HOPSON v. CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 4, California.

Edward M. HOPSON and Lloyd W. O'Callaghan, Jr., Petitioners and Appellants, v. CITY OF LOS ANGELES;  et al., Respondents and Respondents.

Civ. 63261.

Decided: August 20, 1982

Cotkin, Collins, Kolts & Franscell and Steven Lincoln Paine, Los Angeles, for petitioners and appellants. Ira Reiner, City Atty., Frederick N. Merkin, Senior Asst. City Atty., and Catharine H. Vale, Asst. City Atty., for respondents.

STATEMENT OF THE CASE

Appellants, Edward M. Hopson and Lloyd W. O'Callaghan, Jr., both police officers employed by the City of Los Angeles, appeal from a judgment in the Superior Court of the State of California for the County of Los Angeles, denying appellants' petition for peremptory writ of mandate and injunctive relief in connection with the use of Part I of a written report issued by the Board of Police Commissioners (“Commission”) of the Los Angeles Police Department (“LAPD” or “Department”) entitled:  “Report of the Board of Police Commissioners Concerning the Shooting of Eulia Love and the Use of Deadly Force ” (“Report”).1  Appellants contend that the Commission's issuance of the written report, specifically, Part I, amounted to a written condemnation of them.   Appellants further contend that the Commission's further threatened (but as yet unexecuted) entering of copies of Part I of the Report into their personnel files constitutes imposition of discipline and “punitive action”.   As such, appellants urge that pursuant to Government Code sections 3300 et seq. they are entitled to a full trial-type “administrative appeal” hearing in conformity with Government Code section 3304, subdivision (b) and the procedures set forth in Los Angeles City Charter, section 202.

A hearing was held on November 20, 1980, and judgment denying all relief requested by appellants on the belief that the Commission's actions did not constitute discipline, punitive action, or harm to appellants, was entered on January 6, 1981.   This timely appeal followed.

STATEMENT OF FACTS

At all times in question, appellants were sworn employees of the City of Los Angeles Police Department, entitled to all of the protections afforded by the Los Angeles City Charter.

On January 3, 1979, Mrs. Eulia Love was shot to death by the appellant LAPD officers during an on-duty confrontation.   In the aftermath of that tragic and highly publicized event, the Commission undertook a comprehensive inquiry into the facts surrounding the shooting.   It conducted a series of public “hearings” at which citizens, particularly representatives of the black community, expressed extreme criticism and distrust of the Department's evaluations of incidents involving officers' use of deadly force and of its adjudications of allegations of police misconduct and improper tactics.

In addition to receiving such public comment, the Commission “completed an independent examination of the circumstances and reevaluated the Department's previous determination [that the officers' conduct was consistent with policy governing use of firearms] in light of additional factual information.”   In reaching its conclusion, the Commission scrutinized investigative reports prepared by the Department's specialized “Officer Involved Shooting” team (“OIS”), the district attorney and the internal “Shooting Review Board (‘SRB’).”   The Report also discloses that the Commission considered other factors, such as specific time lapses, developed from departmental records, and accorded different weight and drew different inferences from reported accounts under consideration.

Ultimately, the Commission determined “that the actions taken by the officers violated the policies of the Los Angeles Police Department concerning the use of firearms and deadly force, and that the officers made serious errors in judgment, and in their choice of tactics, which contributed to the fatal shooting of Eulia Love.”   These findings were announced in Part I of the Report, released to the public in October, 1979.

In Part I, the Commission also commented upon the prior decision of the Chief of Police to initiate no disciplinary action.   Recognizing that the chief's decision, by Charter, “constituted a final determination regarding the issue of discipline”, that determination remained undisturbed.   The Commission directed, however, that copies of Part I be entered into the officers' personnel files.   It is from this action that this appeal is brought.

APPELLANTS' CONTENTIONS ON APPEAL

1. The trial court erred in ruling that the Commission's action was neither disciplinary in nature nor “punitive action” under Government Code section 3303.

2. The trial court erred in refusing to order a full trial type “administrative appeal” hearing for appellants.

3. The Police Commission's wrongful denial of notice and an opportunity to be heard before undertaking punitive action violated appellants' constitutionally protected property and liberty interests and makes convention of a full trial-type administrative hearing all the more imperative.

DISCUSSION

At the outset we must agree with the trial court that it was within the Commission's expressed and inherent powers to conduct its own investigation and issue its own report of this very unfortunate incident involving the tragic shooting death of Eulia Love.   Section 78 of the Los Angeles City Charter provides that the Board of Police Commissions, as “head” of the Department, “․ shall have such power (subject to the provisions of this charter and to such ordinances as are not in conflict with the grants of power made to each department of the city government elsewhere in this charter), to supervise, control, regulate, and manage the department and to make and enforce all necessary and desirable rules and regulations therefor and for the exercise of the powers conferred upon the department by this charter.”

