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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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].
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Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
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I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
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LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
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This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
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[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
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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.
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- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- 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
- Todd Costa Santa Clara Co DSA
This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
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My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
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The LDF is a tool available to me which I hope never goes away. It makes me feel that much more confident to do my job knowing LDF has my back when police work gets ugly. And it usually does..
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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.
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The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
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[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
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Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
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Very helpful and very informative!
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My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Marco Flores Ventura County PPOA
Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.
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Everything was great!
- 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.
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- 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 Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- John Dougherty National City POA
My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- Jeff Stanley Upland POA
Excellent representation. [My representative] is a great attorney.
- German Alvarez Anaheim PA
[My representative ] was great!
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- 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.”
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- 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.
- Brian Schopf Elk Grove POA
Keep up the good work.
- William Jackson Santa Maria POA
Keep up the great work.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Michelle Foerder Pinole PEA
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.
- Scott Hamilton San Bernardino Co SEBA
Don't go to work without LDF!
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- 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.
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- Michael Sexton Manteca POA
[My representative] was awesome.
- Tyler Robins Pasadena City College POA
At a time when no one cares about you it's nice to have someone on your side who does. (My attorney ) made a stressful six months a lot more tolerable.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- 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.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- 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.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.
- Heather Fontes San Joaquin Co POA
I appreciated the thorough follow up by LDF staff. Many thanks and blessings for the work by LDF.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- 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!!
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- 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.