DORNER v. LOS ANGELES POLICE DEPARTMENT
Court of Appeals of California, Second District, Division Four.
Filed October 3, 2011.
Appellant told Captain Deming he had something bad to report, and he "expressed remorse that he failed to report what he believed to be misconduct (unnecessary kicks applied to an arrestee) that he witnessed approximately two weeks prior." Appellant said that he had handcuffed the suspect and was struggling with him when Sergeant Evans (Officer Evans, at the time) kicked the suspect twice in the left shoulder area and once in the face. Appellant had not told Sergeant Jackson about the kicks when Sergeant Jackson conducted a use of force investigation, and Sergeant Evans later discouraged appellant from disclosing she had kicked the suspect. Appellant was unsure what to write about the incident on the arrest report, so Sergeant Evans completed the report, "omitting any reference to the kicks." Appellant was visibly upset when he spoke with Captain Deming, and Captain Deming believed this was caused by fear of repercussions for reporting misconduct by a training officer. Because of his fear of repercussions, appellant told Captain Deming, "Promise me you won't do anything." Appellant testified that the reason he asked Captain Deming not to do anything was that he knew Sergeant Evans had a child to support and he did not want her to lose her job.
After Captain Deming retired from the LAPD, appellant called to tell him he was being investigated for false statements. Captain Deming expressed surprise, and appellant told him, "No matter what happens, I just want you to know I never lied to you." Captain Deming testified that appellant's performance was satisfactory while he was under his supervision.
Following appellant's complaint about Sergeant Evans, appellant believed someone urinated on his equipment bag at the police station. Appellant thought this was in retaliation for his complaint against Sergeant Evans and filed a complaint about this incident. However, an analysis of the unknown substance on appellant's jacket revealed that the substance was not urine.
Testimony of Sergeant Evans
Sergeant Evans was the field training officer assigned to train appellant, who was a probationary employee. She testified that appellant had expressed to her the need for reintegration training because he had been away for a long time during his military deployment.2
Sergeant Evans and appellant responded to a call around 8:46 a.m. on July 28, 2007. When they arrived, they saw the subject sitting on a bench outside the main door of the hotel. Based on the subject's demeanor and gaze, the officers thought he was either suffering from mental illness or under the influence, so they discussed a plan to isolate him from the numerous pedestrians in the area.
Appellant told the subject to stand up, but he did not comply, so appellant placed his hand on the subject's arm and helped him stand. When appellant and the subject were walking near a planter box on the sidewalk, the subject suddenly swung at appellant and said, "fuck you." Sergeant Evans took a taser from appellant's duty belt and called for backup.