SAN BERNARDINO DEPUTY
EXONERATED OF CHARGES
In August 1990, Deputy
Michael Fassari joined with four other deputies to serve a search
warrant at a residence in Apple Valley. At a briefing immediately
preceding the action, the deputies were told that there was a suspected
methamphetamine lab on the premises, along with numerous weapons, pit
bull dogs and four to six individuals.
One of the individuals
suspected of being on the premises was described as a "biker
type" and a fugitive with a history of violence, including
resisting arrest. Fassari followed other officers onto the grounds after
the lock on the front gate was cut, and he saw suspects standing by the
front door.
The deputies shouted their
identity, their purpose for being there, and demanded that the suspects
get on the ground. Suspect Morgan refused to comply with the deputies'
orders.
Morgan was forced to the
ground, after which he proceeded to reach inside his waistband with his
right hand. Deputy Fassari continually ordered that his hands be
extended out from under his body, commands which the suspect ignored.
Fassari began kicking
Morgan in an effort to get access to the concealed hand. Fassari finally
managed to kick the right arm away from Morgan's waistband, but Morgan
retained his left hand in the waistband area.
When the suspect did not
comply with the orders of Fassari and another deputy to have him remove
the left hand, Fassari dropped down on him to pin his hands and prevent
any aggressive action. The incident, which lasted only seconds, was
concluded when the left hand was secured by the deputies and the suspect
handcuffed.
In the process of the
events made necessary to arrest Morgan, he suffered several injuries.
The San Bernardino County District Attorney's office filed criminal
charges against Fassari, and he was fired from his position.
Fassari was subsequently
acquitted of the criminal charges, and a hearing officer found that
Fassari had committed no administrative misconduct. The Civil Service
Commission, however, concluded that Fassari had used excessive force
and, while it reinstated Fassari, it did so without base pay at a time
when Fassari had been without work for two years.
Fassari, represented by
Bill Hadden, Susan Silver and Robert Wexler, of Silver, Shaeffer &
Hadden, filed a Writ of Mandate in Superior Court seeking to challenge
the commission's decision. Conversely, the Sheriff's Department filed a
cross-complaint asserting that the commission had made a mistake
reinstating Fassari, and that he should be fired.
Superior Court Judge
James Edwards reversed the penalty assessed by the Civil Service
Commission, finding that the weight of the evidence at the
administrative hearing showed that the kicks and the knee-drop employed
by Fassari were both reasonable and necessary under the circumstances.
As the Court noted, "Once Morgan was on the ground, he made what
this Court finds is a clear, furtive movement with his right hand to the
waistband area of his right hip.
"Fassari testified,
and there is no credible testimony to contradict his testimony, that he
believed Morgan may have been reaching for a weapon ... The commission's
conclusion that Fassari's concern about a weapon was not credible is
contrary to the evidence."
The Court similarly
defended Fassari's use of the knee-drop, stating, "When he
succeeded in kicking Morgan's right hand and arm away from his right
hip, he employed a maneuver intended to pin Morgan's hands so that he
could not reach for or display a weapon. Falling with his full weight
onto Morgan's right hip and rib cage appear reasonable under the
circumstances to accomplish this objective"
Judge Edwards decision,
which carefully took into account the safety concerns of law
enforcement officers in making split-second decisions in the field,
required the county to reimburse Fassari for all lost wages and
benefits.
For Deputy Fassari, the
six year ordeal may still not be over, as the county is seeking to
overturn the judge's decision. He was, nonetheless, gratified by the
result and for the support that he has received from the Legal Defense
Fund.
"I am confident that what I did was
the right thing, and it feels good that a jury, a hearing officer, and
now a Superior Court judge all agree with me. But I never could have
done it without the tremendous help from the LDF and its attorneys who
have given me such great support."
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