 |
Officer’s Suspension Reduced And False Statement Charges Overturned
By:
Saku E. Ethir
Lackie & Dammeier LLP
With the
arrival of Police Chief Margaret A. York, from the Los Angeles Police
Department (L.A.P.D.), to the Los Angeles County Police Department
(“Department”) came a high volume of discipline being imposed against
officers, disparate treatment in the imposition of discipline against
officers, and what appeared to be an unwarranted and unsupported
dishonesty charge with every founded investigation. Los Angeles County
Police Officer and Los Angeles County Police Officer’s Association (LACPOA)
member David Esparza (“Esparza”) came to be victim of such an
unsupported and unwarranted false statements charges, as well as the
victim of disparate treatment. Esparza received a seventeen (17) day
suspension without pay from the Department as a result of a July 7,
2003, incident and subsequent internal affairs investigation. That
investigation of Esparza resulted in sustained charges of making false
statements during a Department internal affairs investigation (when he
denied laughing and making animal sounds over the public address
(“P.A.”) system in the police vehicle, and when he “falsely denied”
making derogatory statements about a Sergeant with the Department),
using derogatory language when referring to a Sergeant (not in that
Sergeant’s presence), and for making inappropriate sounds over the PA
system contained in the police unit.
On July 7, 2003, Esparza was partnered up
with a fellow officer working patrol. Esparza was the passenger. After
responding to a call Esparza and his partner observed another County
police unit pulled over to the shoulder of the street. Esparza, in
order to gain the attention of the officers and determine if assistance
was needed, used the PA system to say “Yo”. Esparza and his partner
(during the subsequent investigation) admitted to this and were
consistent in their recollection of what Esparza said. Both Esparza and
his partner, in their interrogations, denied making animal sounds or
laughing over the P.A. system. On the other hand, the Officers and
Sergeant present at the police unit pulled over on the shoulder, and a
civilian witness interviewed during the Department’s investigation were
all inconsistent in what they heard amplified over the PA. (In fact, one
of the witness officers admitted, during the subsequent administrative
hearing, to requiring a hearing aid and further admitted that he could
not recall if he had been wearing the hearing aid on the date of the
incident). Despite the fact that Esparza and his partner were
consistent, and the other witnesses were all inconsistent, in their
statements (and continued to be inconsistent when they testified at the
administrative evidentiary hearing) about what was amplified over the
P.A. system, Chief York elected to sustain an allegation that Esparza
had laughed and made animal sounds over the P.A. system and further
sustained an allegation that Esparza made false statements when he
denied doing so. Funny thing is Esparza’s partner was never charged
with either, and he was in the car with Esparza, and made the same
denials as Esparza in his interrogation.
After returning to the station, Esparza and
his partner had a private conversation with another Department Sergeant
about the incident. Several alleged witnesses to the private
conversation claimed to have heard Esparza and his partner referring to
the Sergeant who had been at the scene of the incident in a derogatory
manner. In their interrogations, both Esparza and his partner stated
that they could “not recall” using derogatory language in referring to
the Sergeant in question. Esparza went so far as to say it was possible
that he had. Esparza never denied using the derogatory language.
Esparza said he could not recall. Again, Chief York elected to charge
Esparza with making a false statement. However, yet again, Esparza’s
partner, who also stated he could not recall using derogatory language,
was not charged with false statement. Chief York made the final
decision that Esparza would receive a seventeen (17) day suspension
without pay.
Esparza appealed that
decision to the Los Angeles County Civil Service Commission
(“Commission”) requesting an evidentiary hearing. Esparza’s primary
concern was the false statements charges, knowing the detrimental impact
it would have on his law enforcement career. A Hearing Officer was
appointed by the Commission to hear the case and issue a recommendation
to the Commission. Esparza was represented at the Hearing by the author
of this article. Esparza’s case-in-chief focused on attacking the false
statements charges and producing evidence of the disparity of the
charges and the discipline imposed. Probably the most ironic,
disturbing, and amusing testimony was that of Chief York, who on
numerous occasions when being asked questions gave a response of, “I
can’t recall” or “I don’t recall.” She also testified that in her
experience when officers claim they do not recall something, that
officer essentially is lying. We have to wonder then if Chief York has
disciplined herself for lying since testifying at the Esparza Hearing.
The Hearing Officer in this case saw thru the
Department’s case. He went so far as to ask the Department to explain
and justify why Esparza had been disciplined for saying he could not
recall and his partner who also stated he could not recall was not found
to have made false statements and disciplined for such. The Department
could not explain. The Hearing Officer in his report/recommendations to
the Commission held that Esparza had not made false statements when he
stated he could not recall whether or not he had made derogatory
statements about the Sergeant. The Hearing Officer further found that
Esparza did not make false statements when he denied making animal
sounds or laughing over the P.A. system, essentially finding that the
Department had failed to meet its burden in proving that Esparza had in
fact utilized the P.A. system for one or more of those purposes. The
Hearing Officer concluded that the charges of false statements should be
unfounded against Esparza, and that the seventeen (17) day suspension
should be reduced to a two (2) day suspension (finding that Esparza did
use derogatory language when talking about the Sergeant).
The Hearing Officer’s
decision was a recommendation to the Commission. The Department
utilized a procedure afforded to the parties and filed objections to the
Hearing Officer’s decision, arguing that the Hearing Officer erred in
his findings of fact and conclusions of law. The author of this article
filed response to those Objections. The matter was placed on the
Commission’s agenda and the parties appeared to provide oral argument.
The Department argued that Esparza had made false statements during the
investigation and that Chief York, because of her numerous years with
L.A.P.D., was able to determine the credibility of Esparza. The
Commission shot down all of the Departments arguments refusing to accept
Chief York’s position that because someone says they do not recall
something they must be lying. The Commission voted unanimously to adopt
the Hearing Officer’s decision, unfounded the false statements charges,
agreed to reduce the suspension to two (2) days for the derogatory
language, and ordered the Department to reimburse Esparza fifteen (15)
days of pay. Esparza would like to thank LACPOA President Scott Frayer
for his support in attending portions of the Hearing, as well as LACPOA
and LDF for their support.
About the author,
Saku E. Ethir is an associate with the law firm
of Lackie & Dammeier LLP whose firm represents Police Associations
throughout California in disciplinary and labor matters.
|
