DECEMBER 2001 ISSUE by wulinqing


                                             P.O. BOX 35688, LOS ANGELES, CA 90035
                                             January/February 2005 Issue
        2005 Officers and Board of Directors                                   President’s Message
                                                               My wife, Adele, and I have recently returned from
Marvin Goldsmith, (Senior Assistant Attorney General (Ret.),   two interesting trips, the Shomrim National
         Calif. Dept. of Justice)                              Convention in Florida and a Beth Jacob Mission to
                                                               Israel. Both were worthwhile. The National
                       1st Vice President
                                                               Convention as always was very nice. We meet again
Yehuda (Packman) Packer, (Detective, L.A.P.D.)                 with old friends and enjoyed being a part of the
                                                               national organization. The new venue was
                                                               exceptional due to the efforts of the South Florida
Glenn Crites, (Deputy Sheriff, L.A.S.D.)                       President (now Past President) Steve Leibowitz and
                                                               their Board Members Gregg Glasel (new President),
                      Board of Directors                       Barry Mankes, Steve Kaufman and about a dozen
Todd Silver, (Reserve Officer, L.A.P.D.)                       others. Scott Widitor and I made a presentation on
Sheldon Kaminsky, (Detective, (Ret.), L.A.P.D.)                Federal Civil Rights Actions. I have prevailed upon
Joseph V. Korpiel, (Reserve Chief, L.A.S.D.)                   Scott to take our outline and write a series of articles
Paul Hasson, (Chief Inspector, Customs & Border Protection,    on these actions, the first of which appears in this
         Dept. of Homeland Security)
Joe Rosen, (Lt. (Ret.) San Fernando Police Department)         issue of the Hashomer. The voting process for
Marc Cohen, (Reserve Officer, L.A.P.D.)                        National President was very contentious and not, in
Howard Gluck, (Ass’t Supervising Deputy City Attorney,         my opinion, according to “Hoyle.” I believe the new
          City of L.A.)                                        National President Art Krinsky, a retired FBI agent,
Neal Rein, (Lt. (Ret.), City of Simi Valley P.D.)
                                                               will do a good job. I wish him well in his endeavors.
                                                               The “Mission” to Israel was an unforgettable event.
Rabbi Dr. Henry Kraus, (Chaplain, L.A.P.D., L.A.S.D.)          We were able to appreciate the religious and
Rabbi Dr. Stephen Passamaneck, (Chaplain, B.A.T.F.)
Rabbi Chaim Kolodny, (Chaplain, L.A.P.D., Operations           archeological sites we had seen because of our
         Supervisor, Hatzolah of Los Angeles)                  excellent guide, who together with Rabbi Steven
                                                               Weil, of Beth Jacob, made the trip more meaningful.
                      Editor – Hashomer                        Although we have been to Israel many times we
Jon C. Olesen, (Sergeant (Ret.), L.A.S.D.)                     were never on a “mission” which, unfortunately, did
                                                               not give much time to devote to the many family
            Past President Members of the Board                members, nephews and nieces and their children and
Robert J. Spierer, (Chief (Ret.), L.A.S.D.)                    to our friends who now live in Israel.
Glenn Levant, (Deputy Chief (Ret.), L.A.P.D.
Hank Rosenfeld, (Chief, Univ. Calif. Riverside P.D.)           Please take a look at the Schedule of Events and
Harvey A. Cantor, (Lieutenant (Ret.), L.A.S. D.)               make note of the dates. All of us on the “Board”
Garrett Zimmon, (Commander (Ret.), L.A.P.D.;
          Chief, City of San Bernardino Police Dept.)
                                                               would like to see all of our members participate in
Leah S. Bergman, (Deputy District Attorney, L.A.)              our meetings and social events.
David J. Kalish, (Deputy Chief, L.A.P.D.)
Marvin Goldsmith, (Sr. Ass’t Atty Gen’l (Ret.),                May G-d grant Peace to Israel and its People
          Calif. Dept. of Justice)                             throughout the World.
Stu Maislin, (Commander, L.A.P.D.)
David Rosenberg, (Sergeant (Ret.), L.A.P.D.)
Todd Silver, (Reserve Officer, L.A.P.D.)                       Marvin Goldsmith, President
   2005 SHOMRIMSOCAL SCHEDULE OF                                           MAZEL TOV’S
                                                         To Rabbi Chaim Kolodny on being named the
February Meeting                                                L.A.P.D. West Bureau Chaplain
       Monday, February 7th at 6:00 P.M.                        Coordinator.
       Golan Restaurant
       13075 Victory Blvd. at Coldwater                  To Rabbi Steven Passamaneck, and his wife Connie,
       Van Nuys                                                 on becoming Grandparents of Delia
                                                                Graham, born November 12th 2004.
March Meeting
      Tuesday, March 15th at 6:00 P.M.                   To Past President David Rosenberg on his
      Café Blue                                                  retirement from the L.A.P.D.
      9618 West Pico Blv’d. at Beverwil
      (On the Ralph’s Promenade)                         To Larry Waldie on being named Undersheriff, Los
                                                                Angeles County Sheriff’s Department.
April Meeting
       Tuesday, April 19th at 6:00 P.M.                                   CONDOLENCES
       At a place to be determined.
                                                         To Marvin Goldsmith on the loss of his sister Jessie
Annual Banquet                                                 Verbin.
       Please reserve these dates as the Honoree
       and the date are to be determined:                   LAW ENFORCEMENT LIABILITY AND
       May 17, 18, 24 or 25th.                               IMMUNITY UNDER FEDERAL CIVIL
                                                                     RIGHTS LAW
    Sunday, July 17th at 12 Noon                                           By Scott Widitor
    Olympic Blvd @ Roxbury Drive                         This is the first in a series of articles that will
    Beverly Hills                                        generally describe governmental tort immunity and
                                                         liability under federal civil rights law. While the
STEAK “FRY”                                              focus is on 42 USC, Section 1983, the series will
   Sunday, August 21st at 4:30 P.M.                      start, by way of background, with a discussion of the
                                         law of sovereign immunity under California law.
                                                         The articles are based on a lecture given by Marvin
       (Goldsmith’s BBQ)
                                                         Goldsmith and Scott Widitor at the National
       229 South Clark Drive
                                                         Conference of Shomrim Societies in Miami Beach in
       Beverly Hills
                                                         early December 2004.
September/October Meeting
                                                         As you can imagine, it is impossible to cover all the
       Date to be determined.
                                                         issues created by such a vast area of law. The goal is
       In the Succah
                                                         to give you a basic working knowledge of the
       229 South Clark Drive
                                                         concepts with a focus on law enforcement activities.
       Beverly Hills
                                                         To this end, the articles will also attempt to provide
                                                         some interesting examples that illustrate the basic
Annual Meeting of the Board of Directors
                                                         principles. The articles are also intended to serve as
       and the Membership
                                                         a guide to further study, research and discussion or
       Wednesday, November 17th at 6:00 P.M.
                                                         debate - after all we are a Jewish group.
       At a place to be determined
                                                         Sovereign Immunity Under the ancient common
Hanukkah Party
                                                         law, the sovereign (including the constabulary) was
      Date and place to be determined.
                                                         immune from liability. It was often said that the
                                                         King could "do no wrong." This concept was

