DORNER v. LOS ANGELES POLICE DEPARTMENT
Court of Appeals of California, Second District, Division Four.
Filed October 3, 2011.
Decision of the Board
The Board stated that the primary issue in the case was whether Sergeant Evans actually kicked Gettler or not. After reviewing all the evidence, the Board stated that it could not find that the kicks occurred. The Board pointed out that, although Gettler's clothes were soiled, consistent with testimony that he and appellant fell in the bushes, there was no "visible dirt transfer" on Gettler's white shirt to support the allegation that Sergeant Evans kicked him in the shoulder or chest area.
The Board reasoned that, although there were inconsistencies in the testimony, the testimony of Adrid, Sergeant Perez, and Sergeant Hernandez was consistent with the original report by appellant and Sergeant Evans. Although Richard Gettler's testimony supported appellant's assertion that Sergeant Evans kicked Gettler, the Board found his testimony not credible because it was inconsistent with his son's testimony. The Board also noted that Gettler's mental illness affected his ability to give an accurate account of the incident and found that Gettler's videotaped statement, alleging one kick, was not credible.
The Board found that appellant had failed to report the alleged kicks, despite numerous opportunities to do so, and that his testimony regarding his reasons for not reporting the kicks was not credible. The Board also found that the injury to Gettler's face was caused when he fell into the bushes.
The Board found there was evidence that appellant had a motive to make a false complaint, citing Sergeant Evans's testimony that appellant was going to receive an unsatisfactory probationary rating if he did not improve his performance and that the kicks were reported the day after appellant received an evaluation. The Board concluded that appellant was not credible and found him guilty of the charges against him.
Decision of the Trial Court
Appellant filed a petition for writ of administrative mandamus, which the trial court denied. The court stated that, after an independent review of the administrative record, the court was "uncertain whether the training officer kicked the suspect or not." Because the court was not convinced that the administrative findings were wrong, the court found that appellant failed to carry his burden of establishing that the administrative findings were contrary to the weight of the evidence. The court also rejected appellant's contention that the Board shifted the burden of proof by requiring him to prove the training officer kicked the suspect. Finally, the court rejected appellant's contention that the Board members were biased. The court reasoned that no other witness testified that Sergeant Evans kicked Gettler and that the issue came down to a determination of the relative credibility of appellant and Sergeant Evans. The court thus denied appellant's petition for writ of mandate and entered judgment in favor of respondents. Appellant filed a timely notice of appeal.