HomeMy WebLinkAboutNotice of Discipline_FN2020-0025 FN2020-0038 Notice of Intent to Discipline NOID11/30/21 Final Version
CONFIDENTIAL MEMORANDUM
IJ7 •
1
Date December 1, 2021
To: Blake Etherton, Police Officer
From: Rick Scott, Chief of Police
Via: Fred Mickel, Administrative Lieutenant
Re: NOTICE OF INTENT TO DISCIPLINE
Pursuant to Skelly v. State Personnel Board (1975) 15 Cal.3d 194, and the City of San
Luis Obispo Personnel Rules and Regulations, Section 2.36.320-350, 1 am
recommending that you receive a temporary pay reduction from Step 6 to Step 4 for five
pay periods, equivalent to a 40-hour unpaid suspension as a Police Officer with the City
of San Luis Obispo. In addition, I am recommending you be removed from all specialty
and collateral assignments including SWAT, Rangemaster, and Field Training Officer.
You will be eligible to retest for specialty assignments upon completion of the disciplinary
measures specified herein and after meeting otherwise required minimum qualifications
of any assignment you may pursue. You will also be required to attend remedial training
in de-escalation techniques, communication, and Lexipol Policy at a date determined by
your supervisor. If my recommendation remains unchanged following completion of any
pre -disciplinary review in this matter, then your temporary pay reduction will be effective
immediately following completion of the pre -disciplinary process and written notice of your
discipline.
The recommended discipline is based upon the following findings and the following
sustained policy violations:
FN2020-0025
1. Lexipol 300.3 Use of Force - Officers shall use only that amount of force that
reasonably appears necessary given the facts and totality of the circumstances
known to or perceived by the officer at the time of the event to accomplish a
legitimate law enforcement purpose (Penal Code § 835a). (Attachment 6)
2. Lexipol 300.3.2 Factors Used to Determine the Reasonableness of Force -
When determining whether to apply force and evaluating whether an officer has
used reasonable force, a number of factors shall be taken into consideration, as
time and circumstances permit (Government Code § 7286(b)). These factors
include but are not limited to:
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0) The availability of other reasonable and feasible options and their
possible effectiveness (Penal Code § 835a).
(m) Potential for injury to officers, suspects, bystanders, and
others. (Attachment 6)
Lexipol 339.5.10 Safety — Failure to observe or violating department safety
standards or safe working practices.
(d) Unsafe firearm or other dangerous weapon handling to include loading
or unloading firearms in an unsafe manner, either on- or off -
duty. (Attachment 6)
FACTUAL BASIS FOR RECOMMENDED ACTION
The above violations are based on your commission of the following acts or omissions.
Please note that I conclude that this intent to discipline reflects an appropriate level of
discipline based on any one of the above sustained violations independently. While all
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facts included in the two referenced investigations form the context for my analysis, my
conclusions regarding the level of discipline does not rely upon a final determination that
you have committed more than one violation, but instead reflect my conclusion that the
operational, tactical and judgment concerns raised by your conduct are similar in each
instance and, individually or collectively, warrant the level of discipline reflected herein.
Based upon both your admissions, and the materials enclosed for your review, I conclude
the following:
Although these are two different cases, they bring to light a pattern of questionable to poor
decision making in using force, resulting in unnecessary risk to your fellow law
enforcement partners and the public.
FN2020-0025
California State Law and Department Policy directly guide law enforcement actions
related to use of force, de-escalation, and the decision to use lethal force. Although the
use of lethal force was justified during the June 2020 SWAT callout, you failed to
recognize that there were no fewer than seven trained SWAT operators in a better (fixed,
kneeling/stabilized, closer, elevated, superior firearms etc.) shooting position than
yourself. This was evident during your interview, wherein you failed to recognize or
acknowledge judgement and tactical errors. Instead, you continued to justify your
discharge of your firearm in an unsafe location and manner. You stated this was based
on your extensive training, experience, and proficiency in firearms handling, which you
asserted enabled you to safely engage the suspect from your position over 100 yards
away, while walking and shooting from behind your partners, utilizing a weapon without
magnified optics. You were aware there was a sniper team behind you, in an elevated
position, with precision weapons designed for accuracy at long distances. You also failed
to take into account the volatility, fluidity, and unpredictability of the dynamics of a shooting
incident. Specifically, your decision making, and actions failed to account for the potential
that one of the officers in front of you could have stood up quickly or moved laterally into
your line of fire. While you state you have had extensive training in this specific tactic, in
the totality of the circumstances surrounding the incident there is no way for you to have
accurately assessed or known the training of the (mixed) team members in front of you
and their level of discipline or situational awareness of your changing position to have
remained stationary and/or out of your line of fire.
