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Gerst v. City of Los Angeles

California Court of Appeals, Second District, First Division
Sep 18, 2008
No. B203614 (Cal. Ct. App. Sep. 18, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BS101097, Dzintra I. Janavs, Judge.

Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Defendants and Appellants.

Diane Marchant for Plaintiff and Respondent.


WEISBERG, J.

Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Douglas Gerst, a Los Angeles police officer, was suspended for 10 days after a Board of Rights found him guilty of firing a firearm in violation of the Department’s shooting policy and utilizing deficient tactics while on duty which led to an officer involved shooting. Gerst petitioned for a peremptory writ of mandate pursuant to Code of Civil Procedure section 1094.5, which the trial court granted, ordering the City of Los Angeles and its Chief of Police (together, the City) to set aside the suspension. The City appeals, contending the trial court (1) applied the wrong standard in determining whether the weight of the evidence supported the Board of Rights’ findings, and (2) abused its discretion in finding that the weight of the evidence did not support the Board of Rights’ decision. We conclude the trial court was correct and affirm the judgment.

Unless otherwise stated, section references are to the Code of Civil Procedure.

STANDARD OF REVIEW

Judicial review by writ of mandate of final administrative determinations is governed by section 1094.5. In Bixby v. Pierno (1971) 4 Cal.3d 130, the court held that the independent judgment test applies when administrative decisions will “substantially affect vested, fundamental rights[.]” (Id. at p. 143.) The disciplinary proceedings initiated against Gerst affected a “‘fundamental vested right’” in his city employment. (Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 500.) The trial court was thus required to exercise its independent judgment and independently weigh the evidence. (Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 1173-1174; see also 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 278, p. 1191 [“the superior court weighs the evidence and makes its own determination whether the administrative findings are sustained”].)

Relevant here, section 1094.5, subdivision (b) provides: “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.” Subdivision (c) provides: “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.”

The Supreme Court has emphasized that “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) “[A]n exercise of independent judgment does permit (indeed, it requires) the trial court to reweigh the evidence by examining the credibility of witnesses. . . . [I]n exercising its independent judgment ‘the trial court has the power and responsibility to weigh the evidence at the administrative hearing and to make its own determination of the credibility of witnesses.’ [Citation.]” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658, quoting Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010, 1016, italics omitted; accord, Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 868.) The court in Fukuda stressed that the party challenging the administrative findings bears the burden of proof, as set forth in Evidence Code section 500, “as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 819.)

On appeal, we review the trial court’s findings of fact to determine whether they are supported by substantial evidence on the whole record. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52.) “[W]here the superior court overturns the findings and an appeal is taken, the reviewing court gives the superior court’s judgment the same effect as if it were rendered in any ordinary trial in that court.” (8 Witkin, supra, Extraordinary Writs, § 278, p. 1191.) Our focus is on the trial court’s findings, not those of the administrative agency. (Khan v. Medical Board (1993) 12 Cal.App.4th 1834, 1840.) “‘The determination of the trial court on conflicting evidence on the facts is binding on this court on appeal.’ [Citation.]” (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 812.) Our power thus “‘“begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the trial court’s findings[.]’” (Duncan v. Department of Personnel Administration, supra, 77 Cal.App.4th at p. 1174, fn. 6.)

Evidence is “substantial” when “any reasonable trier of fact could have considered it reasonable, credible and of solid value.” (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052.) The quality, not the quantity, of the evidence is paramount. (Duncan v. Department of Personnel Administration, supra, 77 Cal.App.4th at p. 1174, fn. 6.) Even a single witness’s testimony may suffice. (Evid. Code, § 411 [“direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact”].) We “view the evidence in the light most favorable to the prevailing party, giving [him] the benefit of every reasonable inference and resolving all conflicts in [his] favor[.]” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)

To determine whether the trial court’s independent judgment and reversal of the Board of Rights’ findings was supported by substantial evidence, a detailed analysis of the record is required.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Incident

Officer Gerst worked at the Valley Traffic Division and was assigned to a surveillance unit that monitors habitual drunk drivers. At the time of the incident, he had been with the Department for over 28 years.

