LAPD Officers Lose $4 Million Discrimination Judgment On Appeal

George Diego and Allan Corrales are Hispanic police officers working for the Los Angeles Police Department. Diego and Corrales were involved in a fatal shooting in March 2010. In that incident, they fired at a person they believed was threatening them with a gun, but who turned out to be a young, unarmed African-American man who was later described by his family as autistic. The shot fired by Corrales killed the man.

In the wake of the shooting, Police Chief Charles Beck ordered that Diego and Corrales remain out of the field for no more than a couple of weeks. Although in the majority of cases officers involved in shootings return to the field after 72 hours, the shooting concerned Beck because it was a “perception shooting” of an “unarmed innocent individual.”

After an investigation and an internal hearing, Chief Beck found that while the shooting was within policy, “the tactics utilized by Officers Diego and Corrales substantially and unjustifiably deviated from approved Department tactical training, requiring a finding of Administrative Disapproval.” The Police Commission adopted Chief Beck’s conclusions with respect to tactics but rejected his findings concerning the exhibiting of weapons and use of force. The Commission concluded that both officers’ use of force was out of policy, and that Corrales’s decision to draw his weapon was out of policy.

Based upon the Commission’s determination, Beck issued reprimands to both officers and decided not to send the officers back into the field. Their reassignment caused them to lose a 2 to 3% “patrol bonus,” and they were denied permission to work off-duty jobs and were denied transfers.

The officers sued, claiming their treatment was the result of race discrimination. A jury found in favor of the officers and awarded cumulative damages of almost $4 million. The City appealed, arguing that the evidence was not sufficient to support the verdict.

The California Court of Appeals agreed with the City. The problem, the Court found, was that the officers’ theory at trial was that the race of the African-American who was killed played an inappropriate part in the City’s actions. For example, at trial the officers argued that the LAPD could not properly make any employment decision based on race, “it doesn’t matter whose race it is.” They also emphasized the race of the victim in summarizing the evidence that they argued was sufficient to go to the jury, and cited a shooting that was treated differently because of another officer “shooting a Hispanic person and not having anything happen to him.”

By the time of the appeal, the officers had abandoned the argument that they could prove unlawful discrimination by showing disparate treatment based upon the race of the shooting victim, and instead focused on their Hispanic status. As the appeals court found, “the change of theory does have consequences for the officers’ case. Without considering alleged differences in the officers’ treatment due to the victim’s race, the evidence is not sufficient to support the officers’ employment discrimination claim.

“Uncoupling the officers’ race from the race of the victim does not just preclude the officers from relying on evidence that they were treated differently because their shooting involved an African-American man. Ironically, it also means that some evidence the officers introduced helps support the City’s risk management justification.

“City witnesses testified about the importance of community reaction to the shooting incident and the Department’s relationship with the Commission, which is charged with public oversight of the Department. For example, one witness explained that ‘these officers were involved in a very significant event that took the life of an innocent man. They were found to have Administrative Disapproval by the civilian Police Commission that oversees us, that we report to, but in reality are our bosses. If they were to be involved in another incident, especially a significant incident, but any incident, I think the public would question what the Department is doing and that public confidence would be shaken. When the public confidence is shaken, it’s not just the effect on these two officers, but it’s the effect on the public and the entire Department.’

“The officers themselves introduced evidence that they were benched for political reasons that were similar to the concerns that the City labeled ‘risk management.’ Those reasons included the reaction of the community and the Commission to the fact that the victim of the shooting was African-American.

“An employment decision based on political concerns, even if otherwise unfair, is not actionable discrimination so long as the employee’s race or other protected status is not a substantial factor in the decision. Thus, abundant evidence, including some introduced by the officers, supported the City’s claim that the officers remained benched because of the possible consequences of returning them to the field, not because of their race. When the trial court erroneously denies a defense motion for a directed verdict and permits the matter to proceed to a jury verdict in favor of the plaintiff, the remedy on appeal is to direct the Court to enter judgment in favor of the defendant. The judgment is reversed with directions that judgment be entered in favor of the City of Los Angeles.”

Diego v. City of Los Angeles, 2017 WL 4053873 (Cal. App. 2017).