Judge James C. Chalfant, Case 21STCP03375 2022-12-13 Tentative Ruling

Petitioner Robert Maas (“Maas”) seeks a writ of mandate directing Respondent Los Angeles County Civil Service Commission (“Commission”) to set aside its decision sustaining the decision of Real Parties-in-Interest Los Angeles County Sheriff’s Department, and Sheriff Alex Villanueva’s (collectively, “Department” or “LASD”) to suspend Maas for 15 days.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Maas commenced this proceeding on October 7, 2021, alleging a single cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

Maas has been a deputy sheriff with LASD since 2006. On October 20, 2017, LASD sent him a Letter of Intent to suspend him for 15 days. Pursuant to his rights, he requested and was granted an evidentiary hearing. The Hearing Officer heard the administrative appeal on June 10-11, 2019. Both Maas and LASD submitted post-hearing briefs.

On August 28, 2019, the Hearing Officer issued Findings of Fact, Conclusion of Law, and Recommendation. The Proposed Decision found the charges “not true” and that LASD did not prove that the proposed discipline was appropriate. The Hearing Officer recommended that LASD rescind the 15-day suspension.

On May 26, 2021, the Commission overruled Maas’s objections and adopted a final decision (“Final Decision”) that did not adopt the August 2019 Proposed Decision and sustained the LASD’s 15-day suspension.

Maas seeks administrative mandamus compelling the Commission to set aside the suspension and restore Maas to his position, free of prejudice arising from the disciplinary actions. Maas also seeks administrative mandamus compelling LASD to (1) remove the record of the misconduct charges, the proposed disciplinary penalty, any other adverse comments, and all references to the complaint, investigation and adjudication of these matters from Maas’s personnel package and other LASD records; (2) pay back salary and benefits, together with interest at the legal rate; and (3) restore to Maas all other emoluments of employment. Maas also seeks attorney’s fees and costs.

On October 12, 2021, Maas served the Respondent Commission and Real Parties County and LASD with the Petition and Summons.

On October 25, 2021, the Commission filed a Notice of No Beneficial Interest in the Outcome.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). The independent judgment standard of review applies to administrative findings on guilt in cases involving a law enforcement officer’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4^th 652, 658.

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, supra, 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. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, the 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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The Peace Officers Bill of Rights Act (“POBRA”) is located at Govt. Code section 3300 et seq and sets forth a list of basic rights and protections which must be afforded to all peace officers by the agencies that employ them. Bagett v. Gates, (1982)32 Cal.3d 128, 135. The various procedural protections of POBRA “balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment.” Jackson v. City of Los Angeles, (2003) 111 Cal.App.4th 899, 909.

“No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” Govt. Code § 3304(b).

A “’punitive action’ means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” Govt. Code § 3303.

Section 3304(b)’s limited purpose is to afford peace officers subject to punitive action an opportunity to establish a formal record of circumstances surrounding his or her discipline and attempt to convince the employing agency to reverse its decision through evidence that the charges are false or through mitigating circumstances. Binkley v, City of Long Beach, (1993) 16 Cal.App.4th 1795, 1806. While the precise details of the procedure required by section 3304(b) are left to local law enforcement, the administrative appeal requires at minimum an “independent re-examination” of an order or decision made, conducted by someone who has not been involved in the initial determination. Caloca v. County of San Diego, (2002) 102 Cal.App.4th 433, 443-44. The administrative decision-maker must “set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” Id. at 444.

LASD’s Manual of Policy and Procedures (“MPP”) requires all members to abide by federal statutes, state laws, local ordinances, the County Charter, the County Code, and the Rules of the Department of Human Resources. AR 263 (MPP §3-01/030.10(a)-(b)). Members shall obey and properly execute all lawful orders issued by any supervisor of higher rank. AR 263 (MPP §3-01/030.10(c)).

The evaluation of a LASD member's performance includes the strategies or tactics used leading up to, during, and following a use of force. AR 265 (MPP §3-10/050.15). These strategies and tactics shall be evaluated in terms of whether they comply with Department policies, procedures, and training. AR 265 (MPP §3-10/050.15). The following are examples of the types of tactical considerations that shall be evaluated under this policy: the approach of a suspect or vehicle, availability and deployment of equipment and weapons, communication, concealment, coordination, cover, distance, field of fire, fire discipline, incident command, partner splitting, planning, position of advantage, potential for crossfire, shooting backdrop, supervision, suspect control, taking independent action, and target acquisition. AR 265 (MPP §3-10/050.15).

Once a pursued vehicle has stopped, for whatever reason, the previous tactical operation of a vehicle pursuit is immediately replaced by a new tactical operation involving suspect containment and arrest. AR 268 (MPP §5-09/210.16). It is essential that all personnel involved in the pursuit recognize this transition from vehicle pursuit to containment and arrest. AR 268 (MPP §5-09/210.16). The handling deputy remains the Incident Commander, unless relieved by the Field Sergeant. AR 268 (MPP §5-09/210.16).

Safety is critical at the termination of a pursuit, and at no time will the need for decisive action and strict personal and collective self-control be more essential. AR 268 (MPP §5-09/210.16). If, at the pursuit terminus, any occupant of the pursued vehicle fails to obey commands to exit and remains in the vehicle, the situation shall be treated first as a felony stop and with continued non-compliance, a barricaded suspect incident. AR 268 (MPP §5-09/210.16).

Unless relieved by a supervisor, the primary pursuit unit retains the responsibility, as the Incident Commander, for maintaining control and directing activities at the terminus of a pursuit, specifically as it relates to the apprehension of the suspect and the use of force. AR 268 (MPP §5-09/210.16). All personnel involved in suspect containment and arrest shall adhere to the fundamental tactical principles outlined in MPP section 3-10/150.00, including the development of a tactical plan, the use of less lethal weapons, assignment of designated shooters, fire discipline and shooting backdrop. AR 268 (MPP §5-09/210.16).

Discipline in the Department will generally follow a “progressive-step method” in an attempt to correct, resolve or remove the employee's performance problem or misconduct at the lowest, most effective level. AR 533. The formal disciplinary steps from least to most severe are written reprimand, suspension, salary step reduction, bonus removal, reduction, and discharge. AR 533. It is not necessary to impose each lower step of discipline prior to imposing a given level. AR 533. Circumstances may call either for bypassing or imposing repetitive discipline. AR 533.

The LASD Guidelines for Discipline (“Guidelines”) do not list recommended discipline for violations of MPP sections 3-10/050.15 or 5-09/210.16. AR 553-561. The discipline for violations of MPP section 3-01/030.10 – Obedience to Laws, Regulations, and Orders – ranges from written reprimand to discharge depending on the type of offense. AR 553-54.

Rule 4 of the Civil Service Rules (“CSRs”) provides the procedure which must be followed for administrative hearings. AR 266. A petition for a hearing shall be in writing, shall be signed by the petitioner or representative, and shall give the signer's mailing address and specify the ruling or action appealed and in plain language and in detail sufficient facts and reasons upon which the petitioner bases its case. AR 266 (CSR 4.02). Unless otherwise provided in the rules, a petition for hearing before the Commission must be filed within 15 business days if the discipline at issue is discharge, reduction, or suspension over five days. AR 266 (CSR 4.05(A)).

If the hearing is not before the full Commission, the hearing board shall, within 30 calendar days from the conclusion of the hearing, submit a written or oral report to the Commission for its approval. CSR 4.13(a). If the Commission accepts the findings of fact contained in such report, it need not read the record of the hearing. CSR 4.13(a). If the Commission declines to accept such findings, it must read the record or hold a hearing de novo. CSR 4.13(a).