The courts have consistently recognized the right and the responsibility of governing bodies of police agencies to establish policies and supervisory procedures to regulate the use of force and weapons by officers.  (See, e.g.:  California State Employees' Assn. v. Enomoto (1981) 118 Cal.App.3d 599, 604, 173 Cal.Rptr. 517;  Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 819, 165 Cal.Rptr. 908;  San Jose Peace Officer's Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, 144 Cal.Rptr. 638;  Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 143 Cal.Rptr. 255;  Kortum v. Alkire (1977) 69 Cal.App.3d 325, 331–333, 138 Cal.Rptr. 26;  Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364, 132 Cal.Rptr. 348;  Brown v. City of Berkeley (1976) 57 Cal.App.3d 223, 129 Cal.Rptr. 1).

The appellants do not question such authority.   However, it is notable here that in rejecting various challenges to “shooting policies” and to the official actions by which they were adopted, the courts have repeatedly emphasized a fundamental principle:  regulation of the use of force by peace officers is of such profound gravity that every deference to the experience, expertise and judgment of the designated head of the police agency is indulged.

“The formulation of a policy governing the use of deadly force by police officers is a heavy responsibility involving the delicate balancing of different interests:  the protection of society from criminals, the protection of police officers' safety, and the preservation of all human life if possible.   This delicate judgment is best exercised by the appropriate legislative and executive officers.   The effort of the appropriate officials of the [city] to make that determination in the interests of its citizens and its police officers should be upheld if it is consistent with state law and constitutional standards.”  Long Beach Police Officers' Assn. v. City of Long Beach, supra, 61 Cal.App.3d 371, 132 Cal.Rptr. 348.  (Italics added.)

It would be absurd to think that the Commission could not exercise its own independent fact finding, analysis, review and then vocalize its own findings and conclusions when it is presumptively “head” of the department.   The Commission need not be and should not be the “Charley McCarthy” for the department.   If indeed there is to be trust in the entire community toward the police all citizens must be assured that those clothed with policy making decisions do indeed make the policy and not merely “rubber stamp” actions after the fact.

 Therefore, we conclude that the Commission possesses both the expressed and inherent power and duty to conduct its own investigation and issue its own reports in matters it is granted authority to control, regulate and manage.

The difficulty in the present case is not in the Commission issuing its own report to the public.   The difficulty is caused by the use of the report within the Department.

Disciplinary authority resides in the Chief of Police, who, in cases involving a proposed discharge or a proposed suspension in excess of 30 days, must defer the disciplinary adjudication function to a “Board of Rights” (see:  Los Angeles City Charter §§ 80(a)(2) and 202).   City Charter section 202, subdivision (1), in pertinent part provides that:  “No officer or employee of the Police Department shall be suspended, removed, deprived of his office or position, or otherwise separated from the service of the Police Department (other than by resignation), except for good and sufficient cause shown upon a finding of ‘guilty’ of the specific charge or charges assigned as cause or causes therefor after a full, fair and impartial hearing before the Board of Rights ․”

 Respondents contend that section 202 does not apply to the case at issue for two separate and independent reasons.   First, the section applies only to separations from the service of the police department and, second, it covers only cases of discipline for misconduct.   We agree with the respondents' contention as to the non-applicability of section 202.   Appellants, Officers Hopson and O'Callaghan, were never charged with any degree of misconduct and suffered no penalty in their employment rights.   We therefore conclude that any attempt by appellants to prevent the placement of the said Commission Report in appellants' personnel files based upon City Charter section 202 is meritless.

 Having disposed of the last issue, we turn our attention to appellants' contention that the Public Safety Officer's Procedural Bill of Rights Act (hereinafter “Act”), Government Code section 3300 et seq. entitles appellants to an “administrative appeal”.2  We think not.   The Report of the Commission went to great length to emphasize that it was not seeking punitive action as against the appellants.   The Report of the Board of Police Commissioners Concerning the Shooting of Eulia Love and the Use of Deadly Force—Part I states in part as follows:

“The Department's investigation and evaluation of officer-involved shooting incidents, unlike those of the district attorney and the United States Attorney, is not undertaken for the purpose of resolving issues relating to criminal prosecution of the officers.   Rather the Department's task is to analyze the existing Department policies and apply them to the facts of each case so that it may properly evaluate the conduct of its officers and determine what administrative action, if any, is required.”

“․ We believe that the final departmental record and public record must reflect the conclusion that the officers involved in the shooting of Eulia Love violated applicable Los Angeles Police Department policies and standards.   The question of whether these officers should now be ordered by the Chief of Police to stand trial before a Board of Rights, which has the sole authority under our City Charter to impose significant punishment, is a separate matter which has troubled the Commission greatly.”

