COURT OF
APPEAL OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
Dennis
Brazier,
Plaintiff and
Appellant,
v.
City of Rialto et
al.,
Defendants
and Respondents.
E034910
2004
December 16, 2004, Filed
Notice: Not to be published in Official Reports.
California Rules of Court, Rule 977(a), prohibit courts and parties from citing
or relying on opinions not certified for publication or ordered published,
except as specified by Rule 977(B). This opinion has not been certified for
publication or ordered published for the purposes of Rule 977.
Gaut, J.; Hollenhorst, Acting P. J., McKinster, J. concurred.
1. Introduction
Plaintiff Dennis Brazier appeals the trial court’s judgment
denying his petition for writ of administrative mandate challenging the final
decision of the City of Rialto (City) concerning the termination of his
employment as a police officer. Based on information given to him, the chief of
police sent two officers to plaintiff’s apartment, where they found plaintiff
in an emotionally distraught state and later observed him placing a gun to his
head. During a subsequent sweep for weapons, another officer found and seized a
possible suicide note. Based on the contents of the note, the chief of police
terminated plaintiff’s employment, despite psychological evidence to suggest
that plaintiff was not a threat to himself or others. Although the arbitrator
recommended plaintiff’s reinstatement, the city administrator reversed the
arbitrator’s order. In finding substantial evidence to support the city
administrator’s decision, the trial court denied plaintiff’s petition for writ
of administrative mandate.
On appeal, plaintiff claims the trial court erred in
ruling that the plaintiff’s note was admissible during the administrative
proceedings. Plaintiff also claims the trial court erred in finding that
substantial evidence supported the allegations for his termination: that
plaintiff made false statements during his internal affairs interview; that
plaintiff was insubordinate; that plaintiff made false statements about
Sergeant Randy DeAnda’s orders; and that the note contained threats to other
persons. Plaintiff also claims that the allegations were made in bad faith as a
pretext for terminating him based on the contents of the note.
We conclude that, because the exclusionary rule did not
apply to plaintiff’s disciplinary proceedings, the trial court correctly ruled
that plaintiff’s note was admissible. As to the factual findings, we conclude
that most of the department’s allegations were not supported by the evidence.
Only a few survive scrutiny. The case, therefore, must be remanded to the city
administrator to reevaluate plaintiff’s grievance and impose a penalty, if one
is warranted, commensurate with the gravity of the findings supported by the
evidence.
We reverse and remand.
2. Factual and Procedural History
In the early 1990’s, plaintiff
and his girlfriend, Julie Frazier, lived together and had a son, Darrian. After
graduating first in his class at the police academy, plaintiff began his career
as police officer with the City on January 6, 1995. Frazier did not support
plaintiff’s decision to become a police officer or work with the City. Plaintiff
and Frazier eventually ended their relationship, but the discord between them
continued as they fought over custody issues. Frazier made excessive calls to
the Rialto Police Department (department) and made unsubstantiated allegations
of physical abuse. Plaintiff applied for a restraining order to prevent her
from harassing him at work. Frazier filed a case in family court to limit
plaintiff’s visitation and increase his child support obligation. Commissioner
Bobby Vincent granted Frazier’s request for additional child support and made
the order retroactive. Commissioner Vincent also ordered plaintiff to pay
attorney fees for Frazier’s attorney, Faulkenthal.
In October 1999 plaintiff
discovered that, based on another one of Frazier’s allegations of abuse, he was
being investigated by internal affairs. About the same time, plaintiff was
injured in a traffic accident while on duty. Plaintiff also received his
paycheck and noticed that his child support obligation had been garnished from
his wages, as previously ordered by Commissioner Vincent. Plaintiff felt he
could not live and take care of his son with what little remained.
On October 15, 1999, as he was
emotionally distraught and crying, plaintiff began to write his thoughts down
on paper. In the note, plaintiff expressed his belief that Frazier,
Faulkenthal, and Commissioner Vincent had ruined his life. He believed that, in
order to prevent himself from “committing the ultimate crime ([Penal Code section] 187 x 3)”, he had
to end his life. Plaintiff did not intend the writing to be a suicide note and
he had no intention of showing the note to anyone else. After reading what he
wrote, plaintiff realized his need for counseling and called Attorney William
Hadden’s office and asked for help. He later folded his note twice and covered
it with a large picture frame.
Hadden contacted Chief of
Police Michael Meyers and informed him of his concern for plaintiff’s welfare
and suggested that someone go to plaintiff’s residence and check on him. Chief
Meyers contacted Lieutenant Steven Frazier and directed him to send a couple of
officers to plaintiff’s residence. Lieutenant Frazier then contacted
plaintiff’s supervisor, Sergeant DeAnda, who was off duty at home. Lieutenant
Frazier informed Sergeant DeAnda that plaintiff was despondent and asked him to
go to plaintiff’s apartment and check on him. Earlier that month, both Sergeant
DeAnda and plaintiff were injured in the same work-related automobile accident
and, as a result, were both on injured-on-duty status.
Sergeant DeAnda selected
Officer Dean Hardin, who was one of plaintiff’s best friends, to accompany him
to plaintiff’s apartment. Officer Hardin was unarmed, but Sergeant DeAnda had a
handgun in his fanny pack. The officers, who were in plain clothes, drove to
plaintiff’s apartment in an unmarked vehicle.
At plaintiff’s apartment, Sergeant DeAnda and Officer
Hardin repeatedly knocked on the front door and the living room window. They
identified themselves and said that they wanted to talk to plaintiff. When no
one responded, they summoned the apartment manager to open the door. After
entering the apartment, Sergeant DeAnda observed plaintiff, who appeared
disheveled and intoxicated. Officer Hardin recalled entering the apartment and
engaging in a friendly chat with plaintiff. During their conversation, Sergeant
DeAnda told plaintiff that they were there to check on him and asked him if he
wanted to go with them and get counseling. When Sergeant DeAnda told plaintiff,
who had his gun on his lap, to put his gun away or that he would take the gun
for safekeeping, plaintiff became angry and refused to relinquish his weapon.
