Judge Stephen I. Goorvitch, Case Number: 23STCP01715, Date: 2024-05-14 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP01715, Date: 2024-05-14 Tentative Ruling

Petitioner Ismael Tamayo (“Petitioner”) was a police officer with the Los Angeles Police Department (the “Department” or the “LAPD”). Petitioner went camping with two other LAPD officers and shot one of them after he had been drinking heavily. Petitioner maintained that he was suffering from post-traumatic stress disorder (“PTSD”) stemming from his military service. The Chief of Police (the “Chief”) ordered a Board of Rights (the “Board”) hearing on three charges. The Board found Petitioner guilty and recommended a penalty of termination, which the Chief imposed. Now, Petitioner petitions for a writ of administrative mandate directing the City of Los Angeles and the Chief (collectively, “Respondents”) to set aside the final administrative decision to terminate him. The writ is denied, as the weight of the evidence supports the Board’s findings of guilt, and Petitioner does not demonstrate any abuse of discretion in the penalty. Petitioner also moves to augment the record, which is denied.

Petitioner was hired by the Department as a police officer in 2006. (AR 1347.) Prior to his employment with the Department, Petitioner served on active duty in the United States Army between 1994 and 1998. (AR 1350-1351.) Petitioner was deployed to Kuwait during this time period. (AR 1351-1352.) Afterwards, Petitioner served with the California National Guard. (AR 1352.) Petitioner was recalled to active duty in 2001, 2004, and 2007, and experienced combat. (AR 839-840, 1347-1354, 1365.) Petitioner worked as a police officer for Department for about 12 years prior to the incident leading to his discharge. (AR 1347-38, 3593.) At the administrative hearing, Petitioner testified that Veterans Affairs diagnosed him with Post-Traumatic Stress Disorder (“PTSD”) in 2013 and assigned a rating of 30% “service-connected.” (AR 1366-67.)

On May 2, 2020, Petitioner, Officer Mark Mascareno, and Sergeant Javier Vega went to Apple Valley to camp and do some target shooting. (AR 353, 1368-39.) The three officers were friends and worked together. (AR 350-351.) They parked their two trucks in an “L” formation and set up camp between the trucks. (AR 67, 3055, 1371.)

Starting around 6:30 p.m., the officers set up targets and shot various firearms. (AR 534-36, 1369-73.) Around 7:30 p.m., the officers ate dinner, shared stories, and consumed alcoholic beverages. (AR 536-37, 1374-76.) Petitioner later estimated that he had a 12-ounce beer with dinner, followed by four to six more beers, and then sipped whiskey poured in a small Styrofoam cup. (AR 1374-78, 1631-32.) Petitioner estimated he drank about six ounces of whiskey total. (AR 1376.) For several hours, Petitioner, Officer Mascareno, and Sergeant Vega “were just chatting, normal conversation, … laughing and just having a good old time.” (AR 1379; see also AR 363.)

On May 3, 2020, around 12:30 a.m. to 1:00 a.m., the officers started getting ready for bed. (AR 364, 540, 660.) Petitioner stated he needed to urinate and walked into the desert behind the truck. (AR 364-65.) Officer Mascareno later testified that the area was moonlit; there was a lantern; and he could see clearly. (AR 486.) Officer Mascareno saw Petitioner hunched over by the truck “like if he had passed out standing up.” (AR 368.) Officer Mascareno said, “Why you being so creepy over there?” (Ibid.) Officer Mascareno then saw Petitioner holding his pistol in a double-handed, “low ready position” as if Petitioner was “ready for a serious threat to present itself.” (AR 370.) Petitioner repeatedly said, “Get back. Stay back.” (AR 369.) Officer Mascareno said, “Hey man, put your gun away.” (AR 373.) Subsequently, Petitioner shot at Officer Mascareno three times, hitting him once in the left shoulder area. (AR 377-380, 581.)[1]

Petitioner eventually lost consciousness. He was later taken into custody by deputies from the San Bernardino Sheriff’s Department that responded to the scene. (AR 1391, 1395, 417-421, 287-288, 321.) Approximately nine hours after the shooting, Petitioner’s blood was drawn. (AR 1161, 3184.) The blood alcohol concentration (“BAC”) was 0.085 percent. (AR 1161, 3184.)

