Judge Curtis A. Kin, Case Number: 22STCP02473, Date: 2023-12-21 Tentative Ruling

Petitioner Juan Fletes-Frias petitions for a writ of mandate directing respondent Civil Service Commission of the County of Los Angeles to reverse its decision sustaining petitioner’s discharge and award full benefits and back pay from September 12, 2018, the effective date of the discharge.

On February 20, 2017, petitioner Juan Fletes-Frias was working as a Deputy Probation Officer II (“DPO II”) for real party in interest County of Los Angeles Probation Department (“Department”). (AR 161.) Petitioner was assigned to Challenger Memorial Youth Center, a juvenile detention facility at Camp Gregory Jarvis. (AR 159.)

The incident involves the use of physical force against minor Ryan S. (“Minor S”) by DPO II Enrique Paniagua in a dormitory. The incident was captured on three separate video cameras. The cameras captured video images in a frame-by-frame manner instead of as a continuous video. (AR 60.)

Camera five, which captured the AB side of the dormitory, gives the closest view of minor S and Paniagua. (AR 242.) Camera four was located at the opposite end of the A wing, diagonal from camera five. Camera six was located at the opposite end of the B wing of the dormitory.

According to the footage from camera five, at 7:13:02 p.m., Minor S entered the B wing of the dormitory and walked toward his bed. Petitioner reached his bed at 7:13:14 p.m. Minor S was looking for his personal belongings around his bed area. (AR 333.) Petitioner had walked past DPO I Akilah Peters who was seated on a locker leaning against the middle wall in the dormitory. (AR 242, 274.) DPO II Jeffrey Holman was seated on a locker in the back of the dormitory in the B wing. (AR 242, 274, 417.)

At 7:13:20, Minor S turned back and walked towards the control center. Minor S did not engage or make any contact with Peters.

At 7:13:24, Paniagua entered the view of camera five, walked towards and met Minor S at 7:13:26. Minor S inquired about his personal belongings. (AR 320-21, 333-34.) Paniagua instructed Minor S to go back to his bed area. (AR 201.) Peters was looking and continued to look at Paniagua and Minor S. From the video, she appears to be approximately one bed length away from Paniagua and Minor S.

At 7:13:29, Minor S’s left arm was bent at ninety (90) degrees. In camera five, Minor S’s right arm was obscured by Paniagua. In cameras four and six, the position of Minor S’s right arm is not discernable.

At 7:13:30, with his left arm still bent at ninety (90) degrees, with palm facing up, Minor S took a step back.

At 7:13:31, Minor S had his hands parallel to his torso with palms open and facing upward and inward.

At 7:13:32, Minor S moved forward to the right of Paniagua with his right hand in his pants pocket and his left arm at his side. While Minor S attempts to walk past Paniagua, Paniagua’s left arm is outstretched and Paniagua’s left hand makes contact with Minor S’s right shoulder. Holman starts to walk toward Paniagua and Minor S.

From 7:13:24 to 7:13:32, based on the footage from cameras four and six, petitioner was in the caseworker’s area in the AB side of the dormitory. (See also AR 205, 418.)

At 7:13:33, Minor S is stopped and is turned toward Paniagua face-to-face, with Minor S facing the caseworker’s area and Paniagua facing away from the caseworker’s area. Pianagua’s right hand grasps or is touching the left cuff of Minor S’s sweatshirt.

At 7:13:34-35, Minor S had his hands and palms open and has stepped back. Paniagua is no longer touching Minor S’s sleeve. Paniagua moves forward with his left hand extended toward Minor S. Paniagua was still facing Minor S, away from the caseworker’s area.

Between 7:13:33-34, based on the footage from cameras four and six, petitioner turned around and faced Paniagua and Minor S. Between 7:13:35-36, based on the footage from cameras four and six, petitioner ran toward Paniagua and Minor S.

At 7:13-36-37, Minor S made a backward movement away from Paniagua’s outstretched left arm. Minor S’s hands are open, at shoulder height, with palms facing Paniagua. Paniagua was facing Minor S, away from the caseworker’s area. Peters stood up and walked toward Paniagua and Minor S.

