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Wences v. City of Los Angeles

September 2, 2009

CESAR WENCES, PETITIONER AND APPELLANT,
v.
CITY OF LOS ANGELES ET AL., RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County. David Yaffe, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. BS108615).

The opinion of the court was delivered by: Zelon, J.

CERTIFIED FOR PUBLICATION

Appellant Cesar Wences ("Wences") appeals from the trial court‟s denial of his petition for writ of administrative mandate brought pursuant to Code of Civil Procedure section 1094.5. Wences, a police officer, received an official reprimand from the Los Angeles Police Department (the "Department") for using unauthorized tactics and inappropriately drawing his weapon during the course of an off-duty, officer-involved shooting. After his administrative appeal was denied, Wences filed a mandate petition in Los Angeles County Superior Court, seeking an order compelling Respondents City of Los Angeles and Chief of Police William J. Bratton (collectively "Respondents") to set aside the official reprimand and the sustained charges of misconduct against him. The trial court denied the petition on the grounds that there was substantial evidence to support the administrative decision. We conclude, however, that because the disciplinary proceedings against Wences substantially affected his fundamental vested right in his employment, the trial court was required to exercise its independent judgment on the evidence. We therefore reverse and remand the matter to the trial court for reconsideration under the proper standard of review.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. The Off-Duty, Officer-Involved Shooting

At the time of the relevant events, Wences had been employed by the Department for five years and held the rank of Police Officer II. On April 3, 2005, at approximately 8:00 p.m., Wences was off-duty and at home in the city of Long Beach. Over the course of several minutes, a woman later identified as Edie Rodriguez ("Rodriguez") repeatedly called Wences‟ residence to speak with a relative who lived with Wences and his family. Both Wences and his wife informed Rodriguez that the relative was not at home. Rodriguez continued to call, however, and became increasingly hostile over the telephone. During the last call, Rodriguez told Wences‟ wife, "You don‟t know who you‟re fucking with. I know where you live. I‟m going to get my homeboys and homegirls to go fuck you up." Although his wife was afraid, Wences did not consider Rodriguez‟ threat to be credible at the time and considered her repeated telephone calls to be a mere annoyance. Wences told his wife not to worry and continued watching television.

Approximately 45 minutes later, Wences‟ wife informed him that there were four individuals outside throwing "stuff" at his truck. At that point, Wences believed that Rodriguez was one of the persons outside his home and was there to pursue her threat. Fearing for his and his family‟s safety, Wences immediately went to his equipment bag and removed his personal firearm from its holster. He also instructed his wife to call the Long Beach Police Department and to make sure to advise them that he was an off-duty officer. Wearing civilian clothing, Wences opened the front door of his home and went outside onto his front porch. He did not look out any windows to assess the situation before arming himself or stepping outside.

When Wences walked onto his front porch, he immediately was illuminated by a motion sensor light. Once outside, he observed four individuals standing across the street approximately 90 feet away, but he did not have a full view because their bodies were partially covered by his truck. The group began walking toward Wences in a threatening manner. Wences decided to leave his porch and walk toward the group because he wanted to place some distance between the suspects and his home and to better assess what they were doing behind his truck. As he approached, Wences held his firearm at his side in a "low ready" position, pointed downward at a 45 degree angle. Without identifying himself as a police officer, Wences ordered the group to "get back." The group was startled upon seeing Wences‟ gun and retreated to the other side of the street.

Unbeknownst to Wences, his wife had followed him outside. When Wences realized that his wife was standing adjacent to him, he instructed her to return to the house, and again, to call the police. In response, Rodriguez, who was one of the group members, said words to the effect, "What do you mean call the police? You‟re the one holding the fucking gun . . . I‟ll get people from the Mexican Mafia." Wences‟ wife briefly went inside and instructed her 13-year-old nephew to call the police. She then rejoined Wences, who remained standing in the middle of the street with his firearm in the "low ready" position.

After Wences‟ wife returned, the situation escalated. Rodriguez began advancing on the wife, calling her a "bitch" and grabbing her by the shirt. Wences was able to push Rodriguez back with his hand and she retreated behind the rest of the group. Rodriguez then returned with a shiny silver object in her hand, which Wences thought was a knife, but later learned was a fork. Rodriguez again advanced on Wences and his wife and thrust the object toward them in a stabbing motion. At that point, Wences believed that both he and his wife were in danger and feared for their lives. Wences fired a single warning shot into the grass to the right of Rodriguez. As soon as Wences fired the shot, Rodriguez fled.

Wences then turned his attention to the remaining suspects and detained them while waiting for the police to arrive. The Long Beach Police Department arrived shortly after receiving a "911" call from Wences‟ nephew and took the three suspects into custody without incident. Rodriguez later was arrested and convicted of making terrorist threats. Wences was never treated as a suspect in the Long Beach Police Department‟s criminal investigation, but rather as a crime victim.

II. The Department's Disciplinary Proceedings

Following this off-duty, officer-involved shooting, the Department convened a mandatory Use of Force Review Board to review Wences‟s tactics, drawing and exhibiting of his firearm, and use of force during the incident. Pursuant to Department policy, the five-member Use of Force Review Board was responsible for making a finding of "in policy" or "out of policy" as to the drawing of the firearm and the use of force, and for making a recommendation to the Chief of Police of "no action," "training," or "administrative disapproval."

Wences‟ commanding officer, Captain Clay Farrell, recommended to the Use of Force Review Board that Wences receive formal training for his tactics and drawing of his weapon and no action for his use of force. However, after conducting an independent review of the incident, the Use of Force Review Board decided not to follow Captain Farrell‟s recommendations. On February 21, 2006, the Use of Force Review Board found that Wences‟ use of force in discharging his firearm was "in policy," but that the drawing and exhibiting of his firearm prior to the shooting was "out of policy." The Use of Force ...


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