Huntington Beach Officers Vindicated Again And Again!

Posted by Elizabeth A. Barker

Officers Jack Paholski and Brandon Reed are police officers at the Huntington Beach Police Department with 20-plus years of experience each. On June 2, 2006, they were helicopter pilots in the Huntington Beach Aero Bureau. Both were commercial pilots and flight instructors with significant pilot experience. On June 2, 2006, at 11:45 p.m., the officers were flying their normal beach patrol in the Department’s MD520N helicopter. They flew along the City’s shoreline, looking for crimes on the beach and speeders on Pacific Coast Highway and were testing a new FLIR 8500 for possible purchase (as their old FLIR unit had quit). This was just one of the many sample systems pilots had for testing by different infrared companies. The pilot in command was Jack Paholski. As he flew low level (approximately 120 feet MSL) that evening, he saw flags down both sides of the Huntington Beach Pier blowing in the wind and testified that he had to compensate for a crosswind situation to keep the helicopter flying straight down the beach. Brandon Reed was his observer testing the new FLIR 8500 unit inside the helicopter. He also saw the flags on the pier and was so moved by the clarity of the new infrared image, he recorded the image onto the hard drive of the onboard computer. The purpose of the recording was to memorialize the features specific to each tested infrared system for assessment when comparing units for purchase at the end of the test period. The FLIR 8500 had more than twice the zoom capability of the FLIR unit previously used by the Aero Bureau and had significantly better clarity.

During the shift that day, Brandon Reed took many daytime and nighttime videos, including a 90-second video of a subject who appears to be near a lifeguard tower at 11:45 p.m. Coincidentally, beach curfew is 10:00 p.m. Reed saw other subjects on the beach that evening, but testified the subject on the tower concerned him, as he had observed a significant increase in the amount of graffiti on lifeguard towers in the weeks prior to that shift. The distance from the helicopter to the subject was approximately one mile. Reed utilized a tracking feature which allowed the user to place an onscreen cursor on the subject of the infrared image. Once the subject is identified under the cursor, the infrared system will “track” the subject without manipulation or input from the user. Ultimately, the subject being tracked in the video appears to make an attempt to conceal himself behind a sand berm that was in front of the lifeguard tower. Suspects often conceal themselves to avoid detection by the police. As the helicopter continued to fly down the beach toward the area near the lifeguard tower (Officer Paholski maintained a flight path over the water), the tracked subject was then fully revealed (as the helicopter had now flown beyond the area concealed by the sand berm). The subject appeared to be a clothed female straddling a clothed male lying on his back. The couple looked up at the helicopter as the image drew closer. Eventually, the female stands up. Her hair and towel (or blanket) she had wrapped around her are blown for three to four seconds, and then they leave the beach. Both the male and female look directly toward the moving helicopter as they walk away and the infrared tracking device is no longer able to track the subject as the helicopter continues its flight path down the beach and loses the image.

Days later, an officer who hated both Jack Paholski and Brandon Reed saw the videos taken and assumed, as did their sergeant, the officers flew too close to the couple on the beach that night. Their opinions were based on their experience with the old (1980s technology) infrared system then in use. Neither the sergeant nor the officer had ever utilized the FLIR 8500, and had no conceptual understanding of the zoom capabilities on the new system. What they do focus on is the fact that the video is of a man and a woman on the beach, and surmise that the reason for taping the couple on the beach is for sexual gratification, despite the clear video showing both subjects to be fully clothed and not having sex.

The officers were immediately removed from flight status and placed back into patrol pending an Internal Affairs investigation. The officers called Gregory G. Petersen and Elizabeth A. Barker, now with Barge, Petersen & Odenbreit, to represent them. The original charge against the officers was flying unsafely. This was based on the false assumption that it must have been rotor wash that caused the female’s hair to blow. Captain Chuck Thomas stated among other things that he sees sand blowing in the image and decides the couple is bothered and has an unfavorable opinion of the police helicopter. The City consulted two experts with long-term knowledge of flying helicopters and dropped the safety charge. The Department decided that although the officers could not be found guilty of flying unsafely, they needed to charge the officers with something, and decided to charge them with misuse of Department equipment and conduct unbecoming an officer.

