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Buena Park Officer
Ordered Reinstated
Department Chastised by City’s Personnel Board
by
Andrew M. Dawson
Lackie & Dammeier
Part
One – The Facts
On February 17, 2005, the Chief of Police for the City of Buena Park
issued a notice to a three-year veteran officer of that department for
allegedly using excessive force. The Chief set forth in that notice his
intent to terminate the officer for allegedly violating the Department’s
use of force policy after an internal investigation of an arrest
incident. The inappropriate use of force allegedly occurred on November
29, 2004, when the officer kicked the suspect during an arrest.
On March 7,
2005, the Chief held a “Skelly” hearing during which the officer was
given the opportunity to respond to the proposed discipline. Following
the Skelly hearing, the Chief terminated the officer, effective March
16, 2005. The Chief concluded that the officer’s use of force was
unnecessary and unjustified and therefore excessive, and the Chief found
nothing in mitigation of the proposed termination. The Chief based his
findings solely on the credibility of a Sergeant and Captain. The
Captain averred that the arrestee, who never did file a complaint of any
misconduct, along with the Sergeant at the scene of the arrest, were
highly credible witnesses.
On March
25, 2005, the officer timely appealed his termination to the Personnel
Board of the City of Buena Park. Between October 17, 2005 and April 17,
2006, fourteen different noticed hearings were held on the officer’s
appeal of his termination. The officer was represented by Andrew M.
Dawson, Esq., appearing on behalf of the Law Offices of Lackie &
Dammeier.
In brief,
the Personnel Board disagreed with the Department, and wrote that they
discounted the Sergeant’s testimony in its entirety, stating that the
Sergeant’s testimony was not credible and some parts of his testimony
were “irrational.” Ironically, this same Sergeant is now in charge of
Internal Affairs, which hints that any future decision resulting from a
Buena Park internal affairs’ investigation would be suspect.
Accordingly, due to the seriousness of the Department’s actions against
the officer, and the importance of the findings of the Personnel Board,
a detailed factual background follows. The background findings of this
case are taken directly from the Personnel Board’s findings of fact,
which was included in their written decision which ordered the officer
back to work.
On November
29, 2004 at approximately 2:56 a.m., a different officer employed with
the Buena Park Police Department was driving a marked black and white
patrol car on routine patrol on Beach Boulevard going south and
approaching Melrose when he noticed a red Toyota Camry going northbound
on Beach at a high rate of speed. As the car passed him, it appeared to
accelerate and the driver looked at this officer. The driver appearing
to be a male Hispanic, in his teens, wearing a white sweatshirt. The
officer turned around and followed the Camry as it continued northbound,
running two lights, then turning right at Beach and Commonwealth.
The officer
arrived at Beach and Commonwealth and found the Camry resting on the
northeast curb. He also noticed a car in the left turn lane to Beach
from Commonwealth that appeared to have been hit. The driver of that
vehicle confirmed that it had been struck by the Camry after the Camry
attempted to make a turn at the intersection. The driver of the Camry
had gotten out of the vehicle while it was still moving and ran
northbound through the parking lot of the Bank of America, fleeing up
the alleyway between Beach and Homewood. Both the driver of the vehicle
that had been hit and the driver of another vehicle at the scene
described the fleeing driver as a male Hispanic, in his late teens to
early 20's, with a shaved head, wearing a white sweater.
A request
for back-up units was requested over the radio. The officer who is the
focus of this article saw the suspect running northbound in the
alleyway. He stopped his patrol car and began to pursue the suspect on
foot. The officer saw the suspect jump over an iron fence, fall,
momentarily stop, and continue running towards the residence’s
backyard. It looked as if the suspect was injured from the fall. The
officer lost sight of the suspect, and the officer set up a two block
perimeter as several other officers arrived to assist, including a dog
handler (“canine officer”) and supervising officer (“Sergeant”). The
Camry involved in the hit-and-run traffic collision was reported stolen
from Fullerton.
Approximately two hours later from the time of the traffic collision, as
a yard-to-yard search was being conducted within the perimeter area,
police dispatch advised the officers involved in the search that a
resident was calling from a house, reporting that a male was tapping on
her window and asking to be let in because men were chasing him.
Three
officers, including the officer whom this article concerns, went to the
residence where the male had tried to gain entry into the house. One of
the three officers was the canine officer with his dog. The suspect
came from behind a fence with his arms raised, requesting that the
police dog not be deployed. The suspect was told to comply with the
officers’ commands, and then ordered to the ground. At this time it was
broadcast that the officers were arresting a suspect. The Sergeant, who
was at the Command Post, ran to the location of the arrest with his
taser.
