HomeMy WebLinkAboutNotice of Discipline_Etherton Notice of Decision to DisciplineCONFIDENTIAL MEMORANDUM
Date: February 1, 2022
To: Blake Etherton, Police Officer
From: Rick Scott, Chief of Police
Via: Fred Mickel, Administrative Lieutenant
Re: NOTICE OF DECISION TO DISCIPLINE
After carefully considering your oral response and materials presented regarding
the Notice of Intentto Discipline atthe Skelly meeting on January 18, 2022,1 have
decided that it is appropriate to reduce the previous recommended discipline to a
two day, or 24-hour, unpaid suspension to be served on February 28, 2022, and
March 1, 2022. In addition to the 24-hour unpaid suspension, you are removed
from all collateral assignments, until such time you are able to demonstrate an
ongoing pattern of sound judgement, reapply, and are accepted to any collateral
positions.
During the Skelly meeting, I had an opportunity to hear from both you and your
Attorney Mr. Baumann. I appreciate your waiving the three (3) business day
requirementto render my final decision on this important matter. From this meeting
I was leftwith several points to consider, and I appreciate you providing additional
photos and graphs. Chief among these points was finding the right level of
discipline that is appropriate forthe violations of policy, balanced againstthe level
of discipline needed to correct the offending behavior, while ensuring improved
future performance. Of concern is the factyou either partially or completely did not
acknowledge or believe you had committed any policy violations with either
incident investigated, only agreeing these where perhaps procedural mistakes
which could be remedied by training alone. The case facts do not support this
perspective and on the contrary indicate several valid policy violations as noted in
the case files, each of which individually or collectively are subject to my final
decision of the imposed discipline. It is important for me to know that you
understand the policies at issue and your actions have violated both the
department and commu n ity's tru st. However, based on you rpast performance and
the uniqueness of the case(s) at hand and stresses involved, I find a reduced level
of discipline is acceptable to accomplish the objectives of progressive discipline.
do this in good faith to extend a measure of understanding and grace for whatyou
have been through in my expectation you will proactively demonstrate better
judgmentin the future. In addition, and by recommendation of yourcounsel, I also
agree and will ensurethat additional training for Use of Force and de-escalation
be provided to you. This training is not punitive but ratherwill help better educate
you on contemporary law enforcement practices, commu n ity expectations, and my
expectations as Chief for pol ice/citizen contacts.
In addition, during the Skelly meeting, I recited each of the charges of policy
violation againstyou, to which you responded via counsel thatyou feltthere were
no policy violations and/or disputed the "subjectivity" of the findings of the Internal
Affairs reports. Additionally, you also remarked that given your expert level of
training in Use of Force, you didn't believe your actions constituted a policy
violation in either shooting from behind and past other SWAT team members
duringthe Paso Robles Officer Involved Shooting (OIS) incident(FN2020-0025),
as well as,
. Your actions show a lack of self-
discipline or ability to examine and effectively implement alternative courses of
action under stress. In each instance, it is clear that you can and should have
made alternative tactical decisions, which surely could have led to saferconditions
Both incidents investigated show a pattern of "commitment bias", even when
ongoing reassessment of fluid situations is necessary and likely would have
resulted in a reason able office rwith similar experienceand training choosing better
andsafer alternatives. In
With regard to the Paso OIS, all of the SWAT team members in the area you were
assigned were for the most part all parallel to on a another, in an elevated position
of superiority to the suspect's location, and in fixed positions behind solid cover.
You, however, were openly exposed and moving back toward the group when the
shooting occurred. Given yourlocation, and it would have been virtually impossible
for each of your team members to have known your position and understood that
you were firing a weapon pointed at a downward angle to contact the armed
suspect. At any point, had one of the team members, who reasonably would not
have been anticipated fire from your location, been forced to abandon their
position, they easily could have traveled into your lineof fire. Whileyou maintain
thatyou were comfortably operating within you rabilityand skill level of training, not
all members in frontof you or nextto you that day were at yourlevel of training,
norcould they have expected rounds to come from you from that location; byyour
own assumptions provided regarding your positioning, you were at grade and
forward of the sniper'sabove grade position, and more than 90 degrees behind the
SWAT team members., . Without rehearsing these movements and/or actively
communicating this activity, this was a clear cause for concern andviolation ofthe
department's safety policy. You provided examples where similar types of other
styles of engagements could put officers in planned or anticipated crossfire or
staggered fire scenarios. Based on my understanding and your explanation, those
are highlycoordinated team movement engagements,well-rehearsed and purpose
specific, such as a vehicle assault and building clearing formation where each
member has a communicated assignment, role, and responsibility. This type and
level of operation and coordination was notin effectduring this portion of the Paso
incident according to your own statements, as well as those of the team leader. In
fact, there were officers in "your" group, from which you were detached, that were
not even members of the same SWAT team. It would have been virtually
impossible to predict their actions/reactions during an OIS, especially had there
been incoming rounds intothegroup's location.
