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Newsletters
El Monte Personnel Commission
Overturns Officer's Termination
Officer Donald Luman is an eleven-year veteran of the El Monte Police Department. On October 22, 2000, Officer Luman was involved at the termination point of a lengthy pursuit of a stolen vehicle throughout the City of El Monte and surrounding areas. During this approximately one-hour pursuit, the suspect vehicle blew through red lights, rammed a police car and attempted to run over a deputy sheriff. Toward the end of the pursuit, the suspects kept circling a known gang area which caused a crowd of spectators to gather along the pursuit route. At the termination point of the pursuit, rather than do a standard felony traffic stop, due to the nature of the crowd, officers approached the vehicle to extract the suspects to expedite their removal from the scene. Officer Luman was one of the officers who approached on the driver's side, with his gun drawn. As he moved in on the driver, the driver's right hand went down and out of sight of Officer Luman. Officer Luman moved rapidly to close the distance between he and the suspect to avoid any danger of shooting officers on the passenger side or other officers on the driver's side if it became necessary to shoot the driver. As Officer Luman moved forward, his arm with weapon extended, went into the driver's vehicle, through the driver's open window, and accidentally hit the driver on the top of his head, causing a small gash. The two suspects where then taken into custody.
With the crowd increasing, Officer Luman was immediately ordered to transport the driver suspect to the hospital for a pre-booking check. As is customary in El Monte, one officer will transport a felony suspect and another officer will provide escort. Accordingly, Officer Luman drove away from the scene and pulled into an industrial complex to await his escort unit who was shortly behind him. Due to the rapid evacuation from the scene, the suspect had not initially been seat belted in. Officer Luman went to seat belt the suspect, who had been combative and was threatening officers to fight. Accordingly, Officer Luman placed his elbow into the suspect's chest and his hand on the suspect's jaw to minimize his ability to move and pose any physical threat to Officer Luman while he was seat belting him in. The suspect was then transported to the hospital.
Later at the hospital, the passenger suspect had arrived with another officer transporting. Like the driver, the passenger suspect was also combative, verbally abusive and threatening. The transporting officer attempted to remove the suspect from the police unit and the suspect became violent and head butted the officer, causing the officer's pepper spray to be deployed on the officer rather than the suspect. That officer was able to kick the suspect in the chest, get him back inside the police unit and request assistance. Officer Luman, who was inside the hospital, came to the assistance of this transporting officer. Officer Luman opened the police unit and the suspect again became violently combative and attempted to kick Officer Luman. Officer Luman then punched the suspect in the face, allowing Officer Luman to control the suspect and remove him from the police unit. Officer Luman then physically escorted the suspect to the hospital entrance, however, due to him needing to use both hands to control the combative suspect he was not able to use the keypad to open the emergency room door. Officer Luman then forcibly pressed the suspect against the door, obtaining the attention of hospital personnel inside who opened the door.
A few weeks later, Officer Luman was fueling up his police unit at the City's maintenance yard and was speaking with fellow city employees about the pursuit incident, explaining how he "accidentally" hit the driver in the head with his firearm. One of the employees asked if he was afraid the gun might go off. Officer Luman then removed his firearm and demonstrated a safety mechanism that prevents the firearm from discharging when the slide is pressed back. Two of the five employees present during this conversation indicated that Officer Luman momentarily pointed the firearm at one of the maintenance workers in a threatening manner. The other three did not see this and only recall the demonstration.
Officer Luman was terminated on March 5, 2001, administratively charged with excessive force by the Department which alleged that he purposefully hit the suspect in the head with his firearm at the termination of the pursuit, that the technique used in seat belting the suspect on the way to the hospital was excessive and that he unnecessarily punched the passenger suspect while removing him from a police unit at the hospital and then slammed him into the door of the emergency room. The Department also administratively charged Officer Luman with brandishing his firearm at the City yard maintenance worker. For good measure, the Department also charged Officer Luman with making a false statement to a deputy district attorney involving an unrelated case.
A four-day hearing was held on June 4, 6, 7 and 8, 2001 in front of the El Monte City Personnel Commission in which Officer Luman, represented by LDF Panel Attorney Dieter Dammeier of Lackie & Dammeier LLP, appealed his termination.