The officer
in question, acting as cover officer, had the third officer at the scene
make the physical arrest of the suspect. The canine officer stood back
with the police dog. The third officer had the suspect assume a prone
position, on his stomach, with his arms spread-eagled out. The suspect
began to place his hands behind his back when handcuffing commenced.
All
officers present at the arrest scene concurred that the suspect appeared
to be cooperative, and that the suspect had not been searched. After
the suspect was proned out, the third officer placed his knee on the
suspect and started to handcuff him by taking his right hand, cuffed it,
and grabbed for the suspect’s left hand. At this time the suspect moved
his left hand an inch or two. The officer in question, before the
handcuffing began, had ordered the other officers to turn off their
flashlights because he was worried about backlighting. The backyard
where the suspect had emerged from had not been searched for other
individuals, and the neighborhood where the arrest occurred was a known
gang area. The arrestee was dressed like a gang member. From the
officer’s point of view, when the suspect moved his arm, the officer
perceived a threat. The officer then delivered a distraction strike by
delivering one kick to the suspect’s left shoulder, which glanced off
the shoulder and hit the suspect’s head.
The
Sergeant testified that he heard officers order someone to the ground as
he arrived at the arrest scene. Interesting to note that the Sergeant
testified that he knew why the suspect had exited from the side yard,
though the Sergeant was not even present at the scene when the suspect
surrendered. The Sergeant’s ludicrous statements will be addressed next
month, which included such things as a claim that the officer
premeditated the kick two hours before the arrest! The Sergeant based
his conclusion on a radio transmission where the officer, after
observing the suspect fall on the ground after scaling a fence, notified
other officers that the suspect could be injured. The Sergeant referred
to the radio call as a “disclaimer,” and went on to testify that even if
the kick occurred weeks later, he would still consider the radio
notification as a “disclaimer.” The Sergeant testified that the officer
had already decided to kick the suspect two hours before the arrest
occurred!
If that
wasn’t enough bizarre testimony, the Sergeant went on to say that Buena
Park does not have a gang problem, and that the area of the arrest was
not a gang area. When asked whether the specialized gang unit in the
Buena Park Police Department knew that there was no gang problem, the
Sergeant replied, “They should.” The Sergeant’s opinions were
respectively referred to by the Personnel Board as “irrational.”
Next month,
referring to the well articulated opinion by the City of Buena Park’s
Personnel Board, it will be discussed in detail why the Personnel Board
ordered the officer reinstated with full back pay and benefits.
Part Two – The Opinion
Last month, it was described in detail the
circumstances surrounding the firing of a Buena Park police officer.
Representing the officer was Andrew M. Dawson, Esq., appearing on behalf
of the Law Offices of Lackie & Dammeier. The opinion of the City of
Buena Park Personnel Board, reversing that action, will now be examined.
The issues for the Personnel Board of the City of
Buena Park were twofold: (1) Did the officer act or fail to act in any
manner that constituted grounds for discipline under the City of Buena
Park Rules & Regulations and/or Policies and Procedures? (2) If the
officer acted or failed to act in any manner requiring discipline, was
the penalty imposed on the officer, that of termination, too severe and
should it be modified?
As you will recall, the officer was dismissed
from the Buena Park Police Department for delivering one kick to a
suspect who was being arrested. The officer had perceived a hand
movement by the arrestee as a threat, and delivered one “distraction
strike” to the suspect’s left shoulder, which glanced off the shoulder
and hit the suspect’s head. The Sergeant at the arrest scene testified
during the internal affairs proceeding (and subsequent administrative
hearing) to a different version of events from that of the officer in
question.
The Personnel Board of the City of Buena Park
found in its “Findings of Fact” that the Sergeant believed the officer
put out information that the suspect was injured (after jumping over a
fence and falling on the driveway of a residence) because the officer
intended to use force on the suspect if caught. The Personnel Board
found the Sergeant to be an unreliable witness overall and discounted
his testimony in its entirety for several reasons. (1) The Sergeant’s
testimony on many issues was incredible and/or disputed by almost all
the other witnesses; such as his testimony that Buena Park does not have
a gang problem, and that the officer in question while pursuing the
suspect radioed that the suspect may have been injured to set up an
excuse in advance for his subsequent use of force on the suspect. (2)
The Sergeant’s reports of his conversations with other witnesses who
also testified were almost always inconsistent with those witnesses’
reports of those conversations. (3) By his own admission, the Sergeant
made numerous mistakes of judgment in supervising the incident. (4) The
Sergeant was not in a position to see clearly either the suspect’s hands
or arms at the time of the arrest. And (5) the Personnel Board found
the Sergeant’s demeanor on the stand as generally defensive, and
described parts of his testimony as “irrational.” As a side, it is
interesting to note that this same Sergeant is presently in charge of
internal affairs investigations at the Buena Park Police Department.
