 2001), which involved the use of the bean bag shotgun, on an unarmed man,  resulting in the loss of the subject’s eye, the Court of Appeal stated that “the gravity of the particular intrusion that a given use of force imposes upon an individu-al’s liberty interest is measured with reference to the type and amount of force inflicted.”  In addition, the court held that an officer must first warn the person before using such a weapon, when it is reasonable to do so.

In the recently decided case of Young v. County of Los Angeles, 655 F. 3d 1156, decided by the 9th Circuit in August, 2011, and which involved a traf-fic stop for no seat belt, the court specifically stated that the use of both pepper spray and a baton consti-tutes “intermediate force known to cause serious pain and to lead in some cases to serious physiological consequences.”    (Emphasis added.) However, what is also noteworthy, is that the court then stated, “whatever such force is ultimately labeled, there is no question that its use against an individual is a sufficiently serious intrusion upon liberty that it must be justified by a commensurately serious state interest.” 

In addition, the Young court noted that “the basic curriculum of the California Commission on Peace Officer Standards and Training (POST)

Less than Lethal Weapons Classified as an “Intermediate Level of Force”By Martin J. Mayer

California Peace Officer | Winter 2012 | 27

Martin J. Mayer is a name partner with the public sector law firm of Jones & Mayer and has served as General Counsel to CPOA for the past 25 years.

instructs officers that ‘the use of pepper spray can have very serious and debilitating consequences,” and that “‘[a]s such, it should only be generally used as a defensive weapon and must never be used to intimidate a person or retaliate against an indi-vidual.”

As such, it appears the court is saying that the classification of any weapon is not as important as the significance of the effect on individuals.  The same conclusions have been reached regarding the use of ECDs—commonly referred to as “Tasers.”

Electronic Control DevicesThe Young court stated that “of the three fac-

tors we traditionally examine in determining the governmental interest, the most important is whether the individual posed an immediate threat to officer or public safety.”  The court then cites to Bryan v. McPherson, 630 F.3d 805 (2010), which also involved a traffic stop of a person who was not wearing a seat belt.  The man was unarmed, approx-imately 25 feet away from the officer, and posed no immediate threat to the officer or anyone else, and “the facts suggest that [the suspect] was not even facing [the officer] when he was shot [with a taser].” 

 The Bryan court concluded that the use of an ECD was unwarranted and an excessive amount of force and held that “traffic violations generally will not support the use of a significant level of force.”  Furthermore, said the Bryan court, “while the com-mission of a misdemeanor offense is not to be taken lightly, it militates against finding the force used to effect an arrest reasonable where the suspect was also nonviolent and posed no threat to the safety of officers or others.”

  The Bryan court stated that “while by no means dispositive, that Officer McPherson did not provide a warning before deploying the [taser] and apparently did not consider less intrusive means of effecting Bryan’s arrest, factor significantly into our Graham analysis.”

 On October 17, 2011, the Ninth Circuit U.S. Court of Appeals issued a ruling in two cases, Mat-tos v. Agarano, 661 F.3d 433, and Brooks v. City of

Seattle, 599 F.3d 1018, which were combined by the court, involving the use of the Taser.   The court concluded, in an en banc decision, that under the circumstances of those cases, the use of the Taser was excessive and unconstitutional. 

In Mattos, an officer used the ECD on the vic-tim of domestic violence, who had called 911 for help, because she stood between the officer and the husband who was to be arrested.  As in Bryan, no warning was given prior to tasing the woman, nor was there any justification set forth for the use of the ECD.

 In Brooks, a woman who was driving her six-year-old son to school was stopped for exceeding the speed limit by 12 miles per hour.  She refused to sign the citation and refused to  get out of her car.  She was tased three times within one minute, pulled out of the car and placed, face down, in the road—she was seven (7) months pregnant!  The court found that to be excessive and unnecessary use of force, especially under the circumstances involved.

Conclusion  The availability of weapons designed to be

less than lethal is of paramount importance to law enforcement.  It is unfortunate that litigation will continue regarding the use of such tools but it is inevitable.  As such, what appears to be of great importance, is the development of appropriate policies and guidelines regarding the use of such weapons—when and  under what circumstances they will be deployed must be articulated and fol-lowed by appropriate training.

