FIRED RPD OFFICERS
EXONERATED IN MILLER SHOOTING BUT COURT ACTION STILL NEEDED FOR
REINSTATEMENT
In what has to be one of
the most astounding rulings in the annals of LDF cases, a Culver City
arbitrator has exonerated two Riverside police officers in the
sensationalized December 1998 shooting of Tyisha Miller and awarded them
full back pay and benefits, but refused to order the city to restore
them to full-time duties. Arbitrator Robert Steinberg found that the
officers did virtually nothing wrong in the incident, in which they were
forced to fire at Ms. Miller in response to her picking up a firearm
while they were attempting to rescue the seemingly comatose 19 year old
African-American woman from her locked and idling car. The officers had
been summoned to the scene as a result of a 911 call from panic-stricken
family members who had been unable to rouse her.
While emphatically
stating that the termination of the officers was "an administrative
abuse of discretion", Steinberg declined to order the city to put
them back to work, incredibly citing racial politics, and not the
evidence, for his justification:
"...The black
population in particular with its apparent perception of being a victim
of institutional discrimination (totally wrong in this case), must be
viewed as a real party in interest....Maybe time has healed, and the
minority community will accept that grievants were trying to save Tyisha
Miller's life, not take it. But the community or communities which
constitute the city, and in particular the black population or perhaps
other racial or ethnic minorities, may not be so understanding or
forgiving." (emphasis in original).
"The officers were
fired because they are white, and they were not reinstated because they
are white", said Bill Hadden of Silver, Hadden & Silver, who
has represented both officers throughout their three-plus year ordeal.
"Given the factual findings of innocence made by the arbitrator,
the decision not to reinstate them is logically and legally
indefensible," he said. "We'll remedy this travesty in
Superior Court as soon as possible."
FACTUAL BACKGROUND
On December 28, 1998, Officers Michael Alagna and Wayne Stewart were at
a McDonald's restaurant in the City of Riverside when they heard a call
over their police radios for service at Central and Brockton in
Riverside. The call was dispatched as a "10-57" (unconfirmed
circumstances) as the 911 caller had hung up. The situation as described
to the officers included an unresponsive female in a locked car, engine
running, gun on her lap. Officers Paul Bugar and Dan Hotard broadcast
their response to the scene, Officers Alagna and Stewart decided that
they would quickly roll to assist.
Upon his arrival, Officer
Bugar contacted two females, Antoinette Joiner and Chilean King, who
were later identified to be cousins to the person in the vehicle, which
was still idling in the parking lot. Ms. King had called 911 because of
her concerns for the welfare of her cousin in the vehicle, a 19-year-old
female named Tyisha Miller. Ms. Joiner and Ms. King later told
investigators that they did not know the cause of Ms. Miller's distress,
but knew that there was definitely something wrong with her, as they
observed Ms. Miller's eyes and entire body shaking, while she was
completely non-responsive to their yelling and banging on the car. Ms.
King also told Officer Bugar that Ms. Miller had a gun and was
unresponsive.
Officers Bugar and Hotard
approached the car with their weapons out, and quickly confirmed the
information given to them by the reporting parties. Both Hotard and
Bugar found Ms. Miller trembling, unresponsive, in apparent need of
immediate medical attention and not at all like someone who was only
drunk.
Shortly thereafter,
Officer Stewart arrived at the scene, almost instantaneously followed by
Officer Alagna. Appellants each confirmed the presence of a gun as Bugar
and Hotard focused their weapons on Ms. Miller. Almost immediately upon
observing Ms. Miller reclined in the driver's seat of the car, Alagna
determined that Ms. Miller was in dire need of medical attention. He
observed the symptoms described by Hotard and Bugar, and that Ms.
Miller's eyes would not respond to the 20,000 candle power flashlight
that he shined on her. She did not respond to the various forms of
auditory stimulation that the officers tried to generate, and she had a
white substance around her mouth. The officers tried all the doors, but
they were locked. Ms. Miller's keys were in the ignition of the idling
car.
In their law enforcement
experiences, Officers Stewart and Alagna had witnessed such calamities
as overdoses, seizures and attempted suicides, and were mindful that
time was of the essence. Just a few months before, Alagna had gone to a
call for an overdose victim, who expired despite Alagna's efforts to
revive him. The officers were also aware by training and experience that
statistically females attempting suicide with a firearm tend to fire a
round in the chest, from which little blood may emerge. Since Ms. Miller
was wearing bulky clothing, the officers were concerned that she may
have been suffering from a gunshot wound that was not otherwise visible
to them. Whether the cause of her condition was a drug overdose, a
seizure or a suicide attempt, the officers could not help but conclude
that Ms. Miller was in urgent need of medical attention.
