Judge Curtis A. Kin, Case Number: 22STCP00971, Date: 2023-10-31 Tentative Ruling

Petitioner Nicholas Landry petitions for a writ of mandate directing respondent City of Los Angeles and Michel Moore to set aside the termination of petitioner, remove the discipline on specified counts from his personnel file, and restore him to his prior position of Police Officer with back pay.

Petitioner Nicholas Landry was a police officer employed by Los Angeles Police Department (“LAPD” or “Department”) for 15 years until he was terminated for misconduct in March 2021. (AR 317, 1050.) The Department alleged that petitioner committed misconduct on or about February 9, 2020 with respect to the arrest of an intoxicated domestic violence suspect. (AR 15-20.)

On February 9, 2020, at approximately 21:00 hours, petitioner and his partner, Officer Mark Flores, responded to a domestic violence radio call at 1911 W. 2nd Street. (AR 327, 333, 918.) At the scene, the officers met with Person Reporting (“PR”), who told the officers that her ex-boyfriend, Domingo Miguel, was intoxicated and banged on her windows. Miguel also took her glasses. (AR 110, 609.) PR wanted Miguel to leave the location. (AR 360, 375.)

The officers then encountered Miguel sitting on the steps of the apartment building. (AR 931.) Miguel acknowledged that he broke PR’s glasses but said he did not have them. (AR 366, 931.) The officers asked him to leave the area, but Miguel refused. (AR 611, 931.) The officers told him that he was committing trespass. (AR 377, 931.) Miguel then stood up and yelled and cursed at the officers several times as he walked toward the officers. (AR 931.) Miguel was agitated and belligerent, so the officers repeatedly ordered him to turn around so they could restrain him. (AR 111, 931.) Miguel instead dared the officers to tase him, removing his shirt and belt and yelling profanities at the officers. (AR 111, 931.)

When Miguel was briefly distracted, Officer Flores quickly grabbed his right arm. (AR 395, 931.) Miguel then attempted to turn and face Officer Flores. (AR 931.) Petitioner then grabbed Miguel’s left arm, after which Officer Flores handcuffed Miguel. Miguel went down to the ground. (AR 395, 931.) Miguel then called out for a supervisor six times. (AR 138, 448, 925, Dept. Ex. 5, video, File 647F, at 9:01.) The officers did not call a supervisor. (AR 138, 448.) The officers arrested Miguel for public intoxication pursuant to Penal Code section 647(f). (AR 931.)

The officers attempted to place Miguel in a police vehicle. (AR 445.) Miguel attempted to walk away. (AR 445.) To control Miguel, petitioner applied a “wrist lock” to Miguel’s arms. (AR 445. 210 [“joint lock” and “wrist lock” are interchangeable].) Miguel yelled in pain. (AR 445.)

At the Rampart station, Miguel was seen by the Watch Commander and indicated that he was not sick, ill, or injured and had no questions. (AR 216-17.)

At 22:45 hours, the officers transported Miguel to Metropolitan Detention Center (“MDC”) for the medical screening and a hold for him to sober up. (AR 460, 932.) On the way to MDC, Miguel told the officers that he was suicidal and that he would tell the MDC staff that he was suicidal so that he could be transported to Twin Towers jail. (AR 460, 479, 932.)

At the MDC, the officers sat Miguel on a bench while they prepared the paperwork a few feet away. Miguel at some point yelled out, “I’m suicidal. I don’t want to be with you motherfuckers. I don’t want to be here.” (AR 925, Dept. Ex. 5, video, File 647f(1) at 13:43-46.) On the medical screening form, petitioner documented that Miguel was not suicidal. (AR 959.)

In addition, when the MDC medical staff examined Miguel, he told them that he was suicidal. (AR 873.) Miguel was verbally abusive and spat at the officers. (AR 462.) The MDC medical staff refused to book Miguel and instructed the officers to transport him to a contract hospital, White Memorial Medical Center, because of his increased heart rate. (AR 457, 482, 484, 932.) The officers dropped off Miguel at the corner of Boyle Avenue and Pennsylvania Avenue, which was approximately 20-30 yards away from White Memorial Medical Center, and suggested he go to the hospital. (AR 40, 41, 463, 925, Dept. 5, video, File 647f(2), at 4:41-6:10.) According to petitioner, Miguel had calmed down and had refused medical care when the officers took him to MDC. (AR 497-98, 674.)