As Sergeant DeAnda reached for the weapon, plaintiff knocked his hands away.
Plaintiff then held the gun to his head and repeatedly demanded, “get the fuck out of my house.” Sergeant DeAnda ordered
plaintiff to put down the weapon and plaintiff again refused. Sergeant DeAnda
and Officer Hardin eventually left the apartment.
Outside, one of the officers called plaintiff and persuaded
him to come out. Other officers, including the SWAT team and a helicopter unit,
arrived to provide assistance. Eventually plaintiff voluntarily relinquished
his weapon and exited his apartment. Although Sergeant DeAnda had planned to
take him for counseling, he was instructed by Chief Meyers to take him into
custody under Welfare and Institutions
Code section 5150. n1 Based on the chief’s
orders, Sergeant DeAnda transported plaintiff to the
Afterwards, Lieutenant Carl Little ordered the officers,
including Officer John Van Holt, to conduct a search for weapons as authorized
under sections 5150 and 8102. The officers found several weapons, as would be
expected during a search of a police officer’s residence. Toward the end of the
search, Officer Van Holt noticed a large picture frame, which he thought was a
wall clock, on an ottoman in the living room. He looked under the picture frame
and found an eight-page writing entitled “Last Will.”
He thought the writing was a suicide note. He read the note and handed it over
to his superior.
The letter was passed on to
the attending psychologist, who examined plaintiff at the county hospital.
After his examination, the psychologist concluded that plaintiff did not meet
the criteria for detention, i.e., he was not a danger to himself or others.
Over Chief Meyers’s instructions to hold plaintiff for the entire 72-hour
period, the psychologist released him after about four hours.
Chief Meyers directed others to contact the
persons named in plaintiff’s note. Based on the statements made in the note,
Chief Meyers also directed Lieutenant Little to apply
for an emergency protective order for Frazier, Faulkenthal, and Commissioner
Vincent. In addition to the persons named in the note, other law enforcement
agencies were notified that plaintiff may be armed and dangerous.
Chief Meyers later ordered plaintiff to attend a Fitness for
Duty Examination with Dr. J. Cohen on October 26, 1999. Dr. Cohen found that
plaintiff was fit for duty. Chief Meyers, however, contacted Dr. Cohen and
convinced him to change his opinion. While on administrative leave, plaintiff
also received counseling with a member of the department’s counseling team,
Mare Cobb. Cobb found plaintiff fit for duty. In addition to his counseling
sessions with Cobb, plaintiff sought another official evaluation. A
psychiatrist at Kaiser Permanente, Dr. Sidney Gold, evaluated him and also
concluded that he was fit for duty. Every psychological evaluation resulted in
a fit-for-duty finding, with the exception of Dr. Cohen’s revised opinion.
Plaintiff scheduled another meeting to be reevaluated by Dr. Cohen, but the
department canceled the appointment.
Meanwhile Chief Meyers authorized Lieutenant Frazier to
conduct an internal investigation. Lieutenant Frazier scheduled an interview
with plaintiff to discuss the October 15, 1999 incident. After the interview,
Lieutenant Frazier found that plaintiff: knowingly made false statements during
an official departmental investigation (General Order No. 1-222.20 J);
disobeyed orders or was insubordinate toward a supervisor (General Order Nos.
0-030.35 (7), 1-222.20 (5)E); used profanity to a superior (General Order No.
0-030.35 (11)); failed to treat all persons, including other officers,
courteously or respectfully (General Order No. 0-030.35 (12)); and behaved in a
manner that damaged his working relationship and the department’s working
relationship with the San Bernardino Superior Court (General Order No. 0-030.35
(24)). Based on the results of the investigation, Chief Meyers terminated
plaintiff’s employment.
Plaintiff filed a grievance
and the matter was brought before an arbitrator, Michael Rappaport. The
arbitration hearing began in March 2001.
During the arbitration hearings, plaintiff hired a
psychological expert. On August 8, 2001, psychologist Dennis Greenberger
examined plaintiff concerning the incident. After his examination, Dr.
Greenberger concluded that plaintiff did not suffer from any psychological
problem that would interfere with the performance of his duties as a police
officer. Specifically, Dr. Greenberger found that plaintiff did not pose a risk
to himself or others. Dr. Greenberger also found that the writing was not a
suicide note but a healthy exercise in coping with intense emotions and
thoughts.
The arbitrator issued its decision on May 28, 2002. After
considering all the evidence, including Dr. Greenberger’s report, the
arbitrator concluded that the department did not have cause to terminate
plaintiff’s employment. Before addressing the department’s specific
allegations, the arbitrator made findings in regards to the issues underlying
the entire case. The arbitrator found that the department failed to establish
that plaintiff’s note was a suicide note or that plaintiff was ever a threat to
himself or others. The arbitrator noted that, while plaintiff had no intent to
show his note to anyone else, Chief Meyers released the contents of the note
not only to the persons named in the note, but other members of law enforcement
and the justice system.
In regards to the department’s
allegations, the arbitrator generally found that the department could not have expected, based on the department’s conclusion that
plaintiff was so psychologically impaired during the incident so as to require
detention and psychological evaluation, that plaintiff was capable of following
orders, responding politely, or remembering accurately the details of the day.
While off duty and in his own home, plaintiff was
trying to cope with his problems by calling for counseling and help. Despite
his bizarre behavior, plaintiff had every right to refuse to open the door for
his friends and later demand that they leave his private residence. The
arbitrator also found the record unclear as to whether Sergeant DeAnda gave
plaintiff any specific orders. The arbitrator concluded that none of the alleged violations were
sufficient to warrant plaintiff’s discharge. The arbitrator recommended that,
subject to an independent fitness- for-duty evaluation, plaintiff should be
reinstated as a police officer with partial back pay.