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I spoke with the SWAT team command to inquire if this type of open field,
staggered fire movement was being trained or authorized and the response was a
resounding "no", specifically because of the inherentdangerof firing from behind
or over an officer's position. In the Skelly meeting you dispute your position as
recorded in the case file photos, even though you admitted to placing yourself into
that specific position, relative to the marked location of your expended rifle
cartridges on the ground. Further, you presented me with a scale graph of an
exercise you performed on you rown to recreate proximity to the expended casings.
I gave considerable weightto yourresearch and gaveweightto yourassertion that
your position was most likely further left and forward of your recorded position by
a number of feet. Even accepting this as true, this (new) position, was still
dangerously behind other officers and in a location where your teammates would
not have expected you to be firing. Thus, the same safety concerns are present,
even if we assume this new location is more accurate to where you were
positioned.
To be clear, your actions in engaging an armed and dangerous suspect were
legallyjustified. However, in a chaotic event such as this, it is shortsighted, unsafe,
and possibly reckless to have relied on all personnel forward of your position, some
of which were not even on your team, to stay put in their positions during the
firefight. Thankfully no officers maneuvered into yourline of fire, but had they, this
most assuredlywould have been serious or fatal and presented an unacceptable
risk, which you solely assu med without commu n ication or coordination with others
on scene. With this understood, I am also aware thiswas a chaotic situation and I
firmly believe that it was the intent of every officer, including you, to act with the
utmost bravery and professionalism to protect one another and to protect the
community. However, in the heat of battle mistakes do get made and even when
trying our best for the right reasons, we all must be accountablefor each action
and acknowledge and learn from our mistakes to ensure mistakes are not
repeated. In the Skelly meeting I asked you if, knowing whatyou know now about
the incident, you would do the same thing if this happened again. You responded
"yes", indicating you would shootfrom behind several other SWAT team members
who had the situation well under control with greater tactical advantage than
yourself. This gives me significant concern and I feel more training will be
necessary, so you are able to appreciate the error of your conclusion and
understand and implement best practices and departmental expectations.
In my thorough review of the charges against you, as well as our administrative
review of the case files, I find that each of the charges are correct and accurate in
application for the violations of policy committed in both the aforementioned
incidents. Given your eight plus years of experience with the department as a
police officer, and your advanced training articulated during our meeting, it was
clear you can recite the departments policies and expectations. However, I have
significant concern that you are not translating that knowledge consistently to
professional application, that you see little to no area for improvement, and that
you entirely disagree that you, in fact, violated the department's policies. Your
actions
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build back trust with communities across the country. In addition, your actions
during the Paso OIS were unsafe and possibly reckless, and outside of the norm,
a violation of department policy, thus causing significant concern from our team
leadership in your creating an unjustified riskand liabilityfor other police officers.
The tactics you deployed that day are not authorized forthe team and violate basic
gun safetyand discipline in a man nerthat actually putothers at risk.
With everything considered, I weigh all these things against the fact these were
very stressful, dynamic, and chaotic circumstances and as humans we are not
perfect and prone to making mistakes, especially during heightened incidents.
weigh these factors also against the fact you have been a valued member of the
department and I know you are more than capable of following policy, as per your
good personnel file. Ourfocus istreating ourcommunity members with dignityand
respect, andwe do this by utilizing consistentlysound judgment, de-escalation and
compassion, all of which we are expected to maintain even under stressful and
difficultcircumstancesand in difficult interactions with individuals.Asa department,
this is the standard we are continually working toward; I understand that people
will make mistakes as we continue to evolve as a department and a community.
With all things considered, I am lowering the recommended discipline from a 40-
hour unpaid suspension to a 24-hour unpaid suspension to be served at the
department's discretion. As we discussed in the Skelly meeting, I am confidentthis
discipline will serve its purpose and thatyou will be able to enhance yourskills and
move forward from this setback. I am glad you have rejoined our team in serving
ourcommunity and yourfellow officers and it is both my hope and expectation that
you r best work awaits you.
My decision to impose a 24-hour unpaid suspension is based on the following
findings and violations as outlined in the Notice of Intentto Discipline (Attachment
1):
A. Paso Robles Officer Involved Shooting — FN2020-0025
1. Lexipol 300.3.2 Factors Used to Determine the Reasonableness of
Force -When determining whether to apply force and evaluating whether
an officerhasused reasonable force, a numberof factors shall be taken into
consideration, as time and circumstances permit (Government Code §
7286(b)). These factors include but are not limited to:
0) The availability of other reasonable and feasible options and their
possible effectiveness (Penal Code § 835a).
(m) Potential for injuryto officers, suspects, bystanders, and
oth ers.
2. Lexipol 339.5.10 Safety — Failureto 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.
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FACTUAL BASIS FOR FINAL ACTION
The above violations are based on your commission of the acts or omissions
discussed above and as reflected in the investigative summaries of the incidents
asset forth below. Please note it is my conclusion thatthis level of discipline would
be warranted based on any one of the above violations and does not depend on a
conclusion thatyou have committed more than one violation.
Based upon notonlyyourabove admissions, but also upon the materials enclosed
foryour review, I conclude the following:
they bring to light a pattern of poor
judgmentand tactical decision making in using force, resulting in unnecessary risk
to you r teammates and the public.
