LCW Partner Scott Tiedemann and Associate Attorneys Paul Knothe and Donald Le successfully represented a city in a termination appeal involving two peace officers.
On July 5, 2011, multiple officers responded to a report that a man was checking car doors in a parking lot. At first, the man complied with the officers’ requests to sit on the curb and to allow them to search his backpack. The interaction devolved into a struggle between the man and three police officers after the man began to resist. During the struggle, the officers swung their batons, struck the man multiple times, and applied prolonged pressure to his body. One officer deployed his taser against the man before using the taser to strike the man in the head multiple times. The man’s condition worsened and he died at the hospital several days later.
The city retained an outside agency to investigate the incident. Based on the investigation findings, the chief of police terminated the three involved officers. Two of the officers sought administrative review before separate hearing officers. These two hearings yielded opposite results: one hearing officer recommended that the city council uphold the discharge, and the other recommended that the city council reverse the discharge.
Ultimately, the city council unanimously upheld the discharge of both officers based in part on a finding that they used excessive force in violation of city policies. The city council found that one of the officers used excessive force when he swung his baton at the man, struck the man in the head multiple times, and applied prolonged body pressure while the man was struggling on the ground. The city council found that the second officer used excessive force when he twice struck the man’s head with his knee and repeatedly beat the man’s face with a taser.
The two officers then went to court to file petitions for administrative writs of mandamus. The trial court confirmed the city council’s decision to terminate both officers. The evidence established that both officers used excessive force. The findings of excessive force supported the city council’s decision to uphold the terminations.
The court examined the excessive force findings as to each officer in light of the department’s use of force policies. As to the first officer, the court found that swinging a baton at the man was not excessive force; rather it was reasonable to conduct to control the man’s resistance and to prevent him from escaping. The court also found there was no evidence that the officer struck the man in the head. However, the court found the officer did use excessive force by applying prolonged body pressure to the man because the man informed the officers 10 times he could not breathe and then became unconscious. Given this finding and the public nature of the incident, the court found that the city council did not abuse its discretion in discharging the officer for excessive force.
As to the second officer, the court found that the evidence showed excessive force. The officer repeatedly beat the man’s face with a taser, even though the man was not being aggressive either before or during the tasing that preceded the beating. Given the city’s significant interest in maintaining a level of trust between peace officers and the public, the court found that the city council did not abuse its discretion in discharging the second officer for excessive force. Due to this finding, the court did not examine whether the second officer also used excessive force by kneeing the man in the head twice.
For these reasons, the court denied both officers’ petitions and confirmed the city council’s discharge of both officers.
Note:
The use of force at issue, in this case, was highly-publicized and publicly criticized. LCW is proud to have served as a trusted advisor to the department in making successful disciplinary determinations under these intense circumstances.