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Garcia v. City of Long Beach

California Court of Appeals, Second District, Fourth Division
Apr 28, 2009
No. B207898 (Cal. Ct. App. Apr. 28, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NS016909 Deanne Smith Myers, Judge.

Robert E. Shannon, City Attorney, Christina L. Checel and Cristyl Meyers, Deputy City Attorneys for Defendants and Appellants.

Law Offices of James E. Trott and James E. Trott for Plaintiff and Respondent.


EPSTEIN, P.J.

This case arises over the dismissal of David Garcia by his employer, the City of Long Beach. Mr. Garcia held permanent status as an officer of the Long Beach Police Department. He was dismissed on disciplinary charges, which were upheld by the Long Beach Civil Service Commission. His petition for mandate, filed and heard under Code of Civil Procedure section 1094.5, was granted; the trial court found that the evidence did not support the Commission’s findings and, by its judgment, directed his reinstatement. The City appealed the judgment. Finding no trial court error, we shall affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

A. The Encounters

David Garcia was employed by the Long Beach Police Department (LBPD) since 2000. He achieved permanent status after completing his one-year probationary period. The events giving rise to the disciplinary action against him occurred between 11:00 p.m. and midnight on the evening of Friday, July 16, 2004. There is very little dispute or discrepancy with respect to the facts, although there is wide disagreement whether the officer’s conduct was improper and subject to discipline.

Garcia was on patrol, alone, in uniform, and driving a marked black and white LBPD patrol vehicle. He was on the “graveyard shift,” which began at 10:00 p.m. that evening. He was uncomfortable working in a one-officer unit, but the force was shorthanded that night. He had been trained to work in one-officer as well as two-officer units. Garcia was armed with a service handgun, and had handcuffs and a pepper spray container attached to his belt. He had a flashlight, which can be used as a striking weapon; he kept it on the floor of the vehicle, between his legs, which was standard procedure. He also was equipped with a baton, but that weapon was in the vehicle trunk rather than within reach inside the passenger compartment, something Garcia acknowledged was a mistake. He was traveling northbound on Orange Street approaching Broadway, on a call unrelated to the events that followed, when he observed a man in the parking lot of a 7-Eleven store. The man was putting both of his hands in the air, and yelling, “[P]lease help, please help.” Garcia made a U-turn and drove into the parking lot. This was the first of four encounters with this man, later identified as Keyante Reed.

Garcia parked his vehicle. There was considerable pedestrian and vehicle traffic in the area. As Garcia exited his vehicle, he saw that Reed was mumbling. He asked Reed if he could help him. Reed kept mumbling, said, “‘Fuck you,’” then turned and walked off down Orange Street. Garcia noticed that Reed was carrying a beer can in his hand. His behavior was “weird,” and Garcia thought something was going on. He decided to follow Reed. He did so in the patrol car as Reed walked down Orange Street. Garcia was about 30 feet behind him, in the normal lane of traffic. Reed was on the sidewalk.

Then Reed turned left and ran into the street, yelling and appearing to be extremely angry. Reed started to run toward Garcia yelling, “Kill me, kill me, kill me now.” He was rapidly gaining ground on Garcia. Garcia exited his vehicle, an act consistent with his training in order to prevent the person running toward him from gaining a tactical advantage. Reed was directly in front of Garcia, no more than 10 feet away, as Garcia closed the patrol car door. Garcia put out a radio signal asking for assistance, the first of several broadcasts he sent over the next short period of time.

Faced with Reed running toward him, Garcia unholstered his gun. Reed came within inches of Garcia and reached out with both hands in an apparent effort to take the gun. Garcia took a step backward, hid the gun “behind my foot,” and pushed Reed away. Reed was unbalanced by Garcia’s action, but kept coming toward him. Then, without being pushed by Garcia, he suddenly stopped, turned, and ran southbound on Orange Street.

Candyce Bear Thompson, a pedestrian witnessing this incident, said that Reed was trying to take the gun from Garcia, and that Garcia gave Reed every chance but Reed was not listening. To her, Reed appeared to be “purposely looking to cause trouble.” He kept grabbing at Garcia’s gun and radio, while Garcia told him to “‘Get away from me, get away.’”

Garcia returned to his vehicle and followed Reed as he proceeded down Orange Street. Reed was running erratically, making zigzag movements back and forth, until he stopped at the intersection of Orange and Broadway. He again ran toward Garcia, who was still in his patrol car. Garcia stopped the vehicle and put out another broadcast for assistance. Reed was running in the middle of the intersection, covering all corners, and yelling.

