EL MONTE PERSONNEL COMMISSION OVERTURNS
OFFICERS TERMINATION
By: Dieter C. Dammeier
LACKIE & DAMMEIER LLP
Officer
Donald Luman is an 11-year veteran of the El Monte Police Department. On October 22, 2000, he was at the end point of a lengthy
pursuit of a stolen vehicle through El Monte and surrounding areas.
During the pursuit, the suspect vehicle blew through red lights,
rammed a police car and attempted to run over a deputy sheriff.
Toward the end, the suspects kept circling a known gang area,
which caused a crowd of spectators to gather along the pursuit route.
At the termination point, the officers decided against a textbook
felony traffic stop, due to the nature of the crowd.
They approached the vehicle to extract the suspects to expedite
their removal from the scene. Luman
was one of the officers who approached on the driver’s side, with his
gun drawn. As he moved in
on the driver, the driver’s right hand went down and out of sight.
Luman moved rapidly to close the distance between he and the
suspect to avoid any danger of shooting officers on the passenger side
or other officers on the driver’s side if it became necessary to shoot
the driver. As Luman moved
forward, his arm, with weapon extended, went into the driver’s vehicle
through the driver’s open window and accidentally hit the driver on
the top of his head, causing a small gash.
The two suspects where then removed from the vehicle and taken
into custody.
With
the crowd increasing, Luman was immediately ordered to transport the
driver suspect to the hospital for a pre-booking check.
As is customary in El Monte, one officer will transport a felony
suspect and another officer will provide escort.
Accordingly, Luman drove away from the scene and pulled into an
industrial complex to await his escort unit who was just behind him.
Due to the rapid evacuation from the scene, the suspect had not
initially been seat belted. Luman
went to seat belt the suspect, who had been combative and threatening
the officers. Accordingly,
Luman placed his elbow into the suspect’s chest and his hand on the
suspect’s jaw to minimize his ability to move and pose any physical
threat while he was seat belting him.
The suspect was then transported to the hospital.
Later
at the hospital, the passenger suspect had arrived with another officer. Like the driver, the passenger suspect was also combative,
verbally abusive and threatening. The
transporting officer attempted to remove the suspect from the police
unit and the suspect became violent and head butted the officer, causing
the officer’s pepper spray to be deployed on the officer rather than
the suspect. That officer
was able to kick the suspect in the chest and get him back inside the
police unit and request assistance.
Luman, who was inside the hospital, came to the assistance of
this transporting officer. Luman
opened the police unit, and the suspect again became violently combative
and attempted to kick Luman. Luman
then punched the suspect in the face, which enabled him to control the
suspect and remove him from the police unit. Luman then physically escorted the suspect to the hospital
entrance. However, due to
him needing to use both hands to control the combative suspect, he was
unable to use the keypad to open the emergency room door.
Luman then forcibly pressed the suspect against the door, which
caught the attention of hospital personnel inside who opened the door.
A
few weeks later, Luman was fueling up his police unit at the city’s
maintenance yard and was speaking with fellow city employees about the
pursuit incident, explaining how he “accidentally” hit the driver in
the head with his firearm. One
of the employees asked if he was afraid the gun might go off.
Luman then removed his firearm and demonstrated a safety
mechanism, which prevents the firearm from discharging when the slide is
pressed back. Two of the
five employees present during this conversation indicated that Luman
momentarily pointed the firearm at one of the maintenance workers in a
threatening manner. The other three did not see this and only recall the
demonstration.
Luman
was terminated on March 5, 2001, charged with excessive force by the
department which alleged that he purposefully hit the suspect in the
head with his firearm at the termination of the pursuit, that the
technique used in seat belting the suspect on the way to the hospital
was excessive and that he unnecessarily punched the passenger suspect
while removing him from a police unit at the hospital and then slammed
him into the door of the emergency room.
The department also charged Luman with brandishing his firearm at
the city yard maintenance worker. For
good measure, the department also charged Luman with making a false
statement to a deputy district attorney involving an unrelated case.
A
four-day hearing was held on June 4-8, 2001 in front of the El Monte
City Personnel Commission in which Luman, represented by LDF panel
attorney Dieter Dammeier of Lackie & Dammeier, LLP, appealed his
termination.
