Judge: James C. Chalfant, Case: 23STCP01258, Date: 2024-01-23 Tentative Ruling

Case Number: 23STCP01258    Hearing Date: January 23, 2024    Dept: 85

LAPD Manual (“Manuel”) Chapter 12 concerns scenario training, testing, and event simulations.  AR 789.  The scenario safety rules prohibit live fire weapons, magazines, and live ammunition in the training or testing area.  AR 790.  One safety officer, or more if needed, may carry a live weapon.  AR 790.  However, without exception, those officers may not partake in any other part of training like logistics and demonstration while armed with a live weapon.  AR 790.  The safety officer shall wear a reflective vest and ensure that signs are clearly posted indicating that training is in session and no live ammo is authorized.  AR 790.

The Manuel states that LAPD has a clearly defined hierarchy of authority.  Manual §210.30 (AR 792). The unquestioned obedience of a superior’s lawful command is essential for the safe and prompt performance of law enforcement operations.  Id.  Negative discipline may follow a willful disregard of lawful orders, commands, or directives.  Id.

            D. Statement of Facts

            1. The Accusation

            On July 29, 2021, LAPD’s Internal Affairs Division (“IA”) issued a Complaint Investigation (“report”) for various allegations against Officers Gutierrez, Douglas Odom (“Odom”), and Brian Schmider (“Schmider”).  AR 806-08.  The report accused all three officers of insubordination for verbal refusal to wear a traffic safety vest as directed.  AR 807-08.  The report also alleged that Gutierrez made an improper remark by telling Sergeant II Owen Berger (“Berger”) “I’m not fucking wearing that.”  AR 808.  The report included allegations of insubordinate comments to Berger by Officers Schmider and Odom.  AR 808.

The report listed other officers who attended a September 2, 2020 safety briefing as instructors, including Anthony Jackson (“Jackson”), Leslie Rogers (“Rogers”), William Sexton (“Sexton”), Pierd Perez (“Perez”), Ernest Fisco (“Fisco”), John Kong (“Kong”), and Robert Loya (“Loya”).  AR 806-07.

            In a separate Letter of Transmittal, IA recommended that the allegation whether Gutierrez said “I’m not fucking wearing that” be classified as “Not Resolved” because IA’s investigation was unable to support or refute the allegation.  AR 786.  Berger insisted that Gutierrez said it, but every other interviewed officer said that he did not.  AR 786.  Without additional evidence, IA could not render a definitive finding on this allegation.  AR 786.

            On August 26, 2021, Chief Moore issued a Complaint and Relief from Duty against Gutierrez with a proposed penalty of a two-day suspension without pay.  AR 805.  The complaint alleged that, on or about September 2, 2020, Gutierrez was insubordinate to Berger when he verbally refused to wear a traffic vest as directed.  AR 805.

            2. The Board of Rights Hearing

            Gutierrez opted for a Board of Rights hearing.  The Board of Rights heard the matter during the months of April to October 2022.  AR 106.  Pertinent testimony is as follows.

            a. Ryan Ilagan

            Officer Ryan Ilagan (“Ilagan”) testified that he is an LAPD Tactics Instructor at Davis Training Facility (“DTF”).  AR 586-87.  On September 2, 2020, he was both the primary tactics instructor and the scenario manager for the police officer recruit class at issue, the Class of 420.  AR 588.

            IIagan’s initial plan was to combine a use of force test with the nighttime traffic stop test for the recruits.  AR 590.  After discussion with other senior officers, he concluded that there would not be enough time to do both.  AR 590.  He decided to do only the nighttime traffic stop, which is conducted on the track at the DTF facility.  AR 591.

            Nighttime traffic stop tests require an evaluator to grade a recruit and a violator to drive the vehicle that will be stopped by the recruit.  AR 602.  The recruits stand in one area as they wait to get tested.  AR 603.  An evaluator in a “black and white" picks up the recruit, who then becomes the driver while the evaluator sits in the passenger seat.  AR 603.  The recruit drives onto the test track, where the violator’s car is already waiting.  AR 603.  Once both cars are on the track, the violator’s car pulls in or starts driving forward so the recruit can conduct the stop.  AR 603.  The recruit then does whatever they are taught to address the violation.  AR 603.

Because the test was for tactics, Ilagan ran the safety briefing before the test.  AR 591, 641.  Gutierrez attended this briefing, as did other instructors who came to help with the test.  AR 591.  Ilagan was in a DTF uniform.  AR 592.  Instructors were in DTF uniforms and officers playing the role of violator were in plain clothes.  AR 592.  Ilagan did not remember what Sgt. Berger was wearing.  AR 592. 

            DTF as a whole discusses the test.  AR 609-10.  Sergeants were involved in these discussions as well.  AR 611.  The evaluators are encouraged to voice suggestions or improvements, and Ilagan has sometimes followed such advice.  AR 610-11. 

Because he initially planned to combine the use of force and nighttime traffic stop tests, he brought up wearing safety vests.  AR 592-94 594.  The safety vests are neon yellow traffic safety vests with reflective tape.   AR  624.  Ilagan wore these vests when he was a safety officer.  AR 624.  The officers only needed to wear safety vests because of the use of force test.  AR 593-94.  This is because a recruit is likely to walk around the car in a use of force test, possibly into traffic.  AR 595. 

Neither officers nor recruits wear safety vests during a nighttime traffic stop test.  AR 595.  No one wears a vest except for the safety officer, who is the only person with live ammunition in the testing area.  AR 625, 643-44.  Nothing in the Manual prohibits other officers, or more than one officer, from wearing the safety vest.  AR 274-75, 632. 

The safety briefing started at 4:00 a.m. or 4:30 a.m.  AR 618.  Sgt. Barbara Riggs (“Riggs”) was not at this meeting.  AR 617.  People were standing and sitting in the briefing room.  AR 619.  Gutierrez was standing.  AR 620.  During the briefing, he (Ilagan) mentioned something about vests.  AR 616.  Officers asked why Ilagan wanted them to wear safety vests.  AR 615-16.  Ilagan did not find those questions surprising or out of the ordinary.  AR 616.  Ilagan told the officers that they were originally going to conduct a use of force test, but they did not need to wear the safety vest because they now were only doing the nighttime traffic stop tests.  AR 592-93.           

Ilagan was not sure when Berger arrived.  AR 616.  Berger is not a direct supervisor of the DTF, but he is part of the Regular Basic Course (“RBC”) Program.  AR 616-17.  He was the supervisor at scene.  AR 631.

            Berger said something like “wear a vest.”  AR 621.  Then there was discussion about whether everyone should wear a vest.  AR 621-22.  No one was shouting or appeared angry.  AR 622.  Ilagan did not hear anyone use profanity, which would have been unusual.  AR 621.  He never heard Gutierrez tell Berger “I’m not fucking wearing that.”  AR 621.  He did hear Gutierrez ask why they needed to wear safety vests.  AR 622-23.  Ilagan agreed with Gutierrez.  AR 623.  Ilagan interpreted Berger’s comment as a question, not a direct order.  AR 629.  Someone else might have asked: “What if we don’t have a vest?”  AR 623. 

            The primary instructor decides who is the safety officer is on a test.  AR 624.  Ilagan was the primary instructor.  AR 624.  He did not remember if he assigned the safety officer role to Berger.  AR 624-25.  Ilagan did not wear a safety vest that day.  AR 629.

            b. Berger

            Sgt Berger testified that, on September 2, 2020, he was both the Law Unit Officer in Charge and an RBC academy supervisor for recruit classes.  AR 657.  An RBC supervisor oversees between 30-60 recruits as they go through the six-month LAPD Academy.  AR 658.  The RBC supervisor also oversees the instructors from each discipline and monitors for any reason to separate recruits from the Academy.  AR 658.

            Berger received notice that the safety briefing would begin at 4:00 a.m.  AR 666-67.  When he arrived five to ten minutes beforehand, the meeting had been ongoing for some time.  AR 667.  He wore a polo shirt with either “RBC Supervisor” or “Regular Basic Course Supervisor” on the arm, but no badge or sergeant stripes.  AR 668, 705-06.  The word “Supervisor” was positioned underneath the RBC, almost in the shape of a circle.  AR 706.  Gutierrez, Odom, Rogers, Ilagan, and Jackson attended the meeting, but he could not recall who else was there.  AR 667.  He believed Gutierrez was going to be an evaluator.  AR 659.

            When he came into the meeting, they discussed basic scenario safety, where the cars would start and travel for the test, and who would be the graders, evaluators, and suspects.  AR 660.  Ilagan raised the idea of the evaluators wearing safety vests.  AR 660.  The officers attending were unhappy.  AR 660.