Nonetheless, hopeful that
she might possibly provide some assistance so that the gun might be
removed from the equation, the officers made every effort to evoke a
response from her. For five-to-seven minutes the officers announced
their presence, yelled commands to her, asked her to take her hands away
from the gun, and to open the doors. They pounded loudly on the car,
smacked the windows, and even rocked the car. Ms. Miller's head was
located a mere two to three feet from the point at which some of the
officers were yelling, leading the officers to conclude after a time
that no further efforts at creating noise would not be productive. The
officers thus faced the ultimate dilemma. They knew that no medical
personnel would come to assist Ms. Miller until the gun was recovered
but that the situation seemed urgent, and that they had no quick means
to enter the car except to smash the window. The critical factor in
deciding to make entry was a firm conclusion, formed after several
minutes of pounding and screaming, that Ms. Miller appeared physically
incapable of using the weapon against them. Accordingly, they quickly
formulated a plan that would include smashing a window to facilitate its
removal. They were convinced that any action they took should be
accomplished immediately.
The officers conferred as
to which window they should break. When the right front passenger window
was offered as a possibility, Officer Hotard suggested that the driver's
window would provide greater access to the gun, which lay in Ms.
Miller's lap. The smashing of other windows was determined to be likely
to result in glass particles falling in Ms. Miller's open eyes and
mouth. It was then understood that the driver's window would be broken
by Officer Stewart swinging a metal asp, with Officer Alagna, who was
wearing gloves, breaching the window to remove the firearm. Bugar and
Hotard were to take positions covering Officer Alagna in the event that
the worst-case scenario emerged with Ms. Miller grabbing the firearm to
use against the officers.
Officer Stewart proceeded
to smack the driver side window with a metal asp two or three times,
causing noise as loud as gunshots. The window did not break. As this
occurred, Ms. Miller appeared to move slightly and groped with her hand
in the area of her lap. Officer Alagna yelled to his fellow officers,
"Everybody hold your fire. Let's see what she picks up." As
Ms. Miller lethargically moved her hand as in a trance-like state, and
did not immediately move towards the weapon, Alagna felt that the
officers had additional time so as not to require the discharge of their
weapons in self-defense.
None of the officers
fired. Ms. Miller, still seemingly completely disoriented and
incoherent, brought a pager up to her head, but did not focus on it. She
then collapsed in her seat, totally unresponsive to the officers who
continued to yell at her to move her hands away from the gun and to open
the door. Given the lethargy with which Ms. Miller moved and the
disorientation that she displayed, none of the officers viewed her
action in raising the pager as a sign that she had any awareness of her
surroundings. Indeed, at no time did Ms. Miller make direct eye contact
with any of them, and at no time did any of the officers feel that she
had any understanding of their presence.
The officers' barrage of
noise was vigorously renewed. Ms. Miller did not respond at all and her
breathing, previously noted as shallow, became nearly impossible to see.
Ms. Miller made no response to these additional efforts to rouse her.
The officers' conclusion that she lacked the capacity to use the firearm
was reinforced, and the officers devised another attempt to break the
window.
Officer Alagna walked
towards his vehicle to obtain a different baton with which to make
entry, while Officer Hotard offered to use Officer Stewart's baton to
smash the window and grab the firearm. When Alagna saw that Hotard had
volunteered to break the window, Alagna assumed a cover position at the
right rear of the vehicle. Hotard then tapped the window before smashing
it, and started to lean into the window to secure the gun. At this
point, at approximately 2:07 a.m., Ms. Miller bolted to the gun and sat
up, with what Officer Alagna described as a "grab and wrap"
motion. In fear for the safety of themselves and fellow officers,
Officers Bugar and Alagna fired their weapons, as did Officer Stewart
almost immediately thereafter. After breaching the plane of the window,
Officer Hotard heard a gunshot, and assumed that Ms. Miller had fired at
him. He fell outside Ms. Miller's door, and, seeing her above him, fired
through the door at her. When Officers Bugar and Alagna saw Ms. Miller
again reach for her gun, they fired a second volley of rounds. When
those movements ceased, Officer Stewart radioed for medical personnel.
