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Superior Court Enjoins Discipline of Manhattan Beach Officer Due to Violations of AB301

Posted on Saturday, May 01, 2004 at 12:00PM
Posted by Corey Glave

Amidst an environment of questionable practices by the administration of his department, including “gag orders” and the attempts to intimidate other witness officers, Manhattan police officer Robert Richmond took a stand for truth and justice. As a result, Richmond now has had his own rights trampled and is facing discipline for not keeping his mouth shut about evidence that may have helped keep an innocent police officer from going to jail.

The facts, as stated in the pleadings filed on Richmond’s behalf by this author are as follows: In August 2002, Manhattan Beach police officer Eric Eccles was facing criminal prosecution for using excessive force. (He would subsequently be acquitted of all charges.) I hired a private investigator to look into all aspects of the charges and the witnesses against him. Richmond supported Eccles and believed that he had an obligation to insure that Eccles received the fair trial to which he was entitled. He gave the private investigator a statement that included his personal knowledge about police department employees who were slated to be witnesses against Eccles.

The statement included his personal belief that Sergeant Robert Cochran had been caught lying in the past. Although Richmond had made an earlier accusation against Cochran about untruthfulness, he had never been interviewed by the department or told the outcome of the investigation. Unbeknownst to him, Cochran evidently had been found to have been untruthful and had been disciplined by the department. Eccles’ defense attorney purportedly used the information obtained from Richmond and other officers to support the filing of a “Pitchess Motion” seeking to review Cochran’s personnel file for impeachment evidence.

In September 2002, a local newspaper ran an article with information believed to have been obtained from a review of the Pitchess Motion identifying Cochran and noting the allegation that Cochran had been untruthful in the past. To retaliate, Cochran filed a personnel complaint against Richmond on October 5, 2002. Though it is believed that the department had knowledge of Richmond’s conduct prior to October 5, it waited until Cochran filed his complaint to initiate a personnel investigation against Richmond. According to police department documents, the investigation was to be completed by November 1, 2002.

Seven months later, on May 26, 2003, Richmond was first notified that an internal complaint had been filed against him and that he was to be interviewed on June 11. He was not told who the complainant was or when the complaint was filed. Without this information, Richmond and his representative could only guess the nature and scope of the investigation.

On January 2, 2004, over six months after his interrogation and nearly 15 months after the initial complaint was filed, Richmond was served with a notice that Chief of Police Klevesahl had determined that the charges against him were sustained and that he was to be disciplined.

When served, Richmond was not given all the documents reviewed and considered as part of the internal investigation and the decision to sustain the charges against him. Such was the chief’s usual practice. Richmond was not provided with a copy of his personnel file even though it was referenced in the notice of intent to discipline, or with a copy of the memorandum and reprimand for untruthfulness against Cochran, from which he was accused of releasing information, or Cochran’s 1996 evaluation in which the department contends confidential information from the reprimand is currently maintained, or a copy of a December 1, 2001, “Gag Order” issued by Klevesahl in an attempt to prevent officers from discussing the criminal prosecution of Eccles.

On January 15, 2004, Richmond and I met with Klevesahl for the pre-disciplinary hearing. In addition to responding to the charges, I raised the issue of the violations of the Public Safety Officers Procedural Bill of Rights (POBR) and asked that, in order to avoid litigation, Klevesahl comply with the law. On January 31, 2004, Klevesahl served his notice of disciplinary action and, knowing that legal action was imminent, ordered that the disciplinary action be implemented within three business days.

Fortunately, the Legal Defense Fund authorized me to seek immediate judicial intervention to enforce Richmond’s rights under AB301. On February 4, 2004, Judge Hight of the Los Angeles County Superior Court issued a temporary restraining order prohibiting the city of Manhattan Beach, the Manhattan Beach Police Department, and the chief of police, from moving forward with the proposed disciplinary action, and ordered the city to show cause why a preliminary injunction should not be granted.

On February 18, after the city had the opportunity to submit evidence and argument in opposition to the preliminary injunction, the court granted my request for a preliminary injunction finding that it was likely that Richmond would prevail on his claim that the defendants violated Government Code §3303(c), by failing to properly notify him of the nature of the investigation; Government Code §3303(g), by failing to produced all documents obtained or reviewed during the internal investigation; and Government Code §3304(d) by failing to complete and serve a notice of proposed discipline within a one year period.

The most surprising part of this case is not the conduct of the police chief, since many Manhattan Beach officers have claimed that they have suffered for speaking out. What is amazing is that during oral argument at the hearing on the preliminary injunction, after the judge indicated his tentative ruling, the city attorney told him, on the record, that the city, police department and chief would do the exact same thing again, even with the court’s ruling. Clearly, they believe they are above the law and they are not going to allow a judge to tell them that they are wrong.

As the facts giving rise to the violations of the POBR have been admitted to, Richmond and his attorney are now proceeding to prove that this is a proper case for statutory damages and attorney fees. Richmond will, in order to prevent other officers from having to endure this type of ridiculous behavior, ask the judge to order the chief to change the manner in which the department conducts internal affairs investigations.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.