When the Commission has reached a proposed decision, it shall notify each party of that decision. CSR 4.13(b). Either party may then request findings of fact and conclusions of law by filing a written request with the Commission. CSR 4.13(b). If one of them does, the Commission may either adopt the report of the hearing board as its proposed findings and conclusions, direct one of the parties to prepare proposed findings and conclusions, or draft its own findings and conclusions. CSR 4.13(c).

If either party files timely objections to the proposed findings and conclusions and the Commission believes that the objections or parts thereof have validity, the Commission shall amend the proposed findings and conclusions accordingly, and shall notify the parties that the amended findings and conclusions are a new proposed decision. CSR 4.13(d). Any party who has not previously filed objections shall have ten business days from the date of the notice of the new proposed decision to file objections to that decision. CSR 4.13(d).

If no party files objections to the proposed findings and conclusions within ten business days after service, they shall constitute the final decision of the commission. CSR 4.13(e).

Maas began employment with LASD in July 2005 as a custody assistant in the jail. AR 175. LASD swore him in as a deputy sheriff in July 2006. AR 175. He attended the LASD Academy beginning in September 2006 and successfully completed his training. AR 176. The training program included 800 enhanced hours of in-service training and lessons in tactics policies applicable to his work. AR 195-96.

On Monday, October 19, 2015, Internal Affairs Bureau (“IAB”) Lieutenant Edward Godfrey (“Godfrey”), Sergeant David Moore (“Moore”),[2] and Sergeant Sonja Bracken responded to an on-duty hit shooting. AR 274. The IAB investigation report describes the underlying incident as follows.

Deputies Maas and Robert Vernay (“Vernay”) started a patrol shift at 9:00 p.m. on the night of October 19, 2015. AR 274. At 9:40 p.m., the deputies approached an intersection and saw a silver Lexus (“Lexus”) drive into the left turn lane but not turn left when the green signal light. AR 274-75. The deputies suspected that the driver, later identified as Dion Lamont Gossett (“Gossett”), was driving under the influence (“DUI”). AR 275. After they drove behind the Lexus, Gossett turned left and swerved and straddled lanes. AR 275.

When Vernay activated their radio car’s overhead lights, the Lexus pulled to the curb line. AR 275. Maas approached the passenger side of the Lexus on foot while Vernay remained next to the patrol car’s driver seat door. AR 275. Maas ordered the occupants of the Lexus to open the windows and shut off the engine. AR 275. As Vernay approached the Lexus, it drove away at a high speed. AR 275.

The deputies returned to their patrol car and drove after the Lexus. AR 275. After a chase across several streets at speeds up to 60 miles per hour, Gossett drove to a cul-de-sac at the end of 111^th Street. AR 275-76. He came to a skidding, momentary stop at the end of the cul-de-sac and cantered in a southerly direction. AR 276. Vernay parked the patrol car in the middle of the street at the entrance to the cul-de-sac. AR 276. The deputies exited their patrol car and stood on either side of its open doors as they detained the Lexus’s occupants at gunpoint. AR 276.

Gossett performed a three-point maneuver that pointed the Lexus at the patrol car. AR 276. The Lexus was lined up to hit the gap between where he was at the radio car’s passenger door and a white van parked next to the curb. AR 276.

A woman, later identified as Star Thompson (“Thompson”), exited the front passenger seat of the Lexus and twice yelled: “He’s crazy”. AR 276. She did not move when Vernay ordered her to walk towards him with hands raised. AR 276. Maas ordered Gossett to turn off and exit the Lexus multiple times. AR 276. Maas moved from the apex of the patrol car’s door to the front of the white van, which was parked south of the patrol car. AR 276. Gossett looked at Maas and both shook his head and said “no.” AR 276. Gossett remained in the driver’s seat with his window rolled down. AR 276.

Both Maas and Vernay continued giving commands to Gossett to no avail. AR 277. Maas saw Gossett reach for the floorboard with his left hand between the driver’s seat and the door. AR 277. Maas moved to the Lexus’s open window, reached inside, and grabbed Gossett’s left arm. AR 277. Gossett grabbed Maas’ uniform shirt with his left hand and began driving the Lexus forward. AR 277. Maas attempted to break free and pivoted his body where he was facing west. AR 277. Gossett’s arm was behind Maas and was pulling Maas toward the narrow space between the patrol car and white van. AR 277. Maas fired nine rounds of his weapon into the Lexus and was able to free himself as the Lexus moved forward. AR 277. The Lexus collided with the rear passenger side of the patrol car and then a parked car. AR 277. Thompson lay on the ground and yelled: “he didn’t have a gun.” AR 277.

Other deputies arrived after the shooting and the crash. AR 277. Paramedics arrived afterwards and pronounced Gossett dead at the scene. AR 277.

The Homicide Bureau took control of the investigation into Gossett’s death. AR 274. As part of its criminal investigation, the Homicide Bureau interviewed Maas and Vernay. Maas admitted that Gossett kept shaking his head and saying “no” to every command Maas gave, but he did not say what those commands were. AR 296.

The IAB forwarded its report with the Homicide Bureau’s Findings to the District Attorney, and its Justice System Integrity Division (“JSID”) reviewed the facts to determine if Maas’ killing of Gossett, also known as Dion Ramirez, was lawful. AR 502. On November 15, 2016, the JSID issued a report determining that Maas acted in lawful self-defense. AR 502.

The JSID report stated that Maas tried to conduct a DUI stop on the Lexus when Gossett drove off. AR 502-03. The chase ended with the Lexus trapped in the cul-de-sac. AR 504. As Gossett turned the Lexus to face the patrol car that now blocked the entrance, Thompson jumped out and ran six feet as she yelled “he’s crazy” in an apparent reference to Gossett. AR 504.

Vernay reported that Maas moved to the driver’s side of the Lexus to give orders. AR 504. It appeared that Maas became entangled with the car as it moved forwards, which forced him to backpedal to keep up. AR 504. There was not enough space between the patrol car and the white van parked to the side for the Lexus to pass through them; Maas would get “rubbed off.” AR 505. Vernay heard 4-5 shots and broadcast it on the radio. AR 505.

Maas repeatedly ordered Gossett to shut off the car and show his hands. AR 505. Gossett shook his head and said “no” every time. AR 505. Maas was in front of the Lexus and was concerned that Gossett would try to drive between the patrol car and white van. AR 505. Maas thought Gossett could not make it and that he (Maas) would be crushed if Gossett tried. AR 505. Maas moved himself to a position east and south of the patrol car to a position slightly in front of the white van. AR 505.

Maas saw Gossett reach for the floorboard near the driver’s side door, and Maas feared that Gossett was getting a gun. AR 506. He reached in, grabbed Gossett’s arm, and pulled it up. AR 506. Gossett grabbed Maas’ uniform as he tried to drive the Lexus forward. AR 506. This pulled Maas toward the narrow space between the patrol car and white van. AR 506. Afraid that the Lexus would crush him, Maas fired his weapon at Gossett multiple times. AR 506. Maas escaped before the Lexus scraped the patrol car and hit another car down the street. AR 506.

Thompson claimed that the Lexus never moved or crashed into anything. AR 508. Maas shot Gossett while his hands were on the wheel and the Lexus was parked. AR 508. She also denied that she ever said: “he’s crazy.” AR 508. Her answers as to how she met Gossett or why she was with him were extremely evasive. AR 508.

An autopsy revealed that Gossett dies from eight gunshot wounds to his head and chest. AR 508. Analysis of his blood revealed cocaine and its metabolites. AR 508.

