The Desert Hot Springs Police Department recently terminated one of its officers (“Appellant”) based on allegations of excessive use of force against an uncooperative suspect who was resisting and combative despite verbal commands to sit down and stop resisting and an allegation that the Appellant directed an inappropriate comment at another Officer, but made the comment in the presence of the suspect. 

On June 7, 2009, Appellant had been dealing with a personal crisis; facing the pending death of his mother from a terminal illness.  On June 7, 2009, Appellant and a fellow police officer were dispatched to a call for service, regarding three people trespassing in a vacant house.  The two officers responded to the location and contacted the three juveniles who were inside of the residence.  The officer asked all three juveniles to have a seat on the south wall. Two of the juveniles complied; however, the suspect refused and said, “Fuck you! I don’t have too!”  The officer asked him again to have a seat and again he refused to comply with this order. The officer grabbed the suspect’s right arm and shoulder and set him back down.  The suspect went to stand up again saying, something to the effect of, “Fuck you guys, you can’t do this.”  The officer attempted to place the suspect in a rear wristlock, based on the suspect’s uncooperativeness and refusal to follow orders. 

Once the officer was able to get a hold of the suspect, he continued to resist by tensing up and trying to break away from the officer’s grip.  At this point, Appellant, in an attempt to get compliance by utilizing a threat of force, removed the cartridge from his taser and placed his taser on the suspect’s neck. Appellant told the suspect he would tase him if he did not stop resisting. Upon the threat of the use of the taser, the suspect became compliant and the officer was able to handcuff the suspect.

After the suspect was handcuffed, Appellant, in the presence of the suspect, spoke to the other officer regarding the suspect and the prior negative police contacts between the Department and the suspect and the suspect’s family. Appellant provided the other officer with his negative opinion about the suspect’s family members.

Shortly after the suspect began to scream profanities, and became verbally abusive and agitated. Appellant then went to place the suspect in the patrol vehicle for 148 PC.  Appellant picked the suspect up and carried him approximately 6 feet before placing the suspect back down.  Appellant then subsequently placed both of his hands on the suspect’s arms and escorted the suspect to Appellant’s patrol vehicle. The suspect continued to tell Appellant “Fuck you.” The suspect did not complain of injuries and the suspect was inspected for injuries by an uninvolved officer and photographed has well and neither revealed any visible injuries.

A citizen complaint laws filed after that night on June 7, 2009 and shortly thereafter it was withdrawn by the complainant. The suspect had no documented injuries.  Despite the withdrawal of the complaint the Department pursued an investigation.  Following the conclusion of the investigation, the investigation was submitted to, and reviewed by the then Patrol Captain, prior to submission to the Chief of Police.  The Chief of Police elected to terminate the Appellant for excessive force and the inappropriate comment in the presence of the suspect the suspect.

The Appellant appealed his termination and a three day Arbitration resulted before a neutral arbitrator.  Appellant was represented by the author of this Article at the Arbitration. The evidence at Arbitration established that the Patrol Captain who reviewed the investigation had forwarded a Memo to Police Chief Williams, in which the charge of excessive force relating to the threat of the use of the taser was “not sustained”.  (The existence of the memo prepared by the Patrol Captain was reviewed and considered by the Chief but was not produced to the Appellant with the Skelly Materials, and its existence was not discovered by the Appellant until testimony at the Arbitration).

 Despite this finding by the Patrol Captain, the Chief elected to sustain the chair claiming that a threat of force was a use of force, and that the use of the taser to threaten force in the manner Appellant had was in violation of Department training, protocol and policy with the taser. 

During the Arbitration the City retained the services of a retired Lieutenant from a large Los Angeles area police department to testify as an use of force expert and also retained the services of a doctor from a well known hospital in Los Angeles to testify as a medical expert, this despite no complaint of injuries and no visible injuries.  One can only speculate as to the amount of money the City expended on the experts alone. The Appellant simply called as a witness the Department’s Sergeant who was in charge of the use of force and taser training for the Department who testified at the hearing that the Appellant’s use of the taser in this incident to threaten force was consistent with the Department’s policies and procedures and training and was essentially encouraged as a manner in which to deescalate situations and effect compliance from a suspect.

During the Arbitration Appellant admitted that there were alternatives available to him that he should have utilized when dealing with the suspect other than picking up the suspect.  Appellant further admitted that his comments to the other Officer, in the suspect’s presence, even though not directed at the suspect, were not appropriate.  Appellant, officers, and supervisors testified at Arbitration that the behavior was atypical of Appellant. All believed that the actions were a result of the Appellant’s mother’s illness and the reality that her death was imminent, and an isolated incident.  The evidence established that this was an aberration of conduct that occurred and one that would not occur in the future. Appellant had no prior discipline prior to this incident. The Appellant’s prior evaluations and lack of discipline provide a more accurate picture of the type of officer he is.

            The Arbitrator agreed with the Department’s initial assessment (that of the Patrol Captain) that the allegation regarding the use of the taser should be overturned. The Arbitrator acknowledged Appellant’s statement regarding the suspect’s family, although directed to another officer, and not the suspect, was not appropriate.  Based on all of the evidence, the Arbitrator held the Department did not have just cause to terminate. The Arbitrator found that Appellant’s lack of any prior discipline to be persuasive in supporting his decision to reinstate the Appellant as a police officer with the City of Desert Hot Springs.  This case is important as a learning tool for Departments and Cities to recognize that officers are not perfect nor should they be held to that standard. Officers deal with tragedy and personal issues just like every other person.

             The Appellant is back at work at the Department and moving forward.  Sadly shortly after the June 7^th incident the Appellant’s mother lost her courageous battle. The Appellant appreciates all of the support he received, during the very difficult appeal process, from his family, LDF, and the attorneys at Lackie Dammeier and McGIll.