On behalf of the City, City Administrator Henry Garcia
reviewed the record of the arbitration hearing and rejected the arbitrator’s
conclusions. The city administrator found the allegations true and upheld
plaintiff’s termination. The city administrator found that plaintiff initiated
the crisis situation on October 15, 1999, by failing to follow his superior’s
orders and placing a gun to his head. He found that plaintiff compromised his
ability to perform his job by authoring a note that entertained thoughts of
doing harm to other persons. He also found that, by his bizarre and
unprofessional conduct, plaintiff caused a chain of events resulting in the
widespread dissemination of the information contained in his note, thereby
damaging the working relationship between the department and the San Bernardino
Superior Court.
On October 27, 2002, plaintiff
filed a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5.
Plaintiff asked the trial court to set aside the city administrator’s decision.
During the hearing, the trial court tentatively found
that substantial evidence supported the city administrator’s findings. On October 8, 2003, the
trial court denied plaintiff’s petition for writ of administrative mandate.
3. Standard of Review
The trial court and appellate
court apply different standards of review to an administrative agency’s factual
findings. The trial court exercises independent judgment when, as here, the
adverse employment action affects an employee’s fundamental vested right. (
Both the trial court and the
appellate court apply the same standard to pure questions of law. The appellate
court performs the same function as the trial court and reviews the record de
novo. (See Jenron
Corp. v. Department of Social Services (1997) 54 Cal.App.4th 1429, 1434.)
4. Admissibility of the Writing
Plaintiff claims the trial court erred in ruling that his
writing was admissible in the administrative proceeding.
During the arbitration, plaintiff filed a motion to
suppress evidence on the ground that the department seized the writing in
violation of the Fourth and Fourteenth Amendments. The City argued that the
writing was admissible based on the lawful search conducted under section 8102.
The arbitrator ruled that the evidence was admissible because the exclusionary
rule did not apply to an administrative proceeding and because the officers did
not enter plaintiff’s apartment and conduct the search with the intent of
finding evidence of a crime.
The trial court agreed with
the arbitrator’s ruling. The court found that Officer Van Holt did not exceed
the scope of the search when he discovered plaintiff’s note. The court also found the writing
admissible in the context of an administrative hearing.
The court’s application of the
exclusionary rule and the search and seizure protections of the Fourth and
Fourteenth Amendments presents a pure question of law
that is subject to de novo review. (See People
ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; People v. Ayala (2000) 24
Cal.4th 243, 279.)
A. Unlawful Search and Seizure
As observed by the California
Supreme Court, “whether the exclusionary rule bars the admission of evidence in
a civil proceeding depends, first, on the existence of a search or seizure that
violates the protections of the Fourth Amendment of the federal Constitution.” (Conservatorship of Susan
T. (1994) 8 Cal.4th 1005, 1012 (Susan T.).) We begin, therefore,
with the question of whether there was an unlawful search and seizure.
Before addressing the parties’
arguments, we note that the department’s intrusion into plaintiff’s home
constituted a search for Fourth Amendment purposes. The Fourth Amendment would
not apply if, as suggested by the arbitrator, the officers entered plaintiff’s
home as private citizens. (See People v. Otto (1992) 2 Cal.4th 1088, 1112.) However,
even if Sergeant DeAnda and Officer Hardin entered plaintiff’s residence as
private citizens or concerned friends, there is no evidence to support that the
other officers who conducted the search were acting in some unofficial
capacity. The record shows that the department surrounded plaintiff’s residence
and later ordered a search of plaintiff’s apartment for weapons. The officers,
therefore, were acting in their official capacity.
The City argues that the
officers conducted a lawful search under sections 5150 and 8102. The
Lanterman-Petris-Short Act (section 5150 et seq.) was enacted to provide immediate
and intensive treatment for individuals who are gravely disabled or dangerous
to themselves or others. (Ford v. Norton (2001) 89 Cal.App.4th 974, 977.) Section
5150 authorizes the detention and treatment of such individuals for a 72-hour
period. (Ford,
supra, at p. 977.)
Under section 8102, law
enforcement officers may confiscate any weapons owned or possessed by an
individual detained for examination of his mental condition, including
individuals detained under section 5150. (§§ 8100, subd.
(a) & 8102, subd. (a); see also City
of San Diego v. Kevin B. (2004) 118 Cal.App.4th 933, 940.) The statute
allows the officers to seize not only the weapons in the detained person’s
immediate physical proximity, but all the weapons owned by the person. (See Rupf v. Yan (2000) 85
Cal.App.4th 411, 424-425.)
While section 8102 authorized
the search of plaintiff’s residence for weapons, the question is whether the
officers had any authority to seize plaintiff’s handwritten note. Although the
Susan T. case involved a different statute, the court’s analysis sheds light on
the situation presented here.
In Susan T., while the
plaintiff was detained at a psychiatric facility under section 5150, a mental
health employee went to the plaintiff’s apartment and took pictures. The
pictures showed that plaintiff, who had a history of hospitalization for
schizophrenia, lived in a filthy apartment filled with trash and bags of human
and animal waste. The mental health department argued that their employee
conducted a lawful search of the plaintiff’s residence under section 5156,
which allowed the department to safeguard and secure the plaintiff’s property.
Contrary to the department’s
argument, the California Supreme Court observed that the evidence failed to
indicate the employee took any measures to perform a proper inventory search. (Susan T., supra, 8
Cal.4th at pp. 1013-1014.) Although the court found it
unnecessary to draw the ultimate conclusion that the search was unlawful, the
court nevertheless noted that the search was not authorized by section 5156:
“We are left with a record establishing that a government official entered a
private home with neither statutory authorization nor a warrant, and in the
absence of any demonstrable exigent circumstances, for the sole purpose of
photographing the interior of the home to obtain evidence of the householder’s
mental disability.” (Susan
T., supra, at p. 1014.)
In the same way, while the
search for weapons was authorized under section 8102, the statute provided no
authority for the seizure of plaintiff’s private, handwritten note. (See U.S. v. Wright (9th
Cir. 1982) 667 F.2d 793, 797-799.) During the search for weapons,
Officer Van Holt noticed a picture frame large enough to hide a small firearm.