At 7:13:38-39, Minor S’s hands remain open, at shoulder height, with palms facing Paniagua. Minor S and Paniagua are still facing one another.

At 7:13:43, based on the footage from all three cameras, petitioner physically intervened.

The use of force is governed by the Department’s Directive 1194: Safe Crisis Management Policy (“Use of Force Policy”). (AR 366-371.) In “controlled situations,” officers are required to use de-escalation techniques, such as requesting compliance with instructions, discussion, and continued dialogue, to “successfully resolve crisis situations without injury to minors or staff by utilizing the least restrictive alternative.” (AR 366-67.) Controlled situations include the refusal to follow instructions, the non-response to staff instructions, and the assumption of an immobile, aggressive stance with fists clenched. (AR 366-67.) In a controlled situation, “[s]taff is prohibited from initiating a physical intervention in a controlled/contained situation without a Supervisor present at the location, unless the minor becomes physically aggressive, attempts to leave the immediate area or engages in life threatening self-harming behavior.” (AR 369.)

In “uncontrolled situations,” officers are authorized to use “more restrictive alternatives on an escalating basis, to prevent injury to minors or staff and/or to protect the community.” (AR 369.) Uncontrolled situations include “physical assault upon a staff member.” (AR 369.) Techniques to de-escalate uncontrolled situations include the following:

Verbal Command – In an appropriate loud, commanding (firm) voice, staff shall clearly instruct/order the minor(s) engaged in negative activity to cease their involvement. Staff shall then immediately call for backup.

Staff Presence – One or more staff are to converge on the area where the incident is occurring. While converging, staff must continuously instruct/order minor(s) in an appropriately loud, commanding (firm) voice, to cease their negative activity.

Application of Physical Intervention – If verbal commands and staff presence fail to achieve the desired cessation of negative behavior, physical intervention shall be employed utilizing the least restrictive level (in an escalating manner, as directed by the circumstances) in order to contain the situation and restore order.

The Use of Force Policy provides that all staff members who are involved in or witness a situation that is resolved through a physical intervention must complete a Physical Intervention Report (“PIR”) or Supplemental Physical Intervention Report (“SUP-PIR”). (AR 371.)

According to Paniagua in his PIR (AR 201), he verbally instructed Minor S to report to his bed. Minor S refused and walked “out of bounds.” Paniagua extended his left arm to “impede the minor’s progress” and instructed Minor S to report back to his bed. Minor S then purportedly “became combative and forcefully entered [Paniagua’s] personal space and physically slapped [Paniagua’s] left arm.” Paniagua repeatedly instructed Minor S to report to his bed. Minor S did not comply and purportedly slapped Paniagua’s right arm. Minor S verbally stated, “Fuck that, get the fuck out of my way,” during which Minor S purportedly had both fists clenched in an assaultive manner and stepped toward Paniagua. Fearing for his safety, Paniagua restrained Minor S, with assistance from petitioner, out of the dormitory.

According to petitioner in his PIR (AR 205), at 7:13 PM, petitioner was located near the caseworker’s office on the AB side of the dormitory when he heard a commotion near the restroom. As petitioner turned around, he witnessed Minor S strike Paniagua “in a forceful manner on his forearm.” Petitioner immediately responded and assisted Paniagua in restraining Minor S.

According to DPO I Akilah Peters in her SUP-PIR (AR 219), she saw Minor S storm away from his bed toward the control center. She directed Minor S several times to return to his bed. Minor S responded, “I don’t give a fuck, hell no I’m not doing shit.” Paniagua reiterated Peters’ instructions for Minor S to return to his bed. Minor S continued to raise his voice, clench his fists, and curse. Paniagua and Peters provided two additional attempts for situational counseling to no avail, after which Minor S “spontaneously and without warning struck” Paniagua. Petitioner and Paniagua responded with the least restrictive technique to gain compliance.

According to DPO II Jeffrey Holman in his SUP-PIR (AR 220), he observed Minor S walking from his bed to the control center. Paniagua gestured with his hands and asked several times for Minor S to return to his bed. Minor S pushed Paniagua’s arms to the side several times and tried to move past Paniagua. Petitioner moved into position to assist Paniagua. As Holman and Peters worked to maintain control of the B wing with ten minors, petitioner and Paniagua were adjacent to Minor S “while he became more aggressive in trying to get to the” control center. Petitioner and Paniagua restrained Minor S.