On January 24, 2004, at about 9:45 p.m., he was assigned to “be on hand” in the Foothill Division where a low-speed pursuit was in progress. Gerst heard over the radio that the suspect was armed with a handgun and was involved in some sort of domestic violence; the suspect was also wanted for reckless driving. Gerst drove to the location (Mercer Street and Laurel Canyon Boulevard) and parked on a side street.

Officer Paul Harper was the primary unit in the pursuit. Harper described the pursuit as “very unique . . . in the fact that [the suspect] wasn’t evading for the purpose of trying to escape, he was basically toying with us. We would give him room, he would pull over and wait for us. He would turn the corner, we’d hide behind the corner and wait, he’d pull over and wait for us. At times, though, he would accelerate, he swerved toward pedestrians on at least one occasion[.]”

Sergeant Chris Kalis was on loan to the Foothill Division that day as a gang sergeant when she heard one of her gang units report they were in pursuit of a reckless driver. She drove to the location with Sergeant Kimberly Kempton to monitor the pursuit. Kalis heard a broadcast early in the pursuit that the suspect possibly had a gun in his car. She also recalled hearing information broadcasted that he was a possible domestic violence suspect.

The pursuit went “all over the division,” but the suspect kept returning to the area of Mercer near Amboy Avenue and Laurel Canyon Boulevard. Officer Angela Krieg, the police helicopter pilot that night, said “each time [the suspect] passed, the crowd would get larger[.]” She saw people along the entire block, not “just the family[.]” She estimated there were 30 to 50 people on the block.

As it happened, one or more civilian witnesses videotaped portions of the pursuit, including the crash and shooting at issue here. A DVD is part of the appellate record.

Sergeant Kalis directed a supervisor and some officers to stand by the house on Mercer in case the suspect “chose to jump out of his vehicle and run towards his house, or do something at that location. Officer Krieg saw the suspect stop at several points on Mercer, “where he was either contacting officers or family members . . . [and] also stops in the pursuit when he was . . . baiting [the officers.]” At one point when the suspect was stopped in front of the residence, an officer slashed the back tires of the suspect’s car with a pocket knife. Sergeant Kalis said the suspect stopped at the residence at least 10 times, and numerous officers tried to talk with him, “tr[ied] to get him to give up, get out of his car, keep [his] hands where [they could] see them, and he would not comply. The suspect would slow down and talk to some of the community members who were in their yards or on the sidewalk. “It was his routine to stop and talk and yell at the wife and yell at the family and yell at the officers.”

Gerst saw the suspect several times during the course of the pursuit. Gerst could see him waiting for the police and saw that he would “actually motion them to come up and continue chasing him.” When the officers went into “tracking mode,” keeping track of the suspect from the helicopter above them, the suspect stopped on Laurel Canyon and waited for the officers to catch up to him.

Sergeant Kalis said they were not sure what the suspect was doing: “was he trying to give up, or was he not trying to give up? Was he playing a cat-and-mouse game with us?” She explained their main objective was to take him into custody as safely as possible, “and try to keep [themselves] and the public as safe as [they] could, making sure that [they] followed Department policy and procedure regarding pursuits and deployment of resources and how [they] tactically handled the situation.”

Gerst had been on the scene about 45 minutes (and the pursuit had been in progress for an hour and a half) when an order came over the radio to block the suspect on Mercer between Laurel Canyon and Amboy. Gerst thought his car was well equipped for the roadblock because it had “push bars” on the front: “it’s built to push vehicles that are disabled. . . . [I]t would be a much safer vehicle to place in a roadblock situation.” He began moving his car into position on the westbound curb lane of Mercer at Laurel Canyon. Sergeants Kalis and Kempton helped block Mercer on the east side of the barricade. Officer Harper was blocking the eastbound traffic from Mercer and Amboy with his vehicle. Officer Kurt Thurston’s vehicle was in the middle. Sergeant Joseph Kalyn parked on the sidewalk. Altogether, five police cars blocked Mercer.