For the next hour, the officers did not update their status on their in-vehicle log. (AR 184, 329.)

Meanwhile, Miguel walked into the emergency department of White Memorial and was observed by the hospital staff to be shirtless, intoxicated, and aggressive. (AR 39.) They notified their security, a 16-year Los Angeles County Sheriff Deputy, Jorge Garcia. (AR 37-39) Garcia observed that Miguel was very intoxicated and confused. (AR 39.) Miguel did not know where he was or how he got there and was unable to care for himself. (AR 39, 40, 43.) The hospital staff then called 911 and requested an LAPD patrol unit to respond. (AR 42.) At 01:35 hours, in addition to Hollenbeck division officers, Sgt. Calderon from Rampart division responded to the hospital. (AR 530, 532.) She observed Miguel to have slurred speech, to be intoxicated and unable to stand on his own or take care of himself. (AR 535, 536, 540.)

At 02:02 hours, a Rampart patrol unit transported Miguel to the Los Angeles County USC Medical Center jail ward (“USCMC”). (AR 877.) Sgt. Calderon went to USCMC and called petitioner and Officer Flores to respond so that they could re-arrest Miguel. (AR 515, 537.)

Approximately five hours later, the USCMC medical staff cleared Miguel for booking. (AR 962.) The officers re-arrested Miguel, transported him back to MDC, and booked him for Penal Code § 647(f). (AR 518, 962.)

Petitioner and Officer Flores then returned to Rampart station and filled out an arrest report. (AR 518.) Officer Flores prepared the report with petitioner’s assistance. (AR 706, 931.) Petitioner was sent home before Officer Flores completed the report. (AR 451.) The arrest report stated that both officers can testify to all contents of the report. (AR 933.)

Officer Flores did not check the box indicating a domestic violence incident in the report. (AR 930.) The arrest report also did not mention a battery, theft of PR’s glasses, or a non-categorical use of force. (AR 930-33.) The arrest report further stated that Miguel was taken into custody “without incident.” (AR 931.) The arrest report indicated that Miguel said that he was suicidal. (AR 932.) Sgt. Calderon never asked petitioner to complete a supplemental report regarding the use of force. (AR 553-54.)

Petitioner was relieved of duty in January 2021. (AR 694.) Petitioner was afforded a Board of Rights hearing, which commenced on November 2, 2021. (AR 1.)

Count 1: On or about February 9, 2020, you, while on duty, failed to take appropriate enforcement or investigative action for the crime of domestic related theft, vandalism, or battery.

Count 2: On or about February 9, 2020, you, while on duty, failed to report a non-categorical use of force to a Department supervisor.

Count 3: On or about February 9, 2020, you, while on duty, failed to request a Department supervisor when asked for by an arrestee.

Count 4: On or about February 9, 2020, you, while on duty, inaccurately completed a medical screening form to conceal an arrestee’s suicidal condition.

Count 5: On or about February 9, 2020, you, while on duty, failed to obtain proper medical treatment for an arrestee, as advised by custody services division medical staff.

Count 6: On or about February 9, 2020, you, while on duty, improperly released an intoxicated arrestee from custody when you transported, and subsequently abandoned the arrestee on the corner of Boyle Avenue and Pennsylvania Avenue in Hollenbeck area.

Count 7: On or about February 9, 2020, you, while on duty, failed to update your unit status when transporting a member of the public.

With respect to Count 2, not reporting the use of force, petitioner maintained that he merely supported Miguel’s body weight in guiding him to the ground because Miguel was not actively resisting due to intoxication. (AR 395, 397, 401, 410, 415.) Petitioner claimed that he reported a use of force to Sgt. Calderon. (AR 405, 409, 410.)

With respect to Count 3, failing to call a supervisor, petitioner testified that at the time of the arrest, he did not hear Miguel ask for a supervisor because he was focused on controlling and handcuffing Miguel. (AR 448.)

With respect to Count 4, inaccurately completing a medical form stating Miguel was not suicidal, petitioner testified he did so because he never heard Miguel state that he was suicidal. (AR 456.)

