Suspension of Oakland P.D. Officer Reversed (Again)

JULIA HICKMAN
Associate Attorney
Rains Lucia Stern, PC

In the previous installment of the Officer Wendy Cross saga, the Oakland Police Department administration lost at arbitration after attempting to discipline Officer Cross for doing too much: The Department argued that Cross’ proactive police work involving a 647(f) arrest and a pursuit went too far. An arbitrator disagreed, overturning the Department’s discipline for lacking just cause. (See the September 2013 issue of the PORAC Law Enforcement News.)

Shockingly, the Department has now lost at arbitration again; this defeat was for trying to discipline Officer Cross for not doing enough.

In 2011, Officer Cross was assigned to operate a patrol wagon at the Oakland Coliseum for the Raiders game one afternoon. Officer Cross, being human, needed to use the restroom. Due to the completely unacceptable sanitary conditions of the facilities provided to officers at the Coliseum, Officer Cross was forced to travel to a police substation to use the facilities there. There was unrebutted testimony at arbitration that this is a common practice at the Department, especially among the female officers. After waiting nearly half an hour in heavy traffic just to be able to attend to her personal needs in suitable conditions, Officer Cross and her partner began heading back to the Coliseum.

Officer Cross and her partner were nearly back to the Coliseum when a civilian in a car tried to get her attention. Cross rolled down her window and the citizen informed her that there was a physical altercation going on between a man and women at a gas station roughly a mile in the opposite direction. All of the radios available to Officer Cross were set to a special frequency for her duties at the Coliseum and, thus, use of any of them would have required her to manipulate the radio while driving to change the channel. This fact, combined with the inconsistency of the City’s radio system and the relative ease of the speed-dial function of Cross’s cellphone, led Officer Cross to choose to call dispatch on her cellphone instead of on the radio. Under the circumstances, Officer Cross acted reasonably by choosing a safe, fast and effective method to deliver this information to dispatch, and caused no noticeable delay.

The scene of the reported crime was actually quite far away from Officer Cross at this point, roughly a mile across town in heavy NFL game-day traffic. Realizing that she had no hope of making a timely appearance at the scene and knowing the scene’s proximity to a police substation, Cross notified dispatch that she was too far away to go to the scene. Dispatch immediately sent closer units, which arrived on scene minutes later. There was considerable testimony at arbitration that Officer Cross would have had no chance to respond as quickly to the scene as the units that were dispatched to the call.

The Department disciplined Officer Cross with a 10-day suspension for using her cellphone to notify dispatch, instead of her radio, and for not removing herself from her special assignment at the Coliseum to physically go to the site of the alleged altercation. The Department’s stated reason for discipline was that Officer Cross’ actions did not constitute “the most effective and efficient use of police resources.” Arbitrator Lawrence E. Little agreed that the discipline should not be aggravated by prior discipline that had been overturned for lacking just cause.

Arbitrator Little found that the policy language cited by the Department regarding officers “responding” to citizen requests for assistance was too vague to support discipline for not physically responding in a transport wagon, especially considering the fact that the Department did not train emergency driving for the wagons. Arbitrator Little found that the Department had cause regarding Cross’ use of her cellphone instead of the vehicle’s radio, but considering that it was a close judgment call and a relatively minor offense, nothing more than a written reprimand was warranted.

Arbitrator Little ordered the Department to pay Officer Cross back pay for all 10 days of suspension, with interest. Officer Cross was extremely pleased with the result and extends her sincere thanks to the Legal Defense Fund for their support and assistance.

About the Author

Rains Lucia Stern, PC associate Julia D. Hickman represented Officer Cross in the successful appeal of her discipline. She was assisted by RLS associate Jonathan Murphy, who authored the winning appeal brief. Hickman is an associate in the firm’s Legal Defense of Peace Officers Practice Group. She represents peace officers in administrative investigations and disciplinary matters. Hickman has significant legal experience, including over seven and a half years at the San Mateo County District Attorney’s Office prosecuting a variety of criminal cases. Jonathan Murphy is an associate in the firm’s Legal Defense of Peace Officers Group and has experience in the representation of peace officers in discipline matters and criminal cases.