The Erik Scott Case, Update 11.4: Negligent Retention?

Readers of Update 11.3 posted May 17 (here) will recall that I sent the link to that article to the primary local Las Vegas media outlets, encouraging them to follow up on the fact that Deputy Public Administrator Steve Grodin is a retired police investigator and would therefore have likely been aware that the search of Erik Scott’s home after his death was unlawful. It is, I suspect, surprising to no one that the media has yet to contact me or acknowledge receipt of my message. We shall see if they follow up.

Since that post, additional interesting facts have come to light regarding former officer Thomas Mendiola, the Metro officer who contributed four of the seven shots fired into Erik Scott. Mendiola, as those who have followed this series will recall, fired those shots at close range into Scott’s back as he was falling, face first to the pavement. Mendiola also testified that he did not actually know if Officer William Mosher—who fired the two shots that began the barrage of fire in the midst of a crowd of shoppers that Metro caused to simultaneously leave the Costco—fired the shots he heard or if Erik Scott fired, but this did not prevent his firing into the back of a man who he could not positively say actually presented a danger to himself or others, though he certainly came to appreciate the necessity of saying that at the Inquest.

The facts were presented in a brief May 19th article in the Las Vegas Review/Journal (here): Thomas Mendiola was not only suspended in January when it was revealed that he gave a firearm to a felon, he was still on probation and was fired by Metro in February. Mendiola faces from one to ten years in prison and up to a $10,000 fine if convicted. These developments are significant.

MENDIOLA’S METRO BACKGROUND:

While details are not available from Metro, it is known that Mendiola failed his first attempt at Metro’s police academy, which is 24 weeks long. It is not known why he failed or why he was given a second chance. In professional agencies, recruits who fail are generally not given a second chance unless that failure is due to something outside their control, something like an injury or family emergency, and even then unless the recruit shows obvious promise, a second chance is generally not granted.

In professional agencies, completing a basic academy is merely the first step for new officers, officers who are commonly on probation for at least the first year of their employment. During that probationary period, they may be dismissed at any time without cause or recourse. Police agencies generally do not abuse this power because it is expensive and manpower intensive to recruit and train new officers. They generally do their best to identify and dismiss those who are unfit to be police officers as early in the process as possible. It’s much less expensive.

In many professional agencies, after completing a basic academy, officers enter a field training program where they ride with experienced officers who have been trained to teach and evaluate new recruits. Eventually, over several months, recruits work their way through at least three separate trainers, taking on more and more responsibility as the trainers move more and more into the background, involving themselves only as absolutely necessary. Recruits who have difficulties in the program may be recycled, held back several weeks, or dismissed. It is likely that Mendiola participated in such a field training program as Metro does operate one, however, there is evidence to indicate that many of the officers in that program doing the training have relatively little experience. If this is accurate, it would go a long way toward explaining the behavior of Mendiola and many other Metro officers.

THE SHOOTING AND BEYOND:

At the time that Erik Scott was shot and killed, it now seems clear that Thomas Mendiola was a probationary officer, an inexperienced, untested officer, an officer who, faced with a situation in which he wasn’t sure who was shooting, at whom or why, fired four rounds into the back of Erik Scott. Considering his difficulties in the Academy, this may or may not have been an inevitable consequence of negligent retention.

I first began examining Mendiola’s problems in Update 10. Go to the Scott case archive and scroll down to reach that, and every other, update.

Negligent retention is a legal term referring to the duty of law enforcement agencies to fire officers who they know, or should have known, are unfit to serve as police officers. Failing to establish procedures to identify such officers, failing to follow those procedures, or simply failing to act when reasonable police officials in the same circumstances would have acted, subjects an agency to real civil liability. To that end, anyone suing such an agency will have great interest in all training and personnel records relating to an officer such as Mendiola.