On December 6, 2021, the Board found petitioner guilty on all counts and recommended termination. (AR 1050.) On December 16, 2021, the Chief of Police removed petitioner from his position as Police Officer effective March 4, 2021. (AR 1050.)

On March 17, 2022, petitioner filed a Verified Petition for Peremptory Writ of Mandate. On August 25, 2023, petitioner filed an opening brief. On September 25, 2023, respondents filed an opposition. On October 9, 2023, petitioner filed a reply.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because the termination of petitioner from his position as Police Officer concerns a fundamental vested right, the Court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“On questions of law arising in mandate proceedings, [the Court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 71.)

Petitioner disputes the finding of the Board of Rights with respect to Counts 2, 3, and 4. (OB at 9-14.) Petitioner also argues the removal from the Department was an excessive penalty. (OB at 14.)

The Department’s policy defines a non-categorical use of force to include when an officer uses “physical force” to “[c]ompel a person to comply with” the officer’s directions, “[e]ffect an arrest or detention,” or to “[o]vercome resistance.” (AR 926.) The policy provides examples describing when a use of force is reportable, including when the “officer had to overcome the suspect’s active resistance, when the suspect reports an injury, and when the officer uses force to control a suspect. (AR 926-27.)

The policy also states that the use of a “joint lock to compel a person to comply with an employee’s direction, which does not result in an injury or complained of injury” is not a reportable use of force. (AR 927.) The policy provides examples of non-reportable uses of force, including the use of reasonable force to overcome passive resistance due to intoxication not resulting in injury or complained of injury and use of physical force to support the body weight of an intoxicated suspect who is unable to maintain balance. (AR 927.)

The record demonstrates petitioner’s use of force in two reportable instances: (1) when petitioner grabbed Miguel’s left arm; and (2) when petitioner used a joint lock while leading Miguel to the transport vehicle.

With respect to the first incident, the record demonstrates that, prior to Officer Flores grabbing Miguel’s right arm, Miguel was agitated and belligerent, challenged the officers to tase him, removed his shirt and belt, and yelled profanities at the officers. (AR 111, 931.) After Officer Flores grabbed Miguel’s right arm and tried to place it behind Miguel’s back, Miguel attempted to turn and face Officer Flores. (AR 931.) Petitioner then grabbed Miguel’s left arm to gain control. (AR 931.) The record reflects that petitioner grabbed Miguel’s left arm while Miguel was actively resisting Officer Flores’ attempts to control him. The policy defines the use of force to overcome a suspect’s active resistance as reportable. (AR 926.)

Petitioner testified that, once he got a hold of Miguel’s left arm, Miguel felt like dead weight and Miguel was no longer supporting himself. (AR 395-96.) Petitioner then purportedly “guided” Miguel to the ground. (AR 395.) While use of force on an intoxicated suspect who passively resists may not be reportable, petitioner’s assertions of Miguel’s sudden passive resistance are not credible considering Miguel’s belligerence before the officers grabbed his arms and Miguel’s attempts to turn around after Officer Flores grabbed his left arm. Even crediting petitioner’s testimony that Miguel stopped resisting after the officers had control of his arms, petitioner’s grabbing of Miguel’s right arm while Miguel actively resisted constituted a reportable “overt exertion to maintain control.” (AR 927.)

With respect to the second incident, the record demonstrates that, when the officers attempted to place Miguel in a transport vehicle, Miguel attempted to walk away. (AR 445.) Petitioner testified that he then applied a joint or wrist lock on Miguel to maintain control of Miguel. (AR 445.) Miguel’s attempts to walk away demonstrate that he was able to control his body movements, thus taking his actions outside the realm of passive resistance into active resistance. (AR 927 [defining passive resistance to include an inability to control body movements due to intoxication].) Because petitioner used physical force to effect a detention, such use of force was reportable, regardless of whether Miguel complained of an injury during petitioner’s application of a joint lock. (AR 926 [officer’s use of force reportable when force was necessary to overcome active resistance, regardless of whether suspect sustains injury].)

Petitioner does not dispute failing to report a use of force. Instead, petitioner points to Sergeant Ku’s testimony that a wrist lock does not become reportable until there is an injury. (AR 232-33.) However, according to the Department’s policy, a reportable use of force does not require the suspect to sustain an injury as long as the officer used force to overcome a suspect’s active resistance.[1] (AR 926.)