The officers knew that the department's routine practice was to send
medical personnel to this type of call, and the officers assumed that
such personnel was staging outside the area awaiting further
instructions. In fact, a dispatcher had erroneously cross-referenced the
call, and sent the paramedics elsewhere. Nonetheless, when medical
personnel arrived at approximately 2:11 a.m., it was apparent that Ms.
Miller had instantly expired from her wounds. Initial toxicology reports
showed Ms. Miller to have had a blood alcohol content of .16, but
otherwise provided no explanation for her bizarre behavior leading to
the shooting.
In the days following the
shooting, certain segments of the public and the media reiterated in
near hysterical tones that four white officers had shot a supposedly
helpless young African-American woman. The officers were called racists
and murderers. The Miller shooting became the biggest media event in the
history of the city.
Shortly after the
incident, then-Chief Jerry Carroll told the media that the officers
would have been "heroes" if they had successfully retrieved
the gun from Ms. Miller. He also spoke enthusiastically of the officers'
action to an academy class, and later told the officers themselves,
"I don't care if it means my job, I'll stand behind you."
The first four months
after the shooting saw continual protests by certain segments of the
community and persistent allegations of racism, some of which were
occasioned by visits by such national figures as Jesse Jackson and Al
Sharpton. Riverside politicians did almost nothing to educate the
community in what they knew had really happened, and cowered in the face
of the protests. Chief Carroll had regular meetings with those segments
of the community that sought the prosecution and firing of the four
officers.
Nonetheless, the
Riverside District Attorney's office rejected the case for criminal
prosecution. As part of its investigation, the District Attorney's
Office commissioned a report from tactics expert Curtis Cope who
concluded that the officers had acted reasonably in making entry into
the car to attempt to rescue Ms. Miller. Deputy District Attorney
Michael Soccio, who spearheaded the criminal investigation, publicly
stated that the District Attorney's office had tried to formulate a
better plan than that chosen by the officers, but failed to come up with
one.
After the rejection of
criminal charges by the DA, the protests and attendant media circus were
furiously renewed as demands were made for Carroll to fire the officers.
In response, the Riverside Police Officers' Association and Bill Hadden
prepared three full-page ads for publication in the Riverside Press
Enterprise, describing the facts of the incident, the reasons behind the
officers' actions, and the officers' previous contributions to the
Police Department. Hadden also spoke to local civic groups and numerous
media outlets, including Time Magazine and Black Entertainment
Television, to inform the public that the shooting categorically had
nothing to do with race.
Chief Carroll's posture
in favor of the officers began to shift with the political winds, and,
despite his earlier statements, he fired the officers on July 12, 1999.
In terminating the
officers, the city alleged that the officers:
1. Participated in the
formulation of an unreasonably dangerous plan;
2. Participated in the
execution of the unreasonably dangerous plan that seriously jeopardized
the lives of other officers and resulted in the death of Ms. Miller;
3. Failed to obtain
additional information while in route or at the scene prior to taking
action;
4. Placed Ms. Miller, and
other officers on scene, in unnecessary danger prior to formulation of
the plan;
5. Failed to confirm the
status of medical aid prior to implementing the plan; and failed
to request supervision.
Almost one year later, in
May 2000, the officers and the city were in receipt for the first time
of test results of a urine sample of Ms. Miller that was analyzed at the
behest of the District Attorney's office in May 1999. The results
revealed the presence of "GHB" (Gamma Hydroxybutyrate) a
dangerous substance which, when mixed with alcohol, can produce
coma-like symptoms followed by intermittent and unpredictable physical
responses, just as was described by the officers. Left unattended, GHB
users, especially those who have also consumed alcohol, may suffer
respiratory arrest and even death. The results for the first time helped
to explain why Ms. Miller could appear so lifeless and vulnerable at one
time, yet capable of rising and grabbing her weapon to use against her
would-be rescuers just moments later.
THE HEARING
The administrative evidentiary appeal hearing consumed 16 days, spread
out over several months. During his opening statement, Bill Hadden
utilized a replica of Ms. Miller's car to simulate the officers' loud
and clamorous efforts to rouse her, vividly demonstrating the
reasonableness of the officers' conclusion that only a person in great
medical distress would not have responded to their efforts. Hadden
continually emphasized that it was the city's burden to prove that what
the officers did was unreasonable, and challenged the city to produce an
alternative to their actions given the undisputed facts they encountered
at the scene. Chief Carroll, who refused to offer an alternative action
to the officers' plan until the hearing, testified that they should not
have approached the car and instead should have interviewed all the
witnesses in the parking lot before making any effort to rescue Ms.
