FIGHT FOR YOUR RIGHT TO APPEAL

SAMANTHA SWANSON
Attorney
Adams, Ferrone, and Ferrone

California peace officers face many difficult challenges throughout the course of their careers, but one of the hardest that they will ever have to face is the fight against unwarranted discipline by their department. We have seen several agencies forego adhering to the Police Officer Bill of Rights and implementing their own department policies to impose discipline on undeserving officers. These cases set a dangerous precedent that can turn chiefs into indiscriminate dictators who dole out punishment based on their own personal vendettas.

After 17 years on the job with exemplary service, an officer received devasting news: he was going to be demoted. Police work is his calling, and his performance evaluations demonstrate the amount of care and professionalism that he brings to the job. However, the City initiated numerous frivolous investigations in an attempt to demote him because the chief “felt” that he should not be a corporal, something that the chief openly admitted. Each one of the three sustained allegations against the officer was a small incident that could and should have been handled verbally, if at all. Instead, the City demoted the officer in clear flagrance of the evidence presented. This was yet another example of a City attempting to discipline officers based on their whims. 

The first incident occurred when the officer conducted a routine traffic stop on a speeding subject. When the officer approached the vehicle, the subject’s behavior was agitated. However, the officer did not perceive the behavior as threatening. Following a brief discussion, the subject informed the officer that he had not been drinking and volunteered to perform field sobriety tests. The officer had the subject step out of the vehicle to administer the tests and move away from the unsearched people in the vehicle. After the subject was out of the vehicle, the subject informed the officer that he had previously been arrested for assault with a deadly weapon, resisting arrest and battery on an officer. This information heightened the officer’s anxiety, so he called into dispatch to run the subject’s background and request backup. Prior to backup arriving, the subject began acting in an aggressive manner towards the officer. When backup arrived, the officer implemented verbal persuasion in an attempt to keep the situation from escalating.

The City sustained allegations against the officer for wrongful exercise of authority and conduct unbecoming. They ignored the fact that the subject and the subject’s girlfriend voluntarily brought up that they were aware of the officer due to the fact that he was involved in an officer-involved shooting with the girlfriend’s close friend. The City also relied on testimony of an officer who clearly demonstrated a bias against the officer and discounted the testimony of an unbiased officer from a nearby agency that was on the scene. The City stated that the fact that the officer had the subject step out of the car prior to exhibiting pre-assaultive behavior was an officer safety issue. The City also found that the officer’s use of verbal persuasion was inappropriate and unprofessional.

The second investigation revolved around the officer calling an on-duty officer regarding a dangerous driver. During the traffic stop, the officer spoke to the other officer to inform him of what he saw. The City’s sustained allegation against the officer was unclear. In one portion of the Notice of Intent to Demote, it states that the officer should not have been involved in the case. Then, a few paragraphs later, the City states that he should have been the one to issue the citation. In sustaining allegations of unprofessionalism against the officer, the investigator and City ignored the fact that the other officer on the scene from the beginning stated that the officer was not unprofessional at any point. They also ignored the fact that the citizen complaint was filed against the original officer and not the officer being demoted.

Lastly, the City demoted the officer for failure to answer his radio for several minutes and not responding to a call outside of his jurisdiction. The City focused on the fact that the officer did not apologize to the dispatchers after he came back into radio contact, something that did not violate any department policies. It was the chief’s belief that this was demonstrative of the officer’s attitude, forgetting the fact that the officer was not informed of the allegation until months later when he was ordered not to discuss the incident. The City found that it was unreasonable for the officer to not respond to a call outside of his jurisdiction without being requested by the other jurisdiction.

The officer appealed the demotion, and the appeal was heard before an arbitrator. With regard to the first incident, the chief of police and the use-of-force trainer both testified that the use of verbal persuasion was unprofessional. They did not believe that verbal persuasion could play a part in de-escalating a situation. The arbitrator found that the use of verbal persuasion in the face of a subject with a history of violence against officers was implemented in a manner to project a strong presence to avoid another violent confrontation with the police. The arbitrator also focused on the fact that the subject had a clear motive to undermine the officer due to the officer’s involvement in the officer-involved shooting with one of the girlfriend’s friends. Finally, the arbitrator also relied on the neutral testimony of an outside officer who found that the officer’s use of verbal persuasion was used as a tactic. Ultimately, the arbitrator found that there was no basis for discipline in this instance.

The arbitrator also found that there was no basis for discipline based on the off-duty traffic stop. The arbitrator found the officer acted within policy when he became aware of a threat to public safety and reported the infractions to the on-duty officer. Further, the arbitrator found that due to the confusion contained with the charging documents about whether the officer should have issued the citation or not, there was no way that the officer could have been aware of how to respond to the call. During the hearing, the officer’s attorney questioned the supervisor on scene as to whether he ever filed a complaint regarding the officer’s alleged unprofessionalism during the stop, and the supervisor had failed to do so. If the officer’s conduct was so unprofessional during both incidents, then the supervisor on scene would be compelled to file complaints against the officer, instead of waiting for a citizen’s complaint months later. The arbitrator relied on the unbiased officer’s testimony that indicated that the officer was never unprofessional on the scene. 

The arbitrator’s opinion and award letter also found that there was no basis for discipline for the last incident. The officer’s attorney elicited testimony from the chief that during his career, he had also been outside of radio contact for a similar period of time but was not disciplined for it. Further, testimony revealed that the officers were not required to carry personal cell phones on duty nor update dispatch as to their locations. She also found that the decision to not go outside of his jurisdiction was not unreasonable and did not find cause for demotion.

This is a case where the City was dead set on ensuring that a good officer was demoted. The City continually ignored the evidence that was presented to them, which would exonerate the officer, and hand-selected the evidence that they believed bolstered their case. This was made clear during the hearing when the chief testified that he did not like the officer’s attitude. The chief also stated that he believed that he had the ability to change the classification of officers based on his opinion. It is this attitude of command staff and chiefs that are a danger to the officers. If this case had not been appealed, it would have set a dangerous precedent in that agency that the chief can demote or discipline based on his whims. This is yet another cautionary tale of what happens when cities disregard officers’ rights and instead use their power inappropriately. 

The right to appeal erroneous allegations is vital in this day and age. Not only does it stop the officers from being unfairly punished, but it sends the message to the department that they do not have carte blanche to bring frivolous complaints against officers. The officer, in this case, was reinstated to corporal and made whole for any loss of wages, benefits or seniority resulting from the demotion. Officers can win these fights.