The JSID report ruled that Gossett’s hazardous driving during the chase into the cul-de-sac alerted the deputies that Gossett would hurt others if they allowed him to escape. AR 509. He chose to turn his Lexus towards the patrol car to continue his flight even as the deputies had their weapons drawn. AR 509. This increased Maas’ belief that Gossett was a danger to others because of what he would do to escape. AR 509. The report found that Thompson did scream “He’s crazy,” which further alerted the deputies of danger. AR 509. Maas gave Gossett several opportunities to surrender, but Gossett refused. AR 509.

This all made it reasonable for Maas to think that Gossett would reach for a weapon. AR 509. When it seemed that he would, Maas grabbed his arm to stop him. AR 509. When Gossett drove the Lexus forward in response, Maas had a split second to avoid getting crushed between cars. AR 509-10. His decision to use deadly force was justified. AR 510. Because this was self-defense, the JSID closed the matter. AR 510.

Sometime later, LASD’s Advocacy Unit asked the Department’s Executive Force Review Committee (“EFRC”) to make findings on potential charges the Advocacy Unit had prepared. AR 270.

The charges were for violation of MPP Section 3-01/030.10 (Obedience to Laws, Regulations and Orders), as it pertains to 5-09/210.16 (Post-Pursuit Tactics) and 3-10/050.15 (Performance to Standards - Performance Associated with the Use of Force). AR 270. The charges alleged that Maas used strategies or tactics which failed to comply with Department policies when he (a) failed to treat the stopped Lexus in the cul-de-sac as a felony traffic stop, or to treat Gossett as a barricaded suspect after he failed to obey commands and remained in his vehicle, (b) left a position of advantage when he walked away from his patrol car and close to the Lexus, (c) failed to use a parked vehicle and/or another hard object as cover and/or concealment while detaining Gossett at gunpoint, (d) approached Gossett’s Lexus while detaining him at gunpoint, and (e) reached in the Lexus and grabbed Gossett by the arm because he believed Gossett tried to get a weapon. AR 270.

The Advocacy Unit stated that the range of standard discipline under MPP sections 3-10/050.15 (Performance Associated with the Use of Force) and 5-09/210.16 (Post Pursuit Tactics) was written reprimand to discharge. AR 271.

Sgt. Moore prepared a PowerPoint presentation of his findings for the EFRC. AR 568. The presentation showed that at its narrowest, the gap between the patrol car and white van was enough for the Lexus to pass through and crash into another car after. AR 591-93. The time between the Lexus stop in the cul-de-sac and the radio report of shots fired was 44 seconds. AR 594. Gossett had multiple convictions, and LASD confirmed after the shooting that he was under the influence of cocaine. AR 571, 594.

The EFRC panel met on October 10, 2017 and concluded that the charge was founded as delineated. AR 271. The EFRC recommended suspension with loss of pay for 15 days. AR 272.

On October 20, 2017, LASD sent Maas a Letter of Intent to suspend him for 15 days based on the allegations in the EFRC Worksheet, which was attached. AR 257-58. The charges were for violation of MPP Section 3-01/030.10 (Obedience to Laws, Regulations and Orders), as it pertains to 5-09/210.16 (Post-Pursuit Tactics) and 3-10/050.15 (Performance to Standards - Performance Associated with the Use of Force). AR 257. The charges were identical to the potential chargers presented to the EFRC. AR 258.

Maas received a Skelly hearing on the allegations in the Letter of Intent. On March 13, 2018, LASD sent Maas an Imposition Letter informing him that, despite his response, the recommended discipline would be imposed. AR 249. The 15-day suspension was effective April 9, 2018. AR 249. The Imposition Letter informed Maas of his right to appeal within 15 business days. AR 251. Maas appealed the 15-day suspension.

The Hearing Officer heard the appeal on June 10-11, 2019. Pertinent testimony is as follows.

The Lexus width was five feet, eleven inches, while the gap between the back corner of the patrol car and the side of the van was seven feet eight inches. AR 54. As Gossett dragged him, Maas could see that the gap between cars was narrow. AR 54.

After the deputies stopped Gossett in the cul-de-sac, they had 44 seconds to try and get him to turn the Lexus off, raise his hands, and get out before they reported shots fired. AR 54. The deputies were on the secondary channel when they first tried to broadcast before they realized the mistake and switched to the primary channel. AR 64-66. Whether the time to switch channels was part of the 44 seconds, and how many seconds that took, is unclear. AR 66-67.

Moore initially testified that Maas commanded Gossett to shut off the car, raise his hands, and get out of the car. AR 61. He could not recall if Maas ever said in interviews that he commanded Gossett to get out of the car. AR 61-62. He deferred to the interview transcripts as accurate reflections of everything Maas said in those interviews. AR 62-63.

A barricaded suspect is an armed suspect who refuses to exit a location, such as a vehicle, when ordered. AR 63. If no one commands the suspect to exit, the suspect is not barricaded. AR 63.

Maas’s decision to move out from behind the patrol car to a safer position near the front of the white van that got him away from the kill zone was a wise one that complied with policy. AR 72.

During his interview, Maas stated that he saw Gossett reach down and to the rear of the Lexus. AR 64. He believed that Gossett was arming himself with a firearm. AR 64. Maas decided to reach into the Lexus to prevent an officer-involved shooting (“OIS”), but it did not work out that way. AR 64.

April Tardy (“Tardy”) is a LASD commander as of January 2019. AR 82-83. Between October 2, 2016 and January 2019, she was the captain at the South Los Angeles Station. AR 83. Before that, she was a lieutenant with the Central Patrol Division. AR 83.

Tardy understood that Maas and Vernay were chasing Gossett after a failed DUI stop when Gossett stopped in the cul-de-sac. AR 89. At first, Gossett stopped facing north towards the end of the cul-de-sac, but he made a 3-point turn to face the deputies about six feet away from the patrol car. AR 89, 121. Thompson exited the Lexus screaming something before she proned herself on the ground, but no one told her to do that. AR 89. This meant that Vernay’s attention was drawn to her as either a suspect or a victim. AR 89. No one was able to place precisely where Thompson dropped to the ground. AR 125.

Maas stepped into the apex of his door and detained Gossett at gunpoint. AR 90, 125. He then moved from the patrol vehicle to the sidewalk behind the van, still detaining Gossett at gunpoint. AR 90, 125. Maas made several demands for Gossett to give up, get out, or turn the Lexus off, but Gossett refused every time. AR 90.

Maas approached the Lexus while it was at a standstill, about eight feet away from where he was standing. AR 90, 123, 126. Maas saw Gossett reach back and thought Gossett might be getting a firearm. AR 123. Maas grabbed Gossett’s hand. AR 90. At some point during that, Gossett drove as he held Maas with his left hand when Maas reached his arm through the Lexus window. AR 90. The shooting did not occur until Gossett and Maas passed the van. AR 90. Tardy considered Maas’s concerns that Gossett might be arming himself with a firearm when she judged his conduct. AR 123.

During a felony stop, a deputy does not approach the subject vehicle. AR 93. The stop became a felony traffic stop when Gossett fled the original DUI stop. AR 93. The fact that he had a passenger who may have been with him against her will also made it a felony stop. AR 93.

The Supreme Court case of Graham v. Conner gives some discretion to law enforcement officers in the field. AR 121, 140. If the time between the three-point turnabout of the Lexus and Vernay radioing in a report of OIS was 45 seconds or less, that is an unfolding dynamic event. AR 121-122.