As part of the investigation into the incident, Paula Manning of Internal Affairs interviewed witnesses and participants. (AR 261.) During his interview, Paniagua stated that he directed Minor S with his arms, at which point Minor S “physically slapped” his left arm. (AR 266.) Paniagua instructed Minor S, at which point Minor S slapped his right arm. (AR 266.) Paniagua did not know whether Minor S was going to run to the other side or physically assault somebody. (AR 266.) After Minor S slapped Paniagua’s left and right arms, Minor S clenched his fist. (AR 266.) Minor S made a “little movement” toward Paniagua’s personal space, after which Paniagua physically intervened. (AR 266.)

When Manning played the video for Paniagua, Paniagua stated that he did not see the slap on the video but that he believed Minor S slapped him at 7:13:28. (AR 278.) Manning asked Paniagua why he proceeded with restraining Minor S when Minor S had his arms up in the air. (AR 298-99.) Paniagua did not recall Minor S having his arms up in the air. (AR 299.)

Manning also interviewed Minor S. Minor S denied hitting Paniagua. (AR 323, 338.) Minor S did not know why Paniagua restrained him. (AR 323.)

During petitioner’s interview with Manning, petitioner stated that he heard a commotion, at which point he saw Minor S strike Paniagua. (AR 407, 415, 423.) Manning and Michelle Simpson, another investigator, played the video for petitioner. (AR 420.) Petitioner stated that he did not see a strike on the video, but petitioner remembered seeking Minor S strike Paniagua two times. (AR 420-21, 425.)

During Peters’ interview with Manning, Peters stated that Paniagua assisted her in counseling Minor S. Minor S was upset, saying “Don’t touch me, don’t touch me.” (AR 458.) Peters said that no one was touching Minor S. (AR 458-49.) Peters saw Minor S strike Paniagua two times in what appeared to be Paniagua’s arm or upper torso region. (AR 458-59, 480.) One of the strikes was at 7:13:34. (AR 480.)

During Holman’s interview with Manning, Holman stated that, during Minor S’s encounter with Paniagua, Minor S was slapping Paniagua’s arms. (AR 504, 507.) When shown the video, Holman did not see the slapping on the video. (AR 519, 522.) Holman stated that things happened that the video did not capture. (AR 532, 539.)

Manning interviewed minor Adrian B. He stated that he saw Paniagua put his hands toward Minor S, and Minor S pushed or shoved them away. (AR 579, 585-86.) He said that Minor S did not strike or kick Paniagua. (AR 579, 585.) He saw Minor S flinch at Paniagua. (AR 585.)

Manning interviewed minor Dezuan B. He said that Minor S flinched at Paniagua, and Paniagua restrained Minor S. (AR 590.) The flinching was not like a punch; rather, Minor S stuck his hand out, requesting his personal belongings. (AR 592.) Paniagua got scared and restrained Minor S. (AR 592-93.)

Manning interviewed minor Christopher E. He said that when Paniagua was in front of Minor S, Minor S “kind of tried to scare” Paniagua by “trying to fake throw a punch.” (AR 605.) He did not see Minor S hit, kick, or make any physical contact with Paniagua before Paniagua restrained him. (AR 606-07.)

Manning interviewed John I. He said that Minor S “went like this with his arm…like he tried to make it look like he was going to hit him,” but Minor S was “joking around.” (AR 624.) He did not see Minor S hit Paniagua before the restraint. (AR 626.) Rather, Minor S flinched at Paniagua. (AR 627.)

Manning interviewed Fernando S. He said that Paniagua tried to stop Minor S by putting his hands out. (AR 634-35.) Minor S pushed Paniagua’s hands away. (AR 635.) Minor S was “about to swing,” after which Paniagua restrained Minor S. (AR 635.) He did not seek Minor S hit or kick Paniagua. (AR 638, 641.)