Since 2008, every officer has been issued a vest made of lightweight reflective material.  AR 687.  Ilagan said it would be a good idea to wear vests because it was a dark track with no dedicated lighting and the test would be during hours of darkness.  AR 661. After Ilagan said the graders and evaluators should all wear vests, the officers “pushed back” by grumbling and refusing.  AR 672.

Berger did not think Ilagan’s comment was a suggestion.  AR 314.  If it was, the suggestion would have been made some time before the briefing.  AR 314.  Berger thought it was a good idea.  AR 661.  Berger decided to back Ilagan’s decision, so he gave a direct order to wear the vests.  AR 293, 661-62.  He said multiple times: “We will all be wearing vests” or “We will be wearing the vests.”  AR 304, 314, 663, 674.

While Berger was looking at him, Gutierrez said: “I’m not fucking wearing that”.  AR 661, 674.  Berger could not tell to whom Gutierrez directed the statement, and Gutierrez was not looking at him.  AR 674-75.  Gutierrez was six to ten feet away from Berger when he said it.  AR 675.  His refusal was expressed to the group, and Guitierrez and Berger did not get into a one-on-one exchange during the briefing.  AR 309.  At least one of the times Berger repeated that they will all be wearing vests took place after Gutierrez said: “I’m not fucking wearing that.”  AR 674. 

            His direct order to wear vests was made in front of all 10-12 people in the room, but it only affected the evaluators.  AR 675-76.  Berger believed they would understand this because Ilagan had said that the evaluators would wear vests.  AR 676.  Berger did not specifically say only evaluators, and not violators, needed to wear vests because it was understood.  AR 677.

            POST dictates that the scenario manager makes the final decisions on test procedures.  AR 669.  This is because a direct supervisor normally is not present for scenario testing in most other parts of the state.  AR 670.  It is rare for the scenario manager and a supervisor to both be in the room; they are two separate authorities.  AR 670.  If Ilagan as scenario manager had said “no vests are required at any point”, that would have required a separate discussion.  AR 670.  But Ilagan requested the vests and Berger backed him up as his supervisor.  AR 670.

            After the briefing, Ilagan told Berger that officers did not wear their vests.  AR 678.  As the safety officer for the test, Berger saw that evaluators were not wearing their safety vests.  AR 680.  Berger never asked them why because he felt it was pretty clear.  AR 680.  He notified his superiors that none of the evaluators were wearing safety vests and that all of them disobeyed his direct order.  AR 680, 682.

            When it was pointed out that Ilagan testified that it was decided at the safety meeting that only the safety officer would wear a vest, Berger stated that Ilagan was trying to protect his partners.  AR 683.  A traffic safety vest on a dark night is a simple tool, and the fact that there was any pushback amazed and shocked Berger.  AR 683.  Evaluators have to walk around and observe the recruits during testing.  AR 683.  He had no idea before the meeting that Ilagan would recommend the vests, but once he heard the idea, he thought it was fantastic.  AR 683.  If Ilagan rescinded the order, it was not in front of Berger.  AR 683.  In any event, he is not allowed to rescind a direct order from a supervisor.  AR 683.

            Before this incident, it was never a point of discussion that only the armed traffic safety officer can wear the safety vest.  AR 292.  Berger admitted that in the 36 tests he has either overseen or participated in as the safety officer, no officer besides the safety officer has worn a safety vest.  AR 685.  Some recruits have worn a vest.  AR 685.  The testing scenario in this case also was different from the others in which Berger was a safety officer because it was conducted on a dark track.  AR 294. 

A captain later told Berger that he did not want any more complaints and that Berger could not tell officers to wear a vest anymore.  AR 687. 

            A day or two later, Berger met with DTF Sgt. Riggs, DTF Sgt. Michael Patriquin (“Patriquin”), and DTF Lt. David Bluestein (“Bluestein”).  AR 691-92, 702.  They agreed to issue a complaint against one officer and issue Gutierrez and another officer a “comment card” for disobeying Berger’s order.  AR 692.  A comment card is the first disciplinary step and reflects the underlying incident.  AR 692.  Unlike a complaint, it cannot lead to additional discipline.  AR 692.  The DTF supervisors said they would do so.  AR 692.  However, when they did not execute this plan, the captain issued complaints against all three officers.  AR 692. 

            Berger never intended for anyone to be disciplined except another officer who is not Gutierrez.  AR 692.  Now that this has become a complaint, he cannot deny that Gutierrez was insubordinate.  AR 692-93.  DTF, as a whole, has a culture of ignoring orders.  AR 698.

            c. Rudolph Valadez

            IA Sergeant Rudolph Valadez (“Valadez”) testified that he conducted Gutierrez’s interview.  AR 710-11.  During this interview, Gutierrez denied saying “I’m not fucking wearing that vest.”  AR 711.  He admitted that he did not wear a safety vest at the testing site.  AR 712.  He explained that he did not have one in his possession and that he told Ilagan he would need to provide him with one if he was to wear it.  AR 712.

            During the safety briefing, Gutierrez was in close proximity to several officers who would have overheard him if he said “I’m not fucking wearing that vest”.  AR 712.  The closest to him was Rogers.  AR 712.  None of the officers interviewed by Valadez said they heard Gutierrez make that statement or utter any profanity during the briefing.  AR 714.  None of the interviewed officers believed Berger gave a direct order for them all to wear safety vests.  AR 714.

            d. Gutierrez

            Gutierrez testified that he did not know Sgt. Berger.   AR 725.  He knew of Berger before the safety briefing because his desk mate, Officer Vivian Chester (“Chester”), would talk to Berger and Gutierrez could see him.  AR 725.  Berger never introduced himself to Guiterrez, but Gutierrez asked Chester who he was, and she told him Berger was the new RBC sergeant.  AR 725.

The Manual only specifies that safety officers shall wear reflective vests.  AR 727-28.  One or more safety officers may carry a live weapon, but they must then wear the vest to ensure that signs are clearly posted indicating that training is in session.  AR 728.  Gutierrez admitted that nothing in the Manual says that only safety officers shall wear vests.  AR 728.  Nonetheless, it would have been a direct violation of LAPD safety protocols to put someone else in a vest.  AR 745.

Gutierrez arrived at the briefing slightly before the scheduled 4:00 a.m. start time.  AR 733.  Berger was not there when the meeting started; he arrived about five minutes after it started.  AR 733.  This was not unusual because the officers in DTF had 20 years of tenure in that unit alone and could have run all the recruit training programs without a sergeant present.  AR 733-34.

            After Ilagan said that evaluators should wear safety vests, everyone started talking at once.  AR 726-27.  They were all asking why they would do so because it was not protocol for everyone to wear vests.  AR 727.  At the end of the briefing, Ilagan looked over to Berger and asked: “We still doing vests?”  AR 727.  Berger responded: “Yes, vests”.  AR 727.  Then a second commotion started in the meeting.  AR 727.

            Gutierrez did not partake in the murmuring that opposed the decision for everyone to wear safety vests.  AR 763.  He acknowledged that he is normally the person who blows the whistle and says “hey, hey” when appropriate.  AR 763.  However, a good leader must also be a good follower, and Gutierrez recognized this was Ilagan’s class and scenario briefing.  AR 763.

            Gutierrez left the briefing after the second outburst and before the debate over wearing vests ended.  AR 729, 761.  It was his job to start gathering his items and head to the staging area to begin testing.  AR 729.  Berger, the most superior officer at that briefing, had said nothing to suggest the meeting was over.  AR 761.

            Although the debate on vests was still ongoing, Gutierrez believed the actual briefing of assignments and what each officer would do had concluded.  AR 729.  He knew his assignment and had the test, the clipboard, the keys to a car, and everything else he needed to be an evaluator that day.  AR 749.  He did not think he was missing anything by leaving the meeting when he did.  AR 749.  If any last-minute changes occur, the officer just has to check in with the primary and ask what is going on.  AR 730.  Other instructors left at the same time.  AR 761.  Before he walked out, Gutierrez told Ilagan that he did not have a safety vest and that Ilagan would have to find one for him if Ilagan wanted him to wear it.  AR 729-30.

            Insubordination is failure to follow a supervisor’s direct order.  AR 742.  The statement in question must be a clear direct order, not one in question or of debate.  AR 742.  It must be a strict order where the supervisor made it obvious that he gave the officer a direct order.  AR 742.

            Debate over safety protocols or even training is constant at DTF.  AR 745.  Unlike law, tactics is a concept, and nothing is set in concrete.  AR 745.  The concepts of a traffic stop or building search will always be up for debate because they are always trying to make it better and safer for officers.  AR 745.