Under the picture frame he found the multiple-page, handwritten note. Officer
Van Holt admitted that no one had authorized a search of plaintiff’s papers.
Officer Van Holt acted beyond the authority afforded under section 8102 when he
perused the pages of the note, took it, and passed it on to his superiors. As
section 5156 is limited to an inventory search, section 8102, by its plain
language, is limited to a search for weapons.
At the time of the search, no
criminal activity was afoot and no exigency existed to justify the seizure.
Even if Officer Van Holt interpreted the words “Last Will” to indicate that the
writing was a suicide note, plaintiff was not detained for committing a crime.
And no criminal activity was readily apparent from the first page of the note.
(See People v. Kraft
(2000) 23 Cal.4th 978, 1041.)
The City fails to provide any
other authority for seizing plaintiff’s note. While an officer may seize
evidence of a crime, when no crime has been committed the officer is without
authority to seize any evidence, let alone an individual’s private papers. (See People v. Thayer
(1965) 63 Cal.2d 635, 638, 47 Cal. Rptr. 780.) One court held
that the government had no right to seize the plaintiff’s private papers
without a warrant and then use them to make allegations in a subsequent
discharge proceeding. (See Powell v. Zuckert (1966) 125 U.S. App. D.C. 55, 366 F.2d 634.)
In a case quoted by the Powell court, the United States Supreme Court had this
to say about the unauthorized search and seizure of an individual’s private
papers: “Anyone who respects the spirit as well as the letter of the Fourth
Amendment would be loath to believe that Congress intended to authorize one of
its subordinate agencies to sweep all our traditions into the fire [citation],
and to direct fishing expeditions into private papers on the possibility that
they may disclose evidence of crime.” (Federal Trade Commission v. American Tobacco
Co. (1924) 264 U.S. 298, 305-306, 68 L. Ed. 696.)
We conclude that, while the
officers, acting in their official capacity, initiated a lawful search under
section 8102, Officer Van Holt acted beyond the scope of that provision when he
seized an item that was not a weapon. As in Susan T., we are left with a record
establishing that an officer seized plaintiff’s property with neither statutory
authorization nor a warrant, and in the absence of any demonstrable exigent
circumstances, for the sole purpose of acquiring evidence of plaintiff’s mental
instability.
B. Exclusionary Rule
All unlawful seizures,
however, do not result in the exclusion of evidence under the Fourth Amendment.
We must determine, therefore, whether the exclusionary rule applied in the
context of plaintiff’s administrative hearing.
It is well settled that the
Fourth Amendment, which is made applicable to the states by the Fourteenth
Amendment, protects individuals against unreasonable search and seizures. (See People v. Camacho (2000)
23 Cal.4th 824, 829-830.) The exclusionary rule is a
judicially-created remedy designed to deter unlawful searches and seizures,
thereby safeguarding an individual’s Fourth Amendment rights. (People v. Tillery (1989)
211 Cal. App. 3d 1569, 1580, 260 Cal. Rptr. 320.) Generally, the
rule applies in criminal proceedings, but not in civil proceedings. (Ibid.; see also Gikas v.
Zolin (1993) 6 Cal.4th 841, 859.) Courts, however, have extended
its application to civil proceedings that are quasi-criminal in nature,
including cases involving forfeitures or penalties. (Tillery, supra, at p. 1580; compare People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 96-97, 41 Cal.
Rptr. 290 [forfeiture proceedings] and People v. Moore (1968) 69 Cal.2d 674, 682, 72 Cal. Rptr. 800
[narcotics commitment proceedings], overruled on other grounds in People v. Thomas (1977) 19 Cal.3d 630, 641,
fn. 8, 139 Cal. Rptr. 594 with Susan T., supra, 8 Cal.4th at p. 1020 [conservatorship proceedings].) The cases
appear to focus on the nature of the proceeding and the purpose of the search,
i.e., whether the purpose suggests that application of the exclusionary rule
would serve to deter future violations.
Specifically, in the context
of disciplinary proceedings, most courts have refused to apply the exclusionary
rule. (See, e.g., Finkelstein
v. State Personnel Bd. (1990) 218 Cal. App. 3d 264, 271, 267 Cal. Rptr. 133
[government employee]; Emslie v. State
Bar (1974) 11 Cal.3d 210, 229, 113 Cal. Rptr. 175 (Emslie) [attorney]; Governing Board v. Metcalf (1974) 36 Cal.
App. 3d 546, 551, 111 Cal. Rptr. 724 [teacher].) Other courts,
however, have sanctioned its application. (See, e.g., Elder v. Bd. of Medical Examiners (1966) 241
Cal. App. 2d 246, 260, 50 Cal. Rptr. 304 (Elder); Dyson v. State Personnel Bd. (1989) 213 Cal.
App. 3d 711, 722, 262 Cal. Rptr. 112 (Dyson).)
The Elder case involved a
medical license revocation proceeding for a doctor who allegedly prescribed a
dangerous drug in violation of the Business and Professions Code. The Board of
Medical Examiners seized the plaintiff’s medical records when it arrested
plaintiff’s nurse for practicing medicine without a license. During the
administrative hearing, the board admitted the evidence on the ground that it
had the right to inspect and investigate the plaintiff’s business. The trial
court, however, reversed the hearing officer’s decision after excluding the
evidence obtained in violation of the plaintiff’s right against unreasonable
search and seizure.
On appeal, the court reviewed
the forfeiture cases to conclude that “the exclusionary rule will apply to an
administrative hearing where the proceeding contemplates the deprivation of a
license which is recognized as a property right, as is the right to practice
medicine. [Citation.]” (Elder, supra, 241 Cal. App. 2d at p. 260.)
Although the court concluded that the exclusionary rule applied, it found that
the evidence failed to show an unreasonable search or seizure. Based on the
nurse’s arrest, the search of the plaintiff’s records was a reasonable search
incident to a lawful arrest. (Id. at p. 263.)