“Prior to the Commission's study of the Love shooting, the Department conducted an investigation under the then existing rules and procedures.   A Department Shooting Review Board reviewed the matter and the majority, again under the existing rules and procedures, found no violation of Department policies.   Finally, the Chief of Police, who, under the Charter, has the legal responsibility for discipline, considered the matter thoroughly and decided that no discipline should be imposed.   Under the then existing rules and procedures, the Chief's decision constituted a final determination regarding the issue of discipline.   His final decision was communicated to the individual officers and to the public.   The officers were entitled, under the then existing procedures, to rely on the Chief's final decision and to conclude that, since their case had been finally adjudicated by the Chief of Police, they could not again be placed in jeopardy.”

“Based on our examination and review of the Love shooting, we are in disagreement with the decision reached by the majority of the Shooting Review Board.   Certain of the facts which affect our conclusion were not before the Chief of Police when he adjudicated the disciplinary issue.   However, while the Commission might well have reached a contrary conclusion to that reached by the Chief even under the facts presented to him, we believe that any attempt to impose discipline at this time would violate the rights to due process of law to which the two officers, like all other persons, are entitled.”

“For the reasons set forth above, we are not directing that the Chief institute disciplinary proceedings.   We are, however, directing that a copy of our findings be placed in the officers' personnel files.   We would also note, although it is not a basis for our decision, that referral of this the matter, by the Chief, to a Board of Rights at this time would in our opinion be futile and would serve no useful purpose, since we are persuaded that the Board should not impose discipline upon the officers in view of the judgments regarding this case previously expressed by the Chief of Police and the Shooting Review Board.”

“We must add, in fairness, that the fault for the disastrous shooting of Eulia Love does not lie solely with the individual officers involved.   A serious question exists in our minds as to how well the Department trained and prepared the officers to deal with the situation they encountered.   We question also whether the Department should have sent its officers on the assignment which resulted in the fatal shooting, just because the gas company wanted to collect an overdue bill.   These and other matters will be considered fully in later sections of this Report.”

Disciplinary action may only be initiated by the Chief of Police, as is specifically provided by the City Charter (§ 80(a)(2), supra ) and as unquestionably recognized by the Commission throughout the development of its Report.   It necessarily follows that unless the Chief has so acted, no discipline has occurred.

The trial judge correctly held that the Commission's announcement of its collective opinion about the propriety of the actions of the appellants, evaluated by the policy standard as the Commission applied it, did not constitute “disciplinary action,” did not constitute a “disciplinary adjudication,” and did not constitute “punitive action as defined in Government Code section 3303.”

The concept of due process has never contemplated the suggestion that an employee is entitled to notice and hearing in the absence of any threat whatsoever to a vested property interest.   The appellants perceive that they were “rebuked” by the Commission.   While this court may empathize with the officers' reactions to the Commission's Report, a “rebuke” does not equate to “punitive action” by any legal definition.

The definition of “punitive action” contained in the Act at section 3303 does not support their argument.3  A “written reprimand” issued within the Los Angeles Police Department does not encompass any writing which may refer to an officer in the performance of his duties.   It is a specifically defined penalty within the range permitted by department regulation.   Los Angeles Police Department Manual section 3/830.30 provides that:

“830.30.

  

A commanding officer may recommend the following penalties:

* For sworn personnel:

* Warning (generally used only for very minor censurable acts of misconduct).

* Admonishment

* Voluntary relinquishment of up to four days off.

* Official Reprimand (to be used for acts of misconduct for which no other penalty is appropriate).

* Suspension (not to exceed 22 working days).

* Board of Rights.

* Termination on probation.”

Upon the recommendation of the commanding officer, an official reprimand may be issued exclusively by the Chief of Police.   Charter section 80(a)(2).   Los Angeles Police Department manual provides for the execution of this penalty.   Section 3/832.10 provides that:

“832.10.  Official Reprimand—Execution of Order.   When a commanding officer receives a written order of reprimand for an employee of his command from the Chief of Police, he shall:

* Read the reprimand to the employee.

* Give the original copy of the order to the employee.

* Require the employee to sign the copy of the order.”

The respondents argue that the appellants' casual use of the language of the Act cannot be accepted.   We agree with respondents' position.   A “written reprimand” is a defined penalty, and by definition has not been imposed.   By that definition, it is impossible for the Board of Police Commissioners to generate such a penalty;  again it must be observed that only the Chief of Police is empowered to initiate this or any other punishment.

The Commission has stated its opinion.   Such a statement is not an adjudication.  (See Guilbert v. Regents of University of California (1979) 93 Cal.App.3d 233, 242, 155 Cal.Rptr. 583.)   Such a statement is not a disciplinary penalty.   The appellants' arguments must be rejected.   The absence of punitive action vitiates all claim to a hearing of any type.