            After the incident, Gutierrez was reassigned to West Valley.  AR 751.  Because he was already a Police Officer III, he was then sent to Field Training Officer (“FTO”) school.  AR 751.  He became certified as an FTO in either December 2020 or January 2021.  AR 751.  He started working with probationary officers immediately afterwards but did not get brand new recruits until June 2021 because LAPD was not hiring.  AR 751-52.

            Ilagan is not the most organized officer, and he relies heavily on other officers for advice even though he had spent more time at DTF than Gutierrez.  AR 766.  Other instructors would get Ilagan back on track when he was getting sidetracked.  AR 766.

            IA never accused Gutierrez of saying anything besides “I’m not fucking wearing that.”  AR 333.

e. Fisco

            Officer Fisco testified that “insubordination” means not following orders, but supervisors can give those orders in a nice way rather than by saying “I am giving you an order.”  AR 335.  If a captain said “do not tell instructors to wear a vest”, that would be a direct order.  AR 335.

            Fisco was assigned to play a violator for the traffic stop testing Ilagan had planned.  AR 336.  Safety briefing attendees included Berger and instructors Gutierrez, Berger, Jackson, Sexton, Ilagan, Perez, Chester, Odom, Rogers, Kristine Salazar, Allison Ashnault, and Robert Wu.  AR 336-38.

            Fisco had not met Berger before the safety briefing.  AR 337.  When Berger first spoke, Fisco saw he had on a blue polo shirt.  AR 346.  The shirt should have read “Supervisor” or “Instructor” followed by his surname.  AR 346.  Because it was early and Fisco only looked at Berger over his shoulder, he did not see if the shirt had the supervisor insignia.  AR 357.  As a result, Berger could have been any instructor because they all wear dark blue polo shirts.  AR 357.  Fisco only learned later that day that Berger was an RBC sergeant.  AR 337-38.

            Fisco owns a reflective traffic vest, but he only wore it in testing scenarios where he was the safety officer.  AR 339.  He never used it while an instructor or violator.  AR 339.  After Ilagan mentioned the possibility of everyone wearing vests, various back-and-forth conversations ensued.  AR 339-40.  Gutierrez said something, but Fisco could not remember what.  AR 341-42.  He would have remembered if Gutierrez said “I’m not fucking wearing that” because Gutierrez and the rest of the unit are professional.  AR 342.  He has never heard anyone use profanity in one of the briefings, so it would have been unusual if someone did.  AR 342.

            Berger said something, but Fico does not remember exactly what he said.  AR 339.  It was not any variation of “we are wearing vests,” “yes, vests,” or some other command for everyone to do so.  AR 341.  There was never an order to wear vests.  AR 344, 362.

            Ilagan’s proposal did not feel unusual because DTF is always open to discussion on things that need to be done more efficiently or safely.  AR 340-341.  However, the unit ultimately decided not to have anyone but the safety officer wear vests because the point is for the safety officer to stand out.  AR 349.  When a Board member asked how Fisco knew that was the decision when he could not hear what everyone was saying, Fisco explained that he listened to the briefing.  AR 394. 

Neither Fisco nor any of the evaluators Fisco saw that day wore vests.  AR 343-44.  Fisco never received a personnel complaint for failure to wear a vest as ordered.  AR 344.

            Fisco has never seen the experienced officers in the unit ignore a supervisor’s orders in the 15 years he has been there.  AR 342.  Berger’s assertion that the DTF has a culture of ignoring orders is completely false.  AR 342-43.

            f. Jackson

            Officer Jackson testified that “insubordination” means not following orders.  AR 365.  An order need not state “I am giving you an order.”  AR 365-66.  Supervisors will sometimes ask if someone “can” do something, but that is still an order.  AR 366.  If a captain says “do not tell instructors to wear a vest,” that is also a direct order.  AR 366.

            The safety briefing attendees included almost the whole DTF plus Berger from the Ahmanson Recruit Training Center (“ARTC”).  AR 369-370.  Jackson had never met Berger before that day, and Berger did not introduce himself.  AR 370.  Jackson did not remember what Berger was wearing.  AR 370.  Jackson did not remember physically seeing Gutierrez at the briefing.  AR 369.

            Ilagan asked the unit evaluators if they thought they needed to wear safety vests.  AR 371, 383.  The whole group of evaluators, including Jackson, replied “no”.  AR 383.  It was not necessary because they abandoned the plan to conduct two different tests back-to-back.  AR 372-74, 383.  As a result, only the safety officer needed to wear the vest.  AR 372.

            Ilagan then turned to Berger, called him “Sarge,” and asked for his opinion. AR 374, 383.  Berger responded that “we should wear a vest” or “wear the vest.”  AR 374, 384.  Berger was directing everyone in the room to wear the vests while responding to Ilagan.  AR 375.  Jackson did not interpret this as an order because Odom then tried to explain to Berger why it was not necessary.  AR 374-75.  The discussion remained respectful.  AR 375.  Berger never said “you will” or “we will” be wearing the vests.  AR 375-76.  Nor did he tell anyone they had to wear it.  AR 376.

            Jackson never heard anyone use profanity during the briefing, which would have been unusual.  AR 376.  In the 12 years he has worked for the DTF, all disagreements have been respectful.  AR 376.  Berger’s assertion that the unit culture is to ignore orders is false.  AR 376.  Jackson has never seen a DTF officer ignore a supervisor’s orders.  AR 377.

            During the test, Jackson filled out the paperwork for each recruit and pair them with an evaluator when the car came back.  AR 377.  He did not wear his safety vest or see any evaluator wear theirs.  AR 377.  Jackson did not receive a personnel complaint for failure to wear one or for insubordination.  AR 377.

            Gutierrez was a “strong leader” in DTF.  AR 385.  He left the briefing before Jackson did.  AR 385.  Like Gutierrez, Jackson left after the briefing concluded but while the other officers were still explaining to Berger why safety vests were not necessary.  AR 386.  Jackson did not consider this relevant to the briefing.  AR 386.

            g. Perez

            Officer Perez testified that he never met Berger before the briefing, and Berger did not introduce himself when he came into the briefing.  AR 395.  The polo shirts Training Division officers wear do not have stripes to reflect rank.  AR 395.  A patch for the officer’s unit is on the polo shirt chest front, but no label distinguishes a supervisor from others.  AR 395. 

            Ilagan asked, “what do you guys think about the vest?”, as an open question.  AR 397.  Perez did not respond, but the other instructors did.  AR 397.  He did not know who said specifically what, except that Odom argued that it would conflict with DTF safety rules that only an armed safety officer should wear the safety vest.  AR 397, 414.

            The briefings are informal.  AR 403.  This conversation was unusual to Perez.  AR 403.  The reflective traffic vest indicates the wearer is the only person who is armed.  AR 403.  Because of the deadly force scenarios undergone by the recruits, DTF strictly enforces the prohibition of live weapons for anyone but the safety officer.  AR 403-04.  This officer stands to the side, does not engage in the scenario, and does not attend the post-test debrief.  AR 404.  The only time an officer is armed is when he or she is wearing the vest.  AR 415.

            When Ilagan asked Berger about the vests, Berger answered “yes.”  AR 398.  Perez thought that was a suggestion, not an order.  AR 398.  Berger never said: “I order you guys to wear a vest.”  AR 398.  DTF also knew that Berger was from another facility and did not understand the DTF safety rules.  AR 398.

            At one point after the briefing, Odom explained to Berger that, if they are thinking about vests, the recruits should wear the vests, not evaluators, because recruits are more exposed to road traffic when on the track.  AR 401-02.  An upset Berger pointed to Odom and said “Aren’t you on the sergeant’s list? Start thinking like one and put your risk management hat on.”  AR 400.  Berger’s face was red, and his eyes were squinting.  AR 400.  His conduct shocked the rest of the room.  AR 400.  Singling out an instructor and telling him to think differently without any understanding of local safety rules creates a lot of discomfort.  AR 400-01. 

            Perez saw Gutierrez at the beginning of the briefing, but he left without saying anything.  AR 402.  He never said “I’m not fucking wearing that” or used other profanity, which Perez would have remembered.  AR 402.

            None of the evaluators wore a safety vest that day, including Perez.  AR 409.  He did not receive a personnel complaint for failure to wear a vest or for insubordination.  AR 409-10.

            h. Sexton

            Officer Sexton testified that he has had orders where the superior officer said, “that is an order” or “I’m giving you an order.”  AR 422-23.  He has also had orders where the supervisor did not use those words, but Sexton knew the supervisor expected him to do the task at hand.  AR 423.  For example, if a supervisor said that Sexton would be teaching recruits a particular subject, Sexton would say “yes, sir” and “I’ll teach it.”  AR 423.