 It is probably impossible to eliminate such law-suits but, hopefully, liability can be substantially reduced and/or eliminated completely by recogniz-ing the analysis of the courts and informing officers of those decisions. r

general counsel’s message

28 | Winter 2012 | California Peace Officer

Unlike sheriffs, who answer to the electorate, and law enforcement managers whose employment is secured by an MOU, California police chiefs

usually are at-will employees who serve at the pleasure of a city manager or city council. With the average appoint-ment of a police chief lasting three years or less, there will come a time in every chief ’s career when politics, retirement, or a new job opportunity will mean parting ways with the employer. The terms on which that rela-tionship ends can be made more favorable with a good employment contract or agreement negotiated when the relationship begins.

Recommended Provisions in Police Chief Employment Agreements

Based on many years representing police chiefs throughout California, here are a few suggestions for terms prospective chiefs should try to include in an employment agreement:

1. Termination. The most important provision of any employment contract or agreement – other than compensation—governs how the employ-ment relationship terminates. For police chiefs, termination usually is “without cause”; i.e., the at-will nature of the appointment means the city can fire its chief for any reason or no reason, so long as the reason is not an illegal one. There are occasions, however, when a city moves to termi-nate a chief ’s employment “for cause” because of alleged misconduct or malfeasance. In both cases, there are minimum due process requirements that should be included in the employment agree-ment.

The Public Safety Officers Procedural Bill of Rights Act, sometimes called “POBAR” or “AB 301”, applies to police chiefs. (Gray v. City of Gustine (1990) 224 Cal.App.3d 621.) This means, as the statute provides, that

“[n]o chief of police may be removed by a public agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefor and an opportunity for administrative appeal.” (Gov. Code § 3304(c).)

However, this is not the same right afforded to other public safety officers under the statute. The Act recog-nizes the “at will” nature of police chief employment:

For purposes of this subdivision, the removal of a chief of police by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, for reasons including, but not limited to, incom-patibility of management styles or as a result of a change in administration, shall be suffi-cient to constitute ‘reason or reasons.’ (Gov. Code § 3304(c).)

Termination requires, at a minimum, notice of the reasons for the action and an opportunity for a “name-clearing” or “liberty interest” hearing before the appointing authority. (Gov. Code § 3304(c).) An ideal employment agreement will include a provision allowing for such a hearing even where the reason given for the termination is the city manager’s or city council’s “loss of confidence” in the chief ’s ability to lead the depart-ment. The purpose of the hearing is to give the chief an opportunity to address the manager’s or council’s concerns, preferably before the termination decision becomes final. (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795.)

2. Severance Pay. Provisions tying severance pay to the termination date can limit the finan-cial impact of unanticipated termination of the employment relationship. Severance pay or a “severance package” is an oft-negotiated item when a chief ’s employment ends prematurely.

legal service program news

Due Process, Exit Strategies and Golden Parachutes: Severance Clauses in Employment Contractors for Chiefs of PoliceBy Christopher W. Miller

Apply online at

www.cpoa.org for CPOA’s Legal

Service Program.

California Peace Officer | Winter 2012 | 29

Christopher W. Miller is the managing partner of the Labor Department at Mastagni, Holstedt, Amick, Miller & Johnsen. He has represented CPOA Legal Services Program members for over 14 years.

Provisions in an employment agreement that give a “baseline” amount to be paid in the event of severance will make it less likely the chief will be removed without compensation. A good employ-ment agreement might include a dollar amount for every year remaining on the agreement; e.g., “Police chief shall be paid $_____________ per year in the event the chief ’s employment is terminated by the employer less than two years from date of hire.”

3. Retired ID Card/CCW Permit. Police chiefs anticipating retirement from a position should ask for provisions governing issuance of a retiree identification card and carry concealed weapons permit. This is often a point of negotiation when I am representing a chief whose employment is end-ing in a forced retirement, or a retirement in lieu of termination, and disputes over the card and per-mit could be avoided by a provision the chief is to receive those items in the event his or her employ-ment ends in retirement.