After forming the blockade, the officers were directed to get out of their cars and take cover. Gerst was concerned the blockade was not illuminated. He tried to alert Sergeant Joseph Kalyn, but when he moved toward his vehicle to turn on the headlights, he saw out of the corner of his eye that pedestrians or police officers were running. He realized something was wrong. Gerst was directly in front of his vehicle when he saw the rear lights of the suspect’s car accelerating toward him in reverse. As Gerst reached for his firearm, the suspect crashed into Gerst’s vehicle, barely missing Gerst. Officer Thurston, standing on the south curb of Mercer, also drew his weapon when he saw the suspect’s car traveling in reverse, but realized he was out of shooting position and reholstered his gun.

The Department’s reconstruction expert estimated the suspect’s vehicle was going between 38 and 42 miles per hour.

Gun drawn, Gerst ran toward the driver side of the suspect’s car. The suspect looked dazed; his hands were on the steering wheel. Believing he had the advantage, Gerst made a split-second decision to try to take the suspect into custody. Gerst approached the car directing his gun in such a way that, if deadly force became necessary, his shots would be aimed at the suspect “point-blank in a downward motion so those bullets or rounds would be contained within the vehicle.” Sergeant Kalyn ran, weapon drawn, to cover Gerst.

Gerst told the suspect to turn off his engine and put his hands up. At the Board of Rights hearing, Gerst explained: “Deadly force is the last thing I wanted to use. I wanted to let the suspect know that he was caught, that he had two choices, to either surrender or if he continued to assault us he would be shot. And I think the gun pointing at his chest was a good indicator of that to him.”

The suspect did not respond, instead, shifting the car into drive. Sergeant William Sexton saw the car heading in Gerst’s direction and believed “absolutely” that Gerst was in jeopardy. Officer James Zourek also saw the suspect’s car moving in an angle towards Gerst and heard Gerst yelling “Stop, stop,” in a “high panicking voice.” Zourek said he feared for Gerst’s safety. Zourek prepared to shoot, but did not want to be involved in a “friendly fire situation,” so he shouted “cross-fire” and attempted to reposition himself in a better location. When Officer Sexton heard “cross-fire,” he took cover.

The suspect accelerated, and Gerst fired five shots. Gerst subsequently explained he fired because the suspect had already shown he was willing to kill him, and if allowed to get away, could injure or kill citizens or other police officers at the other end of Mercer. Gerst further explained that when the suspect collided with the police vehicle, “I also felt that there were possibly one or two officers either seriously injured or killed by my police vehicle moving back.” Regarding his absolute belief that he had no alternatives to the use of deadly force, Gerst described a similar pursuit he had been involved in eight years earlier in which the suspect rammed a police vehicle and then raced through a red light, colliding with a car that burst into flames mid-air. Gerst felt great regret that he could not save the driver of the other car. This time he felt he had no alternative but to stop the suspect.

After the fifth shot, the suspect’s car stopped; the suspect was unconscious. Gerst broke the shattered window with his fist, reached in, grabbed the keys, and threw them to the ground. He later learned the suspect had sustained four gunshot wounds, none of which were fatal.

At the hearing, Officer Krieg (the helicopter pilot) was asked whether, based on her life experience as a police officer, she thought that officers or community members would have been seriously injured or killed if the suspect had been allowed to move forward. She responded: “Yes. Because he had escalated the situation. He was driving faster, he was driving more aggressive. Everything that they tried, whether it was minor blocking, slashing the tires, giving him space, nothing works. And he was the aggressor at this point, putting the vehicle at a high rate of speed.” Officer Zourek testified that, based on the suspect’s collision with Gerst’s vehicle, he believed the suspect had already shown, if not specific intent to hurt or kill officers or civilians, at least a blatant disregard for safety. Officer Thurston explained the suspect had to be stopped: “It was an immediate defense of life situation, I mean, from my vantage point.”