            Sexton was an evaluator for the September 2, 2020 scenario.  AR 423-24.  He was in the kitchenette alcove of the briefing room.  AR 424.  He had never seen or met Berger before the briefing.  AR 425.  Berger wore the blue Training Division polo shirt.  AR 426.  Sexton could not remember if that shirt said “Supervisor” on it, but those shirts did not list ranks and titles like they do now.  AR 440-41.  Sexton could not tell what rank Berger was, and he only learned that after the briefing.  AR 426-27.

            Ilagan brought up that everyone wear safety vests.  AR 428.  It was odd to hear him do so.  AR 428.  The only reason to bring up safety vests during the meeting would be for the safety officer to wear a vest.  AR 428-429.  Sexton has never known anyone to wear a safety vest when he or she was not the safety officer.  AR 429.

            Sexton did not hear anyone respond to Ilagan’s suggestion, but he did hear discussion about it among the attendees.  AR 429-30.  These comments were that it was important that the safety officer is the only one wearing a safety vest.  AR 430.  That person needs to stand out so that others know who to turn to for aid if something happens.  AR 430.

            The conversation did not reach a resolution before the meeting broke up and everyone headed to the testing area.  AR 431-32.  Berger made a comment to Odom with a raised voice at one point, but Sexton never heard Berger say “you will” or “we will” be wearing the vest.  AR 434.  He did not see or hear Ilagan raising one of the yellow vests, looking at Berger, and saying “Sarge, vest?”  AR 451.  Nor did he hear Berger reply “yes, vest.”  AR 451.

            Sexton never heard Gutierrez utter any profanity.  AR 436.  He would have remembered that because it would be unprofessional to use any profanity during a meeting of police officers about testing the recruits.  AR 436. 

Sexton admitted that the Manual does not limit a scenario manager’s discretion to have more than one person wear safety vests.  AR 449-50.  However, their training had engrained in every officer’s mind that the safety officer wears a vest so that everyone knows who to go to.  AR 450.  It would cause mass confusion if everyone wore vests and there was a need to talk to the safety officer.  AR 450-51.

            The purpose of the safety vest is to indicate that person is a safety officer and that he or she is carrying a weapon.  AR 456.  Recruits have worn vests in past, despite the fact that they are not carrying a weapon.  AR 457.  That did not happen on this exercise.  AR 456-57.  When recruits wear vests, they are usually running out in the streets as part of physical training with a road guard.  AR 457.

            A Board of Rights member noted the quandary before it.  AR 452.  Berger asserted that he said several times “vests, we’re wearing vests” and that Gutierrez replied “I’m not fucking wearing that vest” before leaving the room.  AR 452.  The Board of Rights member asked Sexton why, based on his 14 years of experience at DTF, a sergeant like Berger would accuse a well-respected DTF officer like Gutierrez of such a thing.  AR 453.  Sexton had no opinion on the issue.  AR 453.

            Sexton never heard anyone say DTF has a culture of ignoring orders like Berger now asserts.  AR 436.  In his 14 years with the unit, he has never seen a colleague ignore a supervisor’s order.  AR 436-37.

            There was nothing in the discussion that made him think that Berger had given an order to wear a vest.  AR 438.  Neither Sexton nor any of the evaluators wore a safety vest.  AR 438.  He did not receive a personnel complaint for failure to wear one or for insubordination.  AR 438. 

            i. Rogers

            Officer Rogers testified that she did not know Berger.   AR 466.  She thought Berger attended the briefing from the beginning, but she could not be 100% sure because of how chaotic it was.  AR 466.  The briefing was poorly done, as Ilegan never asked everyone to be quiet despite the large amount of conversation in the room.  AR 473.

            Safety and tactics are commonly discussed topics during the briefings.  AR 477-78.  This included the designation of a safety officer who would carry a live firearm and wear the safety vest.  AR 477-78.

            Berger did not tell everyone multiple times that “You will be wearing the vest”.  AR 473.  Berger’s whole conversation with Odom was a back and forth on safety and the need to put his risk management cap on.  AR 472-73.  Rogers’ perception was that Berger was condescending to Odom and was getting upset during the conversation, but she could be wrong.  AR 473.

            Rogers did not believe Berger gave an order for officers to wear a safety vest.  AR 479.  Berger talked about risk management and student safety, but the students are out on the street during these traffic stops and the evaluator is not.  AR 473.  Rogers brought her vest to the briefing and, because Berger emphasized risk-management, he had every student who he tested wear a vest while out on the street, even though that was not protocol.  AR 473-74.  Rogers never had students wear a vest before this test.  AR 474.  If Rogers believed that Berger ordered evaluators to wear a vest, she would have worn the vest she brought to the briefing.  AR 479-80.

            Berger never came up to Rogers to ask why Rogers’ students wore vests, but Rogers did not wear one herself.  AR 475.  Rogers was too far from the other evaluators to see if any of them wore vests.  AR 480-81.  She did not receive a personnel complaint for failure to wear one or for insubordination.  AR 481.

            Neither Gutierrez nor anyone else used profanity during the briefing.  AR 475.  Nobody left the briefing early, including Gutierrez.  AR 500-01.  It is very disappointing to hear that Berger testified that the DTF culture is to ignore orders because that is not how the unit runs things.  AR 475-76.

            j. Odom

            Officer Odom testified that Berger joined the briefing ten minutes after it began.  AR 137.  After he had given out assignments and pertinent information, Ilagan brought up the idea of instructors wearing safety vests.  AR 128-29.  Everyone in the room responded.  AR 129.  Odom asked if anyone knew where the idea was coming from because the Manual was dictated by POST standards.  AR 134.  In response, Berger asked if Odom was on the sergeant’s list.  AR 135.  Odom said he was.  AR 136-37.  He felt that Berger was putting him on the spot, making him look bad in front of his peers.  AR 136.  Berger seemed upset.  AR 136.  The scenario manager (Ilagan) has the final say on the issue.  AR 132.

Odom heard Gutierrez say they should not wear vests, but he never said: “I’m not fucking wearing that.”  AR 129-130.  No one used profanity, and it would have been memorable if they did so.  AR 130.

            Odom never heard Berger say “you” or “we will be wearing the vests.” AR 132-33, 162.  He did not believe that Berger gave an order to wear vests, so the officers did not ignore him.  AR 133. 

            The Manual clarifies that only the safety officer with a weapon wears the vest.  AR 147.  The safety officer cannot partake in any part of training while armed with live weapons.  AR 172.  The Manual does not say “only” the safety officer wears a vest, but it would defeat the purpose for others to wear a vest.  AR 154.  POST requires that the safety officer is easily identifiable in some way.  AR 154.  The assumption is that if someone is wearing a vest, their weapon carries live ammunition.  AR 148.  If anyone else wore a safety vest, it would cause confusion and a risk management issue.  AR 147, 154-55.  If everyone wore a safety vest, that would make them all safety officers and leave no instructors to conduct the training.  AR 168.  The understanding is that “vest equals safety officer.”  AR 175-76.

            The Manual does not require the safety officer to carry a live weapon.  AR 173.  This suggests that if the safety officer does not carry one, he can still participate in the scenario.  AR 173-74.  However, this was not DTF’s practice.  AR 174.  The officers do not have the Manual memorized word for word.  AR 174.  Their practice is that the safety officers always wear the live weapons they are permitted to wear.  AR 174-75.

            No one except the safety officer wore a vest for the test.  AR 139.  Berger did not ask Odom why he was not wearing his vest.  AR 139.  Odom did not receive the complaint for insubordination until two days later, but he did expect something to happen.  AR 139.  Odom’s complaint concerns his failure to wear the vest, and for making a comment during the briefing about the vest.  AR 163.

            Berger’s motive to lie about what happened would be to ensure that the complaints against Odom and Gutierrez are sustained.  AR 159.

k. Schmider

            Officer Schmider testified that, although the announced start time for Ilagan’s briefing was 5:00 a.m., this usually meant the officers started talking by 4:55 a.m.  AR 50.  He arrived at the briefing at 5:00 a.m., and Berger arrived ten minutes later.  AR 50-51. Schmider was playing the role of violator and was dressed in plain clothes.  AR 48.

            The briefing was held in the DTF break room, which has four cubicles, a small kitchenette, and a television and big table.  AR 49.  There were a lot of people present.   AR 50.  After Ilagan distributed the assignments, several people got up to go to their assignments.  AR 68.  It is common for officers who are not setting up the test to remain in the office area and talk.  AR 68. 

            Rogers’ decision to have her students wear the safety vests was random and violated safety procedures.  AR 71.  Schmider understands that she did this to avoid getting into trouble because the briefing confused her.  AR 71.

After the first test run, Berger approached Schmider.  AR 56.  Schmider did not know his name or rank.  AR 60.  He wore a blue polo shirt with no rank or insignia, with a safety vest on top once on the track.  AR 60, 73.  Both supervisors and officers for the Training Division wear the same color and style of polo shirt.  AR 73.  Berger told him he was being insubordinate.  AR 61.

