Gary Orville Ingemunson for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Brian I. Cheng, Deputy City Attorney, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS122449)
APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed.
Gary Orville Ingemunson for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Brian I. Cheng, Deputy City Attorney, for Defendants and Respondents.
Orlando Nieves challenges an administrative decision by the City of Los Angeles's Board of Rights finding him guilty of police officer misconduct in connection with the MacArthur Park May Day demonstration in 2007. The trial court granted in part and denied in part his petition for writ of administrative mandate, concluding that the weight of the evidence supported the board's findings of guilt on two counts involving use of excessive force. On appeal, he contends the denial of his request to subpoena documents and limitations imposed on his defense deprived him of a fair trial before the board, and the evidence is insufficient to support the findings that he committed misconduct. We conclude that he has shown no abuse of discretion by the board and no error by the trial court and will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Nieves has served as a police officer for the Los Angeles Police Department since 1987. He was assigned to crowd control at MacArthur Park on May 1, 2007, where a large demonstration was occurring. He was an assistant squad leader at the time. Nieves participated in a skirmish line of police officers that, in the early evening, advanced toward individuals who had failed to disperse as ordered.
A video recording shows a man holding a drum in one hand as the skirmish line approached. As he bent to pick up a child or person of small stature in the other arm while moving away from the skirmish line, a police officer struck him in the hip with a baton held in both hands. Other video recorded earlier shows the same man challenging officers in the skirmish line and refusing to move to another section of the park as ordered.
Another incident occurred during the demonstration in which Juan Guerra, a news photographer, was on his knees filming with a video camera on his shoulder and failed to move as the skirmish line approached. An officer in the skirmish line pushed him to the ground. He fell on his back with his legs up in the air. Another officer then grabbed the camera away and threw it aside.
The police department provided an extensive written report to the Board of Police Commissioners on the MacArthur Park incident, including a comprehensive examination of the events that occurred on May 1, 2007, and the planning and training that preceded those events. The report, dated October 9, 2007, concluded that the department's performance during the incident was afflicted by "failing leadership, breakdown in supervision, and breakdown in personal discipline, [that] caused those without full situational awareness to take action without understanding how their decisions might affect the final outcome." The report provided numerous recommendations for improvement.
2. Administrative Proceedings
The chief of police charged Nieves in August 2008 with three counts arising from his conduct at the demonstration, alleging that (1) Nieves committed an unauthorized use of force by delivering a two-handed baton strike to an individual carrying a drum; (2) he unnecessarily pulled Guerra's camera away and threw the camera; and (3) he provided misleading statements relating to the identity of another officer in an official investigation of the incident. The third count related to the identity of the officer who had knocked Guerra to the ground. The matter was referred to a hearing before the Board of Rights.
Nieves served a request for the production of documents on the police department in September 2008. After the police department failed to provide some of the documents, he asked the Board of Rights to authorize a subpoena duces tecum requiring the police department to produce "[a]ll reports or communications" concerning the May Day incident; all crowd control training materials for "Metro" or "Mobile Field Force" at any time before or after the incident; notes and audio recordings of interviews with the chief of police and other high-ranking police officials regarding the May Day incident; and documents relating to the planning, evaluation or occurrence of crowd control deployments for the past 11 years. The police department opposed the request. After a hearing on the matter, the Board of Rights denied the request for a subpoena duces tecum and ordered the department to produce documents relating to Nieves's most recent training.
The Board of Rights conducted a hearing on the three counts for several days in May 2009. The evidence included, inter alia, video recordings, witness testimony, and training bulletins on the use of force in crowd control situations. The training bulletins stated that a baton may be used to push an individual who fails to respond to an order to disperse, but may not be used as in impact weapon to strike an individual unless the officer believes that the individual is behaving in an "aggressive/combative" manner. The training bulletins stated that when the use of force is justified, "[o]fficers must use only reasonable force to overcome resistance and effect control."
The Board of Rights found Nieves guilty on all three counts and recommended a 20-day suspension. The chief of police adopted the recommendation in June 2009.
3. Trial Court Proceedings
Nieves filed a petition for writ of mandate in September 2009 against the City of Los Angeles and William Bratton as its chief of police, challenging the administrative decision on all three counts. After a hearing on the merits, the trial court exercising its independent judgment determined that the findings on counts 1 and 2 were supported by the weight of the evidence. The court concluded, however, that there was insufficient evidence to support the finding that Nieves knew the identity of the officer who had knocked Guerra to the ground and that count 3 was not supported by the weight of the evidence. The court stated that the Board of Rights had considered count 3 to be the most serious act of misconduct and that the chief of police therefore must reconsider the penalty.
The trial court entered a judgment on September 13, 2010, and entered a corrected judgment on September 21, 2010, granting the petition in part and denying it in part. The judgment orders the issuance of a peremptory writ of mandate setting aside the finding of guilt on count 3. Nieves timely appealed the judgment on counts 1 and 2.
Nieves filed a second petition for writ of mandate in March 2011 (Super. Ct. L.A. County, No. BS130893) alleging that the Board of Rights reconvened and revised its findings on count 3, found him guilty, and recommended a 20-day suspension, and that the chief of police adopted the recommendation. He challenges that decision in his new petition, which is separate from the present proceeding.
Nieves contends (1) the denial of his request for discovery deprived him of a fair trial before the Board of Rights; (2) the board denied him due process by limiting the scope of his defense; and (3) the evidence is insufficient to support the findings of misconduct.
The judgment granting the petition in part and denying it in part is a final, appealable judgment. We therefore reject the respondents' argument that the appeal is premature. We also reject as legally unsound the argument that Nieves waived the right to appeal the judgment by participating in the postjudgment Board of Rights proceedings on count 3.