transferred to the United States as the concept of               Acts of Discretion The most fundamental common
"sovereign immunity." The concept of absolute                    law immunity, and the one most important to law
sovereign immunity has generally been abandoned                  enforcement involves lawsuits seeking damages
along with the notion that the king rules by divine              based on exercises of discretion. These decisions
right. That said, sovereign immunity still has a place           usually such involve issues such as whether to
in modern society, particularly when it comes to the             enforce the law, provide police protection, issue a
constabulary.                                                    permit or license, or arrest (or release) a prisoner or
                                                                 a suspect.
Some states claim their sovereign immunity and then
waive it under specified statutory conditions. Other             Discretionary decisions have been described
jurisdictions negate the concept of sovereign                    variously as 1) basic policy decisions, 2) decisions
immunity altogether and then re-enact portions of it             that require a weighing or balancing of risks, costs
through specific statutes. All jurisdictions retain              and benefits, 3) decisions that involve uniquely
many of their ancient immunities because, without                "public" (as opposed to private) functions, 4)
them public administration, including law                        specialized expertise. There's really no set definition
enforcement, would be difficult, if not impossible.              but, more often than not, a "judgment call" is
Modern American analysts have advanced two basic
justifications for retaining many of the concepts of             Ministerial Acts Conversely, an "operational" act is
sovereign immunity. The first is the separation of               one not necessary to or inherent in policy or
powers. In theory, we do not want to substitute the              planning, that merely reflects a secondary decision
judgment of the courts for that of the legislative or            as to how those policies or plans will be
executive branches of government.                                implemented. Perhaps the best way to illustrate the
                                                                 difference between discretionary and ministerial acts
Upon reflection, this rationale holds less weight                is to provide a couple of simple examples in the
today than it did in the 18th century. Once merely               context of law enforcement.
has to scan the headlines to realize that the courts are
always intervening in legislative or executive                   For example, if a potentially dangerous mental
functions by issuing injunctions, declaring laws                 patient was apprehended and later released, the
unconstitutional, or issuing writs declaring                     decision to release would be a discretionary act.
governmental actions to be "arbitrary and                        Should the patient unfortunately kill someone after
capricious."                                                     his release, the victim's family would be barred from
                                                                 suing for damages. If however, the wrong patient
Still, the concept has some validity. Immunity is                were released, that would be a ministerial act for
designed to protect governments and public officials             which the public official and his or her employer
from suits for damages as opposed to injunctive                  would be liable.
relief. In addition, judges will, at least in theory,
refuse to overturn decisions made by public officials            As another example, the decision to issue a driver's
absent a blatant abuse of discretion or a total lack of          license to a frail elderly man who runs off the road
evidence to support a decision.                                  and kills a pedestrian is an act of discretion. Issuing
                                                                 the license erroneously after the elderly gentleman
The second, and more significant, justification for              failed the eye test would be a ministerial act.
modern concepts of sovereign immunity is the
"chilling effect" on public service that a rule of               Special Relationships Despite these immunities,
general liability would produce. If public officials,            many jurisdictions, including California, recognize
including law enforcement officers, were liable in               liability where a government official induces
the same manner as ordinary citizens, no one would               reliance by a citizen. For example, if a police officer
enter responsible positions in the public service                explicitly promises to protect a citizen from a
sector. Very few public officials would exercise his             particular threat and hereafter is negligent in
or her "best" judgment on behalf of the public if it             providing that protection, both the entity and the
involved potential personal liability.                           officer will be liable. The theory is that the officer
                                                                 entered into a "special relationship" with the victim