            A complaint against Schmider for the incident alleges insubordination for failure to wear the safety vest, inappropriate remarks, and failure to wear a face mask.   AR 62.  On the first day of his Board of Rights hearing, LAPD attempted to withdraw the first allegation because he had been a violator, not an evaluator, but could not do so.  AR 63.  Schmider was found not guilty on all counts but later demoted to Police Officer II.  AR 62-63.

l. Riggs

            Sgt. Riggs testified that she has been in charge of DTF since 2013.  AR 502-03.  On September 2, 2020, Lt. Bluestein advised Riggs about an incident during that morning’s briefing.  AR 503-04.  Lt. Bluestein and Riggs then met with Berger and Sgt. Patriquin.  AR 504.  Berger said that an issue arose during the briefing after he mentioned instructors would wear their safety vests.  AR 504.  When he said “I want your instructors to wear the vest”, it caused an uproar and he was upset.  AR 511.

            Berger was not happy with the instructors’ reactions to what he said, but he did not say they were all insubordinate for not wearing vests.  AR 505.  He did not say that Gutierrez was insubordinate, just that he was not happy with Gutierrez’s reaction.  AR 505.  Berger did not say that he ordered the whole room to wear vests.  AR 505.  Berger was never specific about whether he gave a direct or indirect order.  AR 510-11.  Berger was visibly upset and requested a complaint against Schneider and comment cards for Gutierrez and Odom.  AR 506. 

            Lt. Bluestein told Riggs to investigate what happened but not talk to Schneider.  AR 506-07.  Berger had alleged misconduct against all three officers, but the alleged misconduct against Odom and Gutierrez did not rise to the level of a complaint.  AR 507.  Comment cards just document what happened and what supervisors would like to see from those officers moving forward.  AR 507.

            Riggs’ investigation revealed that the incident was mainly a misunderstanding of DTF safety rules and how to conduct testing at this facility and track.  AR 508.  This could have been easily remedied if everyone sat down together and had a discussion.  AR 508.

            Riggs never wrote any comment cards.  AR 508.  After she spoke to the people that were at the safety briefing -- with the exception of Officer Schmider -- she told her lieutenant, who said he would talk to Captain Casey to see if they could just have a meeting to fix the problem without anything written down.  AR 508.  Captain Carranza was the top captain at Training Division and, after trying to meet with him, they were informed that he did not want to hear anything about the situation.  AR 509.  The next thing Riggs knew, complaints were issued against all three officers.  AR 509.

            Berger and Ilagan had a conversation with Berger about the tests, but Berger arrived late to the briefing and did not know that Ilagan had decided to separate the nighttime traffic stop test and the use of force test.  AR 549.[1]

            Berger’s polo shirt had a logo with “Training Division” and “RBC,” as well as the word “Instructor” in small lettering in the middle of the shirt.  AR 552.  “RBC” was also in small lettering.  AR 552.  If someone did not know his rank, that person would not have known he is a supervisor based on his shirt.  AR 552.

Ilagan is allowed to make the decision on whether to wear a safety vest.  AR 519.  POST says there has to be a safety officer for testing, and LAPD says that they must identify the safety officer with a reflective vest.  AR 519, 529-30.  Having every instructor wear a safety vest would violate the Manual and cause confusion as to who is the safety officer.  AR 519.

            Tactics is a dynamic field with a lot of moving parts.  AR 522.  A change in location can change how DTF does things.  AR 522.  Whenever the unit talks about doing something new, there is a lot of discussion.  AR 522.  The unit does not just say “yes, sir” whenever the scenario manager mentions something new or different.  AR 523.  The other officers should raise any concerns they have.  AR 523.

            A scenario can have as many safety officers as you want, but they would all have to wear safety vests and not partake in the scenario.  AR 535.  Anyone involved in the scenario in any way would not be armed and would not be denoted as armed via the vest.  AR 535.

            m. Patriquin

            Sgt. Patriquin testified that Berger is a fellow supervisor at the Training Division.  AR 179.  Although Berger works out of the ARTC, he occasionally comes to DTF.  AR 179.  At the time of the briefing, the polo shirt only identified him as a member of the Training Division, not as a supervisor.  AR 196.

            After the safety briefing, Berger met with Sgt. Patriquin, Sgt. Riggs, and Lt. Bluestein.  AR 180.  Riggs was in charge of DTF and Bluestein was in charge of DTF as a whole.  AR 180.  Berger requested a complaint against Schmider and comment cards against Odom and Gutierrez.  AR 186.  Berger alleged that Gutierrez walked away right after roll call finished, possibly while Berger was trying to talk to him.  AR 189.

            Captain Casey wanted a lesser discipline, but Captain Carranza overruled him and decided to initiate complaints against all three officers.  AR 192-93.  Berger later filed a complaint against Patriquin, Sgt. Riggs, and Lt. Bluestein for a lack of leadership in DTF.  AR 193.  Patriquin has been the supervisor for almost 20 years and had a good reputation in that position.  AR 193.  Berger’s complaint was later adjudicated as unfounded.  AR 194.[2]

            3. The Board of Rights Findings

            On October 31, 2022, the Board of Rights voted 2-1 to find Gutierrez guilty of insubordination when he verbally refusal to wear a traffic vest as directed.  AR 799. 

The Board’s Rationale of Findings stated that the fundamental dispute was whether Sgt. Berger issued a lawful order, command, or directive.  AR 800.  The recollections of the DTF staff who testified were inconsistent, contradictory and incomplete, except to the fact that none heard Gutierrez use profanity.  AR 800.  This left the Board to weigh Gutierrez’s testimony against Berger’s testimony.  AR 800.

            Berger testified that he clearly heard Gutierrez’s refusal to wear the vest and saw him walk out of the briefing before it ended.  AR 800.  Berger was trying to get “buy-in” from the instructors into Ilagan’s idea of everyone wearing safety vests, but he failed.  AR 800.

            Gutierrez denied verbally refusing to wear the safety vest, but he admitted that he did not wear one.  AR 800.  He indisputably told Ilagan: “If you want me to wear a vest, you’d better find one.”  AR 800-01.  Gutierrez admitted that he walked out of the briefing before it ended because he was frustrated by the discussion about wearing safety vests.  AR 801. 

            Gutierrez asserted that DTF never assigned more than one person to vest as the safety officer.  AR 801.  Every DTF officer who testified also said the rule on safety officers only allows one person to serve in that capacity.  AR 801.  Yet, the plain language of the safety rules says “one (or more, if needed)” and goes on to provide guidance on the restrictions and obligations of a safety officer.  AR 801.

            Berger testified that he issued a clear command and order motivated by a desire to support Ilagan.  AR 801.  Ilagan had held up a vest and asked “Sarge?”  AR 801.  Berger responded “Yes, we’re all wearing vests.”  AR 801.  Berger repeated this several times, but no one followed the order in the testing.  AR 801.

            Gutierrez asserted that the briefing did not involve any order, just a “collaborative conversation” about the testing.  AR 802.  The Board ruled that it “flies in the face of common sense” to believe that a sergeant who stands before a group of experienced officers and instructs them to wear a vest means it as merely a suggestion that is up for discussion.  AR 802.

            Gutierrez also argued it was unclear if Berger’s statement was an order or a directive.  AR 802.  He basically argued the word “order” or the phrase “I’m ordering you ____” is needed to make something an order.  AR 802.  The issue is not some miscommunication or misunderstanding.  AR 802.  Berger introduced a change into a training group that had long conducted tests in a specific manner and was resistant to an outside leader’s change in protocol.  AR 802.

            Gutierrez argued that Berger’s instruction was unlawful, but the rule does not suggest only one person can wear a safety vest.  AR 802.  It may have been DTF’s practice to have only one person wear the safety vest, but it is not what the superior officer instructed here.  AR 802-03.

            The final argument was that scenario manager Ilagan was the source of confusion and misunderstanding.  AR 803.  If so, this does not relieve Gutierrez of his duty to obey a superior’s lawful command without question.  AR 803.  Following such commands is essential for the safe and prompt performance of law enforcement operation.  AR 803.

            The minority opinion acknowledged that Gutierrez may have been insubordinate by walking out of the briefing before it was over.  AR 803.  However, the allegation was that he was insubordinate when he verbally refused to wear a traffic vest as directed.  AR 803.  The dissent disputed there was sufficient evidence of a verbal refusal.  AR 804.  This was a case of opposing views and there was insufficient evidence of guilt.  AR 804.