Instead of recognizing the extreme risk you created by shooting 10-15 feet behind your
partners from a standing, walking position over 100 yards from the target, you felt the
need to engage rather than defer to better situated law enforcement partners. You
showed a lack of global awareness during this incident that is unacceptable given your
level of firearms and SWAT training, and nine years of experience as a Police Officer.
You demonstrated a lack of restraint and trust in your fellow SWAT operators to fulfill their
duties and to engage the threat from the most safe and advantageous position. Your lack
of situational awareness, deficiencies in accurately assessing the necessity for you to
engage in the manner, and from the location you did, and your poor tactical decision
making put your team at significant and unnecessary risk. Your conduct raises serious
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concerns regarding yourjudgement in a fast paced, tactically sensitive situation, including
when and in what manner you use force, especially deadly force.
Through various national incidents involving police use of force, de-escalation tactics are
now required and a Police Officer's decision to use force and escalate a situation are
under scrutiny more than ever before. In response, the Police department has developed
a modern de-escalation philosophy and provided extensive de-escalation training to all
employees to better equip them in making the best decision to preserve life and the
community's safety and trust.
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Effective policing is built on trust and partnership with the community we serve.
Discipline is a two -prong exercise to ensure absolute accountability of all members of the
San Luis Obispo Police Department in their respective duties, both to the public and to
one another. The first objective of disciplinary action is to stop and correct the offending
behavior through internal accountability for misconduct, education and retraining to
ensure that Department policies and expectations are well understood and actions
warranting discipline are never repeated. To accomplish this, I am recommending the
minimum amount of discipline necessary to be effective and to communicate the
inappropriateness of your conduct under Department policies. The second objective is to
ensure public accountability and equitable treatment of those we serve, in order to restore
Lastly, I am deeply disappointed in having to administer said discipline. The main focus
of my job and that of my leadership team is to provide you the best tools, training,
organizational ethics and integrity to serve our community with honor and dignity so you
may protect life and the constitutional rights of others. You have fallen short of this mission
and compromised trust in the department, the safety and quality of work of others, and
this department's efforts to serve our community with uncompromised integrity and
professionalism.
All of these factors aforementioned, and the supporting materials contained within the
FN2020-0025 case files have led me to my
recommendation of a 40-hour unpaid suspension, to be served via an equivalent
temporary reduction of pay, as well as additional remedial training and removal from all
specialty and collateral assignments as referenced above. I have reviewed and
considered your entire personnel file in making the above recommendation and trust this
discipline will be sufficient to impress upon you the importance of the policies you have
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violated and to correct this behavior moving forward. All materials upon which the
recommended disciplinary action is based are attached to this Notice. You may review
your personnel file upon reasonable request by contacting the Human Resources
Department.
WARNING AGAINST RETALIATION
This provision is to notify you that it is against City policy and illegal to retaliate against
any person who has participated in complaining or providing information regarding
allegations of these matters. You shall not retaliate against any individual who has
participated or who you may reasonably anticipate will participate in any manner to this
matter, nor shall you attempt to influence any witness to this matter. Any retaliation or
undue influence by you or directed by you will be a separate and independent basis for
discipline.
RIGHT TO RESPOND
Pursuant to Skelly and the City's Personnel Rules and Regulations, you have the right to
respond to the proposed disciplinary action described in this Notice of Intent, either
verbally or in writing. You may respond through a designated representative, personally
in writing or any combination thereof. Your written response or request for a pre -
disciplinary conference must be received by me within five (5) business days, or by
Wednesday, December 8, 2021.
Although the pre -disciplinary conference is not designed to be a formal evidentiary
hearing, you may be represented by legal counsel or another individual of your choice.
Your failure to provide a written response or to request a pre -disciplinary conference will
constitute a waiver of your right to provide a response. Accordingly, my decision to either
sustain, modify, or reject this recommendation will be based upon a review of this Notice
of Intent and its attachments.
I shall provide you with written notice of my determination within three business days of
the pre -disciplinary conference, unless otherwise specifically agreed between us.
Acknowledgement of Receipt
You are hereby being provided with the Notice of Intent To Discipline as well as all
documentation/recordings contained in San Luis Obispo Investigation File # FN2020-
0025 and
Notice Received By:
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Print Name: PLA-kS) i -�• �
Signature: 1?k '
Date & Time Served: G6 yZ ,
Served by:
(Print and sign)
ATTACHMENTS for FN2020-0025
1. Notice of Investigation
2. San Luis Obispo Sheriff's Department Final Summary
3. Officer Etherton interview recording
4. Transcript of Etherton's interview
5. Interview questions
6. Lexipol policies
7. Etherton's POST Training Printout
8. Etherton's Lexipol Policy Acknowledgment Printout
9. "Shooter Positions" photos (both team and Etherton's position) obtained from SLOSO
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