Neither Officer had any prior discipline and knew that they had flown in accordance with their training and experience. In fact, the officers were the highest producers statistically in their unit, and had received an international aircrew of the year award. When they were questioned at their Internal Affairs investigation, they both stated that they flew over the water as they have done thousands of times before, and were not over the sand as they took the video of the couple. They pointed out that it was probably an on-shore breeze that blew the female’s hair. They knew they were too far away from the couple to have blown rotor wash on them. They also stated that had they been over the sand, and as low as the Department claimed they were flying, there would have been a sand storm around the couple. Additionally, if they were that low and blowing sand, the couple would have had to shield their eyes. Even the City’s own experts expected to see blowing sand and were surprised when they could not see it in the video. Both officers knew the original video would vindicate them and were surprised to see the video segment of the flags was missing when they viewed the video at their interrogations. In fact, the video skipped intermittently, and blocks of up to 10 seconds were missing from the video. Despite their best evidence being flawed (or tampered with), and not having any prior discipline, the Department proposed to give the officers 40 hours without pay for each officer. After the Skelly hearing, Chief Small reduced the amount of time off to 20 hours without pay per officer. Chief Small, who is not a pilot or a certified thermographer, when questioned during the arbitration process could only repeatedly say that the video spoke for itself.

The officers appealed the Skelly decision and a hearing officer was selected. Hearings were held over six different days. The City never chose (or if it did, it never revealed those results) to have the precise distances calculated, perhaps because it showed the officers were too far away for rotor wash to hit the couple. Instead, the City chose to rely on opinions of various experts and pilots (none of whom were at the beach the night the video was taken and many of whom were given incorrect information by the IA investigator from which to form their opinions). Officers Paholski and Reed were found to be truthful and credible by the arbitrator.

The Department tried to show by opinion evidence that there was no wind on the beach that night, and the sand must have been wet if it was not blowing from rotor wash. This despite Captain Thomas stating he saw sand blowing in the video! However, no scientific evidence was introduced to prove those assertions.

The Department claimed that the couple formed an unfavorable impression of the Huntington Beach Police Department because of the actions of the pilot officers. The couple, however, made no complaint nor did any of the other people at the beach that night. The Department claimed that the video showed the hair of the female standing straight up due to the rotor wash as the helicopter got closer to her. In support of that allegation, they entered into evidence an exhibit of pictures that showed the female’s hair all of the sudden going from being down to going straight up. However, at the Skelly hearing, the City had given the officers a series of pictures that showed that within one second’s time frame, the female’s hair was up and down and up and down. It was clear that the City was only presenting evidence to support their claim that the rotor wash caused the hair to blow up in the air and that was the end of it. However, the actual evidence showed that the hair went up and down numerous times even in one second, therefore proving that the cause of the hair blowing was a breeze, which would account for the up and down motion, because rotor wash would be a steady wind. Additionally, an expert was sought by Reed and Paholski to interpret the FLIR image. The expert’s computer-generated presentation was admitted into evidence at the arbitration and the distance from the helicopter to the couple on the beach was determined to be 158 feet, well beyond the scope of rotor wash produced by the small police helicopter.

Moreover, the Department had no evidence of misconduct and no written policy they could produce that the officers had violated regarding their actions that evening, and that is exactly what the hearing officer found. Her Findings of Fact, Conclusions of Law and Recommended Decision found that the Department did not meet its burden of proof by a preponderance of the evidence that just cause existed for finding the violation of the policies alleged, nor for the discipline imposed. The recommendation was that the discipline was not sustained, the suspension was to be withdrawn and all personnel records were to conform to her Decision.

The officers felt vindicated by the arbitrator’s decision, but the Department decided to appeal the decision to the Huntington Beach Personnel Board. Briefs and reply briefs were drafted and submitted. A hearing was held January 26, 2010, and arguments made. The Board, in a unanimous decision, upheld the arbitrator’s decision. At last, after a 43-month battle, the officers had had their rights vindicated in that case.

But that is not the end of the story. Officers Reed and Paholski then had targets on their backs. Not having been able to discipline the officers for alleged misconduct in the first Internal Affairs investigation, the Department decided to take another stab at disciplining the officers.