            4. The Discipline

            On January 17, 2023, Lt. Bluestein testified on Gutierrez’s behalf.  AR 1, 20.  He testified that, even after the Board of Rights found Gutierrez guilty, he would accept Gutierrez back into DTF if he asked for it.  AR 23.  Gutierrez was never afraid to speak his mind when he disagreed with superiors, but he remained respectful when he did so.  AR 24.  Bluestein also maintained that having non-safety officers wear vests during the training exercises would create confusion as to who was and was not armed.  AR 24-25.  If Bluestein was on site when the incident occurred, this would never have happened.  AR 25.

            On January 31, 2023, the Board issued a Rationale of Penalty affirming the two-day suspension.  AR 796, 798.  The Board stated the events giving rise to the incident were filled with complexity and confusion.  AR 796.  It is unique for a case to need 14 witnesses on what happened, with a wide range of opinions and recollections regarding the reconciliation between traditional DTF practice and the Manual provision on scenario safety.  AR 796.

            The written policy lacks specificity insofar as it states that “one (or more, if needed)” safety officers may carry a live weapon.  AR 796.  DTF traditionally understood this to mean only one safety officer with a vest can be on site during any given exercise.  AR 796-97.  Confusion arose whether more than one person can wear the vest.  AR 797.  Discussion focused on the safety concerns that arise if so.  AR 797.

            There was credible testimony that a senior officer gave a directive to wear vests.  AR 797.  There was some confusion because the scenario manager planned to execute two activities but later reduced it to one.  AR 797.  This decision seemed to create further confusion about the propriety of vests.  AR 797.

            In any case, Gutierrez admitted that he disagreed with the idea of more than one person wearing the vests.  AR 797.  He also admitted that he left the briefing before it ended.  AR 797-98.  There was evidence he told Ilagen that he would need to find him (Gutierrez) a vest if he wanted him to wear one.  AR 798.  This shows resistance to a directive from a senior officer.  AR 798.  The recommended two-day suspension was on the low end of the penalty range for insubordination and the Board affirmed it.  AR 798.[3]

            E. Analysis

Petitioner Gutierrez challenges his two-day suspension as not supported by the weight of the evidence.

1. Credibility

The Board of Rights stated that the fundamental dispute was whether Sgt. Berger issued a lawful order, command, or directive.  AR 800.  The recollections of the DTF staff who testified were inconsistent, contradictory and incomplete, except to the fact that none heard Gutierrez use profanity.  AR 800.  This left the Board to weigh Gutierrez’s testimony against Berger’s testimony.  AR 800.

This conclusion was a fundamental error.  While the City is correct that the testimony of a single witness, if believed, is sufficient to constitute substantial evidence (Opp. at 5), that does not mean that the decision-maker should ignore the other witnesses.   Yet, that is what the Board did by disregarding the testimony of other witnesses as inconsistent, contradictory and incomplete and focusing only on Gutierrez and Berger. 

As Gutierrez argues, the other witnesses were clear and consistent with regard to most issues.  The officers present at the safety briefing generally testified that (1) the longstanding practice at DTF, consistent with POST and the Safety Manual, is that only the safety officer (or safety officers, if more than one is needed) wears a vest and it would be a policy violation for anyone other than the safety officer to do so, (2) Berger did not order the evaluators to wear vests, and (3) no one heard Gutierrez refuse to wear a vest or utter a profanity.

The City questions what motive Berger would have to lie about what transpired in the briefing.  It notes that Berger had no prior dealings with Gutierrez and did not even want a complaint filed against him, only a comment card.  When this question was posed to Officer Odom, his response was that Berger had a motive “to ensure that his complaint is sustained against us.” AR 159.  Yet, Odom’s reasoning is inconsistent with Berger’s explanation that he only wanted a comment card for Gutierrez.  Simply put, Berger had no “dog in the fight”.  In contrast, Gutierrez had a vested interest in the outcome of the proceedings, and it only makes sense that Odom, who was also facing disciplinary action, had a vested interest in protecting Gutierrez.[4]  Opp. at 8-9.

The City argues that the 14 DTF witnesses were not entirely forthcoming.  Their testimony on whether Gutierrez said anything in response to Berger was not consistent. Ilagan testified that Gutierrez questioned why they were wearing vests while Fisco and Odom admitted that they heard Gutierrez respond to Berger about the vest but could not recall what Gutierrez said.  AR 162, 341-42, 622.[5]  Officer Jackson testified that he did not remember Gutierrez being present at the briefing, yet also testified that he did not hear Gutierrez say anything.   AR 369, 374.[6]  Opp. at 9.

The City further contends that all the DTF witnesses when it came to recounting Berger’s statement. Perez, Sexton, and Rogers testified that they did not even hear or see the interaction where Ilagan said “Sarge?” and Berger responded “yes, vests.” AR 398, 451, 473.  However, both Gutierrez and Jackson testified to it.  AR 383, 727. It is this kind of inconsistent testimony that caused Board members to confront some of the witnesses with their inconsistencies,[7] and ultimately led the Board to the conclusion that Berger’s recollection was the most reliable.  Opp. at 9. 

It may be that the Board could conclude that the 14 DTF witnesses have a joint interest in maintaining the existing safety protocol and protecting their fellow DTF officer, and therefore they deliberately shaded or dissembled their testimony in favor of Gutierrez.  But that is not what the Board ruled.  In any event, the court’s independent review of the evidence is that the testimony of the DTF officers present at the briefing should not be so easily discarded.  There was chaos and officers talking at once during the briefing.  Some officers heard what Gutierrez said and others did not.  Some officers also heard what Berger said differently.  That does not make their testimony inconsistent.

Berger’s credibility stands on a different footing.  He had no prior dealings with Gutierrez and did not even want a complaint filed against him, only a comment card.  The court agrees that he had no motive to lie.  On the other hand, lying is not the only basis to evaluate witness credibility.  Berger was present at a chaotic briefing in which the only person he knew was Ilagan.  Officers were talking over each other, and all were questioning his position on safety vests.  He did not take it well and clearly got upset with Odom.  AR 135-36.  He also appears to have been overly defensive, seeking discipline not only for Officer Schmider but also for Patriquin, Sgt. Riggs, and Lt Bluestein for lack of leadership, which was deemed unfounded.   AR 193.  Berger’s perception of events and credibility are undermined by these facts.  See Evid. Code §780(d).

The court does not accept wholesale the testimony of the 14 officers but does not reject either.  Neither does the court accept Berger’s testimony on its face.

2. Berger’s Authority to Issue an Order

Gutierrez relies on the fact that every officer who was asked testified that Berger did not introduce himself at the briefing, and most did not know who he was because he was not assigned to DTF.  AR 60, 179, 337-38, 370, 395, 425-26.  The polo shirt Berger was wearing -- which was the uniform for both supervisors and officers (AR 73, 357) -- did not indicate any rank or insignia.  AR 60, 196-97, 395, 441, 442.  Sgt. Patriquin testified that there was nothing on the shirts that indicates one’s rank or supervisory status.  AR 196.  Sgt. Riggs, who was not at the briefing, testified that she believed Berger’s polo shirt would have said “RBC” and then either “Instructor” or “Supervisor”, but the RBC “is very small.” AR 552.  She further testified that Berger’s rank could not be discerned from what he was wearing.  Ibid.  Pet. Op. Br. at 9-10.[8]

This issue is insignificant.  Berger was standing before the officers in the same supervisory role as Ilagan.  If anyone questioned his command authority, they could have asked him who he was.   Their failure to do so shows that they implicitly recognized his supervisory authority.  Gutierrez also testified that he knew of Berger through his desk mate, Officer Chester, and that he knew that Berger was a sergeant. AR 725.

A related issue is Berger’s authority over the briefing.  He testified that he was both the Law Unit Officer in Charge and an RBC Academy supervisor for recruit classes.  AR 657.  A RBC supervisor oversees between 30-60 recruits as they go through the six-month LAPD Academy.  AR 658.  The RBC supervisor also oversees the instructors from each discipline and monitors for any reason to separate recruits form the Academy.  AR 658. 

Berger admitted that Ilagan had authority over the briefing.  He testified that POST dictates that the scenario manager makes the final decisions on test procedures.  AR 669.  It is rare for the scenario manager and a supervisor to both be in the room; they are two separate authorities.  AR 670.  If Ilagan as scenario manager had said “no vests are required at any point”, that would have required a separate discussion.  AR 670.    

Ilagan testified that the primary instructor decides who is the safety officer is on a test, and he was the primary instructor.  AR 624.  Berger was not a direct supervisor of DTF and was part of the RBC Program.  AR 616-17.  He was, however, the supervisor at scene.  AR 631.  Odom testified that the scenario manager (Ilagan) has the final say on the issue.  AR 132.

The court concludes that Berger had authority to issue an order as supervisor at scene, at least until he was directly contradicted by Ilagan.  Ilagan did not directly contradict Berger.

