Superior Court Sets Aside Sergeant’s Proposed Termination and Ultimate Demotion

KEN YUWILER
Partner
Rains Lucia Stern St. Phalle & Silver, PC

On June 27, 2014, Inglewood Police Sergeant Loren Robinson got involved in a foot pursuit that resulted in an officer-involved shooting. As a result of the shooting and while defending himself, Robinson’s hand was significantly injured and required surgery. Thus, he was placed on an IOD status. As with any shooting, criminal and administrative investigations were immediately opened. Despite being on IOD status, Robinson provided a voluntary statement to the criminal investigators, and he was later ordered to participate in the City’s Internal Affairs investigation into the incident. Robinson did not try to prevent either interview from occurring based on the fact that he was on IOD status. In January 2015, the District Attorney’s Office concluded its review of the underlying incident and determined that Robinson acted “lawfully in self-defense” when he used force and shot the suspect.

In May 2015, a civil complaint regarding the incident was filed by the suspect’s relatives. Other than unknown “Doe” defendants, who are routinely included in civil cases¹, the only named defendant was the City. In August 2015, Robinson was medically cleared to return to duty, and he was placed on administrative leave with pay. In June 2016, more than one year after the District Attorney’s Office cleared him, Robinson was, for the first time, specifically named as a defendant in the civil lawsuit. Once he was named as a defendant, the City then hired an attorney to represent Robinson in the civil case. By the time Robinson was specifically named as a defendant, he had already been served by the City with a notice of intent to terminate based on an assertion that he violated Department policy when he engaged in the foot pursuit.

Upon receipt of the notice of intent, Robinson sought all of the documents supporting the proposed termination. The Department delayed providing the investigative materials, and it was not until about 17 months later that the City first provided Robinson with them. The Skelly meeting occurred in November 2017, and the police chief then took more than 19 additional months after the Skelly to issue a final notice of discipline. During that entire time, Robinson remained on paid administrative leave. When the police chief finally issued the final notice, he concluded that Robinson should be demoted. Although the basis for the proposed discipline was ridiculous, that issue did not need to be addressed because, based on the passage of time, it appeared that the City missed the statute of limitations set forth in Government Code Section 3304(d).

Government Code Section 3304(d) is part of the Public Safety Officers Procedural Bill of Rights Act. It says, in substance, that no punitive action shall be taken against a public safety officer unless the investigation of the allegation is completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission or other misconduct. Additionally, if the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a letter of intent or notice of adverse action, setting forth the discipline, within that year. However, there are a number of circumstances that extend the one-year limitation. Among them are when the public safety officer is “incapacitated or otherwise unavailable” and when the investigation involves a matter in civil litigation where the public safety officer is named as a party defendant.

While an appeal was filed that would have included a full evidentiary appeal hearing, LDF came to Robinson’s rescue by approving the filing of a petition for writ of mandate. In its defense to the petition, the City claimed that because Robinson was on IOD status, the one-year statute of limitations was extended, such that he was “unavailable” and the statute of limitations should have been tolled. That assertion was rejected by the court because Robinson was not unable or unwilling to participate in the process, as he had, in fact, readily made himself available to the City, participated in making a statement to the Homicide investigators and provided his statement to Internal Affairs, all while he was on IOD status. The City next asserted that Robinson was a party to the civil lawsuit because, when the lawsuit was filed, he was “named” as a Doe defendant. Although the court’s tentative was to deny the petition based on that assertion, the court was convinced during oral argument that Robinson had to be individually and specifically named as a defendant in the civil case for the statute of limitations to be tolled; otherwise, the mere filing of a civil case would effectively extend the statute of limitations due to the fact that almost every civil case has Doe defendants.

As a result, the court issued a judgment and writ in Robinson’s favor. Thus, after being on paid administrative leave for more than three years and dealing with the matter for more than six years, Robinson was vindicated because the court set aside the demotion and ordered the City to correct his personnel file, reinstate Robinson and make him whole with payment of all back pay and benefits, including interest. The court also granted an attorney’s fees award, which ultimately resulted in LDF receiving a return of all of its monies associated with the petition.

Despite the writ and the judgment issued against it, the City still continued to delay its compliance for months. As a result, Robinson filed a motion to enforce the judgment and sought to force the City to comply or be faced with contempt of court. The motion was granted — although the City was not found in contempt — and further attorney’s fees were ordered. Finally, the City complied, and Loren Robinson now is back at work as a sergeant in the Inglewood Police Department.

 About the Author

Ken Yuwiler is a partner at Rains Lucia Stern St. Phalle & Silver, PC. Ken practices labor and employment law, primarily representing public safety employees in civil and administrative proceedings, assisting his clients during internal affairs investigations, critical incidents, disciplinary proceedings and grievances, including writs and appeals. He also defends associations and public safety employees in civil cases, prosecuted civil cases brought on behalf of aggrieved employees, and has prosecuted and defended writs and appeals.

References

1    “Doe” defendants are routinely named as unknown defendants in civil cases in case the plaintiff learns someone else might be liable, at which time the defendant is then specifically named.