No policy explicitly prohibits a deputy from leaving cover and concealment to approach a felony suspect or from reaching inside a felony suspect vehicle. AR 112-13, 118, 138-39. The LASD policies also do not say what tactic to perform at a felony car stop. AR 113, 118. LASD’s 2015 training manuals say to try to keep a position of advantage, but Tardy recognizes the suspect’s actions frequently dictate what happens. AR 113-15. The manuals also do not prohibit reaching into a suspect vehicle. AR 115.

Tardy had no problem with Maas’ decision to move from the patrol car to another safe point, or “redeploy.” AR 91, 122. At that point, Maas alone was holding Gossett at gunpoint because Vernay was occupied with Thompson. AR 91. Her initial concern was that Maas left his cover to go to the Lexus; that is not something LASD teaches. AR 91. Maas also defied training when he reached into the Lexus. AR 91. That puts the suspect at an advantage; he is in a vehicle which may be used as a weapon and he also may have a firearm. AR 91.

Tardy acknowledged that when Maas moved from the patrol car to the front of the van, he did not have cover. AR 122, 139. He never established cover from that point on. AR 123.

Tardy recalled that Maas said he could not see Gossett’s hands. AR 123. He saw Gossett reach back and thought he might be arming himself. AR 123. She would have liked to have seen him stay behind cover and hold Gossett at gunpoint until reinforcements arrived. AR 92. Maas could have moved behind the other side of the van and still held Gossett at gunpoint. AR 127.

Tardy conceded that Maas’ decision to move from the front of the white van to the side of the Lexus gave him more room to maneuver if Gossett chose to move forward. AR 126. Tardy also conceded that if the Lexus started moving, LASD policy would have discouraged Maas from shooting into the moving car because that could trigger a crossfire situation. AR 127-28.

With respect to the MPP section on Post-Pursuit Tactics, the area of concern is the section on barricaded suspects. AR 110. A barricaded suspect is one who is armed or perceived as armed, takes over a structure or vehicle with a threat of violence, and refuses to exit or surrender when someone demands it. AR 110-11. Without such demand, there is no barricaded suspect. AR 111. Tardy could not say if the interview transcripts show that Maas or Vernay ever admitted to demanding that Gossett exit the Lexus. AR 111.

The criteria for determining discipline includes prior sustained complaints against an employee, work evaluations, attitude, and reception to discipline or correction. AR 132-133. Unlike most, Maas did not become less productive or unhappy during the pendency of this investigation. AR 133. His evaluations remained Outstanding in every category, and he was positive and proactive in station activities and training. AR 134-35. He remained well-respected among other deputies. AR 134. He had no prior discipline. AR 136. Since the investigation began, he completed Tactic and Field Enforcement Schooling. AR 136. Overall, Maas did everything a LASD supervisor would hope he would do to advance his career. AR 136.

If it up to Tardy, her recommended discipline would be a 3-5 days’ suspension. AR 140.

The area that Maas and Vernay patrolled on October 19, 2015 included Vermont Hotel, a high prostitution and a high narcotic area in their reporting district. AR 177.

When Gossett did not turn left when the arrow turned green, that alerted Maas and Vernay that he may be drunk or impaired. AR 178. They used a safe U-turn to get behind him. AR 178. As they prepared for a DUI investigation, Maas checked the license plate and found that Gossett had a $9,300 warrant for his arrest. AR 178.

As the they stopped the Lexus for the DUI investigation, Maas saw Gossett and Thompson through the window. AR 179. Maas knocked on the window and asked Gossett to roll it down but received no response. AR 179. Gossett took off at a high speed, and Maas heard Thompson scream something. AR 179. This made the officers suspect that this was about a more serious crime than a DUI. AR 179.

The street the chase ended on 111th Street, which was a cul-de-sac that ended right behind the 110 Freeway. AR 181. The deputies got out and pointed their handheld weapon lights and patrol overhead lights at the Lexus. AR 181. They reported on the radio that they were detaining the Lexus at gunpoint. AR 181. The Lexus suddenly made the three-point turnabout to face the patrol car from four to eight feet away, lined up with the gap between the patrol car and the white van on the side of the road. AR 181. The felony stop became a compressed felony traffic stop, something LASD does not teach. AR 182.

When the Lexus stopped, Thompson got on the ground and said: “he’s crazy”. This again raised their suspicion that more was going on. AR 182. Thompson was just outside of the Lexus’s passenger side, a dangerous position if the Lexus turned again. AR 190. Maas could tell the Lexus was not parked; he told Gossett to park it and put his hands up. AR 182. Gossett continued to shake his head and say no. AR 182.

Maas realized Gossett would try to drive through the cars and decided to move from behind the patrol car door to in front of the white van, still holding the Lexus at gunpoint. AR 182-83. He figured that if he tried to hide behind the patrol car, its overhead lights would blind him, and he would get hit if the Lexus rammed the patrol car. AR 183.

After Maas moved in front of the white van, he commanded Gossett to show his hands and park the Lexus. AR 183. Gossett still shook his head and said no. AR 183. Within four seconds, Gossett reached between the driver's seat and the driver's side door panel. AR 183. Maas suspected that Gossett was getting a firearm. AR 183, 202. He knew he was not in a good position for a shootout, so he decided to approach the Lexus to stop Gossett from arming himself and triggering an OIS. AR 183. If that happened in a residential area, it could endanger Maas’s partner, Thompson, the residences, and the 110 Freeway behind the Lexus. AR 184, 190.

To prevent an OIS, he approached the Lexus, took Gossett’s arm, and pulled it outside the Lexus. AR 184. In turn, Gossett grabbed Maas’s arm and tried to pull it inside the Lexus. AR 184. Maas pulled his arm out and pinned Gossett’s arm against the metal frame that separated the front and back row windows. AR 184.

Maas never ordered Gossett out of the car because he did not have the time to conduct a proper felony traffic stop. AR 192. A time of 15-20 seconds passed between Gossett’s completion of his three-point turnabout and the OIS. AR 187. The total time between the broadcast of the stop until the OIS broadcast was 44 seconds because they first called it into the wrong frequency. AR 187-88.

The written policy on barricaded suspects defines a barricade suspect as one who refuses to exit a vehicle for a long time. AR 197. The period here was not long enough, and no one asked Gossett to exit the Lexus. AR 197.

The patrol car door did not provide Maas any cover and concealment; it would not stop bullets. AR 189-90. Maas agrees with LASD that he never left cover when he changed position from the van to his approach of the Lexus because he never had it. AR 202.

Maas’s station loaned him to Tactics and Survival for 90 days after the OIS. AR 209. He also took 30 training courses in tactics, totaling over 290 hours. AR 209. Maas then taught tactical movement as it pertains to small teens, field training, and felony traffic stops. AR 210. He became an instructor in enhanced active shooter techniques for both LASD and the Los Angeles Police Department. AR 210.

In November 2015, after the OIS, Maas began tactical training duty. AR 194. In February 2016, Maas resumed his original assignment with the South Los Angeles Station. AR 194. He became a training officer two months later and a senior training officer between 12-18 months later. AR 194.

In February 2019, LASD promoted Maas to his station’s training deputy. AR 194. This meant he hosted all state-required courses for the 200 personnel at his station, including all POST-certified courses. AR 211. He has also hosted active shooter classes at local schools for teachers and the fire department. AR 211. Maas is also the master field training officer because that position is vacant at his station. AR 212. In this role, he hosts prep courses for custodial deputies who want to join the patrol. AR 212.

