The Battle Of The Experts In A Shooting Case

David Garcia has been a Long Beach, California police officer since 2000. On the night of July 16, 2004, Garcia became involved with an apparently mentally disturbed individual. The encounter eventually resulted in Garcia shooting and killing the suspect.

The Department convened an Officer Involved Shooting Board. By a 4-1 margin, the Board concluded that the shooting was intentional and out of policy. When the Department terminated Garcia, he challenged the termination through the Civil Service process. After the Commission upheld his termination, Garcia again appealed, this time to court.

A trial court concluded that the evidence did not support Garcia’s termination, and ordered him reinstated with back pay. The City then sought to convince the California Court of Appeals to overturn the trial court’s decision and reinstate the termination.

The Appeals Court ruled against the City. The Court noted that the evidence before the trial court was essentially a “battle of the experts.” Supporting the City’s position was Elmer Pellegrino, the director of the police academy at Fullerton Community College, and a 26-year veteran police officer for the City of Los Angeles. Supporting Garcia was Charles Duke, who had a background similar to Pellegrino’s in terms of the teaching and evaluation of deadly force situations.

The Appeals Court began with the proposition that “the law is now well-settled that, in a case involving disciplinary termination of a vested-rights City employee, a decision against the employee is reviewed under the independent judgment standard. Under the independent judgment standard, the Court exercises its own judgment, a process that allows it to reweigh the evidence. This rule is, of course, applicable to the termination of the vested-rights of a police officer who has passed his probationary period.”

The Appeals Court found that the trial court properly exercised independent judgment of the facts relevant to Garcia’s case: “The Court found Duke’s testimony most credible and persuasive, and obviously credited his views over those of Pellegrino. The Court recounted evidence it found particularly persuasive. The wood fence afforded no cover to Garcia. The suspect’s bulky coat was good reason to suspect that he was armed, particularly since it was not cold outside. Garcia had no duty to retreat from the driveway when the suspect charged at him, and Garcia’s tactics in approaching the fence were correct. Quoting Duke, ‘we pay our law enforcement people to protect us and not run away.’ The Court found contrary testimony not as well reasoned as that of Duke, to the extent it was in conflict. The Court was also impressed by the opinion of the dissenting officer on the Officer Involved Shooting Board.

“In sum, the charges are not supported by the weight of the evidence. The trial court’s thorough review and summary recites the substantial evidence in support of its decision. We affirm the judgment reversing Garcia’s termination.”

Garcia v. City of Long Beach, 2009 WL 1124956 (Cal. App. 2009).

This article appears in the July 2009 issue