B. Administrative Proceedings

On January 10, 2005, the Use of Force Review Board voted 3 to 2 to find Gerst’s shooting “out of policy” and voted 4 to 1 to disapprove his tactics. The Chief of Police sent his findings to the Police Commission on January 13, 2005, advising the Commission that, based on the Use of Force Review Board’s findings, he had initiated a personnel complaint against Gerst. The Police Commission adopted the Chief’s report on January 24, 2005, and the Chief imposed a 10-day suspension on Gerst on two charges:

“Count 1. On or about January 24, 2004, you fired a firearm in violation of the Department’s shooting policy.

“Count 2. On or about January 24, 2004, you, while on duty, utilized deficient tactics which lead [sic] to an officer involved shooting.”

Gerst appealed to a Board of Rights, which conducted hearings in August and September 2005.

In addition to the above testimony from the participants, Sergeant Ronald McCarthy testified for Gerst as an expert in officer-involved shootings. McCarthy opined that Officer Gerst’s use of deadly force in response to the suspect’s actions was “[a]bsolutely]” reasonable. Describing the team-coordinated method of approaching a suspect, McCarthy explained: “Suspects are unpredictable. So it’s not possible for officers to anticipate what they’re going to do. It’s not possible for officers to predict what sociopath or manic/depressive or under the influence suspects are going to do. [¶] So [the police] are bouncing off of and reacting and utilizing their training and utilizing each other as best they can. There isn’t a boilerplate solution in any training for this situation.”

The Department and the defense stipulated that McCarthy was “a court qualified expert in the United States superior court . . . in regards to officer-involved shootings, in using deadly force in police applications. [¶] Officer McCarthy has reviewed approximately 2,000 use of force and officer-involved shootings and . . . he is an expert in regards to the standard of Graham v. Connor [(1989) 490 U.S. 386, 109 S.Ct. 1865] in regard to reasonableness when it comes to using deadly force.”

With respect to the immediate aftermath of the suspect’s collision with Gerst’s car, McCarthy was asked whether he still believed the suspect posed a threat, given the closest officers were approximately 150 feet away from the suspect’s car, and the car was moving forward at about three to five miles per hour. McCarthy said he did and explained:

“When, originally, the suspect was stopped approximately mid block in front of his house, . . . he’s not posing a threat.

“Th[en] he puts his car in reverse and accelerates and travels -- I’m estimating because I’m going from the belief that he was about mid block -- that he traveled 75 or 80 feet or so at a very high rate of speed with two flat tires and smashes into cars where there are, obviously, police officers . . . .

“[A]nd I’m also coupling this with the observations of Gerst. . . . [¶] [I]t was important for me to look at the [DVD] and understand that Gerst didn’t hysterically run up [to] the car and immediately bam, bam. We have a sequence of rounds that happen spontaneously which would indicate a reaction of emotion or personal outrage at the bizarre behavior of the suspect smacking into the car.

“[Gerst] approaches the car. And then it’s hard to see what Gerst is doing because the quality of the film and other things that get in the way, but there’s a lag time there or a time frame there before the car starts moving forward. [¶] . . . [¶]

“And if the subject left the roadway, reasonably, he could run over, not only officers, citizens, if he left . . . Mercer Avenue and was able to escape . . ., which seems perfectly reasonable to me, any citizen, any officer that came into contact with this individual, you would expect reasonably that their life and their safety would be at risk.

“I was impressed by the velocity and the impact. When I first saw it, I thought, the car isn’t going to move. And when it did, all that, to me, seemed like, without question, the subject was certainly perceived reasonably as a threat to kill people, police officers or anybody else, especially if he got off of Mercer Street.”