Maas does not believe he violated any LASD policies or training. AR 212-13. His pre-OIS training did not include written policies that required (1) handling a traffic stop at the end of a pursuit only as a felony traffic stop; (2) handling all felony stops in the same way; (3) always using a hard object as cove when detaining a felony suspect; (4) not approaching a felony suspect when holding them at gunpoint; or (5) reaching inside a felony suspect’s vehicle to keep him from arming himself. AR 196, 198-99, 201-02. He also never received policies that absolutely prohibited approaching a felony car stop rather than ordering a suspect out of the car. AR 197. Resolution of a felony depends on the deputy and circumstances at hand. AR 196-97. Policy further does not prohibit leaving a position of advantage or the patrol car to approach a felony suspect if it effects an arrest. AR 197-98. At some point, a law enforcement officer must approach a suspect to arrest them. AR 197-98.

After the OIS, LASD issued a list of things to remember. AR 199. This list referred to reaching into a suspect’s vehicle as dangerous but still did not prohibit it. AR 199.

The discipline imposed has put Maas on hold for future promotions. AR 195. He scored high on the detective bureau test but has been bypassed twice. AR 195. He was also bypassed for the Internal Criminal Investigations Bureau Surveillance Team because of the days he was suspended. AR 195.

On August 28, 2019, the Hearing Officer issued a Proposed Decision. AR 690-706. The Hearing Officer stated that the facts of the incident were not in dispute. AR 693. Maas was the only eyewitness to the incident who testified and none of LASD’s evidence directly contradicted his testimony. AR 693.

The Hearing Officer restated the undisputed facts, including Maas’ background, the DUI stop of the Lexus, the chase to the cul-de-sac, the Lexus’ three-point turnabout, the deputies’ commands and Gossett’s refusals, Maas’ move to the area in front of the parked van, Maas’ move to the Lexus when Gossett reached down in the car, the pinning of Maas’ arm in the car and Gossett’s pressing the accelerator to escape, Maas shooting Gossett nine times to save his life and prevent harm to others, and the 15-20 second elapsed time between Gossett’s three-point turn and Maas’ firing of shots. AR 692-96.

The District Attorney declined to file charges because Maas acted in self-defense. AR 697. The EFRC, composed of three LASC managers of the rank of commander or higher, deemed Maas to be in violation of Department policy and determined that a 15-day suspension was warranted. AR 697.

Tardy, who was Commander of the Central Patrol Division and in Maas’ chain of command, was at the EFRC meeting and testified at the hearing. AR 697. She agreed that Maas’ use of force was within Department policy but “had concerns” about some of his tactics. AR 697. She expressed concern about Maas’ approach to the Lexus and reaching inside. In her opinion, Maas should have stayed in a position of cover and concealment behind the white van and waited for additional responding units. AR 697. She pointed out that deputies do not typically approach vehicles during felony stops. AR 697. She believed that a 3- to 5-day suspension was the appropriate discipline. AR 697.

MPP section 3-01/050.15 (Performance to Standards – Performance Associated with Use of Force) states that the evaluation of a LASD member's performance includes the strategies or tactics used leading up to, during, and following a use of force. AR 698. These strategies and tactics shall be evaluated in terms of whether or not they comply with Department policies, procedures, and training. AR 698. The following are examples of the types of tactical considerations evaluated under this policy: the approach of a suspect or vehicle, availability and deployment of equipment and weapons, communication, concealment, coordination, cover, distance, field of fire, fire discipline, incident command, partner splitting, planning, position of advantage, potential for crossfire, shooting backdrop, supervision, suspect control, taking independent action, and target acquisition. AR 698.

MPP section 5-09/210.16 provides that “[o]nce a pursued vehicle has stopped, for whatever reason, the previous tactical operation of a vehicle pursuit is immediately replaced by a new tactical operation involving suspect containment and arrest….¶At the termination of a pursuit, safety is critical. At no time will the need for decisive action and strict personal and collective self-control be more essential. If, at the pursuit terminus, any occupant of the pursued vehicle fails to obey commands to exit and remains in the vehicle, the situation shall be treated first as a felony stop and with continued non-compliance, a barricaded suspect incident.” AR 699.

In 2015, the Department provided training on “Reaching into Vehicles” and issued a training bulletin which noted that “[u]pon contact a driver or suspect during an unknown risk traffic stop, deputy personnel should attempt to keep a position of advantage. This could be accomplished by, among other things, direct and clear commands, scanning for potential weapons or threats, not breaching the window plane, and calling for back up if necessary.” AR 699. The bulletin also lists potential hazards of reaching inside a vehicle, such as being pulled inside. AR 699.

Tardy explained that tactical considerations mandated by MMP section 3-01/050.15 -- in particular approaching the vehicle and leaving a position of advantage -- should have led Maas to remain in cover and concealment and not approach the Lexus. AR 699-700. However, Tardy conceded during cross-examination that deputies can exercise discretion in making tactical decisions and sometimes a suspect’s actions dictate a response. AR 700. Her opinion of Maas’ actions “probably” would have changed if the Lexus was about to flee. AR 700.

The Hearing Officer concluded that the Department did not establish that Maas violated policy, procedure, or training. AR 700. No written policy expressly prohibited his conduct. Rather, the policies required him to evaluate a number of factors, he did so in very challenging circumstances, and he exercised his judgment in a reasonable manner. AR 700. He was close to a vehicle about to flee, the passenger was at risk, the suspect appeared to be reaching for a weapon, and Maas was not actually in a position of cover or concealment. AR 700.

The Hearing Officer’s Fact Findings 3-7 describe the evidence of the stop, pursuit, three-point turn, and gaps of approximately nine feet on either side of the patrol car that Gossett could have driven through. AR 702-03.

Fact Finding 8 states that no one presented evidence that defined a “felony traffic stop.” AR 695. Maas described the stop in the cul-de-sac as a “compressed felony stop”. AR 703. Neither Moore nor Tardy took issue with the manner in which Maas stopped the Lexus; Tardy admitted it complied with policy. AR 703. The deputies performed a stop dictated by the suspect's actions, which was an appropriate stop in the existing circumstances. AR 703.

Fact Finding 9 states that the deputies repeated the commands of stop the vehicle, place it in park and show your hands as events unfolded, but Gossett never complied. Maas saw him shake his head and say “no”. The deputies did not order Gossett to get out of the Lexus. AR 703.

Fact Finding 10 states that, because the parties did not dispute that Maas never gave that order, Gossett was not barricaded and policies for barricaded suspects do not apply. AR 703. The witnesses also agreed that Maas was right to move out from behind the door of his patrol car, which offered insufficient protection. AR 695. Moore, Maas, and Tardy all agreed that to be a barricaded suspect, the suspect must refuse an order to leave the vehicle or structure in question. AR 695.

Fact Finding 11 states that the female passenger exited the Lexus soon after it came to a stop, yelling “he’s crazy.” AR 703. She subsequently proned herself on the ground to the right of the Lexus. AR 703.

Fact Finding 12 states that, after getting out of the patrol car, Maas concluded that the seriousness of the situation was escalating and feared that Gossett would try to drive between the gap of the patrol car and the van. He moved from the passenger-side front door of the patrol car to the area in front of the van, a tactical move that all witnesses agreed was correct. AR 703-04.

Fact Finding 13 states that, as Maas moved to his new position, he saw Gossett reach down the Lexus’s driver side panel with his left hand. Maas became concerned that he would either get a firearm or drive into Thompson lying on the ground. AR 704. Maas determined that he could either seek cover behind the white van or move towards the Lexus. AR 704. Moving behind the van would leave him exposed and would ultimately require use of his weapon. AR 704. He felt that moving to the Lexus gave the best chance of avoiding harm to anyone. AR 704.