3. The Safety Manual Requirement

The DTF officers’ pushback was based on DTF protocol.  The DTF witnesses all testified that only the safety officer -- the only armed officer and an officer who does not take part in the training— wears a vest during recruit training.  AR 147-48, 168, 175-76, 339, 403-04, 415, 428-29, 456, 474, 529-30, 625, 643-44, 685, 790.  They believed that, if anyone other than the safety officer wore a vest, it would be a violation of the following Manual provision:

“(a) one (or more if needed) Safety Officers is/are permitted to carry a live weapon,

(b) safety officers shall not become involved in any other part of training while armed with a live weapon, and

(c) the safety officer shall wear a reflective vest.”  AR 530, 790. 

While this provision does not preclude evaluation officers from wearing vests (AR 154, 274-75), the DTF witnesses testified that it would defeat the purpose of a safety officer wearing a vest if evaluators did so.  AR 154, 450-51.  The POST standard is that all academies shall have their safety officer easily identifiable.  AR 154, 519, 529-30.  If everybody wears a safety vest, then the officers would not be able to identify who the safety officer is.  They would have to assume that everyone wearing a vest has a live weapon, which would cause confusion and be a major risk management issue.  AR 147, 154-55, 519.  Consequently, DTF adopted a protocol that the safety officer -- and only the safety officer -- is identified by wearing a vest.  AR 154-55.  The assumption is that “vest equals safety officer.”   AR 175-76.

Sgt. Riggs testified: “So if you wanted more people to be safety officers, those people -- you could have ten safety officers, but they would all have to wear vests.  If you’re involved in a scenario in any way, shape or form, you cannot be armed, so you would not be denoted being armed with a vest.” AR 535.  Ilagan explained: “No one wears a vest unless they are the safety officer” because the safety officer is the only one with live ammunition.  AR 625. 

In sum, the Manual does not preclude evaluators wearing safety vests in a nighttime traffic stop, but DTF protocol to the contrary is based on the fact that it is a bad idea.  The accuracy of DTF’s position is underscored by the fact that a captain later told Berger not to order officers to wear vests.  AR 687.

4. Berger Issued a Lawful Order for Evaluators to Wear Vests

Berger testified that Ilagan raised the idea of the evaluators wearing safety vests.  AR 660.  Ilagan said it would be a good idea to wear vests because it was a dark track with no dedicated lighting and the test would be during hours of darkness.  AR 661. The officers attending were unhappy and “pushed back” by grumbling and refusing.  AR 660, 672.

Berger did not think Ilagan’s comment was a suggestion.  AR 314.  He thought it was a good idea.  AR 661.  Berger decided to back Ilagan’s decision, so he gave a direct order to wear the vests.  AR 293, 661-62.  He said multiple times: “We will all be wearing vests” or “We will be wearing the vests.”  AR 304, 314, 663, 674. 

The court has no reason to disbelieve Berger, who was emphatic in his testimony.  Berger did err in thinking that he was backing Ilagan by issuing the order.  Ilagan initially planned to combine the use of force and nighttime traffic stop tests, brought up wearing the safety vests for that reason, but then told the officers that they did not need to wear the safety vest because they now were only doing the nighttime traffic stop tests.  AR 592-94.  Yet, Berger’s error has no bearing whether he issued a lawful order to wear safety vests.

5. The DTF Officers’ Understanding of Berger’s Order

Although the Board disagreed (see AR 802), there was a lack of clarity whether Berger’s statements were an order.  The officers know when an order is given.  AR 335, 365-66.  Officer Sexton testified that there are times when a supervisor will state they are giving an order, and other times where it is simply implied, e.g., “They asked me to do something, like you’re teaching these guys a subject, I say ‘yes, sir’ and I’ll teach it.”  AR 423.  To constitute insubordination, the word “order” is not required to be used, but a supervisor’s direction still must clearly be an order and not a suggestion or recommendation.  

There was consistent testimony that DTF generally engages in discussion during a briefing about the manner in which the training should proceed and the safety issues that could arise.  AR 421-22, 477-78, 609-11, 745.  Sgt. Riggs testified that she would expect such a discussion because DTF “is a very collaborative unit,” especially if someone suggests doing something that had not been done before.  AR 522-23.

Although Berger issued an order to wear safety vests, none of the officers in the briefing room understood him as doing so. 

Ilagan explained that he mentioned something about vests during the briefing.  AR 616.  The officers asked why he wanted them to wear safety vests.  AR 615-16.  Ilagan did not find those questions surprising or out of the ordinary.  AR 616.  Ilagan retracted, telling the officers that they were originally going to conduct a use of force test, but they did not need to wear the safety vest because they now were only doing the nighttime traffic stop tests.  AR 592-93.  Berger said something like “wear a vest” but Ilagan interpreted Berger’s comment as a question, not a direct order.  AR 629.

Odom never heard Berger say “you” or “we will be wearing the vests.” AR 132-33, 162.  He did not believe that Berger gave an order to wear vests, so the officers did not ignore him.  AR 133. 

Fisco testified that Berger said something, but not any variation of “we are wearing vests,” “yes, vests,” or some other command to do so.  AR 341.  There was never an order to wear vests.  AR 344, 362.  The unit ultimately decided not to have anyone but the safety officer wear vests.  AR 349.  When asked how Fisco knew that was the decision when he could not hear what everyone was saying, Fisco explained he listened to the briefing.  AR 394. 

Jackson testified that Ilagan asked the unit evaluators if they thought they needed to wear safety vests.  AR 371, 383.  The evaluators, including Jackson, replied “no”.  AR 383.  Ilagan then turned to Berger, called him “Sarge,” and asked for his opinion. AR 374, 383.  Berger responded that “we should wear a vest” or “wear the vest.”  AR 374, 384.  Berger was directing everyone in the room to wear the vests, but Jackson did not interpret this as an order because Odom then tried to explain to Berger why it was not necessary.  AR 374-75.  Berger never said “you will” or “we will” be wearing vests and did not tell anyone they had to wear it.  AR 375-76.

Perez testified that, when Ilagan asked Berger about the vests, Berger answered “yes.”  AR 398.  Perez thought that was a suggestion, not an order.  AR 398.  Berger never said: “I order you guys to wear a vest.”  AR 398.  DTF also knew that Berger was from another facility and did not understand DTF safety rules.  AR 398.

Sexton testified that the conversation about vests did not reach a resolution before the meeting broke up and everyone headed to the testing area.  AR 431-32.  Berger made a comment to Odom with a raised voice at one point, but Sexton never heard Berger say “you will” or “we will” be wearing the vest.  AR 434.  He did not see or hear Ilagan ever raising one of the yellow vests, looking at Berger, and saying “Sarge, vest?”  AR 451.  Nor did he hear Berger reply “yes, vests.”  AR 451.

Rodgers testified that Berger did not tell everyone multiple times that “you will be wearing the vest”.  AR 473.  Berger’s conversation with Odom was a back and forth on safety and the need to put his risk management cap on.  AR 472-73.  Rodgers did not believe Berger gave an order for officers to wear a safety vest.  AR 479.  Berger talked about risk management and student safety, but the students are out on the street during these traffic stops, and the evaluator is not.  AR 473. 

Valadez, the IA sergeant who interviewed the DTF officers, also testified that no officer believed Berger had given an order.  AR 714.

This testimony consistently shows that no DTF officer understood Berger’s comments as an order.  There had been an initial inquiry about vests by Ilagan, a strong negative response by the evaluators, a statement by Berger, and then additional controversy.  The officers clearly should have understood that Berger favored vests, but they did not understand that they were being ordered to wear them.  Perez said as much.  AR 398.  Jackson also stated that Berger was directing everyone to wear the vests, but he did not interpret this as an order because Odom tried to explain to Berger why it was not necessary.  AR 374-75. 

As a result, not a single evaluator wore a vest during the training.  This fact is fairly strong evidence that the DTF officers did not understand Berger’s comment to be an order.  While Berger’s explanation was that DTF has a culture of ignoring orders (AR 698), his testimony lacks a foundation and was strongly disputed by the officers.  See, e.g., AR 376, 436-37, 456.

The City tries to support Berger by arguing that the whole unit refused to wear safety vests, noting that the Board stated this was not a mere misunderstanding or miscommunication but rather a change for a training group that was resistant to it.  AR 802.  The officers in the briefing room were used to being able to sway Ilagan’s opinion, but Berger took control of the situation and would not succumb to the group mentality.  This created a lot of tension because the DTF officers thought themselves perfectly capable to run the recruit training without a sergeant.  Opp. at 6-7.