Paso Robles Officer Involved Shooting — 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 Paso OIS, you failed to
recognize that there were no less than 10 trained SWAT operators in a better
(fixed, kneeling, closer, elevated, superior firearms etc.) shooting position than
yourself.This was evident during you rinterview as you continuedtojustifythat due
to your extensive training, experience, and proficiency in firearms handling, you
were able to safely engage the suspect from your position over 100 yards away
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while walking and shooting from behind your partners and without magn if ied optics.
You were aware there was a sniper team behind you in an elevated position with
precision weapons designed foraccu racy at long distances. You also failed to take
into account the unpredictability of dynamics of a shooting incident, and the
likelihood that one of the officers in front of you could have quickly stood up or
moved laterally into your line of fire. While you state you have had extensive
training in this specific tactic, there is no way to have known the training of those
in front of you and their level of discipline to have remained stationary and/or out
of yourline of fire.
Instead of recognizing the extreme risk you created by shooting several feet behind
your partners from a standing and/or walking position over 100 yards from the
target, you felt the need to engage. You showed a lack of situational awareness
during this incident that is unacceptable given your level of firearms and SWAT
training, and overeightyears of experience as a Police Officer. You demonstrated
the inabilityto show restraint and trust your fellow SWAT operators to fulfil their
duties andto engagethe threatfrom the most safe and advantageous position, but
instead put yourteam at significantand unnecessary risk.
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Effective policing is builton the basis of trust and partnership with the community
forwhich we serve. Incidents such as the abovementioned, degrade this trust and
violate the covenantwe have with our community. These actions delegitimize our
policing efforts and cause mistrust among those we serve. Three primary
responsibilities of police officers are to protect others, use the minimum amountof
force necessary to achieve a valid law enforcement objective, and to apply the law
consistently and equitably. Your actions have caused significant damage in the
eyes of our community, your coworkers, and for the Department.
Discipline is a two -prong exercise to ensure absolute accou ntabilityof all members
of the San LuisObispo Police Department in their respective duties. The first prong
is to correct the offending behaviorand to ensure the actions warranting discipline
are never repeated. To accomplish this, I am imposing the minimum amount of
discipline necessaryto be effective and to serve as a reminder to the significance
and importance of the policies violated. The second prong is to ensure
accountability, equitable treatment of those we serve, and to restore the agency's
trust and expectations, both intemallyfrom yourcoworkers and extemallyfrom our
community. This (level of) discipline will serve to communicate we take these
matters seriously and that these violations are unique to our organization and will
not under any circumstances be tolerated. Lastly, I am deeply disappointed in
having to administer this discipline. The main focus of my job and that of my
leadershipteam isto provideyou the best tools, training, organizational ethics and
integrityto serve ourcommunitywith honoranddignitysoyou may protect life and
the constitutional rights of others. You have fallen short of this mission and
compromised trust in the department, the quality of work of others, and this
department's efforts to best serve ou r commu n ity.
All of these factors aforementioned, your response at the Skelly meeting, and the
supporting materials contained within the FN2020-0025
internal affairs case files have led to my decision to impose a 24-hour unpaid
suspension, to be served via a temporary reduction, as well as removal from all
collateral assignments. I have reviewed and considered your entire personnel file
in making the above recommendation and trust this discipline will be sufficientto
correct this behavior moving forward.
RIGHT TO APPEAL
You have the right to appeal this matter to the City Administrative Officer (City
Manager) pursuantto Personnel Rules and Regulations 2.36.340 C., Disciplinary
action — Rightof appeal. Any employee suspended forfive days orless (less than
four days for employees represented by SLOPOA or SLOFA) under the provisions
of Section 2.36.330 shall have the right to appeal such disciplinary action to the
city administrative officer. The appeal shall be in writing and shall be filed with the
city administrative officer within fifteen business days following the effective date
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of the notice of decision on disciplinary action. The city administrative officer shall
meet with the disciplined employee if requested by the employee and conduct such
investigations as he or she deems necessary. His or her written decision shall be
final and shall be delivered or mailed to the employee within twenty business days
of the filing of the appeal.
If you choose to appeal this decision, please notify Derek Johnson, City Manager
at diohnsonCa)_slocity.org and copy Nickole Domini, Human Resources Director at
ndomini(a)-sloc'ity.org or 990 Palm Street, San Luis Obispo, CA 93401 in writing
before 5:00 PM on Wednesday, February 23, 2022.
WARNING AGAINST RETALIATION
This provision is to notifyyou that it is illegal and inappropriateto retaliate against
any person who has provided information pursuantto the investigation referenced
in this Notice. You may notmake anyadverse commentsto, or in anyothermanner
retaliate against, any individual who has provided information to the City of San
Luis Obispo regarding your conduct.
SIGNATURE: IoC '
RECEIVED:
Z Z 13ui,�E orHruvroiV
at Employee's Name
PERSONAL SERVICE WITNESSED BY:
DATE:.? / Z
Attachments:
1. Notice of Intentto Discipline
2. Skelly materials provided by Officer Etherton to Chief Scott
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