The appellants invoke the constitutional concept of “liberty interests” to bolster their claim to a hearing right.   The Commission determined that in this instance, these officers' resort to firearms was not consistent with the Department's standards and policy.

 It is settled that if an employee whose property interest in his position has not yet vested is penalized as a result of an accusation of misconduct which implicates a “liberty interest” and when that employee has access to no other administrative forum, due process demands that an opportunity must be provided for the employee to refute the charges and to clear his name.  Wilkerson v. City of Placentia (1981) 118 Cal.App.3d 435, 173 Cal.Rptr. 294;  Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 159 Cal.Rptr. 440;  Kestler v. City of Los Angeles (1978) 81 Cal.App.3d 62, 146 Cal.Rptr. 61.

 The “liberty interest” cognizable under the Fourteenth Amendment may be described as a right to be protected in one's good name and reputation, opportunity to earn a living and community standing.   The right is impaired “․ where the probationary employee's job termination, or dismissal, is based on charges of misconduct which ‘stigmatize’ his reputation, or ‘seriously impair’ his opportunity to earn a living, or which ‘ “might seriously damage his standing or associations in his community.” ’ ․”  Wilkerson v. City of Placentia, supra, 118 Cal.App.3d 435 at p. 442, 173 Cal.Rptr. 294.

These cases have thus far limited the concept of “liberty interest” to matters directly related to the individual's character and reputation.   Certain allegations, for example charges of dishonesty and immorality, clearly “stigmatize” one's good name and standing, and in all probability would exclude him from many employment prospects.

 The appellants have offered no logic in support of their contention that a police officer's failure to meet standards governing use of weapons is an allegation likely to degrade, humiliate and stigmatize him.   It is more important to observe, that the basic concern of the due process clause is the protection of the expectation and opportunity to earn a livelihood.  (See e.g.:  Board of Regents v. Roth (1972) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548;  Bishop v. Wood (1976) 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684;  Board of Curators, Univ. of Mo. v. Horowitz (1978) 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124;  Codd v. Velger (1977) 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92.)

This court concludes that the instant facts do not rise to the level of an accusation which the law recognizes as destructive of an individual's claim of honor.   Beyond that issue, there are more direct reasons to reject the appellants' assertion of hearing rights under the theory that their liberty interests have been undermined.

1. The appellants were not disciplined, suspended, or otherwise deprived of their continued entitlement to their positions and compensation.

2. The appellants are beyond probation.   If an accusation had in fact been made against them, their hearing right is that established by the City Charter, section 202 (supra ).

A reading of the Public Safety Officer's Bill of Rights Act directly addresses the appellants' objections to entry of Part I of the Report into their personnel files.   Sections 3305 and 3306 of the Act provide as follows:

“§ 3305 ․

“No public safety officer shall have any comment adverse to his interest entered into his personnel file or any other file used for personnel purposes by his employee, without the public safety officer having first read and signed the instrument ․ except that such entry may be made if after reading such instrument the public safety officer refuses to sign it ․”

“§ 3306 ․

“A public safety officer shall have 30 days within which to file a written response to any adverse comment entered into his personnel file.   Such written response shall be attached to, and shall accompany, the adverse comment.”

The opportunity provided by sections 3305 and 3306 of the Act has at all times remained available to appellants.   Since the said Report—Part I—has not as yet been placed in the appellants' personnel files, it would appear that section 3306 of the Act still avails the appellants of the opportunity to respond to the Commission's report within 30 days after the said Report is placed into the personnel files of appellants.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Pursuant to established LAPD procedure, the circumstances surrounding the shooting of Eulia Love were investigated by a LAPD “Officer-Involved Shooting Team” (“OIS”) which issued its own report to a LAPD “Shooting Review Board” (“SRB”).   In keeping with established guidelines, the SRB issued its own report.   Two members of the SRB found the shooting to be “in policy”, i.e., in keeping with the then-current shooting policy of the LAPD.   The third member of the SRB issued a minority report, finding that the shooting was “in policy but fails to meet the Department standards”.Both the U.S. Attorney and the district attorney investigated the shooting from the standpoint of possible criminal prosecution of appellants.   Both offices declined to prosecute.

2.   The appellant's claim to an administrative appeal is based upon the provisions of the Public Safety Officer's Procedural Bill of Rights Act (Gov.Code §§ 3300–3311).   For purposes of this appeal, only the respondents concede that the provisions of this Act are applicable to the police department of a charter city.   The respondents have consistently argued that the Act may not constitutionally apply to respondents since the City of Los Angeles is a “charter” city.   The issue is presently pending in the California Supreme Court.   Baggett, et al. v. Gates, LA 31533, hearing granted on February 24, 1982.

3.   Government Code section 3303:  “․ For the purpose of this chapter, punitive action is defined as any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”

TEVRIZIAN, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

McCLOSKY, Acting P. J., and AMERIAN, J., concur.

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