The only evidence put on to support the Department's allegation that Luman purposefully used his firearm to hit the suspect's head was a sergeant who was at the scene who testified that he saw Officer Luman's elbow bent at a 90 degree angle, with his wrist cocked upward, come down on top of the suspect's head, which he interpreted to be a deliberate act and not accidental. This evidence was rebutted by another officer who was also on the driver's side assisting Officer Luman in removing the suspect from the vehicle, who testified he did not see such a movement and if it had occurred, he certainly would have. Additionally, a helicopter observer (from Baldwin Park P.D.) was also observing Officer Luman on the driver's side of the vehicle from his position above and testified that he saw no such movement and would have if it had occurred. In adding to the defense, a video reenactment was made to clearly establish that the movement described by the Sergeant could not have physically taken place under the conditions that existed. According to the Sergeant, the suspect was still seated in the vehicle when Luman hit him on the top of the head with his gun. The video showed how the vehicles roof made it impossible for Officer Luman to cock his elbow in any fashion, let alone 90 degrees, or move his wrist upward. Of course, we also pointed out the fact that Internal Affairs Sergeant Gary Walker, who investigated this case, failed to even attempt to interview any of the 50 to 100 residents who were outside of their homes and gathering to watch the termination of the pursuit. It was left to the Commission to decide if this important oversight was based on bias, incompetence or just laziness.
In regard to the seat belting of the suspect on the way to the hospital, officers testified that the technique alleged to have been used by Officer Luman was appropriate under the circumstances where there is a combative suspect threatening officers to fight. Even the Chief of Police had to ultimately admit on the stand that such a technique would be appropriate under those circumstances.
Officer Luman and other officers testified as to the reasonableness of the force used against the passenger suspect while Officer Luman removed him from the police unit and then pressed him against the ER door. Again, under the circumstances it was established that Officer Luman's actions were reasonable.
The City yard worker who alleged that Officer Luman pointed his firearm at him in a threatening manner was aggressively cross-examined on the stand to establish his true intention, that being to obtain monetary damages from the City. Contradictions between his initial statement to investigators in the case and his testimony at hearing were brought out. His claim that he was stressed and emotionally distraught from the incident had little effect on the Commission after it was shown he waited three weeks to complain of the incident.
The allegation that Officer Luman lied to a deputy district attorney, which was handling one of his cases, involved an incident in which Officer Luman attempted to tape record a confession of a child molester. The recording device did not work and the tape was later determined to be blank when the police transcriber attempted to transcribe it. The DDA asked Luman if there was a recording made of the confession and Officer Luman stated that there was "no tape recording." The DDA, who had repeated this to the defense attorney, was embarrassed at the preliminary hearing when she learned from another officer on the stand that there was a tape recorder going during the confession. It was shown to the Commission that Officer Luman's statement was in fact accurate. He informed the Deputy District Attorney that there was "no tape recording," which after all was accurate, since the recorder failed. Additionally, the charged violation requires an officer to lie to a "superior officer" or make a false "official report." It was shown by testimony of deputy district attorneys that they are not "superior officers" with the City of El Monte and that a verbal conversation with a DDA does not amount to an "official report." The Department attempted to portray this incident as one that had "Brady" implications that would require the District Attorney's office to divulge that Officer Luman had a credibility problem in any future cases. This was an important aspect since that would necessarily ruin, if not end, Officer Luman's career. The Legal Defense Fund authorized and we obtained an expert witness who had just retired from the Los Angeles County District Attorney's office as head of the "Brady" unit. This expert testified that such an incident would not raise "Brady" implications and would not need to be divulged to defense attorneys, and even if defense attorneys somehow became aware of such an allegation, a judge would likely not allow such material into evidence.
At the conclusion of the four day hearing, the Personnel Commission concluded that Officer Luman's actions in the aftermath of the pursuit was reasonable and necessary under the circumstances. They additionally concluded that Officer Luman did not lie to a "superior officer" or make a false "official report." Furthermore, they found that Officer Luman made no false statement to the DDA since there was "no tape recording." While they concluded that Officer Luman did not brandish his firearm in a threatening manner at his fellow city employee, they did conclude that he removed his firearm without justification in violation of department policy, for which the Commission recommended he receive a written reprimand.
Under the Appeal Rules in the City of El Monte, the Personnel Commission's factual findings are final and conclusive. The level of discipline, however, is subject to review by the City Council. At the time this article was printed this matter had not yet been in front of the City Council for its final determination in regard to the level of discipline for the only founded allegation, that being the removal of his firearm without justification. It is likely the City Council will follow the Commission's recommendation as it has historically in the past.
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