Officers Vindicated After an Intense, Lengthy Fight

Posted by Corey Glave

In 2007, Hawthorne Police Officer Rex Vian responded to a family disturbance call. Immediately upon Vian locating the suspect, the suspect attempted to flee — twice trying to run Vian over with his car. A high-speed pursuit followed during which the suspect drove with reckless abandon, placing himself, the police and citizens at risk. At one point, the officers attempted to use legal intervention against the suspect without success. It was not until the driver crashed his car that the pursuit terminated.

The suspect — a 5-foot, 6-inch tall, 175-pound demolition worker with a criminal history that included a battery, assault with a deadly weapon, battery with serious injury and drug charges — ran into an alcove and realized he had nowhere to go. The suspect was ordered to place his hands in the air but began acting strangely and appeared to prepare for battle. He took his cigarette out of his mouth and flicked it away, then dropped his hand to his side near his pocket and waistband. As Vian closed the distance, the suspect unexpectedly jumped down to the ground and concealed his hands underneath his body. Officer Vian tried to straddle the suspect and then placed his knee on the suspect’s right shoulder. As a second officer entered the courtyard, the suspect’s left hand quickly moved out from under his body toward the second officer, causing an immediate reaction from Vian. Officer Vian delivered a hand strike to the suspect’s left shoulder and the suspect again concealed his hand underneath his body. At no time did the suspect comply with the officers’ commands, voluntarily give up his hands or surrender.

The second officer reached the suspect and formed the opinion that the suspect was actively resisting Officer Vian. The suspect continued to hide his hands and was noncompliant. As Vian used hand strikes, the second officer delivered several feet and knee strikes to the suspect’s ribs and back. The suspect continued to resist the officers. Two more officers arrived and attempted to take the suspect into custody, but the suspect would still not surrender, continually pulling his arms back toward his body and trying to get up. Finally, Officer Anthony Robles, his partner, and another officer intervened. Robles used foot strikes to the suspect’s ribs and the other two officers applied force to other areas of the body. Robles’ kicks caused the suspect to lose his balance and fall back to the ground. Eventually, with six officers present and working together, the suspect was taken into custody.

The suspect was charged with two counts of Assault on a Peace Officer, Child Cruelty and Felony Evading. After the Preliminary Hearing, the suspect was held to answer on all charges and entered into a plea deal wherein he served three years in state prison.

Following the Preliminary Hearing, a lieutenant reviewing the video of the chase and arrest, but without talking to any of the officers on the scene, formed the opinion that the force used may have been excessive and filed a written supervisory complaint. The department initiated an Internal Affairs investigation but allowed the officers to remain on active duty. The IA was assigned to a brand new IA sergeant who had just come back to work after a year off due to what was believed to be psychological issues.

All of the officers were interviewed and explained their observations of the suspect’s resistance. While the IA investigation was pending, the chief of police retired and the anti-police association city council promoted a supply sergeant to the chief of police. The new chief immediately placed three of the involved officers on administrative leave and requested the district attorney’s office conduct an investigation. The DA’s office, believed to have already been investigating the city council, sent the case to the Los Angeles County Sheriff’s Office to conduct the investigation.

The LACSO investigation and subsequent DA review resulted in a rejection of any criminal filing, finding that the officers’ statements in their reports were consistent with the video and showed that the officers were required to “elevate their level of force to restrain and control” the suspect.

Nevertheless, the new IA sergeant and a new chief of police sustained the allegations of force against Vian and Robles. The second officer’s use of force was deemed justified as the suspect was actively resisting at the time of his contact. The chief of police felt that the suspect had surrendered and that Vian (first officer) should not have used force and that Robles’ (sixth officer-involved) kicks were unnecessary as the suspect was already being controlled. The chief felt that the second, third, fourth, fifth, seventh and eighth officers were justified in their use of force as the suspect was resisting arrest. Vian and Robles were given Notices of Intent to Discipline-Suspensions, with a redacted copy of the IA report, but were not given all of the investigative materials, video recordings of the arrest, recordings of the interviews or even the initial complaint giving rise to the IA.

It became clear that the department and its counsel were taking a win-at-all-costs approach and knowing that they were in for a fight, both Vian and Robles decided they needed an aggressive attorney. They were assigned to attorney Corey Glave, and the officers began their efforts to clear their names and personnel files.

First, Glave gathered as much of the investigative materials as they could obtain from other sources and from other officers. They were able to put together a factual response showing that the discipline was based on false conclusions and faulty analysis of the facts and video. Next, when the Chief of Police nevertheless maintained his course of action, the officers appealed their discipline to the Hawthorne Civil Service Commission. The city, hoping to outlast the officers, and in violation of their own Civil Service rules, delayed the officers’ appeal hearings for more than eight months.