4. Retiree Medical Benefits. As with most other senior public employees, retiree medical benefits are an important part of any police chief ’s employment agreement. Employers are required by the COBRA legislation to offer departing employees 18 months of continued medical coverage, with the employee paying the premiums. Employers also can offer an additional 18 months, for a total of 36 months, of coverage. Other medical coverage may be available through CalPERS.

At a minimum, an employment agreement should address the availability of retirement medical coverage, including extended coverage, through COBRA and/or CalPERS. Where the city’s management unit participates in a private health savings account through its labor asso-ciation, contract terms could include the city contributing to that account on the chief ’s behalf. A single, lump-sum payment for healthcare costs upon severance is less desirable because it is likely to be taxable and will not nec-essarily go toward medical costs.

5. Non-Disclosure/Confidentiality. Given the political and often public nature of a police chief ’s termination, confidentiality provisions in an employment agreement are critical. A typical provision should prohibit the employer representa-tives, such as the city manager or human resources director, from disclosing the circumstances of the termination without a waiver executed by the chief. The provision also can include language prohibiting the parties from making any disparaging remarks about the other.

Confidentiality or non-disclosure clauses do have limitations. Those portions of a police chief ’s severance agreement which do not reference personnel matters likely are subject to disclosure under the California Public Records Act. A confidentiality clause also will not prevent the anonymous bloggers, detractors and elected officials who are not party to the agreement from disclosing to the media—usually anonymously—the circumstances of a police chief ’s termination. In cases where the chief ’s departure has been a public and contested issue, I have included language providing for a joint press release to be issued by the police chief and the city.

Recent Court Decision Focuses on POBRA and Police Chief Employment Agreements

These issues came into play at the end of December, 2011, in a case involving a police chief ’s rights under his employment contract and the Public Safety Officers Proce-dural Bill of Rights Act. In Robinson v. City of Chowchilla (2011) 2011 WL 6450602, the Fifth District Court of Appeal found the city had dismissed its chief in violation of his employment contract and without affording him his rights under POBRA.

The city fired its chief without affording him the six months’ notice required by his employment contract. The contract renewed automatically unless the city (or the chief ) gave affirmative notice of its termination. The city also failed to provide the chief with the notice, statements of reasons, and opportunity for administrative appeal required under Government Code section 3304(c).

As a result, the court found the city was liable for dam-ages to its former chief amounting to the three-year term he was not permitted to serve because of the city’s violation of the employment agreement. Unfortunately, the chief ’s counsel failed to file a public entity claim for damages under POBRA and a wrongful termination claim, thus limited the chief ’s recovery.

There are many other terms important to police chief severance agreements, such as guaranteeing continued coverage by the city of any civil actions filed against the chief during or after the chief ’s departure; providing for notice of Pitchess motions or other requests for personnel information; and providing for cashout of accrued leave, holiday pay and other compensation. These are terms frequently negotiated as part of an “exit strategy” when a chief and city are parting under adverse circumstances. Many of these provisions, however, can be included in an initial employment agreement to avoid future disputes. r

PRESIDENT’S MESSAGEcontinued from page 4

30 | Winter 2012 | California Peace Officer

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Mastagni, Holstedt, Amick, Miller, Johnsen 31

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resource guide

long learner, Alana has continually sought new professional oppor-tunities and best practices for her department, the region and, most recently, national and international law enforcement. Her tireless work on behalf of victims will forever serve as a legacy. I thank CPOA for presenting Alana with this remark-able professional recognition.”

The Trail Blazer Award will be presented annually at the Women Leaders in Law Enforcement Con-ference, which will be hosted in Southern California next year.

As we head into the New Year, there will be many public safety challenges, but I see this as an opportunity to be engaged as law enforcement professionals. CPOA will continue to be present at the State Capital as your representa-tive on the most pressing issues facing our industry. Together we will work towards building a stron-ger public safety future.

Be Safe! r

California Peace Officer | Winter 2012 | 31

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