DORNER v. LOS ANGELES POLICE DEPARTMENT
Court of Appeals of California, Second District, Division Four.
Filed October 3, 2011.
Appellant and Gettler walked about 15 feet away, with Sergeant Evans a little behind them and on Gettler's left side. Gettler suddenly stopped, turned to Sergeant Evans and yelled at her, at which point Sergeant Evans took appellant's taser. Appellant thought Gettler was about to hit Sergeant Evans, so he tried to drag Gettler to the ground and ended up pushing Gettler toward the bushes. Gettler turned around and started pushing appellant in an attempt to get away, so appellant pushed back, and they both fell in the planter box. Appellant was trying to straddle Gettler to gain control of his hands, and after he got Gettler's left hand he heard two taser bursts.
Appellant was trying to grab Gettler's right arm, which was pressed against the wall, but Gettler did not comply. Sergeant Evans went into the bushes, between the bushes and the wall, lifted Gettler by his hair, and told him to give appellant his arm. Appellant testified that Gettler did not have blood on his face at that point. Sergeant Evans then stood up and kicked Gettler twice in the left clavicle. Gettler yelled, and then Sergeant Evans kicked him on the left cheek, causing him to start bleeding. Gettler said, "Is this all you want?" and gave appellant his right arm to be handcuffed. Sergeant Hernandez then drove up, got out of his car, asked if they needed help, and helped pick Gettler up.
Sergeant Jackson arrived and began his investigation. He asked what appellant did during the use of force, so appellant told him that force was used to try to gain control of the suspect's hands and that he thought he heard Sergeant Evans use a taser. Appellant did not report the kicks by Sergeant Evans because Sergeant Jackson asked him only what his own involvement was.
Appellant testified that Sergeant Jackson spoke with Sergeant Evans first and that after Sergeant Jackson spoke with appellant, appellant heard him say that appellant's story was consistent with Sergeant Evans's. When appellant heard Sergeant Jackson say that his story was consistent with Sergeant Evans's, he knew that Sergeant Evans had not reported the kicks, so he thought about saying something then, but he did not. He did not feel comfortable speaking with Sergeant Jackson because Sergeant Jackson and Sergeant Evans got along well.
Appellant also testified that he was hesitant to report the kicks because when he was in the police academy, he had reported an incident in which two recruits were using a racial epithet against another recruit. He had been shunned by other recruits after that, so he did not want to speak up again.
Appellant stated that he did not think the kicks were necessary and that he would not have kicked the suspect, but he thought they might have fallen within the use of force policy. Appellant was not sure if the kicks were wrong because he had been away for over a year during his military deployment and had not received reintegration training, despite his request for the training.
After Gettler was arrested, Sergeant Evans and appellant presented him to the watch commander, Lieutenant Andrea Grossman. Appellant did not report the kicks to Lieutenant Grossman because he was not asked and he knew that probationary officers did not speak to Lieutenant Grossman unless spoken to. He also was hesitant because he knew that Sergeant Evans and Lieutenant Grossman were friends. Gettler did not report being kicked. The medical form filled out by appellant asked if the arrestee had any injuries or medical problems, and appellant had written that Gettler had a minor scratch on his face.
1. At the time of the hearing, he was a captain with the Lompoc Police Department.
2. Appellant left for a 13-month military deployment shortly after his graduation from the police academy.
3. Because we find the findings supported by substantial evidence, we need not consider respondents' assertion that appellant waived the substantial evidence issue.