1. Board of Rights Hearing Procedures
The Los Angeles City Charter, section 1070 provides for a hearing before a Board of Rights before the imposition of discipline against a police officer. At the conclusion of the hearing, the board makes a finding of guilty or not guilty on each charge based solely on the evidence presented at the hearing and prescribes a penalty. (Id., subds. (n), (x).) The chief of police may either adopt the board's penalty recommendation or impose a lesser penalty. (Id., subd. (p).)
Section 1070 of the Los Angeles City Charter does not expressly provide for prehearing discovery. The police department's Board of Rights Manual in effect at the time of the hearing included a provision for discovery. Section 395 of the manual stated that the department must provide the following items to the accused as soon as possible after the selection of the members of the Board of Rights hearing the charge: "Complaint investigation, including addenda and any supplemental investigation," "Notice of Proposed Disciplinary Action, response of the accused, and reply by the commanding officer," "Photographs, photostatic, or laser reproduction of such photographs," "Audio and videotapes," "Rough notes completed during interviews (this does not include rough drafts of the investigation or letter of transmittal) will be made available upon request," "Chronological Record," "Department witness list, excluding rebuttal witnesses (not furnished at the same time as other discovery material," and "Pattern-of-conduct evidence not previously disclosed to the accused officer."
2. Standard of Review
Code of Civil Procedure section 1094.5 governs judicial review of a final decision by an administrative agency if the law required a hearing, the taking of evidence, and the discretionary determination of facts by the agency. (Id., subd. (a).) The petitioner must show that the agency acted without or in excess of jurisdiction, did not afford a fair trial, or prejudicially abused its discretion. (Id., subd. (b).) An abuse of discretion is shown if the agency did not proceed in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Ibid.)
"[I]n cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., § 1094.5, subd. (c).) Regardless of whether the trial court properly reviews the agency's factual findings under the substantial evidence test or exercises its independent judgment on the evidence, an appellate court reviews the factual findings by the trial court under the substantial evidence test. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.)
Substantial evidence is evidence that a rational trier of fact could find to be reasonable, credible and of solid value. Under the substantial evidence standard, we view the evidence in the light most favorable to the judgment and accept as true all evidence tending to support the judgment, including all facts that reasonably can be deduced from the evidence, and must affirm the judgment if an examination of the entire record viewed in this light discloses substantial evidence to support the judgment. (Mealy v. B-Mobile, Inc. (2011) 195 Cal.App.4th 1218, 1223.)
An appellate court independently determines whether the agency afforded a fair administrative hearing and whether the agency prejudicially abused its discretion by failing to proceed in the manner required by law. (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 479; Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 87; see 2 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2011) § 16.50, p. 638.) In so doing, we defer to the express or implied factual findings by the trial court if they are supported by substantial evidence. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443.)
3. Nieves Has Not Shown that He Was Denied a Fair Hearing or Due Process
There is no general due process right to prehearing discovery in administrative proceedings. Instead, the extent of discovery is determined by the applicable statutes and administrative rules and the requirements of due process in the particular circumstances. (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 302.) Due process ensures a fair hearing and therefore establishes a right to prehearing discovery only if necessary to ensure a fair hearing. (Ibid.)
In our view, the requested discovery relating to crowd control training and occurrences far beyond the specific events in which Nieves was involved on May 1, 2007, was not necessary to ensure a fair hearing. Nieves has not shown that the discovery provided to him pursuant to section 395 of the Board of Rights Manual, as supplemented by the board's order, failed to provide him a fair opportunity to defend himself against the charges of misconduct in the specific instances alleged. We conclude that the denial of his request to subpoena additional documents did not deprive him of a fair hearing.
We also reject the contention that the Board of Rights denied Nieves due process by limiting the scope of his defense. Nieves unsuccessfully sought to present evidence that the police department had tolerated or encouraged his conduct in prior crowd control deployments similar to the conduct alleged in counts 1 and 2. We conclude that the board properly restricted its inquiry to whether Nieves's conduct on May 1, 2007, complied with the policy in effect at that time governing the use of force and that there was no denial of due process.
4. Substantial Evidence Supports the Findings of Misconduct
Nieves initially testified that he did not recall the incident with the man holding the drum and did not believe that he was the officer shown in the video recording. After hearing other evidence, however, he testified "I'm confident that was me," but "I still don't recall the blow to that individual." The video recording shows an officer, admitted to be Nieves, striking the man in the hip with a two-handed baton strike. We conclude that substantial evidence supports the finding that Nieves used excessive force in this incident.
Regarding the second incident, Nieves does not dispute pulling the camera away from Guerra and throwing it aside. He testified at the Board of Rights hearing that he considered it necessary to throw the camera aside to prevent the camera from being used as a weapon against the officers in the skirmish line. The video recordings show Guerra stationary on his knees with a camera on his shoulder directed roughly parallel to the skirmish line as officers in the skirmish line walked toward him. An officer in the skirmish line crouched holding a baton in both hands and pushed Guerra forward. Guerra fell to his back, still holding the camera, with his legs raised. The officer apparently used his knee to subdue Guerra further. Nieves then pulled the camera away from Guerra who was lying on his back with his legs in the air. We conclude that substantial evidence supports the finding that the use of force was excessive and unnecessary.
Nieves also argues that the Board of Rights failed to properly apply the police department's use of force policy by failing to consider his perspective at the time of the incidents. He cites no evidence or other indication that this is so, and instead only argues that he acted reasonably under the circumstances. We conclude that substantial evidence supports the findings and that Nieves has shown no abuse of discretion by the board.
The judgment is affirmed. Respondents are entitled to recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J. WE CONCUR:
KLEIN, P. J.