Case Summaries
January, 2007
Facts Indicate Department
Did Not Violate Own Review Rules
Or Statue of Limitations In Disciplinary Matter
NICHOLAS BETTENCOURT et al., v. CITY AND COUNTY OF SAN FRANCISCO et al.
146 Cal.App.4th 1090 (2007)
On January 21, 2002, four San Francisco police officers, Nicholas Bettencourt, Adam Choy, Walter Cuddy and Marcial Marquez, responded to a report that guns were being removed from a vehicle. They found four African-American juveniles in a car listening to a radio. The officers ordered the minors, two boys and two girls aged 12 to 15 years old, from the car at gunpoint. The minors were detained, handcuffed and searched. A crowd gathered and the mothers of the detained girls sought an explanation from officers. Bettencourt, who was Caucasian, was reported to have told one of the mothers that AIf you people would not act like this, this would not be happening.@ Sherman Lee, the ranking officer, ordered that a warrant check be run on the juveniles before they were released. No guns were found that night.
Two bystanders, one adult and one juvenile, were arrested by police. The juvenile sustained injury during the arrest. He was taken to the local police station, detained and questioned by Cuddy. A statement was obtained from the juvenile without first advising him of his Miranda rights or advising his father, who had appeared at the station, that he was being questioned.
The following day, the Office of Citizen Complaints received a series of complaints about the officers' handling of the incident, and began an investigation. On December 10, 2002, a civil lawsuit was filed relating to the January 2002 incident, naming all five officers as defendants.
The OCC completed its investigation on December 31, 2002. On January 8, 2003, it forwarded the matter to the department with a recommendation that charges be filed with the commission. The OCC also notified the five officers of its preliminary findings that same day. The department received the OCC's final report on January 22, 2003. The department did not take action on the matter within the required 60-day period. On April 8, 2003, the OCC notified Acting Chief of Police Alex Fagan that the time for department review of the recommendations had passed. On April 9, 2003, Acting Chief Fagan admitted that the matter had fallen Athrough the cracks.@ Between April 23 and April 28, 2003, each of the five officers was served with notice of disciplinary charges.
Nicholas Bettencourt and the four other officers sought dismissal of disciplinary proceedings before the San Francisco Police Commission. The trial court denied their petition for writ of mandate and injunctive relief. The officers appealed the order denying mandamus and injunctive relief, contending that the charges against them must be dismissed because (1) the applicable statute of limitations bars these proceedings regardless of the pending civil litigation in which each of the officers was a named defendant; and (2) the department failed to conduct a timely review of the charges in accordance with its own internal regulations.
The California Court of Appeal, First Appellate District, denied the officers' petition for a stay of the disciplinary proceedings and affirmed the trial court order, lifting their previous stay.
Statute Of Limitations Applies
In Officer Disciplinary Matter
GREGORY W. BRESLIN et al., v. CITY AND COUNTY OF SAN FRANCISCO et al.,
146 Cal.App.4th 1064 (2007)
On May 13, 1998, four San Francisco police officers were conducting a surveillance in an attempt to locate a known fugitive, Raymondo Cox. The officers, Gregory W. Breslin, Michael Moran, Peter Siragusa and James Zerga, observed Cox leave an apartment complex and enter a vehicle driven by Michael Negron, with seventeen-year-old Sheila DeToy as a passenger. When the officers attempted to stop the car, as it left the apartment complex, Negron attempted to evade the officers. Breslin and Moran fired several shots into the car, and one of Breslin's bullets struck and killed Sheila DeToy.
Immediately after the incident, the San Francisco Police Department and the district attorney conducted investigations of the incident and the four officers' involvement in it. The officers maintained that Breslin acted in self-defense after Negron attempted to run him down with the vehicle.
On June 10, 1998, the city's Office of Citizen Complaints received a complaint about the incident from an eyewitness, and later that month it began its own investigation. On February 10, 1999, the district attorney announced that it had completed its criminal investigation of the four officers and had concluded that no criminal conduct had occurred.
