NEW ANAHEIM POLICE CHIEF RESCINDS OFFICER’S SUSPENSION

ANDREW M. DAWSON
Partner
Dawson & Riley, LLP

An Anaheim police officer was successful in overturning an unjustified suspension imposed by his department thanks to the attorneys at Dawson & Riley, LLP.
On March 9, 2018, at around 9:16 p.m., the appellant, a 20-year officer, was dispatched to assist in a vehicle pursuit involving neighboring Fullerton Police Department. The Fullerton P.D. officer was by himself and heading toward a gang-infested area that was inside the Anaheim city limits. Fearing for the safety of the solo officer and uninvolved citizens, the appellant activated his lights and siren and tried to catch up to the pursuit. The appellant went full throttle and sped up to a max of 63 mph on a 30 mph street, when a car exited from an apartment complex driveway directly in front of the appellant’s vehicle. The appellant attempted to brake but was unable to stop in time and collided into the rear of the vehicle. Despite the other vehicle being found at fault for the collision, the department still claimed the appellant violated policy in that his “speed and rate of acceleration created a situation where [he was] unable to respond safely to sudden obstacles such as vehicles or pedestrians.” Thus, the appellant allegedly failed to exercise sound judgment and care with due regard for life and property.

The department’s argument had several flaws. First, the appellant was disciplined for accelerating 100%, because said acceleration coupled with his speed was a violation of due care. There is no such policy that prohibits an officer from going full throttle in a police vehicle. In fact, we are fairly certain that most, if not all, officers go full throttle at some point in their career, given the nature of the calls that they are required to respond to. The mere fact that the appellant went full throttle should not be a basis for discipline.

As to the speed, the court in Goldstein v. Rogers ([1949] 93 Cal.App.2d 201) held that speed alone cannot be the basis for a finding of negligence when the officer is driving Code 3. The court held that had the officer not slackened speed when he realized that the car was not yielding the right of way to the emergency vehicle driving Code 3, then the officer could be held to have used an arbitrary exercise of the right-of-way privilege. However, in the matter at hand, the appellant clearly tried to brake when the vehicle pulled out in front of him. The mere fact that the appellant could not stop in time for an unexpected vehicle pulling out in front of him cannot be the basis for finding the officer negligent. Thus, he could not have been in violation of Vehicle Code Section 21056.  

These arguments were presented at the Skelly hearing before a seasoned Anaheim police captain and during the first level of appeal with the deputy chief, but to no avail. Thankfully, the second level of appeal was heard by the newly appointed Anaheim police chief, who came from another agency. He reviewed this case with a fresh perspective and did not do the typical “rubber stamping” of his subordinates’ prior decisions. Upon reviewing the case law, he overturned the suspension and exonerated the appellant on the accusations relating to his alleged failure to utilize sound judgment and care with due regard for life and property.
Recently, Dawson & Riley has seen a rise in disciplinary actions for vehicle accidents where officers are not at fault. Departments are holding officers to an unrealistic standard by essentially claiming that driving with due care, as outlined in Vehicle Code Section 21056, requires officers to foresee any possible accident. In fact, one department recently admitted that even if the officer was driving less than the speed limit, he would still be disciplined for an accident, because he was driving too fast to avoid losing control when he swerved to avoid the accident. It is important for officers to be cognizant of the changing, unrealistic expectations being placed on officers by some departments.
The appellant is grateful that the department essentially admitted that the suspension should have never occurred and for the zealous representation by Dawson & Riley and support provided by the Legal Defense Fund.