Miller, notwithstanding the apparent urgency of her medical condition.
It was preferable, he said, to let Ms. Miller die in the car even of an
apparent drug overdose rather than for any officer to risk his safety in
any way to provide assistance. The officers, he said, should have
recognized that Ms. Miller was merely drunk, and called out the SWAT
team, notwithstanding the GHB results, and the fact that the symptoms
exhibited by Ms. Miller were consistent with those of a person
undergoing a life-threatening drug overdose. To their credit, none of
the city's witnesses supported Chief Carroll's statements, which
appeared to be a belated contrivance to support a political outcome.
The defense called
tactics experts Ron McCarthy (ex-LAPD) and Riverside City PD Sergeant
Andy Wiesmann, both of whom testified that in this, as in any tactical
situation, minor criticisms could have been made of the manner in which
the officers deployed themselves. However, given the urgency of the
situation, they concluded that the officers had acted reasonably and
admirably, and that a rescue attempt was mandated.
The defense also called
GHB expert Trinka Porrata, who testified that the officers had every
reason to believe that Ms. Miller's symptoms were life-threatening, as
they were totally consistent with Miller undergoing a combined GHB/alcohol
overdose, and that a rescue attempt by the officers was the only
reasonable response.
Hadden also called
witnesses to the shooting at the Riverside City Hall in October 1998 to
show that the department was actually seeking to discipline Alagna and
Stewart for an undesired outcome as opposed to bad tactics. In that
earlier incident, a gunman barricaded himself in the City Hall chambers
while taking the Mayor and members of the City Council hostage. The
matter was successfully resolved when a detective fired blasts from a
shotgun through the closed door of the council chambers, striking the
suspect as well as a city councilperson. At each step of the way, it was
shown, the officers involved in the Miller shooting used tactics that
were no less reasonable, and Hadden argued that under such circumstances
they should not be penalized for a result that was politically
unsatisfactory.
Furthermore, of the four
witnesses who testified regarding the propriety of the disciplinary
action on behalf of the city only one, Chief Carroll, testified that the
officers deserved to be fired. Carroll's flip-flopping on his position
as to the propriety of the officers' actions, his handling of the City
Hall shooting, his failure to articulate a reasonable alternative and
the frequent distortions in his testimony of the officers' description
of events rendered him a less than credible witness.
THE DECISION
The arbitrator found the facts precisely as Bill Hadden had argued them
throughout the hearing. Indeed, said Hadden, "We couldn't have
written the findings any better ourselves."
Preliminarily, the
arbitrator noted that there was nothing to support a conclusion that the
shooting had anything to do with racial animus:
"...There is not one
scintilla of evidence that the four young officers who shot (at) Ms.
Miller were motivated in any respect by racism. On the contrary, they
were motivated only by their sense of duty and to save a person in
distress, whom they believed would have died absent their
intervention."
While finding that the
officers made some minor tactical decisions that could have been
improved upon, the arbitrator said:
"As ultimately
carried out, and given the understandable perception of the officers as
recounted at the hearing and during the earlier interviews, the plan
ultimately formulated to gain access to Ms. Miller's gun and to retrieve
her from the vehicle was not proven to be an irrational plan. Any rescue
of Ms. Miller was inherently dangerous, and while one less officer may
have made the plan safer, the plan as executed was not exceedingly
unsafe to the officers. The cover officers were reasonably situated at
the vehicle door posts and behind, and the department did not propose
any preferable plan or alternative course of conduct designed to save
Ms. Miller, and which reduced the exposure to gunfire, especially for
the officer entering the vehicle. The suggestion that grievants should
have considered calling out the SWAT team does not suffice. Prompt
action was called for, not severely delayed action or inaction. The
District Attorney did not fault the officers for their plan... Chief
Carroll's analysis of this situation as being akin to a barricaded
hostage episode, or even a high-risk felony stop, was completely miscast
and unsupported by his supervisory team overseeing the
investigation."