Even if one believes that Thomas Mendiola (and Joshua Stark and William Mosher) were completely justified in shooting Scott, Mendiola’s difficulties did not start, or end, there. According to the affidavit supporting Mendiola’s arrest for giving a firearm to a felon, Mendiola engaged that felon—knowing him to be a felon—in working on his car. This is the first problem in this particular situation. No rational police officer will have anything to do with criminals, particularly convicted felons, off duty. Any rational officer knows that this is trouble of the first order, an extraordinarily stupid thing to do, and likely to get them suspended or fired. When a supervisor asks, “What the hell are you doing hanging around with a felon?” there is no convincing, reasonable reply. Competent officers know this and simply never put themselves, or allow themselves to be put, in such situations.

The second problem arises when Mendiola, over time, continues not only to maintain a relationship with the felon, but actually gives him a handgun as payment for services rendered. Again, the affidavit indicates that Mendiola admitted giving the gun to the felon knowing him to be a felon, and actually discussed with the felon the fact that he shouldn’t be giving him a gun! Such behavior does not inspire great confidence in Mr. Mendiola’s intellect or integrity as a person or police officer, nor does it inspire faith in Metro’s ability to hire and retain competent, rational police officers.

In questioning the actions of Metro in the past, I’ve wondered why Metro arrested Mendiola in the first place. The alleged crime only came to light during an apparently unrelated undercover operation. It need not ever have resulted in arrest. The public need never have known. Metro presumably wanted to keep Mendiola on the team, speaking the official line in the upcoming federal trial. So why did they arrest him?

A primary possibility is that Mendiola was developing a conscience and that possibility became known to Metro. A felony charge hanging over his head could be a powerful incentive to stick to the official story. But why did they fire him? Being arrested for a felony is more than sufficient grounds to fire a probationary officer, in fact, it would probably look very odd indeed if he was not fired. But how to keep him on the reservation when he is no longer a Metro officer? Simple. The threat of ten years in prison can be a powerful incentive. It’s true that a former police officer would likely not get jail time on his first, non-violent felony conviction under normal circumstances and in a normal jurisdiction, but Las Vegas is anything but normal, and a threat of prison, express or implied, would certainly be plausible.

The danger—for Metro--is that now Mendiola is likely feeling very much betrayed and is probably not feeling kindly toward Metro. Considering that he remains one of the principal targets of the pending lawsuit and that a judgment against him in that suit could easily bankrupt him for life, he is in a very bad position with only bad—for him—choices and worse outcomes. Of course, the ultimate threat is always hovering in the background. There is a great deal of desert surrounding Las Vegas and a great many bodies are buried there. Some turn up, from time to time. Thomas Mendiola would certainly know about such possibilities. I’d be surprised if he had not, in fact, been reminded of them in one way or another.

However, even if Mendiola is relatively fearless and willing to honestly depart from the official Metro story, if, for example federal agencies are quietly involved and offering him certain guarantees in return for such testimony, Metro will certainly portray Mendiola as an out-of-control cop they fired as soon as his lack of fitness for the job became obvious. Not only that, Mendiola will be portrayed as a convicted felon, and as such, completely unreliable. He’ll be painted as a disgraced former cop, a convicted felon with an ax to grind. Mosher and Stark, on the other hand, will be painted as heroes, valiant cops recognized by a national pseudo-police organization for their shooting of Erik Scott, a crazed druggie who endangered the public.

Who knows? If Mendiola performs appropriately, the felony might be plea- bargained down to a misdemeanor. The entire matter—like so much before it--might even fall down the Las Vegas memory hole. It’s not outside the realm of possibility that Mendiola might one day find himself wearing a Metro badge again.

FINAL THOUGHTS:

The attorneys for the Scott family will almost certainly want all of Metro’s personnel and training information on Mendiola and the other officers involved. Under the law, they are entitled to it. Whether Metro will provide it, or what will or will not be present in such files, is another matter. However, it now seems quite clear that Metro erred in hiring Thomas Mendiola in the first place, and certainly erred in retaining him. To what degree—if any--these oversights contributed to the death of Erik Scott will be a matter for a jury to decide.