This was the third encounter. Garcia exited his car because it was tactically better to be outside the vehicle. Reed did not get close enough to Garcia for Garcia to have used an impact weapon if he had one on his person (which he did not). He had a pepper spray container on his belt, but was some eight feet away from Reed, too far for effective use. Garcia again unholstered his gun as Reed again charged at him. Reed got within 15 feet of Garcia. Then he stopped running towards Garcia and zigzagging, and ran westbound onto Second Street. Garcia put out another emergency call detailing his location.

Garcia got back into his patrol car and followed. Reed kept dodging between parked cars, making it difficult for Garcia to follow without risking Reed being able to run up with a gun between the vehicles where he could “do whatever he want[ed] to” do. So Garcia again exited the vehicle and chased Reed on foot. His gun was holstered during the chase, and at some point Reed threw the beer can at Garcia; it landed about five feet from the officer.

Eventually, Reed ran up the driveway at 1125 East Second Street. This led to the fourth, and final encounter. There was a VW van parked in the driveway, facing in, and Reed was at the front, driver side of the vehicle. Garcia went behind a wood picket fence that was perpendicular to the driveway. From that vantage, the fence provided some concealment but no cover—that is, it did not protect Garcia from being shot at by Reed. Garcia put out still another emergency broadcast.

Reed appeared to be lying in wait for him to come up the driveway, while Garcia was behind the fence. Garcia also thought that Reed might run into the adjacent residence and try to take a hostage. Garcia did not know if Reed was armed or not, but saw that Reed was wearing a heavy, bulky jacket. He also appeared to be a possible “5150” (a reference to Welf. & Inst. Code, § 5150, a statute that authorizes the temporary custody of acutely mentally ill persons who are dangerous or gravely disabled).

Garcia was handicapped from making an attempt to shoot around the corner of the fence toward Reed, because the corner was to his left and he would have to use his left hand; he was right-handed. Seeking cover, he low-crawled from the fence to the rear passenger side wheel well of the van. There the metal and engine block offered protection from any bullet that might have been fired in his direction.

Garcia again issued an order to Reed, directing him to put his hands up. Reed did not follow that directive. Instead, he ran across the front of the van and proceeded along the passenger side toward Garcia, facing him, yelling and growling. He came within five feet of Garcia. Garcia fired at Reed, striking him and causing a wound that resulted in Reed’s death. Garcia tried to fire again, but his gun jammed. He cleared it, but by then Reed was on the ground. Garcia put out another broadcast, this one stating that a shot was fired and a person was on the ground. A police unit arrived after that; according to Garcia “it seemed like forever.” All of this happened within seconds.

B. The Evaluations

LBPD officers investigated the scene, and reports were written. Since a shooting had occurred, the matter was referred to the LBPD Officer Involved Shooting board. The members of the board reviewed the reports and concluded, four to one, that the shooting was intentional and out of policy.

1. City Witnesses

After an investigation by the Internal Affairs section of the LBPD, Anthony Batts, LBPD Chief of Police, concluded that the shooting was intentional, out of policy, and unjustified. Dismissal was recommended and, on December 1, 2004, the Long Beach City Manager issued a letter formally dismissing Garcia for inexcusable neglect of duty and inappropriate use of force. Garcia exercised his right to a hearing before the Long Beach Civil Service Commission, the city agency authorized to hear and decide such matters. The Commission held an extensive evidentiary hearing, spread out over six days and resulting in a reporter’s transcript of more than 1,200 pages, together with exhibits. By a four-to-zero vote, the Commission sustained the charges against Garcia.

Both sides presented expert opinion testimony at the civil service hearing. The principal expert witness for the City was Elmer Pellegrino, who is director of the police academy at Fullerton Community College, and a 26-year veteran police officer for the City of Los Angeles. His qualifications to testify as an expert were not challenged. He concluded that the officer involved shooting of Reed by Garcia was below the standard of training.

Other than the fact that Garcia did not carry an impact weapon with him during the encounters with Reed (leaving the flashlight in the car and the baton in the trunk of the car), Pellegrino did not fault Garcia’s conduct during any of the first three of the four encounters with Reed, including the chase. In fact, he concluded that Garcia was justified in using deadly force against Reed when Reed tried to grab the officer’s gun. But he found serious fault with the fourth encounter.