Petitioner also refers to Sergeants Jimmy Ku and Blair Calderon’s testimony indicating that officers sometimes do not recognize their interaction with a suspect as being a reportable use of force based on their positioning or perspective. (AR 252, 549.) Petitioner contends Sergeants Ku and Calderon were not certain that petitioner’s use of force was reportable. (OB at 10:3-27.) Sergeant Ku testified that Miguel’s movements during his arrest, including Miguel’s spinning or turning, could have been due to intoxication. (AR 253.) Sergeant Calderon testified that she told Internal Affairs that Miguel’s actions during the arrest, including dropping his weight, could have been due to intoxication, not active resistance. (AR 554, 565-68.) Even if Sergeants Ku or Calderon could not definitely conclude that petitioner’s uses of force were reportable, the Court exercises its independent judgment in reviewing the termination of petitioner’s employment. For the reasons stated above, the record reflects that petitioner’s uses of force were reportable.

Petitioner also contends that Board of Rights’ decision violates Topanga. (OB 11:23-12:8.) In Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the Supreme Court held that “implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga, 11 Cal.3d at 515.) The Court explained that “among other functions, … findings enable the reviewing court to trace and examine the agency's mode of analysis.” (Id. at 516.)

“Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954; see also Oduyale v. Cal. State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 113 [Topanga “does not require the Board to outline all the reasons it opted not to impose a lesser form of discipline. It is only required to justify the penalty imposed, including ‘a statement of the factual and legal basis of the decision’”].)

With respect to Count 2, the Board set forth the two non-categorical uses of force in which petitioner was involved (AR 887-88), the instances when uses of force are reportable and non-reportable (AR 888-89), the reasons why both uses of force were reportable (AR 889-90), and its reasons for doubting petitioner’s assertion that he reported the uses of force to a supervisor (AR 890-92.) The Board’s decision was sufficiently detailed for the Court to determine the basis for the Board’s finding of guilt on Count 2.

For the foregoing reasons, the weight of the evidence supports the finding of guilt on Count 2.

LAPD Manual 811.20 states, “When a member of the community wishes to report misconduct and/or make a complaint, the employee shall immediately notify a supervisor.” (AR 944.)

Petitioner maintains that the Board did not establish that Miguel wished to report misconduct or make a complaint. However, the record reflects that Miguel told petitioner and Flore to “Call your supervisor” six times after the officers took him to the ground. (AR 138, 395, 448, 925, Dept. Ex. 5, video, File 647f, at 9:01-10.) Notably, Miguel did so after telling the officers “I’m gonna sue ya” and “I’m going to sue your ass.” (AR 925, Dept. Ex 5 video, File 647f at 8:42, 8:45.) The proximity of Miguel having been taken down, followed by his threat to sue and request for a supervisor, indicates Miguel wanted to complain about the officers. Miguel’s call for a supervisor while being arrested clearly indicated his intent to report alleged misconduct or to make a complaint. This is so even if Miguel did not later complain about the officers to the Watch Commander afterward. (AR 217.)

Petitioner maintains that he did not hear Miguel request a supervisor, as he was purportedly focused on completing the handcuffing. (AR 448.) Petitioner cites Graham v. Connor (1989) 490 U.S. 386, 396 for the assertion that his purported failure to hear Miguel’s multiple requests was reasonable. Graham stands for the proposition that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” (Graham, 490 U.S. at 396.) The issue here is not whether the use of force was reasonable, but rather whether petitioner heard the calls for a supervisor. Even if Graham were read for the proposition that the Court must evaluate whether it was reasonable for petitioner not to hear Miguel’s request for a supervisor, the Court finds that it was not.

The video evidence indicates that, while face down on the ground handcuffed and petitioner right above him, Miguel six times told petitioner and Flores to “Call your supervisor.” (AR 925, Dept. Ex. 5, video, File 647f, at 9:01.) The Board found not credible petitioner’s assertion that he did not hear Miguel’s requests for a supervisor. (AR 893-94, 908.) After reviewing the video evidence, the Court agrees with the Board. As captured by the video evidence, Miguel repeatedly, unambiguously, and clearly told the officers to “Call your supervisor” six times, one after the other. (AR 925, Dept. Ex. 5, video, File 647F, at 9:01-9:10.)

