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Court Of Appeal Decision Results In Reinstatement Of Officer
By Dieter Dammeier
Lackie & Dammeier LLP
Fontana
Police Officer
Charles Wideen, a 14-year Veteran was terminated for allegations of
excessive force and untruthfulness to a supervisor. Represented by LDF
Panel Firm Lackie & Dammeier LLP, Wideen obtained a Permanent Injunction
from the Superior Court prohibiting the use of what the department claimed
were untruthful statements to a supervisor, to impose disciplinary action
against Wideen. The Court of Appeal has upheld the Superior Court’s
order, resulting in Wideen’s reinstatement.
On May 23, 2001, Wideen
assisted in the apprehension of suspects following a pursuit. During the
pursuit one of the officers involved broadcast “shots fired” raising
everybody’s concern in dealing with the suspects. Upon arriving at the
scene, Wideen took a cover position while another officer was speaking
with one of the suspects who was seated on a curb. The suspect, a gang
member, was being verbally aggressive and attempted to stand up at which
point Wideen, using the palm of his hand on the suspect’s face pushed the
suspect back down. By that time, unbeknownst to the officers, newspaper
crews were on scene photographing the incident. No injury or any marks
were made to the suspect. Of the officers who saw the incident, all felt
that the use of force was justified and reasonable.
As one might expect, with
the media having a photograph of an officer’s hand touching the face of a
handcuffed suspect, the media hype began. Wideen, not knowing that there
were any photographs taken of the incident, returned to his normal duties.
In the meantime, a flurry of media inquiries to the department commenced.
Several sergeants and lieutenants discussed the matter at the station and
the Chief of Police ordered an Internal Affairs Investigation be
initiated. Prior to the press inquiries, Wideen, as required by
department policy informed his patrol sergeant that he had used the minor
level of force against the suspect to which the sergeant indicated should
not be of any concern. He too was unaware of the press photographs.
At 7:00 p.m., Wideen was
preparing to go home and he dropped paperwork off at one of the sergeant’s
office. The Watch Commander Lieutenant along with a sergeant saw Wideen
and began interrogating him about the incident. The Watch Commander
commented that there would be a picture in the newspaper with headlines
“Officer Beats Suspect”. Wideen not knowing of the existence of these
photographs felt the sergeant and lieutenant were joking with him (as they
have in the past) and he responded to their inquiry that he did not touch
anybody.
Later that evening,
Wideen rethought the situation and contacted the sergeant he had
previously informed of the use of force who in turn contacted the Watch
Commander and resolved the matter, at least so everyone thought. The
department thereafter sought termination of Wideen based on the alleged
untruthful statements to the Watch Commander and sergeant as well as the
use of force which they claim was excessive. LDF authorized Lackie &
Dammeier to immediately file for a Writ of Mandate and/or Permanent
Injunction prohibiting the use of the alleged untruthful statements due to
the department’s failure to provide Wideen his rights pursuant to the
Public Safety Officers Procedural Bill of Rights Act. (POBR)
The thrust of the
petition for a writ or injunction focused on the failure of the department
to inform Wideen his rights pursuant to POBR prior to interrogating him
about the incident. Specifically, Wideen was not informed that he was
under investigation (Government Code §3303(c)); that he was being
interrogated in connection with such investigation (§3303(c)); was not
read his constitutional rights (§3303(h)); was not afforded the right to
be represented by the representative of his choice (§3303(i)); and was not
given the opportunity to tape record the interrogation (§3303(g)).
The department’s counsel,
Paul Coble, took the position that the Watch Commander’s interrogation was
not in violation of POBR. Coble attempted to convince the court that the
Watch Commander was unaware of Wideen’s involvement in the incident. It
was clear the Chief, and several sergeants and lieutenants were aware that
Wideen was the officer involved in the incident as determined in recorded
telephone calls. Yet Coble still claimed that the Watch Commander was not
aware that Wideen was involved in the incident. Fortunately, the evidence
proved that Coble’s position was incorrect. An outside agency, the San
Bernardino County Sheriff’s Department looked into the criminal aspect of
this matter. The Watch Commander told sheriff’s investigators that a
“Sergeant told him it was a motor officer” (Wideen the only one at the
scene) and that he “heard someone else say that Chip Wideen was out at the
scene at some point.” Additionally, the Watch Commander in a taped
interview with Internal Affairs admitted that he had “gotten wind that it
was probably Chip [Wideen] that had hit or slapped this person.”
Not surprisingly, the
Court of Appeal affirmed the Superior Court’s ruling in concluding that
the questioning of Wideen was an interrogation under POBR and due to The
Watch Commander’s’ failure to provide the rights and protections afforded,
Wideen’s statements should be suppressed and not used for any disciplinary
action.
As a result of the
decision, Wideen has been reinstated with over $150, 000 in back pay.
Wideen was very thankful to his attorneys at Lackie & Dammeier, the Legal
Defense Fund and the Fontana Police Officers Association who have all
stood with him during his two year battle.
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