Pellegrino emphasized that in a chase situation such as this, deadly force is not justified unless the suspect makes an overt act towards the officer that would lead the officer to believe the suspect “had the capability of doing whatever he could have and this dictates whatever force you can use.” Although the wood fence was concealment, not cover, Garcia’s best place of deployment during the fourth encounter was to stay there. Once he left that location and moved to the van, he had no place to retreat, “[H]e can’t do anything.” The fact that Reed then came around the van, growling, did not justify use of deadly force. Because Reed had backed off and run away at the earlier encounter when Garcia pushed him, Pellegrino testified “there really wasn’t anything there in my estimation [to lead] a reasonable officer to believe that Mr. Reed was number one, going to take the officer’s gun, and number two, had the capability of doing it.”

The situation might have been different if Garcia had thought Reed “was 5150,” because people who are mentally ill can be extremely strong during a confrontation. But police training does not justify shooting someone because the person is “5150” and running the officer to the ground. While the officer does not have a duty to retreat, that “doesn’t mean that they can’t get out of the way.”

Once an officer draws a gun, the officer eliminates a lot of options because, then, the only thing the officer can do is use it as a weapon, shoot, or put it away. All hands-on, self-defense tactics are eliminated at that point, the officer’s impact weapon tools (the flashlight and baton) are then not available.

Pellegrino agreed that Garcia was following the police policy of “follow-and-contain” when he reached the wood fence and had Reed in sight. And he was within policy to have his gun out at that point.

Asked if Garcia would have been justified in using deadly force if he thought Reed was rushing him in a second attempt to reach for the gun, Pellegrino did not think Reed’s actions justified such force. The situation presented was difficult for Pellegrino, but in looking at it, “it just is... not reasonable in my mind that you would make that determination at that time that he was going to take your gun.”

LBPD Deputy Chief Robert Luna also did not fault Garcia’s actions up to the final encounter in the driveway. In his opinion, the better tactic at that point was to keep Reed under observation at a distance and wait for cover, so that the officer was not in a situation where he had to use deadly force. LBPD Sergeant Steve Nottingham gave similar testimony, and concluded that the only time Garcia was justified in using deadly force was when Reed tried to reach for his gun, during the second encounter.

Chief Batts acknowledged that discipline decisions such as the one in this case are difficult. But in this case he had lost confidence in Garcia’s ability to make decisions of the kind officers must make on a daily basis. “I had lost the confidence, that is, if an officer stopped my son or my sons, who are 17 years old, that... they will walk away. I lost the confidence if he was to stop one of your sons or your daughters on a night that he would make that sound decision that would ensure that people walked away safely. I lost confidence in the decision making.”

2. Defense Witnesses

Corporal David Frazier, a 25-year veteran with LBPD, testified that the department has never had a policy requiring officers to carry a flashlight or baton. And when a gun is out, it is with the intent of using it as a firearm, not an impact weapon. With respect to the fourth encounter, he testified that the wood fence provided concealment but no cover, and he always would choose cover over concealment. If an officer has an impact weapon with him, and is being rushed by a suspect, he would not be able to holster a gun and bring out the baton in time to fend off the attack; “[h]e’s probably going to die.”

Charles Duke was the principal expert witness for Garcia. He too testified to his qualifications and, as with Pellegrino, his qualifications to testify as an expert were not challenged.

He testified in detail that all of Garcia’s actions through the time he was behind the picket fence, during the fourth encounter, were appropriate. He noted the aggressive conduct of Reed during the earlier encounters, including his charging at Garcia in an effort to reach the officer’s gun, his failure to obey commands, and his clothing, which lent itself to the concealment of a firearm, although Garcia never saw a firearm in Reed’s hand.

Most of Duke’s testimony focused on Garcia’s actions from the point he was behind the wood fence. Asked if the fence provided cover if someone were to shoot at it, he answered, “Absolutely none.”

Given the events of the first three encounters with Reed, it was reasonable for Garcia to move from behind the picket fence to the van for better cover. The reason is that, if the suspect had armed himself and moved to the front passenger side of the van and fired, Garcia would have had no cover and could have been hit. Nothing else in the area provided cover. Asked about the size differential between Garcia and Reed (Garcia is taller and considerably heavier), Duke said that it was difficult for Garcia to estimate Reed’s size because of the bulky coat Reed was wearing, which had a lot of places to hide weapons. And it was odd to be wearing a coat of that kind at that time of year (mid-July).

Noting the LBPD policy that an officer stay 21 feet or more away from the person being contained, Duke said that, assuming the person was even 25 feet away, there would not be sufficient time for the officer to holster a firearm, secure it, and remove a baton from his belt ring. He also noted that over the past several decades, 20 to 25 percent of officers killed were killed with their own weapons.