The Court also finds that the Board’s decision concerning Count 3 was adequately supported. The Board set forth the policy of section 811.20, described when Miguel called for a supervisor, set forth facts demonstrating that no supervisor was ever called, and found that petitioner’s assertion that he did not hear Miguel’s request was not credible. (AR 893-94.)

It is undisputed petitioner did not call for a supervisor. (AR 138, 448.) For the foregoing reasons, the weight of the evidence supports the finding of guilt on Count 3.

On February 9, 2020, the officers arrived with Miguel at MDC at 22:57 hours. (AR 920.) At approximately 23:10 hours, petitioner indicated on an Arrestee Medical Screening Form that Miguel did not feel suicidal or did not feel like hurting himself. (AR 959.)

Petitioner disputes hearing any indication that Miguel was suicidal. Petitioner maintains that due to Miguel’s prior outbursts, he “tuned out” Miguel. (AR 583.)

The video evidence reflects that, at the MDC, the officers prepared paperwork while Miguel was seated a few feet away. (AR 925, Dept. Ex. 5, video, File 647f(1), at 13:32-39.) Miguel yelled out, “I’m suicidal dude.” (AR 925, Dept. Ex. 5, video, File 647f(1), at 13:32-33.) Seconds later, Miguel again yelled out, “I’m fucking suicidal. . . I’m suicidal. I don’t want to be with you motherfuckers. I don’t want to be here.” (AR 925, Dept. Ex. 5, video, File 647f(1), at 13:38-39.) Petitioner maintains that he did not hear Miguel’s statement that he was suicidal. (AR 479.)

The arrest report indicates that, on the way to MDC, Miguel demanded to be taken to the Twin Towers jail or else he would claim that he was suicidal. (AR 932.) Petitioner maintains that he did not recall Miguel making this comment. (AR 479.)[2]

The Court agrees with the Board’s finding that petitioner’s assertion that he did not hear Miguel’s suicidal ideation is not credible. (AR 896.) It strains credulity to think that petitioner could tune out Miguel’s comments that he was suicidal on the way to MDC and while filling out the Arrestee Medical Screening Form, particularly in light of the video evidence in which Miguel clearly states he is suicidal multiple times. (See (AR 925, Dept. Ex. 5, video, File 647f(1), at 13:32-39.) Combined with petitioner’s assertion that he did not hear Miguel’s six requests for a supervisor, which the Court rejects above, the weight of the evidence demonstrates that petitioner inaccurately completed the screening form to conceal Miguel’s suicidal condition, as set forth in Count 4.

Further, the Court finds that the Board adequately set forth the basis of its finding of guilt concerning Count 4. The Board set forth the portion of the body camera footage where Miguel indicated that he was suicidal and petitioner’s subsequent completion of the screening form. (AR 895.) The Board also set forth why petitioner’s claim that he did not hear Miguel’s statements was not credible. (AR 896.)

For the foregoing reasons, the weight of the evidence supports the finding of guilt on Count 4.

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

A police officer’s “job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer's duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.) “The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721.) “Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.)

Petitioner maintains that he has learned from the incident and that he would request advice in the future concerning whether a use of force is reportable. (OB at 13:24-14:11.) Petitioner maintains that termination of his employment is excessive.

Putting aside Counts 2 through 4, petitioner did not dispute the finding of guilt for Counts 1, 5, 6, and 7. With respect to Count 1, the Board found that petitioner “failed to enforce the applicable Penal Code provisions in responding to the domestic violence call.” (AR 904.) Petitioner failed to complete a “Domestic Violence Incident” investigative report. (AR 882.) Petitioner did not properly investigate the incident, such as asking Person Reporting whether she wanted a report taken or thoroughly questioning PR to determine the crimes that may have been committed, and instead asked her whether she wanted Miguel to leave. (AR 883-84.) Petitioner also did not document domestic violence-related theft, vandalism, and battery in a report, despite having had information establishing these crimes. (AR 884-86.)