Petitioner testified that he went to his truck, which was 30 or 40 feet away, to urinate. Petitioner testified that after he urinated, the following events occurred:

And then at that point, I hear like a voice. Something was said. Something foreign to me, either a foreign language or something I couldn't understand. I didn't recognize the voice. But to me it sounded like it was a threatening gesture. So I was just standing there trying to – ‘cause it was so dark, I was kind of squinting, like trying to focus and like ‘who is that?’ and I’m like -- I didn't know what was going on. So I was like -- I looked over to where the fireplace was at where I saw [Mascareno] standing the last time before I went to urinate. I didn't see him there. I looked around, you know, the truck. I didn't see Vega. I'm like ‘what the heck is going on here?’ So at that point I looked back towards where that voice came from. And then I heard what to me appeared to be a gunshot -- a silent gunshot. So I was like in shock. I immediately got down on a knee, and I unholstered my pistol from my hip and I fired three rounds into that direction of that gunshot and voice….

Petitioner further testified, “So there was this voice coming from in front of me in the darkness. I didn't recognize the voice as far as being [Mascareno’s] or Vega'’. I didn't understand the language. I know it wasn't English or Spanish or French. I go, maybe it's Arabic.” (AR 1381.) Petitioner testified that, after he shot the rounds, he reverted to his military training and moved out of the “target zone… so the enemy wouldn’t know where I was at.” (AR 1386-87.)

The San Bernardino County District Attorney’s Office filed criminal charges (assault with a deadly weapon) against Petitioner for his conduct on May 3, 2020. (AR 3414.) On August 6, 2020, Petitioner’s attorney filed an “application for diversion of individual with mental disorder.” (AR 3419-3420.) The application was supported by a psychological evaluation of Petitioner by Dr. Nadim Karim. (AR 3421-3434.) Based on his evaluation of Petitioner, Dr. Karim opined that Petitioner’s PTSD, dissociative disorder, and alcohol use disorder significantly contributed to the commission of the criminal conduct for which he was charged. (AR 3432-34.) On April 22, 2022, the Court dismissed all charges against Petitioner upon his successful completion of diversion. (AR 3582-3583.)

Department’s Use of Force Review Board (“UOFRB”) and the Chief of Police both reviewed evidence collected regarding the incident. The UOFRB and Chief of Police both concluded that Petitioner’s “actions were a substantial deviation, without justification, from approved Department tactical training.” (AR 3319.) In his report to the Police Commission, the Chief of Police administratively disapproved of Petitioner’s tactics, drawing/exhibiting of a weapon, and lethal use of force during the incident. (AR 3315.)

Detective Alex Soria provided the UOFRB with a power point presentation regarding the incident. As directed by his supervisors, Detective Soria did not provide the UOFRB with the statement of Officer Mark Mascareno expressing his belief that Petitioner was suffering with PTSD and that Petitioner was acting as if he was in Afghanistan. (AR 2076-2077.) However, Soria’s presentation to the UOFRB did reference the mental disorder diversion Petitioner completed in response to the criminal charges. (Ibid.)

On April 30, 2021, the Chief of Police ordered Petitioner to face the following charges before a Board of Rights (“Board”):

Count 1: On or about May 3, 2020, you, while off-duty, utilized tactics that were found to be a substantial deviation, without justification, from approved Department tactical training, that reached a finding of Administrative Disapproval.

Count 2: On or about May 3, 2020, you, while off-duty, exhibited your firearm that resulted in a finding of Out of Policy, Administrative Disapproval.

Count 3: On or about May 3, 2020, you, while off-duty, used Lethal Force that resulted in a finding of Out of Policy, Administrative Disapproval.

An administrative hearing was held before on multiple dates starting in May 2021. (AR 2, 2685.) The Board heard testimony from Petitioner, Officer Mascareno, Sergeant Vega, Dr. Karim, and multiple other witnesses. (See Ibid.) The Board also admitted documentary evidence into the record, including an expert report of Dr. Karim. (See e.g. AR 3419-3434.)