that transcended the duty owed to the general public.           provisions. The following are some examples of
While immunity is the rule in these situations, the             statutes that deal with issues directly to law
doctrine of the "special relationship" is an important          enforcement activities.
                                                                Rendering Assistance to Motorists 820.25. (a)
Historical Common Law Liability and Immunity                    For purposes of Section 820.2, the decision of a
In California Californians can sue public entities              peace officer, as defined in Sections 830.1 and 830.2
under the provisions of the Tort Claims Act 1963 -              of the Penal Code, or a state or local law
The legislative provisions are found in the                     enforcement official, to render assistance to a
Government Code, starting at Section 810.                       motorist who has not been involved in an accident or
                                                                to leave the scene after rendering assistance, upon
California's scheme was the result of the California            learning of a reasonably apparent emergency
Supreme Court's complete rejection of the doctrine              requiring his immediate attention elsewhere or upon
of sovereign immunity in 1961 in Muskopf v.                     instructions from a superior to assume duties
Corning Hospital Dist., 55 Cal.2d 211. ("The rule of            elsewhere, shall be deemed an exercise of discretion.
governmental immunity for tort is an anachronism,               (b) The provision in subdivision (a) shall not apply if
without rational basis, and has existed only by the             the act or omission occurred pursuant to the
force of inertia . . . None of the reasons for its              performance of a ministerial duty. For purposes of
continuance can withstand analysis. No one defends              this section, "ministerial duty" is defined as a plain
total governmental immunity.")                                  and mandatory duty involving the execution of a set
                                                                task and to be performed without the exercise of
Until then, California, like many other states, had             discretion.
relied on vague statutes and court decisions to
establish rules of governmental immunity and                    Enforcement of The Law 820.4.A public employee
liability. In the face of what can only be called a             is not liable for his act or omission, exercising due
momentous decision, the California Legislature was              care, in the execution or enforcement of any law.
forced to "re-enact" the common law concepts of                 Nothing in this section exonerates a public employee
sovereign immunity.                                             from liability for false arrest or false imprisonment.