Duke disagreed with the view of others that Garcia’s action in approaching the van took away some of the options he might have used. Garcia moved only four to five feet, and the distance from the rear of the vehicle to the fence was just a few feet, maybe two feet or less. Given the close quarters, a baton might have been useless. Nor would it have been practical for Garcia to try to shoot from the fence, some 25 feet from Reed’s location, while holding a flashlight (for illumination) in the other hand. It would have taken Reed about a second and a half to travel the 21 feet specified in the LBPD distance rule. It would have made no difference in this case if Garcia had his baton. Duke also testified that the area was sufficiently illuminated.

Asked about waiting for backup while behind the picket fence in the driveway, Duke testified that was not an alternative under the circumstances in this case, “where you believe you’re dealing with a possible mental patient or somebody that’s under the influence of drugs. What if he goes into the house and takes hostages; what if he does have a weapon and starts shooting at people indiscriminately on the street. I think the police officers have the duty to protect the citizens.”

The following colloquy concluded Duke’s testimony on direct examination:

“ Q And based upon your review of several hundred shootings, what is your opinion as to the shooting by Officer Garcia at 1125 East Second Street on the driveway that evening?

“A I believe that he was in fear of his life and that he was justified in the force.

“ Q And you believe that that fear of his life was reasonable?

“A Yes, I do.

“Q And would that be based upon all the criteria that you’ve set forth?

“A Yes.

“Q And do you believe that it was consistent with the policy of the City of Long Beach?

“A Yes.

“...........................................................

“Q So if somebody is in a realistic and reasonable fear for their own life they are justified in using deadly force?

“A Yes.”

3. Decisions

In its decision, the Commission found that Reed had been followed and contained by Garcia, but that Garcia negligently moved from the fence and entered the “fatal tunnel” by the driveway past the fence and crawled along the passenger side of the van. That neglect was an improper tactic and resulted in Reed charging Garcia and Garcia’s unnecessary use of deadly force. It was a mistake for Garcia to leave the fence and enter the driveway. Because Garcia used his firearm when it was not necessary to do so—since he had a reasonable alternative of remaining behind the fence and waiting for police to arrive—he violated LBPD policy. The discharge of his firearm under these circumstances was an inappropriate use of force and a failure to use reasonable alternative actions. The Commission sustained the charges and the discipline.

Garcia’s verified petition for writ of mandate was filed in August 2006, and was controverted by City’s answer. The court, having reviewed the record, heard argument and issued a detailed ruling in February 2008, in which it granted the relief requested. This was followed by the formal judgment and writ. The City filed a timely notice of appeal.

DISCUSSION

A. The Law Stated

The principal statute governing judicial review of decisions on administrative adjudication is section 1094.5 of the Code of Civil Procedure. The applicable subdivisions for purposes of this case are:

“(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.

“(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.”

Neither subdivision (c) nor any other part of the statute specifies those cases in which the trial court is authorized by law to exercise independent judgment. But by the time this statute was enacted, in 1945, it had been settled that when the administrative adjudication resulted in the loss of vested rights, the court was empowered to exercise its independent judgment. The leading case is Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75 (Drummey). Following that decision some disagreement remained over the nature of judicial review in such cases, and in 1943 the Legislature asked the Judicial Council to undertake a thorough study of the issues and to formulate a “comprehensive and detailed plan.” (Stats. 1943, ch. 991, § 2, p. 2904.) The 1944 report of the Judicial Council fulfilled that assignment, and its recommendations became the basis for Code of Civil Procedure section 1094.5. (See Tenth Biennial Report of the Judicial Council (1944); and see the definitive law review article on the subject, Kleps, California’s Approach to the Improvement of Administrative Procedure (1944) 32 Cal. L.Rev. 416. The history and development of this law are recounted in Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811-815 (Fukuda).) The decision described by Fukuda as “the leading modern case discussing the independent judgment test,” Bixby v. Pierno (1971) 4 Cal.3d 130, 139, also reiterated Drummey, and was soon followed by another Supreme Court decision applying the independent judgment standard of review to final determinations of local administrative boards, such as the Long Beach Civil Service Commission. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 33.)

The law is now well settled that, in a case involving disciplinary termination of the vested rights of a city employee, a decision against the employee is reviewed under the independent judgment standard. That standard differs from the substantial evidence rule, by which the trial court is required to uphold the agency decision so long as it is supported by substantial evidence. Under the independent judgment standard, the court exercises its own judgment, a process that allows it to reweigh the evidence. This rule is, of course, applicable to termination of the vested rights of a police officer who has passed the probationary period and attained vested rights in his or her position and compensation. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659.)