During 1999, the OCC investigation continued. On March 30, 2001, the OCC formally completed its investigation and notified all four officers of its preliminary findings. It forwarded the case to the chief of police, Fred Lau, recommending that sustained allegations against all four officers be submitted to the commission. On April 16, 2001, the OCC submitted its final report to Chief Lau, and over the course of the next three and one-half months Chief Lau reviewed the report.
On August 30, 2001, Chief Lau formally notified the OCC that he disagreed with its recommendations. On June 7, 2002, the OCC urged the commission to order Chief Lau to file the original charges against all four officers, and on June 28, 2002, Chief Lau filed the original disciplinary charges against the four officers. Between June 28 and July 9, 2002, each of the four officers was formally served with notice of the disciplinary charges.
The trial court denied the officer's petition for writ of mandate and injunctive relief seeking dismissal of the disciplinary charges pending against them before the San Francisco Police Commission. The officers contended that the disciplinary charges were time-barred. The officers appealed.
The California Court of Appeal, First Appellate District, held that three statutory exceptions to the one-year limitations period were erroneously applied by the trial court and concluded that the disciplinary charges had not been timely filed against any of the four officers, reversing the trial court and remanding for further proceedings.
Crowd Control Operational Plans
Do Not Result In Civil Rights Violation
JOHNSON V. CITY OF SEATTLE, 474 F.3rd 634 (9th Cir.2007)
Private businesses sponsored an annual Mardi Gras celebration in Seattle's Pioneer Square District. The 2001 celebration was scheduled to run from Friday, February 23, 2001 through Tuesday, February 27, 2001. Prior Mardi Gras celebrations have had a generally peaceful history, and, with the exception of a minor skirmish in 2000, there had been no unusual civil disturbances surrounding the Mardi Gras celebrations since the late 1970s.
This celebration however turned violent with attacks on the police and groups of celebrants, causing the police to use chemical agents on several occasions and revise their tactical operational plan for the event which included splitting the crowd into groups to aid and assist in dispersal. Johnson and others were in one of the groups that were attacked by other's during the violence.
Michael A. Johnson and ten other persons known as the APioneer Square Plaintiffs@ appealed the district court's order granting summary judgment in favor of the City of Seattle, as well as the Mayor and Police Chief, contending that the district court erred in dismissing their 42 U.S.C. ' 1983 claim because the Defendants' change in police enforcement policy violated their Fourteenth Amendment right to due process by affirmatively placing them in a position of enhanced danger.
The United States Court of Appeals, Ninth Circuit, affirmed the district court's decision to dismiss the ' 1983 claim concluding that the Pioneer Square Plaintiffs failed to demonstrate that the Defendants violated their constitutional rights.
The Court concluded even the fact police at one point had an operational plan that might have more effectively controlled the crowds at Pioneer Square did not mean that an alteration to that plan was affirmative conduct that placed the Pioneer Square Plaintiffs in danger, even though the police did not communicate anything about their plans to the Pioneer Square Plaintiffs prior to the incident. The Court pointed out that even if proved not the most effective means to combat the violent conduct of private parties, the more passive operational plan that the police ultimately implemented did not violate substantive due process because it Aplaced [the Pioneer Square Plaintiffs] in no worse position than that in which [they] would have been had [the Defendants] not acted at all.@
Employee Must Exhaust Administrative
Remedies and Specifically State
Causes of Action
ROSS V. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT,
146 Cal.App.4th 1507 (2007)
After 26 years of employment with BART, George Ross retired from his position as a central maintenance supervisor in September 2003. At the time of his retirement Ross was 57 years old and on disability leave. BART had notified him in February 2002 that it was terminating his employment for dereliction and negligence in the performance of his duties. It later rescinded the termination notice and suspended Ross for 45 days to take effect when he returned from his disability leave. Ross filed for a voluntary retirement after unsuccessfully attempting to negotiate a stay of the suspension pending arbitration. In September 2002, Ross filed a complaint under FHA alleging that he was fired because he was Athe oldest on [his] job,@ had Aunionized lower management,@ and was A36.5% disabled.@ He received a right-to-sue letter under FHA in October 2002.