McCarthy also responded to questions about his view of changes in Department training that emphasize “containment and control”:

“I think the Department is changing and that is their goal. There’s no question that containment is one of the first options. . . . [C]ontainment is only effective as long as suspects respect it.

“So once we establish what is obvious to a suspect as a barrier of police presence, cars, police officers, our hope is the suspect will respect that. Once the suspect begins to attack or challenge the perimeter – the perimeter is supposed to respond.

“How does the perimeter respond? That oftentimes is very complex because training doesn’t cover it. . . .

“[T]he suspect creates the time frame in most cases. Now, some officers can be precipitous and change that and . . . this suspect changed that. He created a time crunch and an emergenc[y] in an exigent circumstance and a threat to others.

“And he challenged. Now, L.A.P.D. officers have to do something[.]”

The Board of Rights called Sergeant Louis Salseda, a supervisor in the tactics unit of the training division, to provide evidence of the Department’s policy and training in the use of deadly force. Salseda explained that, at the time of the incident, the deadly force policy permitted officers to defend themselves and to “use deadly force to protect others who are placed in jeopardy from serious bodily injury or death. And we can also use deadly force to apprehend fleeing felons where there’s a likelihood that if they are something [sic], they pose a significant danger to the community.”

Sergeant Salseda was also asked about training for situations in which a suspect is creating a danger to officers by driving in their direction. Salseda explained that in January 2004, the Department “didn’t specifically have a number of different tactics for dealing with that, other than to advise the officers to get out of the path of the vehicle, if at all possible, and to seek cover.” Where there was a traffic collision, and the suspect’s vehicle had major damage but appeared operable, the tactical approach generally was to “tell officers that . . . time is on our side unless there’s other circumstances that would require us to do -- perform something under an emergency condition. Normally, we tell the officers to -- from a position of cover to formulate a plan and then communicate that plan to the other officers in the area and then try to carry out that plan. And if possible, have a Plan A and a Plan B.”

If, however, an officer believed someone’s life was in jeopardy, Salseda agreed that tactically approaching the vehicle could be considered appropriate. Viewing the DVD and pursuit report here, Salseda observed that there appeared to be no plan. Some officers seemed startled by the suspect’s collision with Gerst’s vehicle and were in a reactive mode. Salseda added: “[W]e don’t train for this type of specific incident[;] . . . most of our training is based on a foundation of planning and having a plan before doing anything tactical. . . . [¶] . . . None of the supervisors organized anything at this particular intersection. It was largely done by the officers reacting to some direction to use their vehicle as a blockade. [¶] So taking those things into consideration again, we don’t train officers specifically in this type of situation as to what to do. So you have to fall back on your training and your experience.” Salseda declined to speak for Officer Gerst because he was unaware of Gerst’s training. Salseda said the “tactical concepts” in the training division dictated that when approaching a vehicle with an armed suspect, “then we want to . . . make that approach very cautious and careful and with the appropriate resources available should that suspect in the vehicle attempt to use deadly force against the officers approaching.” In this situation, Salseda felt Gerst had not put the suspect at a disadvantage or minimized his exposure.

In addition, Salseda stated that a suspect with a dangerous weapon (which included a vehicle) was not a “fleeing felon” within the Department’s use of force policy. Salseda did state that exigent circumstances would allow the use of deadly force when a vehicle has collided with a police car, and the vehicle is still driveable, and “the suspect still has control of that vehicle and if the citizens are in close proximity to the front of that vehicle and he’s able to obtain enough speed to impact those individuals before they can move out of the way, you would place them in jeopardy [of] serious bodily injury.”

C. Board of Rights’ Decision

The Board of Rights found Gerst guilty of both charges. On count 1, the Board said there was no evidence that the suspect or his vehicle posed an immediate threat of death or serious bodily injury to Gerst at the time he fired. Additionally, any people in the street “had time to move out of the way.”