Government Code Section 815 establishes that                    Adopting or Failing to Adopt an Enactment 821.
generally "a public entity is not liable for an injury,         A public employee is not liable for an injury caused
whether such injury arises out of an act or omission            by his adoption of or failure to adopt an enactment
of the public entity or a public employee or any                or by his failure to enforce an enactment.
other person." Government Code Section 815.2
thereafter establishes that "a public entity is liable          Issuing or Denying A License or Permit 821.2.
for injury proximately caused by an act or omission             A public employee is not liable for an injury caused
of an employee of the public entity within the scope            by his issuance, denial, suspension or revocation of,
of his employment if the act or omission would,                 or by his failure or refusal to issue, deny, suspend or
apart from this section, have given rise to a cause of          revoke, any permit, license, certificate, approval,
action against that employee.                                   order, or similar authorization where he is authorized
                                                                by enactment to determine whether or not such
Government Code Section 820.2 then sets out the                 authorization should be issued, denied, suspended or
basic immunity: "Except as otherwise provided by                revoked.
statute, a public employee is not liable for an injury
resulting from his act or omission where the act or             Failure to Inspect or Negligent Inspection 821.4.
omission was the result of the exercise of the                  A public employee is not liable for injury caused by
discretion vested in him, whether or not such                   his failure to make an inspection, or by reason of
discretion be abused."                                          making an inadequate or negligent inspection, of any
                                                                property, other than the property (as defined in
In addition to the general discretionary immunity set           subdivision (c) of Section 830) of the public entity
forth in Government Code Section 820.2, the                     employing the public employee, for the purpose of
Legislature has enacted several more specific                   determining whether the property complies with or

violates any enactment or contains or constitutes a              Constitution, laws and regulations of the Federal
hazard to health or safety.                                      Government.

