Case Summaries
December 2007

Discipline Must Be Consistent With MOU

Valencia v. County of Sonoma (2007), 2007 Cal.App. LEXIS 2126

Joaquin Valencia was employed as an "Alcohol and Other Drug Services Counselor II" by the County of Sonoma Department of Health Services (Department). On September 20, 2004, Valencia was given an order of termination by the director of health services as a result of alleged misconduct.

Valencia appealed his order of termination to the Commission. The Commission's proposed order vacated Valencia 's dismissal, directed that he be restored to his position, and imposed as alternative discipline, a limited suspension without pay and a temporary reduction in salary.

This discipline was consistent with that authorized by the MOU entered into by the County and respondent Engineers and Scientists of California, Local 20, the bargaining agent representing Valencia and other health professionals.

A representative of the county counsel's office appeared at a subsequent Commission meeting and asked the Commission to reevaluate its decision arguing that the Commission had the discretion to impose any discipline less than the termination imposed by the County and that it should have imposed harsher discipline. The Commission agreed to reconsider and eventually issued a modified decision demoting Valencia from counselor II to counselor I position and requiring him to serve a one-year probationary period.

Valencia and the Union filed a petition for writ of mandate in the superior court challenging the Commission's decision, arguing that the discipline violated both the MOU and the Commission's own rules. The trial court adopted a statement of decision concluding that the Commission "abused its discretion and exceeded its jurisdiction by imposing a penalty that violated the [MOU]" and directing the Commission to set aside and reconsider its decision and, at its discretion, impose discipline consistent with the MOU.

The California Court of Appeal , First Appellate District affirmed the trial court's finding that there was no dispute that the County and the Union entered into an MOU pursuant to the Act and that the agreement is binding on the County with respect to the matters it addresses. There also was no dispute that the MOU contained provisions that address the scope and type of discipline that may be imposed upon an employee covered by the MOU. The Court pointed out that the Commission was merely a subunit of the County, and an agreement approved by the Board binding on the "County," would be binding on the various agencies of the County as well," to include County commission.”

Court of Appeals Rules Officer Acted Reasonably In Use of Deadly Force

Long v. City and County of Honolulu (2007) 2007 U.S.App.LEXIS 29530

Long invited people to a party at his home. At approximately 2 a.m., an uninvited group arrived, harassed another guest, and instigated a fight. In response, Long fired shots from a .22 caliber rifle—once to demand that all of his guests leave and again shortly thereafter in an attempt to stop several uninvited persons from beating his friend, Chauncery Jarvis. As the uninvited group got into a car to leave, Long fired several more shots in their direction, hitting two of the passengers, who then called the police. Long and his friend, Kurt Umeno, then carried Jarvis to the back of the house by the Jacuzzi, where he lay until the police found and awakened him several hours later.

The police arrived soon thereafter and were later replaced by a SWAT team. The SWAT team manned the perimeter of the house. Long and Umeno spoke several times over the phone. Umeno claims that Long was scared that the police would shoot him and that he wanted to surrender. In any event, the police told Long to surrender, but he did not, and initially barricaded himself in the house. Long was agitated throughout the night and held a .22 caliber rifle as he walked around the property. He shouted various threats at the police. For example, at 4:07 a.m., he told the police that they had ten seconds to get the “fuck out of his yard” and started a countdown. The evidence suggests that he then fired a shot toward the front of the house. He also threatened to shoot out the lights the police were shining on the property.

Officers Sterling and Dalbec were positioned as snipers on the roof of a house across the street, some 220 feet away from where Long was located. At 4:51 a.m. the officers said over the radio, “Shots fired. He just shoot [sic] at us.” Upon hearing this radio call, Sterling shot Long. According to Sterling , he saw Long raise his rifle to about chest level and fire one shot immediately prior to the radio call. The police, however, were not able to recover a shell casing from this alleged shot.

Ms. Long, in her individual capacity, and as representative of Long's estate, commenced this action against Sterling and the City and County of Honolulu . Ms. Long sought damages under 42 U.S.C. § 1983 for use of excessive force against Long, the city's failure to render medical aid, and the municipality's failure to train officers on the use of deadly force.

The district court granted the Defendants' motion, holding that there was no constitutional violation and no basis for municipal liability, and entered final judgment.

The United States Court of Appeals for the Ninth Circuit concluded that Sterling acted in an objectively reasonable manner under the circumstances, and affirmed the district court's judgment.

Upon review of the facts presented and standards set by the United States Supreme Court regarding police use of force, the Court held that Officer Sterling's conduct met the objective reasonableness standard. The Court pointed out that prior to taking the fatal shot, Sterling had observed Long's agitated behavior, heard him threaten to shoot the police, observed him carrying a .22 caliber rifle, and knew that he had previously shot at a car full of people and wounded two people therein earlier that night. The Court stated: “Under these circumstances, when fellow officers radioed that Long was yelling threats at them and then radioed that Long was shooting at them, Sterling had probable cause to believe that Long posed an immediate danger to these officers. In the exigent circumstances of the night, Sterling acted in an objectively reasonable manner.