On count 2, the Board faulted Gerst’s failure to take cover when the suspect sped in reverse toward the blockade. The Board criticized Gerst for approaching the suspect’s vehicle, which placed him at a tactical disadvantage and precluded use of less lethal options. The Board found Gerst’s actions were influenced by emotion rather than Department training and experience. His appeal was denied, and the Board recommended Gerst be sent to Behavioral Sciences, receive more training on the use of force, and be restricted from field duty until those tasks were completed.

Gerst served the suspension between November 28 and December 8, 2005.

D. Petition for a Writ of Mandate

On January 10, 2006, Gerst filed a petition for a writ of mandate in Los Angeles County Superior Court. The trial court heard the matter on August 9, 2007, receiving in evidence the five volumes of the administrative record, which included a DVD of the collision and shooting. In its statement of decision, the court found that, as to count 1 (the use of deadly force), Sergeant McCarthy’s opinion that Gerst’s use of force was “absolutely” reasonable was unrebutted by contrary testimony and was supported by the testimony of other officers at the scene. The court acknowledged that Gerst had “mere seconds” in which to decide whether his use of deadly force was necessary to avoid potential deadly harm to himself or to other officers or civilians.

As for the deficiency of Gerst’s tactics, the trial court cited the testimony of Sergeant Salseda that the Department had no training for the type of incident here and that the City failed to produce such a standard during the Board hearing.

DISCUSSION

A. Substantial Evidence Supports the Trial Court’s Judgment

Regarding Officer Gerst’s Use of Deadly Force

The City contends the trial court failed to make findings about the facts Gerst actually knew when he decided to shoot the suspect. We disagree.

The trial court correctly cited Fukuda v. City of Angels, supra,20 Cal.4th at page 817, and acknowledged the strong presumption of correctness due the administrative findings. Nonetheless, the trial court’s independent review of the record described a rapidly evolving situation -- caught on camera -- in which an unpredictable, potentially armed suspect appeared capable of inflicting great bodily injury or even death on a crowd of officers and civilians. Gerst was acutely aware of these circumstances. Notably, the suspect (even with his back tires slashed), sped in reverse into stationary police vehicles at a significant rate of speed, barely missing Officer Gerst and pushing Gerst’s vehicle back approximately 15 feet. In addition, Officer Gerst knew other officers (and possibly other spectators) were in the immediate area. The situation was chaotic, due in large part to the suspect’s erratic and dangerous behavior as well as to the lack of supervision and coordination in the operation. Gerst seized the seconds after the crash, when the suspect appeared stunned and immobile, to draw his weapon and approach the car, ordering the suspect to turn off the engine and raise his hands. The suspect threw the car into drive and began moving forward, evidently ready to resume his perilous conduct. The trial court plainly relied on the facts known to Gerst at the time he fired his weapon, emphasizing that the video supported and corroborated the evidence.

The City further contends the trial court erred in its reliance on Sergeant McCarthy’s expert opinion without making findings as to whether the facts McCarthy was asked to assume in the hypotheticals were true. In fact, McCarthy was asked to assume the hypothetical officer shared the beliefs Gerst possessed at the time he used deadly force to stop the suspect. Notably, McCarthy was asked to assume that Gerst believed the suspect’s collision with Gerst’s patrol car either injured or killed officers standing behind the vehicle. This was one of the reasons why Gerst decided to employ deadly force.

It is true the trial court did not specify every fact on which it based its findings, however, the statement of decision shows the trial court reviewed the entire administrative record, including Officer Gerst’s testimony about his reasons for shooting the suspect and the DVD, in reaching its decision. We conclude the trial court implicitly found Sergeant McCarthy’s opinions were based on hypothetical scenarios that accurately reflected Officer Gerst’s perceptions of the dangers he and others faced during the critical seven seconds of this incident. The trial court fulfilled its obligation in this regard.