On February 15, 2018, the Department notified petitioner of its intent to discharge him. (AR 3.) The intent to discharge was based, in relevant part, on “[p]roviding false information in the course of an administrative investigation,” [f]alsifying or concealing reports or documents,” and “[w]ithholding information from superiors” in the PIR and administrative interview. (AR 168.)

On July 25, 2018, petitioner and his counsel attended petitioner’s Skelly hearing.[1] During the Skelly hearing, petitioner asserted that, because Minor S touched an officer, petitioner’s PIR contained no falsehoods. (AR 3.)

On September 12, 2018, the Department informed petitioner that he was discharged from his Deputy Probation Officer II position effective September 12, 2018. (AR 3.) The Department asserted that at 7:13:33-34, when petitioner turned around, Minor S was facing the caseworker’s area and Paniagua was facing Minor S, thereby blocking petitioner’s view of what was happening between the space covered by Paniagua’s body. (AR 8.) Even if petitioner turned around at 7:13:32, at that time, minor S’s left hand was lowered and he had his right hand in his pants’ pocket, “slightly brush[ing]” Paniagua’s left hand. (AR 8.) The Department characterized as inaccurate petitioner’s description of minor S’s behavior as “combative.” (AR 8.) According to the Department, the contact was not in a forceful manner. (AR 8 [“[A] slight touching by a minor against probation staff does not make that minor combative”].) Because petitioner “failed to recognize and follow fundamental rules regarding being honest and forthcoming,” the Department discharged petitioner. (AR 9.)

Petitioner appealed the discharge. The hearing took place on October 30, 2020 and November 5, 2020 before Hearing Officer Daniel Saling (“Hearing Officer”). (AR 48.)

During the hearing, Peters testified that she saw Minor S hitting Paniagua’s arm with his hand while Paniagua’s arm was extended. (AR 774-76.) Peters witnessed the incident from a few feet away. (AR 777.) During cross-examination, Peters testified that she could not recall the striking because she experienced a lot of trauma with the incident. (AR 787.) Peters also did not recall Minor S having his palms out and arms up during the incident. (AR 789.)

Paniagua testified that he directed Minor S with his left arm, but Minor S slapped his arm down. (AR 824.) Paniagua directed Minor S with his right arm, but Minor S slapped the right arm. (AR 810, 812, 824.) Seconds elapsed between the first and second slap. (AR 824.) Minor S came toward Paniagua with his fist clenched, like Minor S was going to assault Paniagua. (AR 810.) Paniagua testified that he, petitioner, Peters, and Holman did not talk about what they were going to write on the PIRs. (AR 819-20.)

Petitioner testified that Minor S struck Paniagua on the forearm when Paniagua held his arms directly in front of Minor S. (AR 838.) Petitioner testified that he was approximately 15 and 18 feet from Paniagua and Minor S and had a clear view of the slaps. (AR 854-55.) Petitioner testified that the two slaps were “back to back,” happening “almost instantaneously,” and occurred within “one to two seconds at most.” (AR 855.) Petitioner did not recall whether the slaps were open or close-handed. Petitioner did not recall seeing Minor S with palms up on the video. (AR 860.)

On September 20, 2021, the Hearing Officer issued a Recommended Decision, Findings of Fact, and Conclusions of Law. (AR 48-66.)

The Hearing Officer found: “The video of the February 20, 2017, incident shows that the Appellant was not in a position where he could have witnessed the alleged physical strike by Minor S. to DPO II Paniagua’s forearm. Further, the video evidence does not show that the minor physically struck DPO II Paniagua’s forearm as reported in the Appellant’s PIR or his investigative interview.” (AR 59.)

The Recommended Decision also stated: “While the video does have frame skip, it appears that the entire video captures video images in a frame-by-frame manner instead of as a continuous video. In reviewing the video numerous times, the Hearing Officer does not believe that the frame’s skip could have eliminated a view of the alleged striking by Minor S. of DPO II Paniagua’s forearm.” (AR 60.)

The Recommended Decision further stated: “It is possible that the minor’s hand or arm may have come in contact with DPO II Paniagua’s forearm when the officer reached out and grabbed the minor by his sweatshirt and forced him to the ground.” (AR 60-61.)