After Elder, the California
Supreme Court decided the case of Emslie,
supra, 11 Cal.3d 210. In Emslie, based on information that the plaintiff
was stealing jewelry and other items from hotel rooms in Las Vegas, police
officers searched his hotel room and car, where they discovered incriminating
evidence. In the State Bar disciplinary proceedings, the plaintiff filed a
motion to suppress the evidence found in his room and car. The Committee of Bar
Examiners of the State Bar denied plaintiff’s motion and recommended his
disbarment.
In agreeing with the Committee
of Bar Examiners’ conclusions, the California Supreme Court held that the
exclusionary rule did not apply to a disciplinary proceeding before the State
Bar. (Emslie, supra,
11 Cal.3d at pp. 229-230.) The court acknowledged its earlier
application of the exclusionary rule in the context of a forfeiture proceeding,
which served both the purpose of deterrence and the aims and objectives of
criminal law enforcement. (
In Emslie, while the court did
not reject the holding in Elder, it admonished against its broad assertion that
the exclusionary rule applied to any administrative hearing involving the
deprivation of an individual’s property rights. The California Supreme Court
noted, “while we denied hearing in that case such
denial is not to be regarded as expressing approval of a categorical rule that
the exclusionary rules of the criminal law apply in license revocation
proceedings merely because a penalty is involved. [Citation.]”
(Emslie, supra, 11
Cal.3d at p. 229.)
Rather than a test based solely on the nature of the
proceeding, the California Supreme Court suggested a case-by-case balancing
approach that takes into account the social consequences of extending the application
of the exclusionary rule. (Emslie, supra, 11 Cal.3d at pp. 229-230.) The court
observed that, on the one hand, application of the rule would have practically
no deterrent effect in the context of attorney disciplinary proceedings where
the search did not involve an officer’s use of unlawful methods to find
incriminating evidence. (Ibid.) On the other hand, the
consequences to society and judicial integrity would be high because the rule
would impede the State Bar’s effort to protect the public and the courts from
attorneys who are unfit to practice law. (Id. at pp. 225, 230.) Although
the court concluded that the exclusionary rule did not apply to State Bar
disciplinary proceedings, the court stated that circumstances could be
presented “under which the constitutional demands of due process could not
countenance use of evidence obtained by unlawful means in a proceeding
conducted by such governmental agency or administrative arm of this court.” (Id. at pp. 229-230.)
One California court decided
such was the case in an administrative disciplinary proceeding involving a
youth counselor with the Department of Youth Authority. (Dyson, supra, 213
In Dyson, the court found
that, unlike in Emslie and other disciplinary proceedings, the security
officer, as an employee of the agency, conducted the search to find evidence of
criminal misconduct. The court observed, “the
unconstitutional search could not have a tighter nexus with the agency that
seeks to profit from it.” (Dyson, supra, 213 Cal.App.3d at p. 721.) Because the
agency directed the search and profited from the evidence seized, the
exclusionary rule would have a direct impact on the agency responsible for the
unlawful search. (Id.
at p. 719.) Citing an opinion from another state, the court also
indicated that application of the exclusionary rule would serve the purpose of
judicial integrity by not allowing the agency to profit from its own
lawbreaking. (
From the above cases, we can
discern a general reluctance toward applying the exclusionary rule unless the
plaintiff can demonstrate that the rule would have some actual deterrent
effect. (See Finkelstein
v. State Personnel Bd., supra, 218 Cal.App.3d at p. 270.) We also
can discern that there is a greater deterrent effect where the agency against
whom the exclusionary rule is applied conducted the search with the purpose of
discovering evidence of misconduct to be used in a subsequent proceeding. There
is less deterrent effect where the agency was not responsible for any Fourth
Amendment violation, either by conducting a lawful search or by having no
connection with the law enforcement officer conducting the unlawful search. (See Susan T., supra, 8
Cal.4th at p. 1018.)
In this case, it also may be
said that “the unconstitutional search could not have a tighter nexus with the
agency that seeks to profit from it.” (Dyson, supra, 213 Cal. App. 3d at p. 721.)
The department both conducted the search and then used the evidence seized in a
disciplinary proceeding to terminate plaintiff’s employment.
However, unlike in Dyson, it cannot
be said that the agency conducted the search with the purpose of discovering
evidence of misconduct. When Lieutenant Little ordered
the officers to conduct a search for weapons, the officers were not looking for
incriminating evidence. The purpose of a search under section 8102 is to allow
law enforcement officers to confiscate any firearms owned or possessed by the
detained person to guard against any present or future risk of danger to himself or others. (See Rupf v. Yan, supra, 85 Cal.App.4th at pp.
423-424.)
Even when Officer Van Holt seized plaintiff’s note, his
actions were not aimed at discovering incriminating evidence to be used against
plaintiff in a subsequent proceeding. Officer Van Holt explained: “I was
worried about [plaintiff] and I hoped that maybe it contained some information
that we could use to help him . . . . It definitely -- it was definitely
pertinent to what was going on. I mean, I wasn’t doing a criminal
investigation. He was one of the partners in my unit.” Plaintiff’s note was
delivered to the psychologist to assist in his examination. Society is best
served when those responsible for evaluating and treating individuals who are
potentially dangerous or gravely disabled have access to all the relevant
evidence, even if such evidence is obtained unlawfully. Without all the
relevant evidence, the psychologist may provide inadequate treatment or release
the individual to the public, thereby placing him and others at risk of danger.
(See Susan T.,
supra, 8 Cal.4th at p. 1020.)
Under these circumstances, the deterrent effect of
applying the exclusionary rule would not outweigh the social costs. If the
record suggested that the department deliberately seized plaintiff’s note for the
purpose of using it during his disciplinary proceedings, this case would be
indistinguishable from the Dyson case. However, because the officer’s
first concern was for the welfare of plaintiff who, moments earlier, had put a
gun to his own head, the exclusionary rule would have little deterrent effect. (See Susan T., supra, 8
Cal.4th at p. 1019.) Nothing in the record suggests that the
officer anticipated that the note would be used during the disciplinary
proceedings.