Other officers at the scene corroborated Gerst’s explanation of his use of force. In particular, the police helicopter pilot thought that officers or community members would have been seriously injured or killed if the suspect had been allowed to move forward. Officer Zourek testified that the suspect’s collision with Gerst’s vehicle showed a blatant disregard for others’ safety. Officer Thurston described the circumstances Gerst faced as “an immediate defense of life situation[.]” These officers, in the midst of chaos, recognized Gerst’s predicament and options and believed his actions were reasonable. The City offered no evidence from officers in the immediate vicinity during those crucial few seconds who contradicted Gerst’s or the other officers’ assessment. The evidence from these officers was substantial and supported the trial court’s decision.

The trial court specifically relied upon the DVD of the January 24th incident as “support[ing the] evidence outlined herein and corroborat[ing] it.” That the suspect’s vehicle crashed into the patrol car, then, after a pause, started to move forward amidst the noise and confusion is additional support for the trial court’s statement that “‘[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.’” (Quoting Graham v. Connor, supra, 490 U.S. at pp. 396-397 [109 S.Ct. at p. 1872].) Here, the trial court found Gerst had “mere seconds to determine whether use of deadly force was necessary to avoid potential deadly harm to himself and the other officers and civilians at the scene.” The DVD constitutes substantial evidence to support that finding.

Finally, the trial court found no expert testimony contradicted the opinion of Gerst’s expert, Sergeant McCarthy, that Gerst’s use of force was “absolutely” reasonable. The City contends the trial court erred in “not measuring evidence of officer Gerst’s conduct against the actual Department policy[,]” rather than under the parameters of Graham v. Connor. The Department concedes, however, that it did not call an expert witness to rebut Sergeant McCarthy’s opinion regarding the reasonableness of Gerst’s conduct. The Department also did not offer any expert witness testimony “measuring” Gerst’s conduct against the Department’s use of deadly force policy. Gerst’s evidence thus stands unrebutted on this point, and the trial court’s statement of decision was supported by substantial evidence. We affirm the trial court’s judgment regarding Gerst’s use of deadly force.

It is unclear how and to what extent reasonableness under Graham v. Connor differs from the Department’s policy. Indeed, as the City points out, the Department’s Use of Deadly Force Handbook contains an outline of Graham v. Connor and guidelines for applying the decision.

B. Substantial Evidence Supports the Trial Court’s Judgment

Regarding Gerst’s Tactics

In the statement of decision, the trial court quoted Sergeant Salseda’s testimony that the Department “does not provide training ‘for this type of specific incident . . . . You have to fall back on your training and your experience.’” The court noted that the City had failed during the Board of Rights proceeding to produce evidence that the City had such a standard that established Gerst’s tactics were deficient. Without an applicable standard “for this type of specific incident,” the trial court suggested Gerst could not be faulted for the tactics he employed.

The City contends the trial court misinterpreted the expert testimony of Sergeant Salseda. A review of Salseda’s testimony refutes the City’s contention. Salseda described the training for “high risk” vehicle stops (those involving a felony suspect or a possibly armed suspect): Officers are positioned at the rear of that vehicle, “[t]hen [the officers] provide directions to the suspects exiting the vehicle and then place the suspect down either to the left or the right of the vehicle, depending on the environment.” At that point, “officers using cover of one officer and one who essentially searched and put handcuffs on that suspect and then remove[] him from there and place him in the police vehicle.” Officers are not supposed to approach a suspect’s vehicle where there has been a collision and major damage, when the vehicle appears operable. Instead, officers should formulate a plan from a position of cover and then communicate that plan to the other officers in the area and then try to carry out that plan: “And if possible, have a Plan A and a Plan B.” If there is a vehicle with a possible felony suspect, armed or not, officers are not trained to approach from the side in front of the car, facing the suspect, although officers are not specifically taught to avoid that approach. Instead, officers are supposed to try to “direct the suspect out,” and if that does not work, then “we take some time considering other tactical options that we may have available.” Salseda further explained: “we usually explain to officers that distance gives us time and is an advantage for officers in dealing with armed suspects.”