The arbitrator
specifically rejected one of the department's most emphasized arguments,
i.e., that the officers' plan provoked a dangerous and unnecessary
cross-fire, stating:
"While it is tragic
Ms. Miller was shot and died from her wounds, not one of the 24 shots
fired from the four officers hit another officer. This would suggest
more than blind luck was involved, and the cover officer positions were
appropriate. Even the most vulnerable officer, Hotard, escaped without
injury. This is true also of all the innocent bystanders."
Steinberg found that none
of the tactical criticisms of the department were significant or
directly contributed to the adverse results.
"While grievants
should have confirmed that medical personnel were on their way, this
failure is mitigated by the fact the officers reasonably expected
medical personnel to be dispatched as a matter of course."
They had been, but were
dispatched to the wrong location. The presence of medical personnel
outside the gas station would not have saved Ms. Miller's life.
Accepting the city's premise that the use of one of the four officers
for crowd control would have been preferable, Steinberg commented:
"While the area had
not been cleared of non-essential personnel, no bystander or resident
was shot, injured, or killed. None of the officers was hit in crossfire.
The absence of one of the four officers, under the circumstances, would
not have made Ms. Miller any less dead."
While Steinberg said
contacting a supervisor was feasible and preferable, he again found that
the failure to do so was not significant. A sergeant ultimately did
arrive on scene before the shooting, and did nothing to interrupt the
officers' carrying out of their plan. "By failing to do so,"
Steinberg wrote, "it must be assumed he approved the officers'
deployment and observable conduct, and would not have materially altered
their plan."
Steinberg left no doubt
that he felt that the officers had acted reasonably, finding:
"...It is impossible
for an appointing authority, or an arbitrator in review, to sustain
serious discipline for the grievants, no less their dismissal. They were
placed on the horns of a dilemma where their choice was either to act or
refrain from acting. To do nothing, as Chief Carroll suggested was
proper, in the face of Ms. Miller's dire medical predicament and run the
risk of her expiring, would have been contrary to the officers' training
and instinct and contrary to the department's credo of acting reasonably
to save lives and preserve human dignity. The officers exercised the
correct option. If Ms. Miller had died because of their non-action, the
public outcry and discredit to the department would have been just as
negative and accusatory...Meaning no disrespect to the deceased, Ms.
Miller was not an innocent bystander who could have been removed from
harm's way. Unwitting as it may have been, she placed herself in a
position where her death was a distinct possibility, either by the
officers' inaction or by their failed action."
Steinberg concluded his
factual analysis by emphasizing that, while firing the officers was the
politically expedient thing to do, their dismissals were a "clear
abuse of administrative discretion". "These were outstanding
young men and dedicated officers", he said, "that deserve to
have their reputations and careers salvaged," and they did not
deserve to be fired merely because the outcome was not what everyone
would have preferred.
Yet, amazingly, in
blatant contradiction of his own factual findings, Steinberg, as noted
above, refused to order their reinstatement, because the black community
might not want them back. This determination was particularly ludicrous
since the city neither presented evidence nor argued that the officers
could not function in the field if returned to duty. Moreover, if it was
"an abuse of administrative discretion" to fire the officers
to begin with in 1999, how does the arbitrator leap to the conclusion
that not reinstating them is appropriate for a minor tactical errors
that he said were worthy of no more than a letter of reprimand?
At the Superior Court
level, in accordance with Code of Civil Procedure §1094.5, a
disciplinary decision must be supported by the findings, and the
findings must be supported by the evidence. Any penalty determination,
where some misconduct is found, is evaluated in accordance with the
"abuse of discretion" standard. Here, the arbitrator already
said that no significant discipline should be administered, and that
firing them was absolutely an abuse of discretion. His concern about the
reaction of the minority community was not only not covered in the
evidentiary record, but otherwise factually and legally irrelevant to
whether employees with vested rights in their positions should be
reinstated.
As temporarily
disappointed as they were in learning that their quest for complete
vindication was to be delayed, Officers Alagna and Stewart emphasized
how grateful they were for the support they had received from PORAC, LDF,
RPOA Presidents Jeff Joseph and Jay Theuer, and its board and entire
membership. "LDF gave us a great attorney, and the RPOA financially
and emotionally helped us through some very tough times," said
Alagna. Added Stewart, "We received more help from more sources
than we ever could have imagined, and everyone worked as a team toward a
common goal. We haven't achieved total victory yet, but we're getting
close."
LDF Home Page | News
Article Index