Fact Finding 14 states that Maas moved to the Lexus, reached inside, pulled Gossett’s arm out, and pinned it against the Lexus. AR 704. Gossett hit the accelerator to escape, which pulled Maas forward. AR 704. Unable to escape, Maas fired his gun nine times and hit Gossett. AR 696. The Lexus moved forward to the gap, hitting the patrol car and a parked before coming to a stop. AR 696.

Fact Finding 15 states that Gossett was pronounced dead at the scene. Approximately 15-20 seconds elapsed between the three-point turn and the shooting. AR 704.

Conclusion of Law 2 states that LASD failed to establish that Maas violated MPP section 3-01/050.15 or MPP section 5-09/210.16 because he performed an appropriate traffic stop following the pursuit of the Lexus. AR 705.

Conclusion of Law 3 states that LASD failed to establish that Maas violated MPP section 3-01/050.15 or MPP section 5-09/210.16 because Gossett was never a barricaded suspect. AR 705.

Conclusion of Law 4 states that LASD failed to establish that Maas violated MPP section 3-01/050.15 or MPP section 5-09/210.16 because he followed Department tactics policy during the incident as set forth in Fact Findings 2-16. AR 705.

On October 30, 2019, the Commission announced its proposed decision to accept the findings of the Proposed Decision. AR 707.

On November 27, 2019, LASD filed an objection only to the Legal Conclusion 4 of the Proposed Decision. AR 708-09, 715. LASD contended that only some of Maas’s tactical decisions were sound but his other decisions put him and other people in harm’s way. AR 714. Tardy testified that Maas should have protected himself by using the cover and concealment that the white van provided. AR 714. He instead approached the Lexus and stuck his arm in it, both of which were poor decisions. AR 714. While Maas only suffered minor injuries when Gossett dragged him with the Lexus, he could have died. AR 714.

Tardy testified that these actions violated LASD’s policy of Obedience to Laws, Regulations and Orders as it pertains to Performance to Standards - Performance Associated with the Use of Force. AR 714. The actions he took did not account for the tactical considerations outlined in the MPP. AR 714. Both she and the EFRC felt this way. AR 714.

The tactical issues Maas failed to properly evaluate are clearly enumerated in the policy. AR 714. Some of Maas’s actions put him in mortal danger that he could have avoided. AR 715. Although deputies have discretion in their tactical decisions, this does not extend to actions that unnecessarily put themselves or others in harm’s way and can be avoided. AR 715. LASD requested that the Commission sustain the objection and impose a three-day suspension as Tardy said she would recommend. AR 715.

9. The Commission’s New Proposed Decision, the Objections, and the Final Decision

At its meeting of July 22, 2020, the Commission sustained LASD’s objection, rejected the Hearing Officer’s Proposed Decision, and sustained LASD’s discipline. AR 717. The Commission gave the parties until August 17, 2020 to object. AR 717.

Maas timely filed objections to the new Proposed Decision. AR 718, 723. He asserted that during the July 22, 2020 hearing, the Commission overemphasized that an OIS led to the death of an unarmed man. AR 720. This was not the basis for the discipline at issue. AR 721.

Maas also objected that, to the extent that he violated LASD policies regarding use of force, the Department did not provide sufficient written notice of the grounds for the disciplinary measures or a written statement from the fact finder listing the evidence relied upon and the reasons for the determination made. AR 721. The Department failed to provide evidence of “the intent” of its policies on the use of force, or that Maas had been trained on this intent. AR 722.

Maas further objected to the Commission’s decision to reimpose a 15-day suspension when LASD’s objection only asked for a three-day suspension. AR 722.

In response, LASD explained that, although Tardy thought a three-day suspension was appropriate, LASD’s original 15-day suspension was within the Guidelines. AR 728. The suspension was more than three days because the EFRC disagreed with Tardy whether Maas violated the Post Pursuit Policy by failing to conduct a felony stop and failing to treat Gossett as a barricaded suspect. AR 728, n. 2. Despite her opinion, Tardy signed the Letter of Imposition for a 15-day suspension. AR 728. LASD requested that the Commission sustain either a 15-day suspension or 3- to 5-day suspension. AR 729.

The Commission notified the parties that it would hear Maas’ objections on October 7, 2020 (AR 753) but then canceled the hearing because it had not provided revised Conclusions of Law with its new Proposed Decision.

On October 29, 2020, the Commission issued a Notice of New Proposed Decision that again sustained LASD objections, rejected the Hearing Officer’s Proposed Decision, and sustained LASD’s discipline. This new Proposed Decision attached revised Conclusions of Law which stated that LASD established by a preponderance of the credible evidence (1) the factual allegations of the Imposition Letter set forth in Findings of Fact 3-15; (2) that Maas violated MPP sections 3-01/030.10, 3-01/050.15, and 5-09/210.16; and (3) that a 15-day suspension was the appropriate discipline. AR 732.

The Commission gave the parties until November 18, 2020 to submit objections. AR 731. The parties resubmitted their respective previously submitted objections and response with minor changes. AR 733-44.

On May 26, 2021, the Commission overruled Maas’ objections and adopted a Final Decision that did not adopt the August 2019 Proposed Decision and instead sustained LASD’s discipline. AR 747.

An abuse of discretion is established where the respondent 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 §1-94.5(b).

Maas’ opening brief principally challenges the Commission’s Final Decision as not supported by its findings. He accepts the Hearing Officer’s Fact Findings 3-15, which were adopted by the Commission and are based that the Hearing Officer’s conclusion that the facts of the incident are undisputed and based on Maas’ testimony. AR 693. Maas contends that the Commission’s Final Decision distorts these Fact Findings, and it is unsupported by them. Pet. Op. Br. at 12.

Maas also challenges the Final Decision as not supported by the weight of the evidence. Pet. Op. Br. at 8. He notes that an “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record.” Aluisi v. County of Fresno, (1958) 159 Cal.App.2d 823, 826. The facts must appear on the face of the record sufficient to sustain a finding that the petitioner was guilty as charged. Gavin v. Chambers, (1924) 195 Cal. 212, 223. Pet. Op. Br. at 12; Reply at 3.

As pertinent, if the hearing is not before the full Commission, the hearing board shall submit a written or oral report to the Commission for its approval. CSR 4.13(a). If the Commission accepts the findings of fact contained in such report, it need not read the record of the hearing. CSR 4.13(a). If the Commission declines to accept such findings, it must read the record or hold a hearing de novo. CSR 4.13(a).

If either party files timely objections to the proposed findings and conclusions and the Commission believes that the objections or parts thereof have validity, the Commission shall amend the proposed findings and conclusions accordingly and shall notify the parties that the amended findings and conclusions are a new proposed decision. CSR 4.13(d). If no party files objections to the proposed findings and conclusions within ten business days after service, they shall constitute the final decision of the commission. CSR 4.13(e).

The County points out (Opp. at 10-11) that the Commission followed proper procedure. The Department filed an objection only to Conclusion of Law 4 in the Hearing Officer’s Proposed Decision and not to any findings of fact. AR 708-16. Since the Department did not object to any factual findings, the Commission did not need to read the record. See CSR 4.13(a). It adopted the Hearing Officer’s Fact Findings 3-15 and adopted revised Conclusions of Law to conclude that Maas violated the Department’s policies. See CSR 4.13(d).

There is no dispute that the Commission’s issuance of new proposed decisions, affording the parties a right to object, and correction of an oversight of failing to provide the parties with the Revised Conclusions of Law, met the CSR requirements.