The Board found Petitioner guilty on all counts. (AR 2693-2705.) In its findings of guilt, the Board relied on Department’s policies regarding tactics, use of firearms, and use of lethal force. The Board also discussed the objectively reasonable officer standard of Graham v. Connor (1989) 490 US 386, which is incorporated in the Department’s use of force policies, including with respect to off-duty use of force. (See AR 2693-2705, 3332-33, 1282, 1304.) Among other findings, the Board concluded that Petitioner’s “planning was deficient” with respect to his decision to carry a firearm because he “consumed extremely large amounts of alcohol.” (AR 2694.) Moreover, Petitioner admitted that he “did not, and could not, identify what he was shooting at.” (AR 2696.) The evidence also showed that Petitioner “was not taking fire” and “had ample time … to de-escalate the situation and failed to do so.” (Ibid.)

Based on the totality of the circumstances, the Board recommended a penalty of termination. (AR 3042.) The Chief adopted the recommendation. (AR 3710.) This writ action followed.

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

Because the termination of Petitioner’s employment with the Department concerns a fundamental vested right, the court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) The court may draw its own reasonable inferences from the evidence and make its determinations as to the credibility of witnesses. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)

Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the weight of the evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)

In the petition, Petitioner alleges that “[t]he decision to discharge Petitioner constitutes an abuse of discretion in that the ‘guilty’ findings are not supported by the weight of the evidence.” (Petition for Writ of Mandate, ¶ 12.) In his opening brief, however, Petitioner does not discuss the administrative findings of guilt made by the Board, identify which findings he challenges (if any), or demonstrate with citation to the record that the Board’s findings were against the weight of the evidence. (See Opening Brief (“OB”) 16-18.) Although he does not fully develop the points, Petitioner suggests that he should not be found guilty of misconduct for the incident on May 3, 2020, because he “was off-duty and not acting in his capacity as a police officer” and “fell into a dissociative state due to PTSD, a condition caused by trauma he experienced during his combat deployments.” (OB 17.)

The District Court of Appeal has made clear that the petitioner in an administrative mandate proceeding “cannot simply present the court with the administrative record and assert, without analysis or specific citations to the record, that the board’s orders were against the weight of the evidence.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.) “Instead, the challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging and demonstrate (with citations to the record) why those factual findings were against the weight of the evidence.” (Ibid.) Petitioner does not satisfy this standard with respect to the Board’s detailed findings of guilt. (See AR 2693-2705.) Nevertheless, the court will address each of Petitioner’s unsupported arguments.

It is well established that police officers may be disciplined for off-duty misconduct that has a reasonable nexus to their public employment. (See Anderson v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 768-769; Cranston v. City of Richmond (1985) 40 Cal.3d 755; Blake v. State of Personnel Board (1972) 25 Cal.App.3d 541, 550-551; Yancey v. State Personnel Bd. (1985) 167 Cal.App.3d 478, 481-483.) Police officers “are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them.” (Hankla v. Long Beach Civil Service Comm. (1995) 34 Cal.App.4th 1216, 1224.) Further, “[t]here is ample precedent for terminating the employment of law enforcement personnel who use their weaponry under dubious circumstances,” including while off duty. (Id. at 1223-24 [summarizing cases].)

Petitioner argues that his “PTSD-related dissociation, which was the cause of his irrational state when he discharged his gun, was and is uncontroverted.” (Reply 4:27-28.) That is not accurate, to the extent Petitioner argues that his PTSD-related dissociation was the exclusive cause of this incident. In fact, Petitioner’s own expert, Dr. Nadim Karim, opined that Petitioner’s alcohol use “contributed to the commission of the instant offense conduct.” (AR 3432.) Specifically, Dr, Karim found that Petitioner’s “consumption of alcohol also impaired his decision making and his judgement [sic].” (AR 3433.) Among other findings, the Board concluded that Petitioner’s “planning was deficient” with respect to his decision to carry a firearm because he “consumed extremely large amounts of alcohol.” (AR 2694.)