The second assault on the officers began when Officer Paholski complained to the Department about the officer who hated him and had started the first investigation, because that officer had sent an e-mail to their sergeant expressing fear that Officer Paholski might kill him or cause him serious bodily harm. There was no basis for this allegation, and Officer Paholski was understandably upset. Officers Reed and Paholski were removed permanently from the Aero Bureau for allegedly “non-disciplinary” reasons. The second IA started shortly thereafter. An investigation ensued into the two officers’ failure to conduct themselves in a harmonious manner in the Aero Bureau. The officers were investigated, and during the course of the investigation, additional allegations were brought against Officer Reed and another officer. Some of the allegations had to do with relationships within the Aero Bureau while others had to do with disobeying an order not to talk that was given at the beginning of the investigation. That order given before the officers were interrogated was most unusual and such an order had not been given previously in the Department. The orders were ambiguous, vague, overbroad and illegal as a prior restraint on free speech. The orders had to do with the officers not discussing the investigation. Unfortunately, they did not specify what the investigation entailed and there never was an end date until well after the Skellys had been held and discipline imposed. The hate-filled officer was not found to have violated the Relationships Policy, despite having falsely accused Officer Paholski of wanting to kill him and having testified to falsehoods in the Internal Affairs investigation. The other accused officer was found guilty of violating the order not to talk by conversing with Officer Paholski. He was given 40 hours discipline on his notice of intent to discipline, but after the Skelly, the chief decided not to impose any discipline. Yet Officer Paholski was found to have violated the order and his discipline continued to stand.

Officer Paholski had his Skelly hearing, and his Notice of Discipline was for a loss of 120 hours of pay and a permanent loss of specialty flight pay. Officer Reed had his Skelly, and his notice of discipline was for a loss of 80 hours of pay for violating the order not to talk. The officers filed for an appeal.

In reviewing the charges sustained against Officers Reed and Paholski, it was apparent that three of the allegations were out of statute per Government Code § 3304(d). LDF was contacted and approved the filing of a Writ to eliminate the three allegations. The appeal from discipline was placed on hold while the Writ was being taken. The Writ was filed and the judge eventually granted the Writ in its entirety.

Before the Writ was taken, the Department had stated in writing that those three were the most egregious charges. After the Writ was granted, eliminating the three most egregious charges, the new proposed discipline remained identical to the original proposed discipline. A new Skelly was held and the discipline of Officer Paholski was slightly reduced, but Officer Reed’s was not.

Prior to the Writ, the officers had given notice of their appeals of their discipline. It was agreed between the attorneys that the appeals should be put on hold pending the outcome of the Writ, as the issues could change. When Officer Paholski was given his second Skelly package, he asked if he needed to file another appeal. He was told, “No,” that this was a continuation of the first appeal. In an abundance of caution, a second appeal was filed in a timely manner and a letter was sent to select an arbitrator. Eventually, that letter was answered in a letter claiming that Officers Reed and Paholski had waived their right to appeal. This falsehood was shown in the responsive letter with copies of all the previous letters of appeal attached. Without an apology or an admission of their disingenuousness by the Department’s attorneys, an arbitrator was finally selected.

As we were awaiting available dates by the arbitrator, after a scathing letter sent by Mr. Petersen, each of the officers received memoranda from the Department. Officer Reed’s memorandum stated that on further reflection, the Department now felt that no discipline was warranted and the charges would not be sustained. The discipline would be refunded with interest and all references to the discipline removed from his file.

Officer Paholski was given a similar memorandum, but in addition, his flight pay was reinstated back to when it had been taken away, plus interest. Neither of the officers, however, has been put back to work in the Aero Bureau.

Despite the retaliation visited upon these officers for winning their first discipline and winning their Writ, justice has finally prevailed thanks to LDF authorizing the Writ and standing behind their fight for right. The officers would like to thank counsel Gregory Petersen and Liz Barker, their investigative staff, PORAC LDF and the many family and friends that supported them in these cases. As the saying goes, even a dog knows the difference between when his master trips over him and when he is deliberately kicked.