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.
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
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 for saving his career.