COURT
OF APPEAL DECISION RESULTS IN REINSTATEMENT OF OFFICER
By
Dieter Dammeier
Lackie & Dammeier LLP
Fontana
PD Officer Charles Wideen, a 14-year veteran, was terminated for
allegations of excessive force and untruthfulness to a supervisor.
Represented by LDF panel firm Lackie & Dammeier, LLP, Wideen
obtained a permanent injunction from the Superior Court prohibiting the
use of what the department claimed were untruthful statements to a
supervisor, to impose disciplinary action against Wideen.
The Court of Appeal has upheld the Superior Court’s order,
resulting in Wideen’s reinstatement.
On May
23, 2001, Wideen assisted in the apprehension of suspects following a
pursuit. During the pursuit
one of the officers involved broadcast “shots fired”, raising
everybody’s concern in dealing with the suspects.
Upon arriving at the scene, Wideen took a cover position while
another officer was speaking with one of the suspects who was seated on
a curb. The suspect, a gang
member, was being verbally aggressive and attempted to stand up at which
point Wideen, using the palm of his hand on the suspect’s face, pushed
the suspect back down. By
that time, unbeknownst to the officers, newspaper crews were on scene
photographing the incident. No
injury or any marks were made to the suspect.
Of the officers who saw the incident, all felt that the use of
force was justified and reasonable.
As one
might expect, with the media having a photograph of an officer’s hand
touching the face of a handcuffed suspect, the media hype began. Wideen, not knowing that there were any photographs taken of
the incident, returned to his normal duties. In the meantime, a flurry
of media inquiries to the department commenced.
Several sergeants and lieutenants discussed the matter at the
station and the chief of police ordered an internal affairs
investigation be initiated. Prior
to the press inquiries, Wideen, as required by department policy
informed his patrol sergeant that he had used the minor level of force
against the suspect. The
sergeant indicated should not be of any concern.
He too was unaware of the press photographs.
At 7
p.m., Wideen was preparing to go home and he dropped paperwork off at
one of the sergeant’s office. The
watch commander lieutenant along with a sergeant saw Wideen and began
interrogating him about the incident.
The watch commander commented that there would be a picture in
the newspaper with headlines “Officer Beats Suspect”.
Wideen, not knowing of the existence of these photographs, felt
the sergeant and lieutenant were joking with him (as they have in the
past) and he responded to their inquiry that he did not touch anybody.
Later
that evening, Wideen rethought the situation and contacted the sergeant
he had previously informed of the use of force. The sergeant in turn contacted the watch commander and
resolved the matter, at least so everyone thought.
The department thereafter sought termination of Wideen based on
the alleged untruthful statements to the watch commander and sergeant,
as well as the use of force, which they claimed, was excessive.
LDF authorized Lackie & Dammeier to immediately file for a
writ of mandate and/or permanent injunction prohibiting the use of the
alleged untruthful statements due to the department’s failure to
provide Wideen his rights pursuant to the Public Safety Officers
Procedural Bill of Rights Act (POBR).
The
thrust of the petition for a writ or injunction focused on the failure
of the department to inform Wideen his rights pursuant to POBR prior to
interrogating him about the incident.
Specifically, Wideen was not informed that he was under
investigation (Government Code §3303(c)); that he was being
interrogated in connection with such investigation (§3303(c)); was not
read his constitutional rights (§3303(h)); was not afforded the right
to be represented by the representative of his choice (§3303(i)); and
was not given the opportunity to tape record the interrogation (§3303(g)).
The
department’s counsel, Paul Coble, took the position that the watch
commander’s interrogation was not in violation of POBR.
Coble attempted to convince the court that the watch commander
was unaware of Wideen’s involvement in the incident. It was clear the chief, and several sergeants and
lieutenants, were aware that Wideen was the officer involved in the
incident as determined in recorded telephone calls.
Yet Coble still claimed that the watch commander was not aware
that Wideen was involved in the incident.
Fortunately, the evidence proved that Coble’s position was
incorrect. An outside agency, the San Bernardino County Sheriff’s
Department looked into the criminal aspect of this matter. The watch commander told sheriff’s investigators that, “A
sergeant told him it was a motor officer” (Wideen the only one at the
scene), and that he “heard someone else say that Chip Wideen was out
at the scene at some point.” Additionally,
the watch commander in a taped interview with internal affairs admitted
that he had “gotten wind that it was probably Chip [Wideen] that had
hit or slapped this person.”
Not
surprisingly, the Court of Appeal affirmed the Superior Court’s ruling
in concluding that the questioning of Wideen was an interrogation under
POBR and due to the watch commander’s failure to provide the rights
and protections afforded, Wideen’s statements should be suppressed and
not used for any disciplinary action.
As a
result of the decision, Wideen has been reinstated with over $150,000 in
back pay. Wideen was very
thankful to his attorneys at Lackie & Dammeier, the Legal Defense
Fund, and the Fontana POA, who have all stood with him during his
two-year battle.
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