Court of Appeal Says Department Did Not Bring Charges After Impermissible Delay
By a MetNews Staff Writer
A man who was fired as a Los Angeles police officer based on allegedly filing a false police report and perjury yesterday lost his bid for reversal of an order denying his bid for a writ of administrative mandamus, with the Court of Appeal for this district holding that proceedings leading to then-Chief Charlie Beck’s action were not instituted beyond the permissible time period.
Justice Carl H. Moor of Div. Five wrote the opinion, which was not certified for publication. It upheld the writ denial on Feb. 6, 2020, by Los Angeles Superior Court Judge Mary H. Strobel.
The decision comes in a case in which an officer, Kevin Gaines, though not criminally prosecuted, was found by the department to have engaged in conduct constituting crimes. The Los Angeles Police Department (“LAPD”) opened a disciplinary investigation of him on April 14, 2014, based on a citizen’s complaint, and served on him a notice of disciplinary charges in early June 2017—with the issue being when tolling began based on an investigation of Gaines by the Los Angeles County District Attorney’s Office.
DA’s Office Advisement
On Nov. 14, 2014, Deputy District Attorney Michael Yglecias advised the LAPD that a video, provided by the Public Defender’s Office, “raises concerns about the veracity of statements and testimony by arresting officers” in a case—Gaines and Officer Michael Parks—and that there was a question as to “whether they acted with lawful authority in detaining and arresting the defendant and whether they in fact saw him discard a handgun as claimed.”
The LAPD on Nov. 25 opened a file based on possible criminal conduct, and on Dec. 31, 2014, Captain Brian Thomas wrote an intradepartmental memo with the heading, “Request for Consolidation and Tolling Complaint Form.” In the memo, he sought consolidation of two internal investigations of Gaines and a determination that tolling commenced as of that date.
On Feb. 14, 2017, the District Attorney’s Office advised the LAPD that it would not prosecute Gaines or Parks. A charge evaluation worksheet executed that day by Deputy District Attorney James W. Garrison says that “objectively and in its totality, there is insufficient evidence to prove beyond a reasonable doubt that Officers Kevin Gaines and Michael Parks committed the crimes of filing a false police report and perjury” in one matter, or that Gaines committed those offenses in connection with another matter.
(Perjury is a felony and filing a false police report is a wobbler.)
If Thomas was right as to when tolling began—as Gaines insisted he was—the department acted beyond the one-year period within which to complete its investigation. However, if, as the department argued, tolling commenced on Nov. 25, it acted timely.
Wording of Statute
The one-year period is set by Government Code §3304(d)(1), a part of the Public Safety Officers Procedural Bill of Rights Act, which sets forth, in part:
“[N]o punitive action...shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.”
The tolling provision is in §3304(d)(2)(A) which says:
“If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.”
“While LAPD was not required to open the criminal investigation as soon as it discovered the allegations of criminal misconduct, the weight of the evidence supports that the criminal investigation was in fact opened and pending by November 25, 2014.
“In light of the foregoing, the statute of limitations commenced on April 14, 2014, and was tolled during the criminal investigation from November 25, 2014 to February 14, 2017. Department served notice of the charges on June 3 or 9, 2017. Thus, the POBRA limitations period ran for a total of 339 or 340 days, short of one year. Therefore. Petitioner’s POBRA limitation defense is DENIED.”
Addressing Thomas’s belief that tolling started on Dec. 31, she wrote:
“Factually, Captain Thomas’ December 31, 2014 letter does not support a finding that the criminal investigation was first opened by Department when Captain Thomas made a request for tolling on December 31, 2014….[T]he letter also states that a criminal investigation was ‘initiated’ on November 25, 2014. In context of other evidence, including the District Attorney’s memo, that statement strongly suggests a criminal investigation was opened on November 25. 2014. The request for tolling must be read in light of that statement. Moreover, even if Captain Thomas believed that tolling started on December 31, 2014, his subjective belief is not determinative of POBRA tolling.”
In his opinion affirming Strobel’s judgment, Moor said:
“The trial court’s finding that the date a complaint form number is assigned to address criminal misconduct allegations is the date that the criminal investigation was opened and pending ensures a practical and workable standard for LAPD investigators to follow.”
Echoing Strobel’s reasoning, he set forth:
“Thomas requested consolidation of two existing matters, which supports that the criminal investigation already existed. In fact, the investigator assigned to the criminal matter had already begun investigating the criminal misconduct allegations before Thomas sent the memorandum. Under the statutory provisions, the statute of limitations is automatically tolled while a criminal investigation is pending; no request to toll the administrative investigation is required. If a criminal investigation were opened and completed without a tolling memorandum, there would be no tolling of the statute of limitations for the administrative charges under Gaines’ interpretation, which is clearly not the intent of the statute.”
A board of rights hearing was conducted on Jan. 22, 2018; the board found Gaines guilty on eight counts and called for his removal; Beck fired him on March 8, 2018.
The case is Gaines v. City of Los Angeles, B305751.
Michael P. Stone, Muna Busailah, and Robert Rabe of the Pasadena law firm of Stone Busailah represented Gaines. Deputy City Attorney Paul L. Winnemore argued for affirmance.
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