Based on the unusual circumstances presented in this
case, we conclude that the arbitrator and the trial court correctly ruled that
the exclusionary rule did not apply to plaintiff’s disciplinary proceedings.
5. Factual Findings
In challenging the City’s
factual findings, plaintiff claims the trial court erred in concluding that the
evidence supported the department’s allegations. Instead of presenting legal
authority and argument discussing each allegation, the City responds with a
conclusion and a question: “Given the facts, it was not an abuse of discretion
to terminate [plaintiff]. Put another way, would you want [plaintiff] to be a
police officer in your City? We think not.” Unfortunately, nothing is that
simple.
In fact, after the arbitration
hearing, the arbitrator concluded that the evidence failed to support the
department’s allegations. But the city administrator rejected the arbitrator’s
conclusions and terminated plaintiff’s employment. The trial court affirmed the
City’s decision. Our role is to determine whether substantial evidence
supported the court’s findings. (See Duncan v. Department of Personnel Administration, supra, 77 Cal.App.4th
at p. 1174.) Based on our review of the record, we conclude that
many of the court’s findings find no support in the record. Only a few survive
scrutiny.
A. False Statements
The City alleged that
plaintiff knowingly made false, incorrect, or deceptive answers during the
course of an official investigation in violation of General Order No. 1-222.20
J. This charge was based on the following specific allegations: plaintiff’s
description of the “suicide note” as a “free association [of] writings and
notes” when the note was entitled “Last Will” and appeared to have been written
meticulously and in great detail; plaintiff’s portrayal of the events of
October 15, 1999, as a situation caused by the department’s overreaction rather
than his “suicide attempt”; plaintiff’s denial that he held a gun when Sergeant
DeAnda and Officer Hardin entered his apartment; plaintiff’s statement concerning
his position and reaction when Sergeant DeAnda reached for his weapon;
plaintiff’s denial that he was given a direct order by Sergeant DeAnda to
surrender his weapon; and his denial that Sergeant DeAnda called him from
outside of his apartment.
To establish that plaintiff
provided false and deceiving statements, the agency may show that the
statements were physically impossible or otherwise demonstrably false. (See People v. Hagen
(1998) 19 Cal.4th 652, 668; People
v. Morales (2003) 112 Cal.App.4th 1176, 1196.) One witness’s
testimony is not rendered false simply because it contradicts the testimony of
another witness, even if it appears to be more reliable. While one witness’s
testimony may be adequate to support the existence of a fact, more is required
to establish actual falsity. (See id. at p. 1195.) When there is other corroborating
evidence, the factfinder may draw the conclusion that the statement was false. (See, e.g., Ziegler v.
City of South Pasadena (1999) 73 Cal.App.4th 391, 396.) Such determinations,
which are often based on the credibility of the witnesses, are best left to the
factfinder. (See Flowers
v. State Personnel Bd. (1985) 174 Cal. App. 3d 753, 759, 220 Cal. Rptr. 139.)
The evidence in this case
failed to establish that most of plaintiff’s statements were false and
deceiving.
As for the department’s characterization of plaintiff’s
writing as a suicide note and plaintiff’s conduct as a suicide attempt, there
was no competent evidence to support the City’s findings. The arbitrator noted
that every medical professional who examined plaintiff found that he was not
suicidal and that his writing was not a suicide note. The psychologist
who initially examined plaintiff refused to detain him for the full 72 hours
after finding that plaintiff was not a threat to himself or others. Before
Chief Meyers intervened, Dr. Cohen declared plaintiff fit for duty. Mare Cobb,
a member of the department’s counseling team, found nothing to prevent
plaintiff’s return to duty. Dr. Gold again found plaintiff fit for duty. Dr.
Greenberger, who was the only expert who testified during the hearing,
concluded that plaintiff never posed a risk of danger to himself or others. Dr.
Greenberger testified that writing the note was a healthy way for plaintiff to
respond to his stressful circumstances. He explained that he often recommends
that his patients write down their thoughts to distance themselves and gain
some objectivity concerning their problems. Based on this record, plaintiff
cannot be said to have provided false statements when there was no evidence to
contradict him.
The record also fails to
support most of the allegations that plaintiff made false statements concerning
the October 15, 1999 incident. He simply recalled the October 15, 1999 incident
differently. As noted by the arbitrator, the department considered plaintiff so
mentally compromised that it authorized a 72-hour hold and examination, and yet
in full control of his faculties to be able to remember precisely and
accurately the details of the day. Even the other witnesses, however, provided
different accounts of the tense encounter. For example, while Sergeant DeAnda
claimed that he telephoned plaintiff outside of his residence, Officer Hardin
said that he was the one who actually made the calls. If the department applied
the same standard to these officers, one of these officers should be fired
immediately.
The record shows that Sergeant
DeAnda and Officer Hardin testified consistently concerning only one of the
above allegations, namely, the one concerning plaintiff’s reaction to Sergeant
DeAnda’s sudden effort to take his weapon. Despite plaintiff’s denial, both
Sergeant DeAnda and Officer Hardin testified that, when Sergeant DeAnda grabbed
for plaintiff’s weapon, plaintiff turned and knocked Sergeant DeAnda’s hand
away. Although this could have been an instance of plaintiff’s faulty memory,
rather than blatant dishonesty, the factfinder was entitled to make that
determination. (See Flowers
v. State Personnel Bd., supra, 174 Cal. App. 3d at p. 759.) Sergeant DeAnda’s and Officer
Hardin’s testimony provided substantial evidence to support the City’s finding
that plaintiff provided a false statement concerning this detail of the October
15, 1999 incident.
Based on this single allegation,
we conclude that the City could have found that plaintiff violated General
Order No. 1-222.20 J.
B. Insubordination
The department alleged that
plaintiff violated General Order No. 0-030.35 (11) by his insubordinate acts of
failing to open the door for the officers and failing to follow Sergeant
DeAnda’s direct orders concerning the gun.