Malicious Prosecution 821.6                                      Although the scope of 1983 of liability is limited to
A public employee is not liable for injury caused by             rights and privileges granted under federal law, the
his instituting or prosecuting any judicial or                   courts have interpreted Section 1983 very broadly.
administrative proceeding within the scope of his                As a result, a pattern of immunity has developed
employment, even if he acts maliciously and without              which is closely related to traditional concept of
probable cause.                                                  sovereign immunity under common law. Without
                                                                 these broad exceptions, public service in the United
Failure to Provide Police Protection 845.                        States would have been crippled.
Neither a public entity nor a public employee is
liable for failure to establish a police department or           Future articles in this series will be devoted to
otherwise to provide police protection service or, if            explaining 42 USC, Section 1983 and the
police protection service is provided, for failure to            immunities that have developed since its enactment.
provide sufficient police protection service . . .
Failure to Arrest 846.
Neither a public entity nor a public employee is                 A man walks into a synagogue in New York with a
liable for injury caused by the failure to make an               dog. The shammas runs up to him and says,
arrest or by the failure to retain an arrested person in
custody.                                                         "Pardon me, this is a house of worship! You can't
                                                                 bring your dog in here."
Although these statutes may seem redundant, the last
43 years have been characterized by a tendency of                "What do you mean?" says the man, "This is a
the California courts to try limit immunity. Ever                Jewish dog. Look!"
since the California Supreme Court's initial
destruction of the common law doctrine of sovereign              And the shammas looks carefully and sees that in the
immunity, the Legislature has repeatedly been called             same way that a St.Bernard carries a brandy barrel
upon to expand and specify the statutory basis for               around its neck, this dog has a tallis bag around his
sovereign immunity through a comprehensive                       neck.
scheme of legislation.
                                                                 "Spot," says the man, "Daven!"
Liability Under 42 USC, Section 1983
First passed in the post-civil war era to protect the            "Woof!" says the dog, stands up on his hind legs,
rights of ex-slaves, the Federal Civil Rights has been           opens the tallis bag, takes out a kipa , and puts it on
amended numerous times. Section 1983 was enacted                 his head. "Woof!" says the dog again, opens the
on April 20, 1871 as part of the Civil Rights Act of             tallis bag, takes out a tallis and puts it around his
1871, and is also known as the "Ku Klux Klan Act"                neck. "Woof, woof! says the dog, takes out a siddur
because one of its primary purposes was to provide a             and starts to daven.
civil remedy against the abuses that were being
committed in the southern states, especially by the              "That's fantastic," says the shammas, "absolutely
Ku Klux Klan. While existing state law theoretically             amazing, incredible! You should take him to
protected all citizens, governmental officials,                  Hollywood, get him on television, get him in the
including law enforcement officers, often violated               movies; you could make a million dollars off of
the basic civil rights of African-Americans.                     him!"

Over the past 40 years this new form of "tort"                   "Oy!" says the man, "You talk to him. He wants to
liability has come of age. While state laws were                 be a doctor."
often based on ancient common law, Section 1983
facilitates the enforcement of federal rights,                   If you enjoy “Giggles,” feel free to contribute
privileges and immunities contained in the                       more. We will include as many as space allows!
                        SHOMRIM SOCIETY                                     Renew Now For 2005!
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                   Why Bury?                                       eventually be a shortage of space in the world
                                                                   and so it is better not to have cemeteries. They
  Elie Spitz From "Wrestling With the Angel:                       tell you that cremation is quick and simple and
   Jewish Insights on Death and Mourning"                          less painful than burial in the earth.
           1995; Editor: Jack Reimer

A new trend has developed in recent years                          Whatever the reasons for this new trend, Jewish
among non-Jews, and then, because Jews live in                     teachers continue to resist it. There are at least
the midst of a non-Jewish culture, among Jews                      three reasons why the Jewish tradition opposes
too. It is the tendency to cremate instead of to                   cremation: our theology, our memory, and our
bury.                                                              concern for the welfare of the mourner.

What is behind this trend? Perhaps the main                        First: theology. In the Jewish tradition, that
motivation is that cremation is much cheaper;                      which was once holy remains holy, and so the
there is no casket to purchase, no grave to                        body is to be treated with respect, even after the
choose. But people are reluctant to give such a                    soul departs. The tradition opposes self-inflicted
crass reason and so they offer nobler-sounding                     wounds, intentional scarring, and tattoos,
explanations. They tell you that there will
because the body is ours only on loan.                A grave is an address to which a family can
Ultimately it belongs to G-d.                         come ever afterward in order to commune with
                                                      its memories. Some people have told me that
Even after death, the body is to be treated with      they want to be cremated because they know
reverence. Kavod ha-met, reverence for the            that "no one will ever come to visit or to take
dignity of the dead person, is the key to the         care of the grave anyway." We can sympathize
manner in which the body is to be washed and          with the pain that is reflected in such a
dressed, purified and guarded, until the burial.      statement, but it expresses a lack of trust in the
Burning the body is seen in our tradition as a        family and in the community. Each person
desecration of what was once holy.                    deserves a place and each family needs an
                                                      address to which it can come in order to
Second: memory. It is hard to comprehend how          remember, in order to take strength, in order to
in this generation, which is just once removed        give and to receive forgiveness, and in order to
from the time of the Holocaust, we can think of       learn lessons in how to live.
burning a body. Millions of our people were
cremated in the death camps, and so cremation         For all these reasons, we continue to resist the
conjures up for us the horror of that time when       trend toward cremation.
Jewish bodies were treated as worthless.
                                                      Congregation Beth Shalom of Santa Clarita is
Third: concern for the welfare of the mourner.        an official participant in the Premier Pre-Need
Burial helps the mourner by providing a sense         Program of Mount Sinai Memorial Parks and
of closure. When the mourner sees the coffin          Mortuaries. This article is part of a series on
being lowered into the earth and when he hears        Jewish thoughts on commemoration and
the sounds of pebbles and soil hitting the coffin,    memory provided by Mount Sinai Memorial
it hurts terribly, but from that moment on he         Parks and respectfully submitted by Hal Wexler,
knows that death is real.                             Advance Planning Representative.