The City’s argument about a culture of defiance does not explain why no evaluator wore a vest.  The DTF officers could not be expected to act in such a united fashion on the relatively unimportant matter of wearing a vest.  Rodgers’ testimony is telling on this point.  She brought her vest to the briefing.  Because Berger emphasized risk-management, she had every student who he tested wear a vest while out on the street, even though that was not protocol.  AR 473-74.  Yet, even she did not wear a vest.  She testified that she would have worn the vest she brought to the briefing if she believed Berger had ordered the evaluators to wear a vest.  AR 479-80.

            It is apparent that Rodgers was not defiant and wanted to comply with any order issued to her.  She had her students wear vests because pf Berger’s statements.   Yet, she did not believe that the outcome of the discussion was that evaluators had been ordered to wear vests.  She could have easily complied if she had understood Berger to make that order because she had her vest with her.  This is strong evidence that the DTF officers did not understand Berger’s statement about vests to be an order.

Of course, it is Gutierrez’s understanding about what Berger said that is important to the insubordination issue.  If he understood Berger’s comments to be an order, then any comment that “I’m not fucking wearing [a vest]” would be an act of insubordination.

The City argues that Gutierrez, who described himself as “the guy to blow the whistle” and was seen as a strong leader by his fellow officers and would have been one of the officers most resistant to change.  AR 385, 763.  LAPD is a paramilitary organization and highly dependent on chain of command, which is critical for the safe and prompt performance of duties by law enforcement.  As such, Gutierrez knew he had an obligation to follow an order given by a supervisor.  Opp. at 7-8.  It is hard to imagine that he, with 19 years of experience, would fail to understand when an order is being given by the highest-ranking officer in the room.  It is even harder to conceive that he would walk out of a briefing before getting clarification if he was uncertain about whether a superior’s statement was an order or a suggestion.  Gutierrez understood the statement as an order and simply elected to disregard it.    Opp. at 7.

The City adds that Gutierrez admitted in his testimony that Berger stated something along the lines of “yes, vests.”  AR 727.  This statement prompted Gutierrez to tell Ilagan after the briefing that if Ilagan wanted him to wear a vest, Ilagan would need to find him one.  AR 729.  If Gutierrez saw Berger’s statement as a suggestion, it would make no sense that he would tell this to Ilagan.  With the level of disdain that the DTF officers expressed over wearing vests, it would defy logic that Gutierrez only saw it as a suggestion and yet made this comment to Ilagan.  Gutierrez’s behavior of walking out of the briefing and frustration, coupled with his statement to Ilagan, shows that he was not confused.  He was resistant to change.  Opp. at 7.

Gutierrez testified that, after Ilagan said that evaluators should wear safety vests, everyone started talking at once.  AR 726-27.  They were all asking why they would do so because it was not protocol.  AR 727.  At the end of the briefing, Ilagan looked over to Berger and asked: “We still doing vests?”  AR 727.  Berger responded: “Yes, vests”.  AR 727.  Then a second commotion started in the meeting.  AR 727.  Gutierrez did not partake in the murmuring that opposed the decision for everyone to wear safety vests.  AR 763.  Gutierrez left the briefing after the second outburst and before the debate was over.  AR 729, 761.  Although the debate on vests was still ongoing, Gutierrez believed the actual briefing of assignments had concluded, and he did not think he was missing anything.  AR 749.  Other instructors left at the same time.  AR 761.  Before he walked out, Gutierrez told Ilagan that he did not have a safety vest and that Ilagan would have to find one for him if Ilagan wanted him to wear it.  AR 729-30.

Gutierrez’s testimony is not exactly as the City describes.  He did not walk out of the briefing early; he left after the assignments had been given and while there was a continuing debate about safety vests.  He clearly understood that Berger wanted vests, as reflected by his admission that Berger said “yes, vests”.  Yet, there was an ongoing discussion about whether it was appropriate.  Gutierrez’s comment to Ilagan during the briefing that he (Ilagan) would have to find him a vest if he wanted Gutierrez to wear one supports the fact that Gutierrez understood Berger’s comment to be a recommendation, not an order. 

While the City argues that an experienced officer would not fail to understand that an order had been given and would not walk out of a briefing before getting clarification, the same is true for the other officers.  Yet, Perez, Jackson, and Rodgers all heard Berger in the same manner and did not interpret his statements as an order.  Right or wrong, they understood Berger’s comment to be a recommendation that they did not have to follow. 

The weight of the evidence shows that neither Gutierrez, nor any other DTF officer, understood Berger’s comments to be an order. 

5. Whether Gutierrez Verbally Refused to Wear a Vest

The complaint alleged that, on or about September 2, 2020, Gutierrez was insubordinate to Berger when he verbally refused to wear a traffic vest as directed.  AR 805.  The allegation is based solely on Berger’s testimony that he heard Gutierrez state: “I’m not fucking wearing that”. Because Gutierrez did not reasonably understand Berger’s comments to be an order, he could not have been insubordinate if he made that statement. 

If, arguendo, Gutierrez should have understood Berger’s comments as an order, he argues that he did not refuse to wear a vest by stating: “I’m not fucking wearing that”.  No witness besides Berger heard Gutierrez say this.  Nor did they hear him or anyone else use profanity, and that is something the witnesses would have remembered.  AR 129-30, 342, 376, 402, 436, 475, 621, 712, 714.[9]  Gutierrez argues that the court should find, as did the Board dissent, that the weight of the evidence does not support the Board’s finding of a verbal refusal.  Reply at 8-9.

The City argues that the Board found that, despite the 14 DFT witnesses, it all came down to the credibility of Berger and Gutierrez.  It is this credibility argument that was the guiding principle in the Board’s rationale.  If the court believes Berger gave the order, there is no reason not to believe his testimony regarding Gutierrez’s verbal refusal.  Berger had no incentive to lie and remained adamant and consistent about what transpired.  Opp. at 8, 10.

Berger testified that he decided to back Ilagan’s decision, so he gave a direct order to wear the vests.  AR 293, 661-62.  He testified that he said multiple times: “We will all be wearing vests” or “We will be wearing the vests.”  AR 304, 314, 663, 674. 

While Berger was looking at him, Gutierrez said “I’m not fucking wearing that”.  AR 661, 674.  Gutierrez was six to ten feet away from Berger when he said it.  AR 675.  Berger could not tell to whom Gutierrez made the statement because Gutierrez was not looking at him.  AR 674-75.  Gutierrez was speaking to the group in the room and Guitierrez and Berger did not get into a one-on-one exchange during the briefing.  AR 309.  At least one of the times Berger repeated that they will all be wearing vests took place after Gutierrez said: “I’m not fucking wearing that.”  AR 674. 

There are obvious questions about Berger’s testimony concerning Gutierrez’s statement.  First, no one else corroborated it.  During his interview, Gutierrez denied saying “I’m not fucking wearing that vest.”  AR 711.[10]  No witness besides Berger heard Gutierrez make this statement, including Rodgers who was next to him.  AR 712.  Many of the witnesses testified that they would have remembered the use of profanity had Gutierrez uttered it.  AR 129-30, 621, 342, 376, 402, 436, 475, 714.

Second, the complaint alleged that, on or about September 2, 2020, Gutierrez was insubordinate to Berger when he verbally refused to wear a traffic vest as directed.  AR 805.  Berger testified that Gutierrez made the statement to the group in the room and not to him.  Does it matter that Gutierrez did not make the statement to Berger?  Probably not.  The statement probably qualifies as insubordination even though not made directly to Berger, but the Board never addressed this issue.

Third, assuming that Gutierrez made the statement, at what stage in the discussion did he make it?  The briefing was an ongoing dialogue about whether safety vests should be worn by evaluators.  It would not be insubordinate for Gutierrez to state during this discussion that he would not wear a vest if he did so before he was ordered to do so.  Berger was not clear on this point, only testifying that Gutierrez made the statement at least once before Berger ordered vests to be worn.  AR 674.  Berger did not testify that Gutierrez made the statement after Berger ordered vests, which would be the pertinent timing.

Fourth and finally, it is undisputed that Gutierrez told Ilagan before he walked out that he did not have a safety vest and that Ilagan would have to find one for him if he (Ilagan) wanted him to wear it.  AR 729-30.  This statement appears inconsistent with a refusal, and therefore, insubordination.

These questions sufficiently undermine the allegation that Gutierrez was insubordinate by verbally refusing to wear a traffic vest as directed.  The court does not conclude that the statement was not made, only that the weight of the evidence does not support the conclusion that it was a refusal that supports the charge of insubordination.

F. Conclusion

The Petition is granted.  A peremptory writ of mandate ordering Respondents to set aside the Board’s decision, rescind the two-day suspension, pay Gutierrez all back salary, and restore all emoluments of employment so affected.  Gutierrez’s counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on the City’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 March 7, 2024 at 9:30 a.m.