The arbitrator found that the record failed to show that
anyone ordered plaintiff to open the door or relinquish his weapon. The arbitrator
also found that, even if Sergeant DeAnda did order plaintiff to put down his
weapon, plaintiff was in no condition to understand it as a direct order and
follow it. The arbitrator concluded that the evidence did not show that
plaintiff deliberately disobeyed a direct order.
The city administrator
concluded that plaintiff violated the general order by intentionally refusing
Sergeant DeAnda’s order to surrender his weapon. Based on the city
administrator’s final decision, we will focus on this specific allegation. The
other allegation, in any event, was farfetched considering plaintiff had no
duty to invite into his home any individual, private citizen, or police officer
having no legal authority to demand entry.
It is essential that public service employees obey all
lawful orders given them in the course of their employment. (Belmont v. State Personnel Bd. (1974) 36
Cal. App. 3d 518, 523, 111 Cal. Rptr. 607.) In this case,
however, the question is whether plaintiff, who was off duty, was required to
obey the orders of Sergeant DeAnda, who also was supposed to be off duty.
Insubordination requires evidence that plaintiff intentionally disobeyed his
superior. (See Flowers
v. State Personnel Bd., supra, 174 Cal. App. 3d at p. 760.) There
must be evidence, therefore, to establish that Sergeant DeAnda was acting in
his official capacity as plaintiff’s superior. (See also
generally People v. Olsen (1986) 186
Cal. App. 3d 257, 263, 230 Cal. Rptr. 598.) There also must be
evidence that plaintiff knew that Sergeant DeAnda was acting in his official
capacity and was giving him a direct order. (See Flowers, supra, at p. 760.)
Although Sergeant DeAnda testified he told plaintiff that
he was giving him a direct order, the record fails to show that plaintiff understood
Sergeant DeAnda’s command as such. Both were off duty based on injuries
received during the same automobile accident. Sergeant DeAnda and plaintiff’s
best friend, Officer Hardin, came to plaintiff’s residence in plain clothes and
in an unmarked vehicle. Sergeant DeAnda’s only weapon was concealed in his
fanny pack. Although Sergeant DeAnda testified that Chief Meyers had placed him
on duty for this specific assignment, he did not inform plaintiff that he was
present in his official capacity. He simply told plaintiff he was there to
check on his welfare. Plaintiff testified he did not perceive Sergeant DeAnda’s
command as an official order. Without evidence of intentional disobedience, the
City cannot establish insubordination.
The record shows that Sergeant DeAnda and Officer Hardin
intruded into plaintiff’s private residence while he was under great emotional
strain over some personal problems stemming from his relationship with his
ex-girlfriend. Based on the circumstances surrounding the incident, including
their off duty status, the officers’ appearance, their friendship, and the
officers’ stated purpose for the visit, plaintiff had no reason to believe that
Sergeant DeAnda was acting in his official capacity. Because there was no
evidence of intentional disobedience, we conclude the trial court abused its
discretion in finding that plaintiff was insubordinate in violation of General
Order No. 0-030.35 (11).
C. Profanity and Discourteous Treatment
The department alleged that
plaintiff used profanity to a superior or member of the department in violation
of General Order No. 0-030.35 (11). The department also alleged that plaintiff
failed to treat Sergeant DeAnda courteously and respectfully in violation of
General Order No. 0-030.35 (12). It is undisputed that the evidence supports
both allegations.
Although these violations seem
insignificant, the facts and circumstances supporting these violations were by
no means trivial. It can be said “that to characterize it as ‘discourteous treatment’
is to put it most charitably.” (Blake v. State Personnel Board (1972) 25 Cal. App. 3d 541, 549, 102
Cal. Rptr. 50.) The facts show that plaintiff pointed a gun to his head, refused to
surrender his weapon, and repeatedly yelled, “Get the fuck out of my house.”
Plaintiff’s words and actions indicated an instability that may be
inappropriate in those charged with the duty of keeping the peace. Police
officers should be able to cope with stressful circumstances without having to
resort to violent acts (i.e., using or pointing a gun) and hostility (i.e.,
being uncooperative and using profanity). The City certainly is entitled to
maintain high standards of public service and conduct in all of its employees,
especially police officers. (See Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404, 134 Cal. Rptr.
206.) A police officer’s actions must be above reproach. (Flowers, supra, 174 Cal.
App. 3d at p. 759.)
D. Threats to Others
In its final allegation, the
department claimed that plaintiff, in writing the threatening note, behaved in
a manner prohibited under rule XIII of the City Personnel Rules and
Regulations. The rule authorizes dismissal when the officer’s “off-duty and/or
on-duty behavior that is job related and adversely impacts the individual’s
ability to do the job and/or the department/City to perform its mission.”
(Italics omitted.) The department alleged that plaintiff’s note somehow
irreversibly damaged the relationship between the City and the San Bernardino
Superior Court.
The arbitrator found that,
while plaintiff wrote the note, he did not intend to share the note with
anyone. The arbitrator also found that it was Chief Meyers, and not plaintiff,
who made the note public. None of the psychological professionals interpreted
the note as containing actual threats by plaintiff to harm himself
or others.
The city administrator found
that plaintiff “authored a note containing language, the reasonable
interpretation of which, indicated [plaintiff] entertained thoughts of killing
Commissioner Bobby Vincent, Attorney Faulkenthal and Julie Frazier.” The city
administrator stated that plaintiff’s bizarre and unprofessional behavior
caused the situation which led to the discovery of his note and the
dissemination of the information contained therein.
The evidence fails to support
the city administrator’s findings. As discussed above, the officers had no
right to seize plaintiff’s note. Even after the unlawful seizure, every
psychological professional who read the note found that it did not contain any
threats against plaintiff or others. Moreover, it was the department and not
plaintiff who published plaintiff’s private writing by releasing its contents
to the persons named in the writing, other law enforcement agencies, and
members of the judiciary.
In a case cited by plaintiff,
People v. Felix (2001) 92 Cal.App.4th
905, the defendant was charged with various crimes, including three
counts of making a criminal threat in violation of Penal Code section 422. One count was based on statements made
to his therapist. He told the therapist that “‘he was thinking about how he was
going to kill [his ex-girlfriend] once he was released from jail.’” (Felix, supra, at p. 909.)