1. The allegations in the Department' s Notice of Discharge dated August 31. 2017 are found to be true with regard to the charges of failure to follow established rules, regulations, policies, or procedures, providing false information in the course of an administrative investigation, falsifying, or concealing reports or documents, withholding information from superiors, carelessness, or inattention to duties and failure to exercise sound judgment.

2. The Department established by the preponderance of the evidence that the Appellant filed a false and/or dishonest account of his involvement in the February 20. 2017 physical restraint of Minor S.

3. The Appellant by his conduct violated Probation Department Policy Manual (PDPM) 600. sections 102. 601. 603. and 615 by submitting an inaccurate and untruthful Physical Intervention Report (PIR).

4. The Appellant by his conduct violated Residential Treatment Policy Manual (RTSB) No. 1500. Safe Crisis Management by using physical restraint in a controlled situation and filing a Physical Intervention Report (PIR) of the incident that was not honest or truthful.

5. The Appellant by his conduct violated Probation Department Employee Honesty Directive No. 1316 when he filed a Physical Intervention Report (PIR) of the incident that was not honest or truthful.

6. The Appellant by his conduct violated Civil Service Rule 18.031, for failure to exercise sound judgment and failing to perform his duties and meet Department expectations.

7. The Appellant by his conduct violated the Los Angeles County Probation Department Directive 1316 by filing a Physical Intervention Report (PIR) of the incident that was not honest or truthful.

The Hearing Officer recommended the denial of petitioner’s appeal and the sustaining of his discharge. (AR 66.)

On May 25, 2022, respondent Civil Service Commission of the County of Los Angeles overruled petitioner’s objections to the Recommended Decision and adopted the recommendation of the Hearing Officer as its final decision. (AR 101-02.)

On July 1, 2022, petitioner Juan Fletes-Frias filed a Verified Petition for Writ of Mandate Reversing Administrative Decision. On August 1, 2022, real parties in interest County of Los Angeles and County of Los Angeles Probation Department filed an Answer.

On August 7, 2023, petitioner filed an opening brief. On November 27, 2023, real parties filed an opposition. On December 5, 2023, petitioner filed a reply. The Court has received an electronic copy of the administrative record, including three audio recordings, one videoconference recording, and video camera footage of the incident.

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 Deputy Probation Officer II 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.)

“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.)

In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

“[A peace 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.)

During the hearing, the Hearing Officer addressed the following issues, as defined by the Civil Service Commission:

1. Are the Allegations contained in the department’s letter dated September 12, 2018 true?

The Hearing Officer’s Recommended Decision, which the Civil Service Commission adopted, found that, based on the video footage, petitioner “was inaccurate and untruthful in both his PIR and during his investigative interview.” (AR 62.)

In the Court’s review of the administrative record, including extensive and careful frame-by-frame view of the video, the Court exercises its independent judgment and finds that petitioner was accurate and truthful in his PIR and during his investigative interview.

As the parties agree, the video is not continuous. Rather, the video recorded the incident frame-by-frame, like a series of still photos capturing moments in time that are close together but not capturing the brief moments in time occurring between the frames. Accordingly, the video did not capture the entirety of the incident between Paniagua and Minor S. For example, at 7:13:32, the video depicts Paniagua’s outstretched arm touching Minor S’s right shoulder as Minor S attempts to walk past him, but the video does not capture the moments in time when Panigua moves his arm to that outstretched position. Likewise, at 7:13:33, the video captures Paniagua’s right hand touching or grasping the left sleeve cuff of Minor S’s sweatshirt, but the video depicts neither the moments when Paniagua reaches for the cuff nor the moments when he lets go of it. Notably, these two examples are only one second apart from another, and yet there are several quick actions or movements (i.e., outstretching of Paniagua’s arm, grabbing the sleeve cuff, letting go of the cuff) that occurred but were not captured on the frame-by-frame video.

The Department contends that the encounter between Paniagua and Minor S before the physical intervention lasted fourteen seconds. (AR 5.) According to the Department, throughout the fourteen seconds, Minor S’s hands were in his pants’ pockets, lowered to his side, or elevated with palms open, up in the air. (AR 5.)