The
only evidence put on to support the department’s allegation that Luman
purposefully used his firearm to hit the suspect’s head was a sergeant
who was at the scene who testified that he saw Luman’s elbow, bent at
a 90 degree angle with his wrist cocked upward, come down on top of the
suspect’s head which he interpreted to be a deliberate act and not
accidental. This evidence
was rebutted by another officer who was also on the driver’s side
assisting Luman remove the suspect from the vehicle, who testified he
did not see such a movement and if it had occurred he certainly would
have. Additionally, a
helicopter observer (from Baldwin Park P.D.) was also observing Luman on
the driver’s side of the vehicle from his position above and testified
that he saw no such movement and would have if it had occurred.
In adding to the defense, a video reenactment was made to clearly
establish that the movement described by the sergeant could not have
physically taken place under the conditions that existed.
According to the sergeant, the suspect was still seated in the
vehicle when Luman hit him on the top of the head with his gun.
The video showed how the vehicles roof made it impossible for
Luman to cock his elbow in any fashion, let alone 90 degrees, or move
his wrist upward. It was also pointed out that the internal affairs
sergeant who investigated this case failed to even attempt to interview
any of the 50-to-100 residents who were outside of their homes and
gathering to watch the termination of the pursuit.
In
regard to the seat belting of the suspect on the way to the hospital,
officers testified that the technique alleged to have been used by Luman
was appropriate under the circumstances where there is a combative
suspect threatening officers to fight.
Even the chief of police had to ultimately admit on the stand
that such a technique would be appropriate under those circumstances.
Luman
and other officers testified as to the reasonableness of the force used
against the passenger suspect while Luman removed him from the police
unit and then pressed him against the ER door.
Again, under the circumstances it was established that Luman’s
actions were reasonable.
The
city yard worker who alleged that Luman pointed his firearm at him in a
threatening manner was aggressively cross-examined on the stand to
establish his true intentions, which was to obtain monetary damages from
the city. Contradictions
between his initial statement to investigators in the case and his
testimony at hearing were brought out. His claim that he was stressed and emotionally distraught
from the incident had little effect on the commission after it was shown
he waited three weeks to complain of the incident.
The
allegation that Luman lied to a deputy district attorney, who was
handling one of his cases, involved an incident in which Luman attempted
to tape record a confession of a child molester.
The recording device did not work and the tape was later
determined to be blank when the police transcriber attempted to
transcribe it. The DDA
asked Luman if there was a recording made of the confession and Luman
stated that there was “no tape recording.”
The DDA, who had repeated this to the defense attorney, was
embarrassed at the preliminary hearing when she learned from another
officer on the stand that there was a tape recorder going during the
confession. It was shown to
the commission that Luman’s statement was in fact accurate.
He informed the deputy district attorney that there was “no
tape recording,” which after all was accurate, since the recorder
failed. Additionally, the charged violation requires an officer to
lie to a “superior officer” or make a false “official report.”
It was shown by testimony of deputy district attorneys that they
are not “superior officers” with the City of El Monte and that a
verbal conversation with a DDA does not amount to an “official
report.” The department
attempted to portray this incident as one, which had “Brady”
implications that would require the District Attorney’s office to
divulge that Luman had a credibility problem in any future cases.
This was an important aspect since that would necessarily ruin,
if not end, Luman’s career. The
Legal Defense Fund authorized and the defense obtained an expert witness
who had just retired from the Los Angeles County District Attorney’s
office as head of the “Brady” unit.
This expert testified that such an incident would not raise
“Brady” implications and would not need to be divulged to defense
attorneys and even if defense attorneys somehow became aware of such an
allegation, a judge would likely not allow such material into evidence.
At
the conclusion of the four-day hearing, the Personnel Commission
concluded that Luman’s actions in the aftermath of the pursuit was
reasonable and necessary under the circumstances.
They additionally concluded that Luman did not lie to a
“superior officer” or make a false “official report.”
Also, they found that Luman made no false statement to the DDA
since there was “no tape recording.”
While they concluded that Luman did not brandish his firearm in a
threatening manner at his fellow city employee, they did conclude that
he removed his firearm without justification in violation of department
policy, for which the commission recommended he receive a written
reprimand.
Under
the appeal rules in the City of El Monte, the Personnel Commission’s
factual findings are final and conclusive.
The level of discipline, however, is subject to review by the
City Council. The City Council on September 18, 2001, despite the final and
conclusive findings of the Personnel Commission, refused to adopt the
commission’s decision and reinstate Luman.
Luman is now proceeding to the Superior Court to enforce the
Personnel Commission's decision and order the city to reinstate him.
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