When reviewing a use-of-force incident, the Department uses the objectively reasonable officer standard of Graham v. Connor (1989) 490 US 386. (AR 1282, 1304.) In Graham, the Supreme Court held that the use of force is “properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” (Id. at 388.) “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene.” (Id. at 396.) “[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of facts and circumstances confronting them, without regard to their underlying intent or motivation.” (Id. at 397.) A current training bulletin addresses off-duty actions and states that “officers taking police action or that get involved in a use of force while off-duty are subject to the same objectively reasonable standards used to adjudicate on-duty uses of force.” (AR 3332.)

Petitioner does not seriously dispute that his actions on May 3, 2020—after a heavy night of drinking—did not satisfy the Department’s policies with respect to tactics, drawing/exhibiting a firearm, or use of lethal force. Petitioner also does not seriously dispute that his use of lethal force on May 3, 2020, did not satisfy the objective reasonableness standard of Graham. (See OB 17; Reply 4-6.) Rather, Petitioner argues that the Graham standard does not apply to him. In his reply brief, Petitioner argues: “The Department Use of Force policy based on the Graham ‘reasonable officer’ standard does not contemplate an officer who is incapable of acting rationally.” (Reply 4.) Petitioner further argues that “an officer with Post-Traumatic Stress Disorder (‘PTSD’) may not always be capable of adhering to the ‘reasonable officer’ standard.” (Ibid.) Petitioner cites no legal or LAPD authority in support of his argument that the Graham standard does not apply to an officer with a mental disorder (especially one who had been drinking heavily shortly before the incident).[2]

Based upon the foregoing, the court finds that the weight of the evidence supports the Board’s findings that Petitioner was guilty on all counts. (See AR 2693-2705.) Petitioner has not shown a prejudicial abuse of discretion in those findings. (Code Civ. Proc. § 1094.5, subd. (b).)

Petitioner challenges the decision to terminate his employment. “‘[T]he propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency and its decision may not be disturbed unless there has been a manifest abuse of discretion.’ [Citations.] ‘[I]n reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter; nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court’s own evaluation of the circumstances the penalty appears to be too harsh…. Such interference, in the light of the foregoing authorities, will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion.’ [Citation.].” (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966.)

In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.) “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.” (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

In the instant case, the Board considered several mitigating factors, including that Petitioner has one major commendation and 60 minor commendations; Petitioner had no prior disciplinary history; and Petitioner served in three combat deployments in the armed forces. (AR 3035-36.) The Board also considered testimony from Richard Stabile, a retired LAPD captain, that the Department can accommodate officers who are not permitted to carry guns by reassigning them to other positions within the City. (AR 3037-38.) The Board also considered aggravating factors. Captain Robin Petillo, who had until recently served as the Department’s commanding officer for risk management and legal affairs, testified that Petitioner’s off-duty misconduct was unique in that “no other officer-involved shooting occurred in a situation … where the officer was arrested for shooting another officer under a charge of assault with a deadly weapon.” (AR 3038-39.) Petillo testified that there is no position available to Petitioner to return to work and that there are no positions for a police officer to not have a firearm. (AR 3039.)

The Board also noted that Petitioner’s own expert, Dr. Karim, “testified during the case in chief that he would not recommend [Petitioner] carry a firearm if he returns to work given the nature of his P.T.S.D. history.” (AR 3039; see AR 1032, 1088.) In light of this testimony from Dr. Karim, as well as testimony of Dr. Edrick Dorian about PTSD, the Board did not credit Dr. Karim’s testimony that there was “no risk” Petitioner would recidivate. (AR 3039-40.) Petitioner has not challenged that credibility determination. In any event, exercising its independent judgment on the record, the court agrees with the Board that Dr. Karim’s opinion that there was “no risk” of recidivism was exaggerated and lacking in credibility.

Further, the Board found that the “magnitude of the misconduct” justified a severe penalty, regardless of whether Petitioner should be armed or could serve in an unarmed capacity. (AR 3040.) Board reasoned that the incident on May 3, 2020, was “egregious” in that Petitioner “shot another officer while off duty and as a result be charged with assault with a deadly weapon” and Petitioner’s conduct “was in reckless disregard to his training and experience.” (AR 3041.) Based on the totality of the circumstances—which included his decision to carry a firearm after he “consumed extremely large amounts of alcohol,” a factor unrelated to Petitioner’s mental health issues—the Board concluded that termination was the appropriate penalty. (Ibid.)