Although Salseda is largely critical of Gerst’s tactics, when taken step by step through the circumstances of January 24th, Salseda seemed to find many aspects of the [hypothetical] officer’s tactics acceptable. For example, Salseda agreed that “[i]f an officer believed that someone’s life was in jeopardy . . . a tactical approach to the vehicle [could] be considered appropriate[.]” He agreed it would be a good idea for officers whose vehicles were part of a blockade to turn on their forward facing lights. When Gerst realized the suspect was coming at him at a high rate of speed and could not run for cover but only jump back, Salseda agreed that was reasonable. Officer Gerst could reasonably assume, as a result of the suspect’s collision and the violent impact, that the suspect was dazed. Salseda agreed that Gerst was reasonable to assume that, because of the impact, if the suspect had the weapon on his lap or nearby, it would have been thrown about the vehicle because of the violence in the impact. Officer Gerst was not unreasonable in believing it was his duty to apprehend the suspect to stop him from moving forward because the suspect had already demonstrated he was a threat to the police officers and the community.

Based on that scenario, Salseda found that Gerst was reasonable to believe it was his duty to stop the suspect because the suspect was dazed and incapacitated. Recognizing that the suspect was incapacitated or momentarily dazed, it would be reasonable for Gerst to approach the suspect to apprehend him, “if [he] did it in a tactical, sound manner.” No Department policy or instruction prohibited officers from approaching a felony suspect in a vehicle from the front or from the driver’s side. And it would not be unreasonable, Salseda said, for an officer to abandon the advantages (the suspect is dazed, his hands are on the wheel, the gun is probably inaccessible) in favor of relying on his gun as “cover” to apprehend the suspect. The fact the suspect’s hands were on the steering wheel while he was momentarily incapacitated “would help” make the approach to apprehend the suspect more reasonable.

Salseda testified that it was reasonable for Gerst to “articulate[] and verbalize[] with the suspect to turn the motor off . . . and to throw his keys out [in an] attempt to control the suspect that he believed . . . would pose a deadly threat to the community and the officers that he believed [were] east of the collision in the middle of the street.” Salseda also agreed that, even though the suspect’s vehicle began moving forward at just two to three miles an hour, the vehicle could gain speed, even with flat tires. Salseda acknowledged, after viewing the videotape, that it “was a fluid and dynamic tactical situation.” Salseda agreed that each incident was unique and different when it came to tactics, that the Department can’t train for every scenario, and that the Department was not trained for this particular scenario. He stated that “[w]ithout preplanning, it’s difficult to communicate if there’s an incident that occurs to adapt to that particular scenario[.]”

In sum, Sergeant Salseda’s criticisms of Gerst’s tactics were nuanced and qualified. Although there were contradictions in the evidence, we conclude that the trial court’s findings regarding Gerst’s tactics are supported by substantial evidence. (Duncan v. Department of Personnel Administration, supra, 77 Cal.App.4th at p. 1174, fn. 6.)

Accordingly, we affirm the trial court’s judgment granting the petition.

DISPOSITION

The judgment is affirmed. Gerst is awarded his costs of appeal.

We concur, MALLANO, P.J.,ROTHSCHILD, J.


Summaries of

Gerst v. City of Los Angeles

California Court of Appeals, Second District, First Division
Sep 18, 2008
No. B203614 (Cal. Ct. App. Sep. 18, 2008)
Case details for

Gerst v. City of Los Angeles

Case Details

Full title:DOUGLAS GERST, Plaintiff and Respondent, v. CITY OF LOS ANGELES et al.…

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

Date published: Sep 18, 2008

Citations

No. B203614 (Cal. Ct. App. Sep. 18, 2008)