3. The Commission’s Conclusions of Law Are Not Supported by the Fact Findings

Maas argues that the Commission’s Revised Conclusions of Law bafflingly state that “[t]he Department established by a preponderance of the evidence the truth of the factual allegations contained in its letter dated March 13, 2018, as set forth in Findings of Fact 3 through 15.” AR 732. With no explanation or new Fact Findings, the Revised Conclusions of Law further state: “The Department established by a preponderance of the evidence that Appellant violated Manual sections 3-01/030.10, 3-01/050.15, and 5-09/210.16" and “established by a preponderance of the credible evidence that the 15-day suspension was appropriate.” AR 732.

Maas argues that the Revised Conclusions of Law make no sense because the Hearing Officer’s Findings of Fact 3-15 articulate how and why the Department failed to meet its burden of proof for the allegations. Thus, they support the Hearing Officer’s determination that Maas acted reasonably in a rapidly evolving, dangerous situation and there are no Findings of Fact supporting the Commission’s Final Decision that Maas violated any provision of the MPP. Pet. Op. Br. at 8, 11.

In opposition, the County generally states that some of Maas’ tactics were not sound and were inconsistent with his Department training, which violated the Department’s Performance to Standards -- Performance Associated with the Use of Force Policy (“Use of Force Policy”) and Post Pursuit Tactics Policy 269-72. The Use of Force Policy states that the evaluation of a deputy’s performance includes the strategies or tactics used leading up to, during, and following a use of force, which are evaluated in terms of whether they comply with Department policies, procedures, and training. AR 264-68. Opp. at 8.

Ultimately, the Commission agreed with Department experts that Maas’ actions violated the Department’s Use of Force Policy and Post Pursuit Tactics Policy (AR 264, 268), thereby basing their decision on pertinent substantive criteria of Maas’ performance during the use of force falling below the standards of his position of a deputy sheriff. Opp. at 9.

The County’s position is not supported by the Commission’s Final Decision because the Final Decision is not supported by the Commission’s adopted Fact Findings. Nor is the Letter of Intent supported by the weight of the evidence for most of the allegations.

The Letter of Intent alleged that Maas failed “to treat the traffic stop of Suspect Gossett, after a vehicle pursuit, as a felony traffic stop ...” AR 250.

Maas points out that Fact Finding 8 determines: “No evidence was presented specifically defining a “felony traffic stop”. [Maas] described the stop they performed as a “compressed version of a felony traffic stop.” Neither Moore nor Tardy took issue with the manner in which Maas and his partner stopped the Lexus when it entered the cul-de-sac. In fact, Tardy testified that the stop was within policy and consistent with how the Department trains for a felony traffic stop. Accordingly, the deputies performed a stop dictated by the suspect’s actions, “which was an appropriate stop in the existing circumstances.” AR 703.

Maas argues that this finding is supported by Tardy’s testimony that no Departmental policy instructs deputies as to exactly what tactics must be employed during a felony traffic stop, and that rapidly evolving situations do not always allow deputies to remain in positions of advantage. AR 113, 115, 118. Pet. Op. Br. at 8-9.

The court agrees. Fact Finding 8 precludes any conclusion that Maas failed to treat the stop of Gossett’s Lexus as a felony traffic stop, whatever that undefined term may mean. It also is unsupported by the evidence.

The Letter of Intent alleged that Maas failed “to treat Suspect Gossett as a barricaded suspect, after a vehicle pursuit, when Suspect Gossett failed to obey commands and remained in his vehicle ...” AR 258.

Fact Finding 10 determines: “Given the undisputed fact that the suspect was never given the order to exit the vehicle, he was never a barricaded suspect and the tactical requirements of such situation did not come into play during the incident.” AR 703. Pet. Op. Br. at 9.

The County argues that Maas violated the Post Pursuit Policy by failing to treat Gossett as a barricaded suspect and by taking unilateral action instead of the coordinated response of a felony traffic stop. While Maas points out that he never ordered Gossett to exit the Lexus and therefore Gossett did not meet the legal definition of a barricaded suspect, the policy states a suspect refusing to comply with instructions at the terminus of a pursuit shall be treated as a barricaded suspect, not that they must be a barricaded suspect. AR 268. Opp. at 9.

Fact Finding 10 precludes any conclusion that Maas failed to treat Gossett as a barricaded suspect.

Nor is the Letter of Intent’s allegation supported by the weight of the evidence. As Maas argues, the County’s position that the policy states that a suspect refusing to comply with instructions at the terminus of a pursuit shall be treated as a barricaded suspect ignores the full text of this portion of the Post Pursuit Tactics Policy:

“If, at the pursuit terminus, any occupant of the pursued vehicle fails to obey commands to exit and remains in the vehicle, the situation shall be treated first as a felony stop and with continued non-compliance, a barricaded suspect incident.” AR 268 (emphasis added).

Because Gossett was never commanded to leave the Lexus, he was never a “barricaded suspect.” Chief Tardy was not certain whether Maas told Gossett to get out of the Lexus. Sgt. Moore admitted at hearing that he was not certain that any such order was given. Maas made clear that he never commanded Gossett to exit his vehicle. As a result, the evidence does not show that the barricaded suspect policy was violated. Reply at 2.[3]

The Letter of Intent alleged that Maas failed to “use a parked vehicle and/or other hard object as cover and/or concealment, while detaining Suspect Gossett at gun point ...” AR 258.

Fact Finding 7 states that Maas took cover behind the patrol vehicle’s open front door. Fact Finding 12 states that Maas concluded that the seriousness of the situation was escalating and feared that Gossett would try to drive between the gap of the patrol car and the van. He moved from the passenger-side front door of the patrol car to the area in front of the van, a tactical move that all witnesses agreed was correct. AR 703-04.

The County argues that the undisputed evidence demonstrated that Maas failed to obtain a position of advantage by failing to seek cover and/or concealment behind a parked van. These undisputed facts established that Maas violated the Department’s Use of Force Policy. Opp. at 8-9.

There is nothing in Fact Findings 7 and 12 to support the County’s conclusion. The evidence does not support this conclusion either. Chief Tardy and Sgt. Moore agreed that Maas was wise to move away from his patrol vehicle toward the white van because doing so gave him more options to avoid the suspect if he drove toward him. AR 72, 91, 126. Tardy testified that Maas did not have cover when he moved from the patrol car to the front of the van but there is no Departmental policy requiring deputies to always utilize “cover and concealment.” AR 112-13, 122, 128, 139.

Maas testified that, if he had moved behind the van or another vehicle, Gossett could have rammed his car into the vehicle Maas was behind or run over the woman lying in the street. He also realized that, if he did so, he would be directly in front of the Lexus’ headlights, which would blind him. Reply at 2-3. The weight of the evidence does not support a conclusion that Maas was required to “use a parked vehicle and/or other hard object as cover and/or concealment.”

The Letter of Intent alleged that Deputy Maas left his “position of advantage and/or parked vehicle and approach[ed] Suspect Gossett’s vehicle ...” AR 258. The Letter of Intent also alleged that Deputy Maas inappropriately “approach[ed] Suspect Gossett’s vehicle while detaining him at gun point ...” AR 258.

Fact Finding 13 states: “As he moved into his new position, [Maas] noticed the driver of Lexus reach down the side panel of the driver’s seat with his left hand. At this point, [Maas] determined that his options were to move back to seek cover behind the van or to move toward the vehicle. Fearing that the man may be reaching for a weapon, [Maas] advanced toward the vehicle. [Maas] felt moving toward the vehicle was the best option to prevent harm to himself and others. Moving behind the van would leave him exposed for a time and would likely ultimately require use of his weapon. He was also concerned that the man would drive the Lexus to the right and hurt the woman on the ground.” Pet. Op. Br. at 10.