We may know intellectually that our loved one
has died, but at some level it is very hard to               NATIONAL SHOMRIM AND
really comprehend it. It is not unusual for a              SHOMRIMSOCAL ON THE WEB
person to come back from the funeral and half-
expect, half-hope, that the loved one will be         Visit our website. We’re at
there to meet him. Until and unless we perform just a click away. It has
the physical acts that mean goodbye, we are           active links to other Shomrim sites, including
blocked from being able to come to terms with         the National Conference of Shomrim Societies.
reality and being able to heal. Cremation always      The National Conference of Shomrim
takes place out of sight of the family, for it is a   Societies’: Visit the
violent act. And so, for the mourner there is no      website, sign the guestbook, and leave your
act that marks closure.                               comments.
                                           By Bernard Melamed, CPA

Tax time has arrived and the information below lists Law Enforcement deductions that are available to you, less
reimbursement; and indicates where they should be deducted on your tax return.

                                       Amount                                                      Amount
AMMUNITION                                            EQUIPMENT
ASSOCIATION DUES                                           Wrist Watch
WEAPONS                                                    Watch Band & Repairs
      On Duty                                              Hand Cuffs & Cuff Case
      Off Duty                                             Brief Case
      Grips                                                Flash Lights & Batteries
      Gun Bluing                                           Tape Recorder & Tapes
      Gun Repairs                                          Binoculars
      Gun cleaning supplies                                Camera & Film
EDUCATION EXPENSE                                          Ammunition Holder
     Tuition                                               Ammunition Magazines & Clips
     Books and Supplies                                    Keepers
                                                           Key Holder
TELEPHONE                                                  Badge Tabs
     Message Units                                         Belts
     Coin Telephone                                        Holsters
                                                           Badge Holder
PUBLICATIONS                                               Citation Book
      Thomas Guide                                         Patrol Box
      Davis Books                                          Whistle
      Penal Code                                           Mace Case
      Manuals & Journals                                   Bullet Proof Vest
                                                           Duffle Bag
UNIFORMS                                                   False Arrest Insurance
      Pants, Shirts & Jackets                              Brass & Copper Cleaners
      Shoes & Repairs                                      Pens, Pencils & Clip Board
      Rain Gear
      Hats, gloves, Belts & Ties                               TOTALS TO SCHEDULE A
      Name Tags & Emblems
      Shoe Shine Kit                                  MILEAGE AND TRAVEL EXPENSE
                                                            Station to court Mileage
UNIFORM MAINTENANCE                                         Miles
      Cleaning & Laundry                                    Education Mileage
      Tailoring                                             Miles
      Uniform Repairs                                       Special Detail Travel Expense
                                                            TOTALS TO FORM 2106
The  HASHOMER              published by the Shomrim Society of Southern
California for members of the Law Enforcement, Public Safety and Administration
of Justice Community
January/February 2005 Issue

INSIDE . . .

President’s Message, Calendar, & Announcements

by Scott Widitor

ITS TAX TIME by Bernard Melamed


                     SHOMRIM SOCIETY
                   SOUTHERN CALIFORNIA

                       P.O. BOX 35688
                   LOS ANGELES, CA 90035

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