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Pasadena Officer Reinstated After Department Failed to Prove that Officer Mistreated Suspect

Posted on Wednesday, March 01, 2006 at 12:00PM
Posted by Helen L. Schwab

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.