Ross sued the San Francisco Bay Area Rapid Transit District for wrongful termination in violation of public policy and for age and disability discrimination in violation of the Fair Employment and Housing Act (FHA) (Gov.Code, ' 12940 et seq.), and appealed from summary judgment in favor of BART, asserting that there are triable issues of material fact with regard to each of his causes of action. The California Court of Appeal, First Appellate District found that summary judgment was properly granted and affirmed the judgment.
The Appellate Court pointed out that a jurisdictional requirement for bringing an action under FEHA requires that the plaintiff must exhaust administrative remedies. ATo exhaust his or her administrative remedies as to a particular act made unlawful by [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. [Citation.]@
The administrative complaint form that Ross submitted to DFEH allowed a claimant to specify the particulars of his claim by placing check marks next to the applicable entries in two lists - a list of possible adverse employment actions and a list of possible discriminatory motives covered by FEHA that were attributable to the employer. Ross placed check marks next to entries indicating that he was Afired@ and Aharassed@ because of his Aage@ and Aassociation.@ He could have, but did not, check other spaces on the two lists that would have indicated that he was Adenied accommodation@ because of a Aphysical disability@ or a Amental disability.@
Simply inserting a notation that he was A36.5% disabled,@ without checking the spaces provided to state a failure to accommodate claim, did not as a matter of law provide adequate notice of such claim to DFEH.
City Did Not Violate AMeet and Confer@
Utilizing Retirees To Remedy
Short-Term Staffing
SACRAMENTO POA V. CITY OF SACRAMENTO, 147 Cal.App.4th 311 (2007)
The Sacramento Police Officers Association (SPOA), filed for and was granted a writ of mandate in the Sacramento Superior Court, directing the defendants, City of Sacramento and Sacramento Police Department to Ameet and confer@ about the implementation of a policy to hire retirees as temporary non-career employees to remedy a short-term staffing shortage in its police department.
The California Court of Appeal reversed, holding that the proposal to hire annuitants in response to an abrupt shortage in the staffing of the police force, which could not be remedied through the ordinary processes of recruitment and hiring, was a fundamental managerial policy decision designed to maintain the existing level of public safety in the community. It thus was not itself subject to the City's duty to meet and confer even if it represented a change in the status quo with respect to the terms and conditions of employment.
The Court noted that the proposal included the principle that nothing in its implementation was to affect the terms and conditions of employment of unit members, and the details of implementation were not subject to the duty to meet and confer. The Court further noted that if individual unit members experienced detriment, as a result of the proposal's implementation, these would have been properly subject to the existing grievance process.
Employer Has Right Of Consent
For Third Party To Search
Employees Company Owned Computer
U.S. v. ZIEGLER. 474 F.3rd 1184 (9th Cir. 2007)
Anthony Cochenour, owner of Frontline Processing, a company that services internet merchants by processing on-line electronic payments, contacted Special Agent James A. Kennedy, Jr. of the FBI with a tip that a Frontline employee had accessed child-pornographic websites from a workplace computer.
Investigation revealed that Jeffery Ziegler had in fact accessed and downloaded child-pornographic material onto his company owned computer. A federal grand jury handed down a three-count indictment charging Ziegler with receipt of child pornography, possession of child pornography, and receipt of obscene material. At arraignment, Ziegler entered a plea of not guilty.
The district court entered a written order denying Ziegler's motion to suppress.
Ziegler's sole contention on appeal was that the entry into his private office to search his workplace computer violated the Fourth Amendment and, as such, the evidence contained on the computer's hard drive must be suppressed.
The United States Court of Appeals, Ninth Circuit, affirmed the District Court's denial of the suppress motion noting that A... testimony makes clear that Ziegler's superiors at Frontline, in particular Reavis, an officer of the company, gave consent to a search of the property that the company owned and which was not of a personal nature.@
The Ninth Circuit pointed out that, although Ziegler retained a legitimate expectation of privacy in his workplace office, Frontline, Ziegler's employer, retained the ability to consent to a search of Ziegler's office and his business computer.
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