Petitioner argues that the decision to terminate Petitioner constituted an abuse of discretion because there were alternative remedies, such as a disability retirement or reclassification to a civilian position. The court disagrees. Petitioner failed to comply with the Department’s policies regarding use of a firearm, which apply to police officers while off-duty. Petitioner exhibited poor judgment in carrying a firearm after consuming large amounts of alcohol, which played a role in him shooting another officer. There is credible evidence that Petitioner should not be permitted to carry a gun and that no unarmed police officer positions were available for Petitioner. It was reasonable under these circumstances for the Board and the Chief to conclude that “any discipline less than termination would not be sufficient in light of the facts and circumstances of this case.” (AR 3041-3042.)

Petitioner argues that the Chief “should have applied, on Petitioner’s behalf, for a disability pension, pursuant to Los Angeles City Charter Section 1312.” (OB 17:21-23; Reply 6-7.) As an initial matter, Petitioner does not show (by citation to the record) that he raised this issue before the Board. (See OB 17:27-28, citing AR 3031-3034.) Moreover, section 1312 applies to employees hired “on or before January 28, 1967,” who are known as “Tier 1 Members.” (See Los Angeles City Charter § 1300.) Petitioner was hired by Department in 2006. (AR 1347.) Regardless, according to his motion to augment the record, Petitioner himself applied for and received a disability pension.

Petitioner also argues: “Pursuant to the Americans With Disabilities Act and the State FEHA law, the City recognizes its obligation to accommodate an employee’s limitations where possible.” (OB 18:12-14.) Because Petitioner provides no legal argument in connection with this statement, he waived the contention. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”].) Regardless, the Board considered evidence that no alternative position was available for a police officer who could not carry a firearm.

In sum, the Board considered both the aggravating and mitigating factors and concluded that termination was an appropriate remedy based upon the “magnitude of the misconduct.” Petitioner has not demonstrated a manifest abuse of discretion in reaching this decision.

On March 18, 2024, after Respondents’ opposition brief had been filed, Petitioner filed a motion to augment the administrative record with two documents: (1) Petitioner’s application for disability pension benefits dated October 13, 2020; and (2) Findings of Fact adopted by the Board of Fire and Police Pension Commissioners on March 7, 2024, and dated March 8, 2024, regarding Petitioner’s application for a disability pension. On March 29, 2024, Respondents filed and served an objection to the motion, which responded to the merits.

“As a general rule, a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” (Richardson v. City and County of San Francisco (2013) 214 Cal.App.4th 671, 702.) Relevant evidence may be admitted if, in the exercise of reasonable diligence, it could not have been produced or was improperly excluded at the administrative hearing. (Code Civ. Proc. § 1094.5(e).) “If the moving party fails to make the required showing, it is an abuse of the court’s discretion to [augment the record].” (Pomona Valley Hospital Medical Center v. Sup. Ct. (1997) 55 Cal.App.4th 93, 102.)

Putting aside the untimeliness of this motion, Petitioner’s disability pension benefits application dated October 13, 2020, predates the Board of Rights hearings, which commenced in May 2021. (See AR 2.) Petitioner could have, with the exercise of reasonable diligence, submitted this application as evidence in the Board of Rights proceedings.

To the extent Petitioner seeks to rely on the findings of the Board of Fire and Police Pension Commissioners (the “Pension Board”) that he suffers from PTSD, that is not relevant. These findings were made on March 7, 2024, approximately one year before the Board of Rights hearing and the Chief’s decision to terminate Petitioner. Because the Pension Board’s findings did not exist in March 2023, they are not relevant to the decision to terminate Petitioner. Regardless, the findings are not relevant because it was undisputed that he suffers from PTSD. Therefore, Petitioner’s motion to augment the record is denied.

1. The court denies Petitioner’s petition for a writ of administrative mandate.

[1] Officer Mascareno was later transported to a hospital by helicopter and was treated for his injuries, which were not fatal. (AR 420-421.)

[2] The law is clear that voluntary intoxication is not a defense in a criminal case. Similarly, it makes no sense to argue that there should be a different standard for evaluating the actions of a police officer who is voluntarily intoxicated, even if he also suffers from PTSD.