When a hearing was finally given, the city’s case began to unravel as the department’s witnesses started contradicting each other’s testimony and it was shown that the city had been concealing evidence from the officers. In fact, it was ultimately learned that the city concealed the fact that it had consulted with two paid use-of-force experts, and with the department’s two use-of-force trainers. It was further learned that when the department’s trainers agreed with the officers’ actions, the trainers were ordered by the IA sergeants not to reveal their opinions to the officers.

During the hearing, the investigating IA sergeant testified that his conclusions were based on his opinion that Vian should never have run after the suspect and that he would have been better served by staying at his patrol car. Not only was this testimony contradicted by the other officers (who testified that they believed it was their job to chase and catch the bad guys), the testimony was easily impeached. Attorney Glave brought forward a video of the IA sergeant, taken before his leave of absence, engaging in similar conduct at the conclusion of a short car chase videotaped by a news helicopter.

Finally, when the department’s use-of-force expert (the city only called one of four that were consulted) was cross-examined, Attorney Glave obtained a concession that the suspect had not surrendered and Vian’s initial use of force was justified. Eventually, the Expert indicated that the problem he saw was that Vian did not change his target area when the initial hand strikes did not result in compliance.

While the evidence was clearly supporting the officers’ version of events and showing that their force was reasonable and necessary, a new concern developed. Both the old and new IA sergeants (a new sergeant was assigned to IA after the conclusion of this investigation) and their attorney were observed meeting with civil service commissioners after hearings and in unmarked vehicles. Similarly, the chief of police was observed going behind closed doors with the commissioners. It became clear that the hearing process was being tainted against the officers.

After 16 days of the hearing, the Civil Service Commission voted, not unexpectedly, to uphold the discipline against Vian. However, in a surprise move, the Commission voted to overturn Robles’ discipline. The city’s management was outraged about the Robles decision and the city manager immediately sent an e-mail to the city council chastising the Commission. The Commission then, without notice to the officers, met and voted to change their decision on the Robles matter. When questioned on the record, the commissioners who voted to change their decisions denied having any contact with city officials. Later, Attorney Glave was able to obtain evidence that one of the commissioners admitted that the city manager met with the Commission (including with at least one commissioner that had a job offer pending from the city manager) and the Commission thereafter changed its decision. Ultimately, the city manager admitted to contacting the commissioners.

PORAC-LDF immediately authorized the filing of a Petition for Writ of Mandate and a POBRA action against the city. The Superior Court has now found a number of POBRA violations have occurred and has barred any disciplinary action from being taken against the officers. The Court ruled that the city failed to comply with its Civil Service rule that requires an appeal hearing to be provided to employees within 20 days of the filing of an appeal, thus violating Government Code §3304.5, which mandates that the department complies with its own rules. The Court also found that the city failed to timely provide all the documents required under Government Code §3303(g), which requires production or access to materials when further proceedings (disciplinary action) is contemplated. The Court further found §3303(g) required the production of full copies of reports and, to the extent IA materials did not fall within the provisions of §3303(g), they would still fall under Government Code §3305 (adverse comments) and § 3306.5 (materials used for personnel action). The Court ruled that the officers were not only entitled to the written complaint that initiated the investigation but were also entitled to the reports from the meeting with the four use-of-force experts and/or the materials with which the expert, called by the city, prepared for his testimony.

Based on these findings, the Court ordered:

1. When providing an administrative appeal hearing to sworn peace officers, the city shall adhere to Hawthorne Municipal Code §2.52.060 (which requires a hearing within 20 days of an officer’s request), with some specific exceptions;
2. The city shall develop written policies and procedures to ensure that all documents, transcripts, recordings and other information necessary for the officer to prepare for the administrative appeal process are provided in a timely manner as contemplated by the Public Safety Officers Procedural Bill of Rights Act and Government Code §3303(g), §3305 and/or §3306.5;
3. The city is prohibited from taking any punitive action against the officers as a result of the conduct that gave rise to the subject discipline and the city is required to restore to the officers all back pay and benefits that would have been received but for the disciplinary action; and
4. The city shall also permanently remove from the officers’ personnel files, or any other file used for personnel purposes, all documentation and materials relating to the disciplinary investigation, discipline and appeals giving rise to this action and refrain from using the incident adjudicated herein in any way adverse to the officers.

The officers would like to thank their attorney, Corey Glave, PORAC-LDF, and their fellow officers for all the support they received in this journey to fight the injustices that occurred in this case. Without this support, the officers would never have been able to clear their names nor get this unjustified discipline out of their files.

About the Author

Corey W. Glave, attorney at law, specializes in the representation of law enforcement and fire personnel, as well as general labor law and litigation.