He also said “‘that if he saw her with somebody else that he would shoot her
and then the kids and then himself.’” (Ibid.) The
therapist conveyed the information to the ex-girlfriend.
The court in Felix noted that
it was a crime to threaten another with great bodily harm or death. The threat
may be conveyed directly to the victim or indirectly through a third party. (People v. Felix, supra,
92 Cal.App.4th at p. 911.) The court found that there was
insufficient evidence of communication and intent. Because the trial court
excluded the content of the conversation between the therapist and the
ex-girlfriend, there was no evidence that the threats were communicated to the
victim. (Id. at p.
912.) Also, because there was no evidence that the defendant knew
or expected the therapist to disclose his statements to his ex-girlfriend,
there was no intent. (Id.
at p. 913.) The court explained, “[Penal Code] Section 422 was not enacted to punish emotional
outbursts, it targets only those who try to instill fear in others. [Citation.] ‘One may, in private, curse one’s enemies,
pummel pillows, and shout revenge for real or imagined wrongs-safe from [Penal Code] section 422 sanction.’ [Citation.]” (Ibid.; see also In re Ryan D. (2002) 100 Cal.App.4th 854,
861.) The court later said, “Felix made his remarks while discussing
highly personal thoughts about homicide, suicide, and his emotions for [his
ex-girlfriend]. He made them in a setting where the patient had an expectation
of confidentiality.” (Felix,
supra, at p. 914.)
Although this case did not
involve a crime, the same requirements of communication and intent apply when
the allegations hinge on the existence of a threat. In this case, there was no
evidence that plaintiff knew or expected the department to seize his note and
disclose its contents.
The evidence was undisputed
that plaintiff was emotionally distraught on October 15, 1999. In the privacy
of his own home, plaintiff wrote a note expressing his thoughts. He folded his
note, placed it under a large picture frame, and then called for help. Chief
Meyers admitted that plaintiff did not publish his note, leave it out in the
open, or communicate its content to anyone. Without evidence of communication,
the note was simply plaintiff’s private thoughts in written form.
Apparently, all the psychological
professionals who read plaintiff’s note understood what a threat entailed. Dr.
Greenberger explained the difference between having suicidal or homicidal
thoughts and presenting an imminent danger to oneself or others. Despite the
bizarre and disturbing statements in his note, none of the psychological
professionals interpreted the writing as a threatening note.
Nevertheless, Chief Meyers or
other members of the department told the persons named in the note that
plaintiff had threatened them. Commissioner Vincent and his colleagues at the
San Bernardino Superior Court became aware of the alleged threats. The
department also applied for an emergency protective order against plaintiff.
The department issued a nationwide bulletin identifying plaintiff as armed and
dangerous. Because plaintiff was on his way to his mother’s house in Inglewood,
the department specifically notified the Inglewood Police Department. As
plaintiff drove to his mother’s house, four Inglewood police vehicles
surrounded him and confronted him on the matter. While the dissemination of the
so-called “threats” contained in plaintiff’s note may have damaged plaintiff’s
ability to work for the department and the City’s credibility or ability to
work with the San Bernardino Superior Court, there is no evidence that
plaintiff made any threats or had any intention of making his note public.
Plaintiff should not have been held responsible for
violating rule XIII of the City Personnel Rules and Regulations for simply
entertaining thoughts of murder. The evidence fails to support a causal
connection between plaintiff’s thoughts and the resulting damage. The damage
was caused by various intervening factors, including the unlawful seizure and
the inappropriate dissemination of private and confidential information, in
which plaintiff had no part. As Dr. Greenberger aptly observed, “the situation
came unraveled.”
In sum, we conclude that the evidence in the record only
supported the following allegations: that plaintiff made a false statement in
describing his reaction to Sergeant DeAnda’s attempt to take his gun in
violation of General Order No. 1-222.20 J; that plaintiff used profanity to a
superior in violation of General Order No. 0-030.35 (11); and that plaintiff
failed to treat Sergeant DeAnda courteously and respectfully in violation of
General Order No. 0-030.35 (12).
E. Penalty
Plaintiff argues that, because
the findings are against the weight of the evidence, the City abused its
discretion in ordering his termination. He contends the penalty of termination
was unwarranted because his bizarre behavior was the result of his mental
instability, not any intentional misconduct.
The appellate court, as the
trial court below, is without power to substitute its own decision for that of
the administrative agency where reasonable minds may differ on the appropriate
disciplinary action. (Ziegler
v. City of South Pasadena, supra, 73 Cal.App.4th at p. 397.) “Judicial interference with the agency’s
assessment of a penalty ‘will only be sanctioned when there is an arbitrary,
capricious or patently abusive exercise of discretion by the administrative
agency.’ [Citation.]” (Kazensky v. City of Merced (1998) 65
Cal.App.4th 44, 54.)
Nevertheless, because we have found insufficient evidence
to support the other factual findings, there is real doubt as to whether the
City would reach the same decision as to the penalty to be imposed. (See Blake v. State
Personnel Board, supra, 25 Cal. App. 3d at p. 543.) This case therefore must be
remanded to the administrative agency to exercise its discretion to impose a
penalty, if one is warranted, commensurate with the gravity of the findings
supported by the evidence in the record. (See Miller v. Eisenhower Medical Center (1980)
27 Cal.3d 614, 635, 166 Cal. Rptr. 826; Kirkpatrick v. Civil Service Com. (1981) 116 Cal. App. 3d 930, 932, 172
Cal. Rptr. 405.) As a result, we need not address plaintiff’s
argument that the City acted in bad faith in terminating his employment.
6. Disposition
We reverse the trial court’s
judgment and order that the case be remanded to the city administrator.
Plaintiff shall recover his costs on appeal.
Gaut, J.
We concur:
Hollenhorst,
Acting P. J.
McKinster, J.
Note:
1. All further statutory references will be to the Welfare and
Institutions Code unless otherwise stated.