DEPUTY SHERIFF WINS JOB
BACK, BACK PAY AND BENEFITS INCLUDED
Hearing Officer Lou
Zigman wrote the words we love to hear after presiding over the hearing
in the termination of San Bernardino County Deputy Sheriff Chris Leahy.
Those words were, "That the imposition of disciplinary action, i.e.
termination, was clearly inappropriate and not justified" and,
"That the appellant be reinstated to his former position with full
back-pay and benefits. That the disciplinary action be reduced from
termination to one day off without pay...."
This recommendation was
later adopted in total by the full Civil Service Commission. Attorney
Bob Krause, Law Office of Castle & Krause, in Temecula, represented
Leahy throughout all phases of his case.
Leahy’s nightmare began
on June 11, 2000, when he responded to another deputy’s request to
assist in regaining control over disruptive inmates at the West Valley
Detention Center in San Bernardino County. This deputy, who had
functional supervision over these inmates, had the audacity to insist
that the inmates obey the facility rules and be courteous to staff. In
that regard Leahy and others were summoned for back-up and control
purposes.
The Charges:
The department saw the deputies getting together to enforce facility
rules as a conspiracy to commit mass discipline. When certain inmates
continued to disobey orders and were passively and physically resistant,
Leahy and other deputies applied compliance/control holds as needed. The
department saw these actions as unnecessary force (while having to admit
under cross-examination by Krause that the deputies had few options).
When harsh language was used against one of the more resistant inmates
in an effort to gain control and command authority, the department
viewed this as verbal abuse towards this kicking, screaming,
non-compliant, but otherwise innocent fellow. Then, this same nice guy
started an altercation in the infirmary and had to be taken down once
again, this time by other deputies.
Now, notwithstanding the
fact that Leahy was standing right next to the deputy that called the
sergeant to report the use of force, Leahy was further charged with
failing to report the use of force. Oddly enough, so was the deputy who
made the call! The department’s theory, which was wholly rejected by
the hearing officer, was that the call simply wasn’t fast enough. It
was within minutes of the end of the final altercation.
Hearing Officer’s
Findings: These excerpts from
the 21 page written decision will demonstrate how the hearing officer
viewed this tragic case.
Mass Discipline: "After
having considered the evidence and contentions of the parties and
while I acknowledge that considerable deference should be accorded the
opinion of the board of chiefs, nevertheless on the record before me,
I found the arguments of the appellant’s counsel as quite persuasive.
In this respect, I found the appellant’s arguments to the affect
that there was essentially no evidence, other than supposition, that
the appellant organized a mass discipline of inmates was persuasive."
In it’s extraordinary
attempt to justify this charge the department relied on the jail
commander, Captain Ripley. That, to say the least, backfired. Zigman
wrote: "I also found the evidence persuasive, that there was no
discipline taken against any of the inmates, except for Robinson. While
Captain Ripley stated that there was disciplinary action taken, I note
that he appeared to struggle somewhat in explaining exactly what
constituted the "mass discipline", and after additional
questioning he did concede that the lining up of all of the inmates
would be considered as a very low form of mass discipline."
The reader should note
that the good captain joined in the decision to fire Leahy anyway.
Zigman then summarily dismissed that charge.
Three Counts of
Unnecessary Force:
To this Zigman added:
"Turning next to the second specific charges 2(a), 2(b) and 2(c)
concerning the use of unnecessary force, I found the arguments of
appellant’s counsel persuasive to the affect that the
department failed to establish, through a preponderance of the evidence,
that the appellant violated section 14/100, et al, which deal with the
use and amount of force. In this regard, the weight of the evidence
demonstrated that all three inmates did refuse to follow the directives
given by lead deputy [name deleted] and after admonitions by the
appellant the inmates continued in their refusal to obey. Indeed,
in the absence of any of the inmates to refute the testimony of the
deputies, and given my observation of the demeanor of the witnesses and
the consistency of their recollection of the events, I found that the
weight of the evidence did demonstrate that each of the three inmates
exhibited a defiance which created a situation that had to be
dealt with and dealt with at that particular moment."
Zigman likewise dismissed
these charges.
Failure to Report Use
of Force: This, probably the
most ridiculous of the charges brought, was handled summarily by the
hearing officer as follows:
". . . the fact
is that there was no attempt to cover the incident up and the fact
is that Sergeant Paterson was made aware of that incident within
minutes after he arrived to begin his investigation. Furthermore,
the evidence disclosed that the appellant freely discussed the
incident with Sergeant Paterson.
The fact that
appellant did not specifically call Sergeant Paterson was not
considered as particularly significant in as much as the appellant
was standing right next to [deputy] when [deputy] called Sergeant
Paterson. And, even if [deputy] didn’t tell Sergeant Paterson
about the incident the fact remains that he was told of it very
shortly after it occurred.
For all of these
reasons, I found the appellant’s arguments persuasive that
the department failed to establish through a preponderance of
evidence that the allegations in the third charge have been
established with sufficiency to justify anything more than a
reminder to report the use of force immediately and/or as soon as
practical."
4. Verbal Abuse:
Zigman observed: "And finally, with respect to charge 2(d),
concerning verbal abuse, while I note testimony that the use of four
letter words is not unheard of in a jail setting, nevertheless I found
the department’s contentions persuasive that appellant did engage in
verbal abuse in the barber shop. However, such conduct would not justify
sever disciplinary action, much less termination."
Any Lessons Learned by
the Department? "I doubt it":
In closing, Krause stated, "I doubt it", specifically because
he has just completed yet another case of termination by the same
department leading to reinstatement with back pay and benefits of a
veteran deputy. That is an article for another edition.
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