With respect to Counts 5 and 6, the record reflects that the MDC medical staff instructed the officers to transport Miguel to a hospital because of his increased heart rate. (AR 457, 482, 484, 932.) Rather than dropping off Miguel at the hospital, the officers dropped off Miguel approximately 20-30 yards away. (AR 40, 41, 463, 925, Dept. 5, video, File 647f2, at 4:41.) Hospital security observed that Miguel was very intoxicated and confused. (AR 39.) Miguel did not know where he was or how he got there and was unable to care for himself. (AR 39, 40, 43.) Sergeant Calderon also observed Miguel to have slurred speech, to be intoxicated and unable to stand on his own or take care of himself. (AR 535, 536, 540.)

With respect to Count 7, the officers did not update their status on their in-vehicle log. (AR 184, 329.) The Board found that this reflected an intent to conceal that petitioner and his partner dropped off Miguel at the sidewalk and released him. (AR 908.)

The Board found that petitioner’s misconduct reflected a “disregard of the duty to save lives.” (AR 905.) The Board found that petitioner “allowed the possibility that Mr. Miguel would return to the location and harm the person reporting.” (AR 905.) The Board also found that petitioner “disregarded Mr. Miguel’s safety and health by dropping him off at the sidewalk in front of White Memorial Medical Center…[in] knowing disobedience of a directive from MDC dispensary personnel.” (AR 905.) The Board also noted that petitioner knew Miguel was highly intoxicated, had an elevated heart rate and suicidal ideations, and had shown aggression during the night, thus posing a danger to others in the area, as well as himself. (AR 905-6.)

Combined with petitioner’s “concealment of and lack of candor about his misconduct,” which are set forth in the Board’s decision (AR 906-909), the Board found that retaining petitioner “would pose an undue risk to the Department and the City” (AR 909-10).

Considering Counts 1 and 5-7 alone, a reasonable person could find that termination of petitioner’s employment was warranted. A reasonable person could find that petitioner’s failure to properly investigate the domestic violence incident posed a risk to Person Reporting. A reasonable person could also find that petitioner’s failure to drop off Miguel at the hospital posed a danger to the highly intoxicated Miguel, as well as any person Miguel may have encountered on the street. When considered with petitioner’s failure to report a reportable use of force on an arrestee (Count 2), failure to request a supervisor when a complaining arrestee asked for one (Count 3), and failure to note suicidal ideation by an arrestee (Count 4), the breach of the public trust evidenced by petitioner’s conduct demonstrates that termination of his employment was warranted.

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondents shall prepare, serve, and ultimately file a proposed judgment.

[1] The Board of Rights noted that Miguel screamed in pain upon petitioner’s application of a wrist lock. (AR 890.) Sergeant Ku testified that pain does not necessarily mean that Miguel was injured. (AR 232-33.) The policy states that the use of a joint lock not resulting in injury or complained of injury is not reportable. (AR 927.) Miguel’s screams of pain and assertion that petitioner was hurting him meant that Miguel was complaining of injury, regardless of whether Miguel was actually injured. (AR 445.) Putting aside the issue of whether Miguel complained of any injury, even if Miguel’s walking away while petitioner attempted to place him in the vehicle constituted passive resistance, petitioner testified that he used the joint lock to pull him back over and used the police vehicle and body weight to maintain control over Miguel. (AR 445-46.) That testimony concedes petitioner employed overt exertion to maintain control over Miguel; such exertion is reportable. (AR 927.)

[2] The Board and respondents also argue that Miguel told MDC medical staff that he was suicidal. (AR 895, 947.) According to Sergeant Ku, officers stay with the arrestee during the medical staff’s interview of the arrestee. (AR 267-68, 895.) The arrest report also indicates that petitioner was present when Miguel told MDC medical staff that he was suicidal and wanted to kill himself. (AR 932.) The report states: “At this time, we were advised by the staff that due to his behavior along with his comments, he would be placed in a safety cell until he sobers up.” (AR 932, emphasis added.) The relevance of respondents’ argument is unclear, as respondents do not indicate whether the medical examination of petitioner occurred before petitioner completed the medical screening form. Regardless, putting aside what Miguel said during the medical examination, the weight of the evidence still supports the finding that petitioner otherwise heard Miguel’s statements demonstrating suicidal ideation.