The County argues that Maas took unilateral action of approaching the Lexus instead of taking cover and waiting for assisting units to respond as required of a felony traffic stop. The undisputed evidence shows that Maas left the side of the van and, instead of creating distance, approached the Lexus. He further closed the distance between himself and the suspect when he reached inside of the suspect vehicle and grabbed Gossett’s arm, which caused Maas to become entrapped in the vehicle. These undisputed facts show that Maas violated the Department’s USE of Force Policy. Opp. at 9.

There is nothing in Fact Finding 13 that supports the County’s conclusion. Fact Finding 13 sets forth Maas’ rationale why he left the van and approached the Lexus; it makes no finding that doing so was wrong.

The evidence shows there may be merit to the Commission’s position. That is, Maas’ approach to the Lexus instead of taking cover and waiting for backup may have violated a tactic and therefore the Use of Force Policy. MPP section 3-01/050.15 states that the tactics used leading up to a use of force are evaluated in terms of whether or not they comply with Department policies, procedures, and training, including tactical considerations of the approach of a suspect or vehicle and cover. AR 265.

Expert testimony on this issue was required, and there was insufficient expert testimony that Maas’ approach to the Lexus violated any policy, procedure, or training. Chief Tardy testified that Maas had not been in a position of cover and concealment as he stood in front of the white van, holding the suspect at gunpoint. AR 122, 123, 138, 139. Therefore, he did not leave a position of advantage when he moved to the Lexus. Maas also testified that a deputy must always leave a position of advantage at some point in a confrontation to effectuate an arrest. AR 197, 198.

Chief Tardy expressed “concern” that Maas left his cover to go to the Lexus; that is not something LASD teaches. AR 91. She would have liked to have seen him stay behind cover and hold Gossett at gunpoint until reinforcements arrived. AR 92. Maas could have moved behind the other side of the van and still held Gossett at gunpoint. AR 127. However, Tardy also agreed that rapidly evolving situations do not always allow deputies to remain in positions of advantage. AR 113,115, 118. Tardy also conceded during cross-examination that deputies can exercise discretion in making tactical decisions and sometimes a suspect’s actions dictate a response. AR 700. Her opinion of Maas’ actions “probably” would have changed if the Lexus was about to flee. AR 700.

Tardy’s “concern” that Maas did not move to cover behind the van and wait for backup was not strongly enough expressed to be an expert opinion that Maas violated MPP section 3-01/050.15. AR 698. Nor is the EFRC’s Disposition Worksheet conclusion to this effect sufficient evidence. AR 270-71.

The Letter of Intent alleged that Maas reached “inside Suspect Gossett’s vehicle and grabbed him by the left arm, believing Suspect Gossett was reaching for a weapon and arming himself.”

There is nothing in Fact Finding 14 to support a conclusion that Maas violated Use of Force Policy when he reached into the Lexus and grabbed Gossett’s arm.

As with the issue of his approach to the Lexus, there may be merit to the Commission’s conclusion. MPP section 3-01/050.15 MPP section 3-01/050.15 states that the tactics used leading up to a use of force are evaluated in terms of whether or not they comply with Department policies, procedures, and training, including tactical considerations of the approach of a suspect or vehicle and cover. AR 265.[4]

Tardy testified that Maas defied training when he reached into the Lexus. AR 91. Doing so puts the suspect at an advantage; he is in a vehicle which may be used as a weapon, and he also may have a firearm. AR 91. She admitted that Graham v. Conner gives some discretion to law enforcement officers in the field (AR 121, 140), and no policy explicitly prohibits a deputy from leaving cover and concealment to approach a felony suspect or from reaching inside a felony suspect vehicle. AR 112-13, 118, 138-39.

Unlike her opinion on Maas’ approach to the Lexus, Tardy’s opinion that Maas should not have reached into the Lexus is sufficiently strong to support a conclusion that Maas violated MPP section 3-01/050.15 and the Department policies, procedures, and training for tactics of cover and approaching a suspect or vehicle leading up to a use of force. AR 698.

However, the undisputed evidence is that Maas reached into the Lexus after he decided to approach it because he saw Gossett potentially reach for a weapon. Thus, his reaching into the Lexus is linked to the fact that he already was approaching it and he may not have had a choice at that point to back away. This issue was not sufficiently developed in Tardy’s testimony. It is not clear what she would say was required if she assumed that Maas properly approached the Lexus after seeing Gossett reaching down the driver’s side of the vehicle. Nor is the EFRC’s Disposition Worksheet conclusion to this effect sufficient. AR 270-71.[5]

The Petition is granted. The Commission’s Revised Conclusions of Law that Maas violated Department policies, procedures, and training in his tactics are unsupported by the Hearing Officer’s Fact Findings 3-15 that were adopted by the Commission. Most of those legal conclusions also are not supported by the weight of the evidence.

A judgment shall be entered, and a writ shall issue, remanding the matter to the Commission to set aside its decision and exercise its discretion anew in reviewing the Hearing Officer’s Proposed Decision. The Commission may follow any of the procedures permitted by the CSRs and may, but is not required, to hear new expert testimony solely on the issues whether Maas violated Department policy by approaching the Lexus and reaching into it. See Sanchez v. Unemployment Insurance Appeals Board, (“Sanchez”) (1977) 20 Cal.3d 55, 68-69 (factual inquiry for which no evidence had been taken could be remanded for further proceedings, including additional evidence); Carlton v. Department of Motor Vehicles, (1988) 203 Cal.App.3d 1428, 1434.

Petitioner Maas’ counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on the County’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for January 24, 2023 at 1:30 p.m.

[1] Petitioner failed to include the bates-stamped version of the Commission’s and Hearing Officer’s decisions in the trial notebook as expressly ordered by the court. The County failed to provide a copy of its brief for the trial notebook that could be edited without dragging the ruled and numbering with it. Both counsel are admonished to follow the court’s direction in preparing the record and trial notebook in future cases.

[2] By the time of the hearing, Moore was a lieutenant. For clarity, he shall be referred to as Sgt. Moore.

[3] LASD argued that Tardy’s recommended discipline of a 3-5 day suspension was based on her disagreement with the EFRC on this issue. AR 140, 728, n. 2. Since Tardy, not the EFRC, was correct, it would seem that the 15-day suspension was excessive. However, the proper level of discipline is not in issue before the court.

[4] In 2015, the Department provided training on “Reaching into Vehicles” and issued a training bulletin which noted that “[u]pon contact a driver or suspect during an unknown risk traffic stop, deputy personnel should attempt to keep a position of advantage. This could be accomplished by, among other things, direct and clear commands, scanning for potential weapons or threats, not breaching the window plane, and calling for back up if necessary. AR 699. The bulletin also lists potential hazards of reaching inside a vehicle, such as being pulled inside. AR 699. It is not clear whether this bulletin was issued before or after the October 19, 2015 incident. Maas appeared to testify that it was issued afterwards. AR 199. If so, the bulletin is irrelevant to Maas’ knowledge and training at the time of the incident.

[5] Maas further notes that Finding of Fact No. 16 states: “As established by [Maas’] uncontroverted testimony and the corroborating undisputed facts, [he] evaluated pertinent tactical considerations during his encounter with the driver of the Lexus. [Maas’] actions subject to criticism by the Department were not expressly prohibited by Department policy, policy [sic] or training. In the rapidly evolving situation, [Maas] made reasonable split-second decisions. He was very close to a vehicle about to flee, the passenger of the vehicle was at risk, the suspect appeared to be reaching for a weapon, [Maas] did not hold a position of cover and concealment, and retreat behind the van presented its own set of challenges.” AR 704-05. Pet. Op. Br. at 11. This fact finding was not adopted by the Commission and is not relevant.