From: PORAC LDF
By: William J. Hadden, ESQ., 9/1/1996
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.”