David Llanes is a police officer with the Pasadena Police Department. The department terminated Llanes after he was accused of willfully mistreating a prisoner. The department claimed Llanes encouraged the prisoner to fight and even wagered with the prisoner regarding the outcome of a fight with Llanes’ trainee; Llanes was also accused of making inappropriate comments to the prisoner and of placing himself and his trainee at unnecessary risk by removing the prisoner’s handcuffs at one point.
Llanes appealed his termination to arbitration. A primary issue in the case at the time of hearing was the dominate presence of hearsay evidence relied upon by the Department, a due process challenge raised on behalf of Llanes since neither the prisoner nor the trainee was present to testify.
As noted by Arbitrator Richard C. Anthony: “The department herein has the right, nay, the obligation, to consider all the documentation developed during the internal affairs investigation and reach its conclusions based thereon. But once the hearing stage is reached, it becomes incumbent upon the department to carry its burden of proof by a preponderance of evidence that withstands a due process challenge.”
The arbitrator analyzed the problematic aspects of the chief’s reliance upon witness statements that were not made under oath and yet were being used to terminate Llanes’ nine-year employment with Pasadena P.D. He noted,
“There are numerous reasons why out-of-court statements of non-testifying witnesses are suspect. There may be serious problems with perceptions of the absent [witnesses]. . . . Did they actually observe what is alleged at the hearing? How good was their recollection when they spoke to the testifying witness? . . . . The truth of the out-of-court statements depends on whether the [witnesses], who are not testifying at the hearing, had any reason to lie about the grievant.
“The [witnesses’] statements were not made under oath before a trier of fact, nor are they available for cross-examination to test for the presence of the problems illustrated above: perception, memory, veracity, and communication. . . . Reliance on the [witnesses’ statements] would deprive the defendant-grievant of the chance to test whether the [witnesses] were lying, misremembering, or just reporting ineptly. This lack of opportunity for cross-examination is the primary justification for the exclusion of hearsay [or, in the alternative, giving hearsay which is admitted into evidence little weight.]” (Evidence in Arbitration, pp.134-135, Marvin F. Hill, Jr., Anthony V. Sinicropi, 2d Edition 1987.)
Coupled with the foregoing analysis, the arbitrator commented that: “Llanes has been a truly outstanding officer for the Pasadena Police Department for nearly nine years with what can fairly be described as superlative performance evaluations describing his past accomplishments, his expertise, knowledge of the job, substantial abilities, his great potential, and perhaps most important of all, his love for the job.” Moreover, Llanes had been a highly revered training officer for the past six years and the arbitrator found no evidence that any other trainee had complained about Llanes.
The suspect, on the other hand, was “intoxicated and furious at being arrested in front of his own home.” The suspect had also expressed his belief that the department had some responsibility for the death of a friend of his who apparently died in police custody.
The arbitrator found that Llanes’ trainee (who had made statements against Llanes) was “a total failure as a police officer in the eyes of every one of his six field training officers (FTOs), and finally in his own eyes as well. One of his major deficiencies, as noted by every one of his FTOs, was his inability to properly and accurately write up reports to relate what had occurred in various incidents, and in addition, his serious lack of field acumen.”
The arbitrator concluded that: “From the outset of this encounter, Llanes demonstrated his ability to manifest a command presence in order to gain total compliance from the prisoner without so much as touching him. After [the trainee] failed to recognize a can of beer as a threat in the prisoner’s hands and then when Llanes pointed this out to him, and [the trainee] was unable to get it from him, Llanes ordered the prisoner to put it down on the sidewalk and the prisoner immediately complied.
“. . . The fact is that [the prisoner] was confronted and arrested and placed in the police car without any force being used, no fight occurred between anyone, no force was ever used, no injuries ever occurred, and [the prisoner] was booked and jailed. Llanes’ command presence had to be the major factor in achieving those results, and he was no doubt endeavoring to communicate that lesson to [his trainee].”
Citing numerous inconsistencies in the prior non-sworn statements of witnesses who never testified at the hearing, the arbitrator ruled that the first three allegations against Llanes could not be sustained. The initial criticism of Llanes referenced his command to the prisoner to: “Get in the f___ing car or I’m going to put you in there” after the trainee’s timid requests were met by the prisoner’s direction to the trainee to “f___ off.” “All citizens, no matter what their condition, are entitled to consideration and respect, but at some point, in order to accomplish a legitimate purpose, an officer is entitled to communicate on a basis the suspect is expected to understand. [The prisoner] understood and he got into the car without further comment.”
The arbitrator also concluded that it was clear from the “acceptable evidence” that Llanes had never entered into a wager with the prisoner, a concept which the prisoner had initiated. Further, that Llanes had said nothing to the prisoner or the trainee that could be considered encouragement to engage in a fight.
As to the allegation that Llanes had improperly removed the handcuffs of the prisoner, the arbitrator found there was no department policy prohibiting the removal, but noted that the prisoner should have remained handcuffed given his intoxication and lack of cooperation while his property was taken, and his previous comments about fighting.
The department took the position that discharge was the only appropriate penalty in this case. The arbitrator disagreed, observing that to permanently remove Llanes from his career as a police officer with the department for this one error was not fair or just and did not warrant the ultimate sanction of terminating Llanes. After reviewing the department’s discipline actions over the past five years, the arbitrator concluded that only a 19-hour suspension was justified.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
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[ My representative ] is an awesome attorney.
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Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
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All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
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I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
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LDF is a valuable resource that no law enforcement officer should be without.
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I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
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Good service. Thank you.
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I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
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This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- William Jackson Santa Maria POA
Keep up the great work.
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Greg Gladson LA Airport POA
[My representative] was very professional and helpful. She kept me informed with my options and the direction of the investigation.
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- Marshall Henderson Vancouver Police Officers Guild
I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Greg Harman Kensington POA
[My representative] is the best!!
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- Gina Reyes Broadmoor POA
[My representative] was wonderful! Even though my situation didn't end in my favor, he was very supportive, informative & patient. He always answered every email in a timely fashion and was very accessible. I appreciated everything he was able to do for me.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Kim Prout Upland Firefighters Assoc
It was great comfort to know somebody would be there for me in this matter. I was able to finally sleep @ night & wake up with confidence that I would be ok. Thanks.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Emery Eccle Culver City POA
LDF is THE most important asset / resource that police officers have. "Thank you" to all involved and keep up the good work!
- Aaron Delgado Monterey POA
My representative called me back promptly and kept me informed. I had the impression she cared and was there to help.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Jeff Stanley Upland POA
Excellent program, no one should be without this coverage.
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- Joseph Barrett LA Airport POA
I was very well represented by a professional. I felt well represented and got great advice.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.