The Personnel Board found that the officer in
question displayed a great deal of confidence while testifying at the
administrative proceeding, and appeared to recall many aspects of the
incident in detail. The Personnel Board accepted the officer’s
testimony that he intended to and did kick the suspect in the shoulder
and the kick went astray, hitting the suspect somewhere in the head.
When testifying regarding the physical situation and the aspects of the
situation that were potentially dangerous, i.e., that the suspect had
not yet been searched, that the side and back yards had not been
searched, that the area was dark, that as an officer he is trained to
expect the unexpected, the officer’s demeanor on the stand was found to
be consistent with what the Personnel Board would expect of an officer
very concerned with his duties and concerned with making sure an arrest
is completed safely. The Personnel Board also believed the officer’s
testimony that he feared the movement by the suspect might be the
beginning of a roll or other action, and that he kicked the suspect to
prevent further motion and to aide in the arrest. The Personnel Board
found that under the totality of circumstances the decision of the
officer to deploy the “distraction strike” was reasonable and that the
amount of force used was also reasonable. The Personnel Board stated
that the officer’s testimony was detailed and thorough. The Personnel
Board noted that though the officer did not recall some details, it
nevertheless found that this type of failure to recollect was consistent
with a person testifying about an event that had occurred over a year
ago, and inconsistent with a witness justifying his actions after the
fact. Also, the Personnel Board stated that the officer in the past
admitted when he made mistakes and took responsibility for them.
The Personnel Board noted that the City of Buena
Park did not present a use of force expert at the administrative
proceeding with an opinion regarding the officer’s use of force. On the
other hand, Ronald McCarthy testified as a use of force expert on behalf
of the officer. Mr. McCarthy testified that based on the facts provided
to him, the officer’s decision to use a distraction strike on the
suspect was objectively reasonable. It was noted that a single act of
force such as that used by the officer against a suspect is consistent
with a distraction strike, while repeated acts of force on a suspect are
more consistent with excessive force.
The Personnel Board concluded that the staff of
the City of Buena Park failed to prove by a preponderance of the
evidence that the officer’s use of force against the suspect was
unreasonable, when judged in light of all relevant facts and
circumstances and from the perspective of an objectively reasonable
officer on scene at the time of the arrest incident. In addition, the
staff of the City of Buena Park failed to prove by a preponderance of
the evidence that the amount of force used by the officer upon the
suspect on this occasion was unreasonable, when judged in light of all
relevant facts and circumstances and from the perspective of an
objectively reasonable officer on scene at the time of the incident.
Accordingly, it was found that the grounds alleged for the disciplinary
action against the officer were not proved by a preponderance of the
evidence, and that the officer did not act or fail to act in a manner
requiring discipline.
In finding that discipline was not warranted in
this matter, the Personnel Board ordered that the imposition of
discipline on the officer be reversed, that his termination be
rescinded, and that the officer be restored to the position he held
prior to termination with full back pay and benefits.
It is of significance to note that evidence was
introduced at the administrative proceeding that several officers
involved in this incident – some whom had been accused of misconduct
themselves for actions related to this incident – were ordered to
undergo another interrogation by the attorney who represented the
Department in this matter. The officers were not afforded their rights
under Government Code section 3303. Specifically, the Department
refused to allow the officers to have representation, and refused to
allow them to tape-record the interviews. When confronted with the
allegations of these Peace Officer Bill of Rights violations during the
administrative hearing, the attorney for the Department attempted to
compare his interrogations to that of a district attorney interviewing
officers for a criminal case. The Department’s attorney’s position was
nonsense, since a district attorney is not the employer of the
officers. Therefore, a district attorney has no legal authority to
order an administrative interrogation of an officer. The Buena Park
Police Department’s violations of the Peace Officer Bill of Rights as
related to this incident were egregious.
The City did not like the decision of its own
Personnel Board and decided to appeal the decision to the Superior
Court. Not surprisingly, the Court let stand the Personnel Board’s
decision reinstating the officer with full back pay and benefits.
Needless to say, the officer is happy to have his
name cleared of any wrongdoing. He was very thankful to his
Association, the Legal Defense Fund and his attorneys at Lackie &
Dammeier for saving his career. |