But there is a procedural reservation: the findings of the administrative agency come to the court with a “strong presumption” of correctness. That presumption, first stated in Drummey (13 Cal.3d at p. 86), was reiterated in Fukuda (20 Cal.4th 812), where the Supreme Court refused to abrogate it. The presumption is not the kind that “drop[s] out” of the case once contrary evidence is presented. (Fukuda, supra, 20 Cal.4th at p. 821.) Instead, it is the burden of the complaining party to convince the court that the decision of the administrative board is contrary to the weight of the evidence. (Drummey, supra, at p. 85; Fukuda, supra, at pp. 817 & 820.) The two rules—exercise of independent judgment and the presumption of correctness—exist comfortably side by side. “As shown by Drummey and its progeny, there is no inconsistency in a rule requiring that a trial court begin its review with a presumption of the correctness of administrative findings, and then, after affording the respect due to these findings, exercise independent judgment in making its own findings.” (Fukuda, supra, at p. 819.) Indeed, in Drummey itself, the trial court weighed the evidence giving due weight to the presumption, then, exercising its independent judgment, decided the case against the administrative board. (Drummey, supra, at pp. 86, 88; Fukuda, supra, at p. 818.)

The scope of review is different on appeal. We do not exercise independent judgment, but review the record to decide whether the trial court’s findings are supported by substantial evidence. (Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308; see cases collected at 9 Witkin, Cal. Procedure (5th ed. 2008) Administrative Proceedings, § 148, p. 1282.) We next address that task.

B. The Law Applied

The nature of the independent judgment test, including the presumption of correctness, was argued to the trial court, which was well aware of the governing law. The court rendered a detailed minute order explaining its reasons for mandating the Civil Service Commission to set aside its decision terminating Garcia and ordering his reinstatement with full back pay and benefits.

The court found Duke’s testimony most credible and persuasive, and obviously credited his views over those of Pellegrino. The court recounted evidence it found particularly persuasive:

The wood fence afforded no cover to Garcia; Reed’s bulky coat was good reason to suspect he was armed, particularly since it was not cold outside; Garcia had no duty to retreat from the driveway when Reed charged at him, and Garcia’s tactics in approaching the fence were correct; even if Garcia had his baton at the time of the confrontation it would not have aided him; Garcia followed proper procedure in taking a position in the driveway while waiting for backup; and, quoting Duke, “[W]e pay our law enforcement people to protect us and not to run away.” The court found contrary testimony by Chief Batts, Deputy Chief Luna and Sergeant Nottingham not as well reasoned as that of Duke, to the extent it was in conflict. Garcia did not try to arrest Reed, and was trying to follow policy in observing and containing Reed until backup arrived. The court also was impressed by the opinion of the dissenting officer on the Officer Involved Shooting board.

The court found that Garcia did not employ improper tactics resulting in unnecessary use of force by not having an impact weapon at hand; a baton or a flashlight would have been of limited value, and following the “follow-and-contain” policy, Garcia would not have gotten close enough to use them, and it was not feasible for him to exchange his gun for a baton when Reed charged. Garcia had to keep visual contact with Reed, and the fence, which did not furnish effective cover, prevented continued visual contact. The court further found that Reed presented an immediate threat; his prior attempt to reach Garcia’s gun should be viewed in a continuum of actions, and Garcia had no reasonable alternative to shooting Reed when, for a second time, he charged Garcia, coming within five feet of the officer. Garcia had called for backup and had continued to update his position, but backup had not yet arrived and there was no estimate of when it would arrive.

In sum, “[t]he charges are not supported by the weight of the evidence. The writ is granted.”

The trial court’s thorough review and summary recites the substantial evidence in support of its decision. Since the findings and decision of the court are supported by substantial evidence in the record, and no trial court error appears, we affirm the judgment.

DISPOSITION

The judgment is affirmed. Respondent is to have his costs on appeal.

We concur: WILLHITE, J. MANELLA, J.


Summaries of

Garcia v. City of Long Beach

California Court of Appeals, Second District, Fourth Division
Apr 28, 2009
No. B207898 (Cal. Ct. App. Apr. 28, 2009)
Case details for

Garcia v. City of Long Beach

Case Details

Full title:DAVID GARCIA, Plaintiff and Respondent, v. CITY OF LONG BEACH et al.…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Apr 28, 2009

Citations

No. B207898 (Cal. Ct. App. Apr. 28, 2009)