Friday, July 20, 2018
Court of Appeal:
LAPD Officers’ Dismissal for Deadly Force Affirmed
By a MetNews Staff Writer
The driver of a Chevrolet Corvette, identified as Brian Beaird, 51, of Oceanside, can be seen moments before he’s shot by LAPD officers after a violent pursuit on Friday, Dec. 13, 2013. Two of the three officers who fired fatal shots on Wednesday failed to win a reversal in the Court of Appeal of a denial of their petitions for writs of mandate to gain reinstatement to their posts; the third officer was not involved in the litigation.
Two former Los Angeles Police Department officers who were fired based on their involvement in the fatal shooting of a reckless driver, after he alighted from his car following a high-speed chase, have failed in their appeal of a denial of a writ of administrative mandamus aimed at getting their jobs back..
The Dec. 13, 2013 shooting was aired on live television, captured by cameras in news helicopters, and led to a $5 million settlement by the city with the family of the man who was killed, Brian Newt Beaird.
Div. Five of this district’s Court of Appeal, in an opinion Wednesday that was not certified for publication, affirmed Los Angeles Superior Court Judge Mary H. Strobel’s denial of writs sought by ex-officers Leonardo Ortiz and Michael Ayala. A third officer involved in the shooting, Armando Corral, did not join in the action.
Reaching for Gun
The former officers were part of a one-hour pursuit that ended on Olympic Boulevard and Los Angeles Street in downtown Los Angeles when Baird’s Corvette crashed into another car. After the fleeing driver exited his vehicle, the shooting took place, with officers insisting that he was reaching into his waistband, and they assumed he was about to pull out a gun.
Ortiz and Ayala were discharged by then-Chief of Police Charlie Beck (now retired) after the Board of Police Commissioners found that use of deadly force was “out of policy” and the LAPD Board of Rights, following an extensive evidentiary hearing, recommended termination of employment.
In appealing from Strobel’s denial of their writ petitions, Ortiz and Ayala contended the Superior Court had no jurisdiction inasmuch as they were not afforded an administrative appeal and that, in any event, substantial evidence did not support the action that Beck took.
Affirmance came in an opinion by Acting Justice Curtis A. Kin, a Los Angeles Superior Court judge serving on assignment.
Kin acknowledged that the Public Safety Officer Procedural Bill of Rights Act (“POBRA”) affords police officers the right to administrative appeals. However, he wrote:
“We find that an officer’s right to an administrative appeal under POBRA may be forfeited if not raised during the disciplinary proceedings or in the trial court on administrative mandamus. Because petitioners did neither, we hold they have forfeited this POBRA claim.”
The officers argued that by virtue of the failure to afford them an administrative appeal process, they had not exhausted their administrative remedies, so that the Superior Court had no subject matter jurisdiction over the case. They noted that lack of subject matter jurisdiction can be raised at any time.
Kin pointed to he 2014 Court of Appeal decision in Kim v. Konad USA Distribution, Inc., and said:
“Here, even if petitioners are correct in their contention that the purported failure of the City to provide a further administrative review implicates the exhaustion of remedies doctrine, that failure does not implicate the subject matter jurisdiction of the trial court. As explained in Kim…a failure to exhaust administrative remedies does not invalidate a trial court’s subject matter jurisdiction over a case.”
The jurist said substantial evidence supported Strobel’s decision. He wrote:
“The trial court weighed the video evidence against the petitioners’ percipient testimony and concluded that it contradicted their claims that the driver made distinct, furtive moves toward his waistband. We have reviewed the video and agree with the trial court’s assessment of what is depicted therein. Moreover, even if reasonable minds might differ about how to interpret the events shown on the video, we certainly must conclude the trial court’s interpretation of that evidence was reasonably supported by the video’s content, at the very least. Thus, the video evidence was sufficient, substantial evidence, by itself, to support the trial court’s findings.”
Other evidence, he said, bolstered the conclusion.
The case is Ortiz v. City of Los Angeles, B280740.
Michael P. Stone and Muna Busailah of Pasadena argued for Ortiz and Ayala. Los Angeles Deputy City Attorney Matthew A. Scherb represented the defendants.
Spurning calls for a prosecution of the officers, Los Angeles County District Attorney Jackie Lacey said in a Jan. 29, 2015 letter, made public on Feb. 23, that it was determined such an action would not be appropriate.
“Although Beaird did not have a weapon and did not actually pose a threat to the officers at the time he was shot, no criminal liability attaches to their actions unless the prosecution can prove beyond a reasonable doubt they were not actually and reasonably in fear for the safety of themselves or others when they fired their weapons.”
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