However, the officers who participated in and/or witnessed the incident stated in their Physical Intervention Reports that Minor S slapped Paniagua’s arm twice (AR 201, 205, 219) or pushed Paniagua’s arms (AR 220.) The officers’ accounts were consistent during the investigative interviews with Manning. (AR 266, 407, 415, 420-21, 423, 425, 458-59, 480, 504, 507.) During the administrative hearing, the officers’ accounts remained essentially the same. (AR 774-76, 810, 812, 824, 838, 855.) Indeed, Holman was adamant that, due to the frame-by-frame nature of the video, it did not capture the entire incident. (AR 532, 539.) Moreover, minor witnesses stated during the investigative interview that Minor S pushed or shoved away Paniagua’s hands. (AR 579, 585-86, 635.)

In the Recommended Decision, the Hearing Officer did not present any reason to disbelieve the officers or the minors, such as bias, inconsistency in their testimonies, or any basis to belief their accounts were inaccurate or unreliable. Neither did real parties in their opposition. The Hearing Officer and real parties essentially rely on the video to assert that Minor S did not slap Paniagua. But, as noted above, the frame-by-frame video did not capture every moment of the incident, including quick movements and actions.

The administrative record contains a timeline of the video. (AR 242.) It is unclear who prepared the timeline. However, the timeline states that, from 7:13:33-36, as Paniagua extended his right arm toward Minor S, Minor S reacted by making a swiping motion with his left harm, causing him to make contact with Paniagua’s right arm. (AR 242.) Peters asserted during her investigative interview that one of Minor S’s strikes occurred at 7:13:34. (AR 480.) The movements in the video during 7:13:33-36 are consistent with the description in the timeline. Even if the video shows Minor S with his hands up, Minor S could have quickly slapped or swatted away Paniagua’s arm fast enough such that the cameras did not capture the quick action.

Because, as discussed above, the Court’s review of the video footage makes clear that the frame-by-frame video does not capture every moment of the incident, the Court cannot agree with the Hearing Officer’s contrary conclusion that the slap or swatting by Minor S must not have occurred because “the Hearing Officer does not believe that the frame’s skip could have eliminated a view of the alleged striking by Minor S. of DPO II Paniagua’s forearm.” (AR 60.) And because the frame-by-frame video does not necessarily preclude the fact of Minor S having slapped or swatted at Paniagua’s arm, there is no other basis in the record for the Hearing Officer to have ignored the testimony of the other officers and minors that it did happen.

The Department also maintained that petitioner could not see Minor S slap Paniagua’s forearm because Paniagua was blocking petitioner’s view. (AR 8.) However, the video does not clearly depict at what angle petitioner was observing the encounter between Paniagua and Minor S. Put another way, petitioner may not have been looking directly behind Paniagua. Accordingly, based on Peters and Holman’s description of the incident, petitioner could have seen Minor S slap Paniagua.

The Hearing Officer found that petitioner used physical restraint in a controlled situation. (AR 66.) The Department notes that, even if Minor S touched Paniagua at 7:13:32, the touching did not bother Paniagua because the physical intervention occurred at 7:13:40. (AR 8.) However, in the investigative interviews of minor witnesses, the minors describe Minor S as flinching at Paniagua. (AR 590, 592, 593, 627.) Two minor witnesses characterize the flinching as akin to a fake punch. (AR 605, 624.) The flinch was fast enough that the frame-by-frame video footage did not capture it.

Combined with the prior two slaps which the officers described in reports, interviews, and testimony, the threatening “flinch” turned the situation from controlled to uncontrolled. Having previously attempted verbal commands and staff presence, Paniagua and the officers were authorized to use the least restrictive level of force. (AR 370.) Accordingly, petitioner did not impermissibly use physical restraint in a controlled situation.

Based on the foregoing, the Court does not find in the exercise of its independent judgment and review of the record that the Hearing Officer’s finding that petitioner was not honest and truthful in describing the subject incident was supported by the weight of the evidence. Accordingly, petitioner’s discharge was not justified.

The petition is GRANTED. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.

[1] Pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, a civil service employee has certain procedural protections before discipline may be imposed, including notice of the proposed action and the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority imposing discipline.