Removal of Inglewood P.D. K-9 Officer was Arbitrary and Capricious

ANDREW M. DAWSON
Partner
DAWSON & RILEY, LLP

Many have heard that if a department wants to get rid of an officer, it will drum up anything to do so. This case is a perfect example of a department doing just that — removing an officer that it wanted out of the K-9 unit. This case was composed of untimely evaluations, double standards and unofficial testing to try to justify the removal of an Inglewood Police K-9 officer. Thanks to the representation of Dawson & Riley, LLP, the arbitrator was able to see through the unsubstantiated justification and ordered the officer’s reinstatement to the K-9 unit.

In April 2009, the appellant was assigned to the K-9 unit. During K-9 school with his assigned K-9 partner, obvious signs of issues with the K-9 were observed by the trainers; however, the K-9 supervisors insisted on keeping the dog, rather than exchanging him for another. The appellant worked with his assigned K-9 for almost a year before the K-9 supervisors and staff finally realized that the appellant “had been teamed with an extremely resilient K-9 who at times has been slow in responding to training. But the training issues observed may be a byproduct of the dog’s overall temperament, which could prove that the dog is unsuitable for police work with this agency.” The K-9 was eventually returned to the vendor and replaced with K-9 Ares at no charge to the Department. Although his first K-9 had obvious temperament problems, the appellant worked hard with him and received an above-standard evaluation during that time period.

In June 2010, the appellant started school with his new K-9 partner, Ares. The appellant and Ares successfully completed a six-week K-9 school. In July 2011, a lieutenant was transferred back to the K-9 unit after an approximate one-year absence. Shortly thereafter, in September 2011, a sergeant was assigned as the K-9 sergeant. During that same month, the appellant was due to go through POST recertification with his K-9 partner. As with past practice, POST recertification was set up through Inglewood P.D.’s contracted vendor. The appellant and his K-9 partner successfully passed POST recertification, which was good for the next year.

Despite the appellant’s successful completion of the POST recertification, all three K-9 teams were notified they would be put through an “unofficial” POST certification test. During this unofficial, in-house POST certification testing process, the appellant was unsuccessful in getting his K-9 partner to pass two portions of the test.

As a result, the appellant was sent to the K-9 business of a good friend of the lieutenant’s for six days of remedial training. The lieutenant’s friend conducted the remedial training despite the City’s prior use of contracted vendors for such training and the lack of a contract between the lieutenant’s friend and the City. During these six days, the friend afforded the appellant only about 30-45 minutes per day of remedial training in the area that was needed. The remainder of the eight-hour training days were spent participating in exercises unrelated to the issues that the appellant was experiencing with his K-9 partner.

After the six days of training, the appellant was given the POST test by a friend of the new trainer. The appellant passed one portion of the test (“call-off”), which he had had problems with before, and failed the other portion of the test, which was a “verbal out” of the dog. One of the evaluations written by the new trainer prior to the test stated, “I do expect him to ‘out,’ but I also think it unreasonable to make him perform in less than five days.”

The day after the test, the appellant’s lieutenant and the two other IPD K-9 teams conducted training to attempt to work on the issue with the dog. By the end of the night, they made more progress and the appellant was able to get his K-9 to “verbally out.” The lieutenant acknowledged that they had made progress and that he saw improvement. They ended the training on a good note, and the appellant was told to return to work on Friday to continue where they left off in training. The following Friday, the appellant returned to work with the intent to train with his dog. After being called into the office by his lieutenant, the appellant was informed that they were taking his K-9 partner and removing him from the K-9 unit effective immediately.

While assigned to the K-9 unit, the appellant had never received unfavorable evaluations, write-ups, verbal reprimands or had any accidental bites. All of his monthly evaluations from the K-9 vendor had been “good” to “very good.” (As a side note, when the appellant’s counsel requested discovery of the appellant’s training records, several months of records had mysteriously disappeared.)

On the day of the Skelly hearing, the appellant was served with a “below standard” evaluation for the 2011–2012 period that was authored by his sergeant. This evaluation was served after they had already removed the appellant from the unit, and was three months later than the Department’s required procedure. A week later, the appellant was served with a “satisfactory” 2010–2011 evaluation after he had been served with the 2011–2012 evaluation.

Concurrent with the arbitration process, the appellant filed a grievance regarding his “below standard” evaluation written by the sergeant. As a result of the grievance filed, the Assistant City Manager ordered the sergeant and lieutenant to change the appellant’s evaluation from “below standard” to “satisfactory”, given their failure to follow Department policy.

During the arbitration, it was discovered that the sergeant made personal and adverse comments in his personal day planner regarding the appellant, which was arguably a violation of the appellant’s POBR rights.  Additionally, the K-9 handler who inherited K-9 Ares experienced the same training issues with him as the appellant had. The issues, however, improved with the use of an e-collar during the new K-9 handler’s training with Ares. Not surprisingly, the appellant had requested to use the e-collar during his training with Ares, but was told that he could not use it. At the hearing, an expert witness testified on the appellant’s behalf that the issues with Ares could have been easily resolved with the use of the e-collar during training. Clearly, the Department imposed different standards on the appellant that were not applied to other employees.

The arbitrator concluded, “It is clear that both [the] sergeant and [the] lieutenant believed, and the evidence supports, that [the] grievant was not consistently in total compliance with these policy requirements when they recommended his removal from the K-9 unit. However, it is almost impossible to read [the] lieutenant’s justification for the removal recommendation and not to conclude that he believed, from the days that [the] grievant had his first dog, that [the] grievant didn’t have the capability of being a competent canine handler. It is a reasonable inference from [the] lieutenant’s testimony that he was not about to let the grievant have the training opportunity with an e-collar that might have allowed [the] grievant to qualify, although other handlers were allowed the use of an e-collar in training and, apparently, even the handler who inherited Ares was allowed to use an e-collar for training. In context, this decision was arbitrary and capricious, and became a self-fulfilling prophecy. When that is combined with the failure to give 90-days written notice of unacceptable performance, it violates the concept of good cause.”
The arbitrator held that the City of Inglewood did not have just cause to remove the appellant from the K-9 unit and ordered his reinstatement to the K-9 position with back pay.

The appellant is grateful to Dawson & Riley, LLP, the Inglewood Police Officers Association, PORAC LDF, and all of his fellow officers and K-9 handlers for the support he received in this journey to fight the injustices that occurred in this case. 

About the Author

After a successful career as a law enforcement officer, Andrew Dawson was licensed to practice law in California in 1992. He received his Bachelor of Science degree in criminal justice from San Jose State University with a special major in law enforcement and received his Juris Doctor degree from Pepperdine University Law School.

Dawson specializes in defending police officers’ rights, and has successfully litigated wrongful termination, suspension and demotion cases involving allegations of excessive force, dishonesty, sexual harassment, misuse of property, department policy violations and criminal law matters. He has represented officers involved in internal affairs investigations, attending 1,000 internal affairs interrogations.