Filed 7/30/20 Leiphardt v. City of L.A. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
DEREK LEIPHARDT,
Plaintiff and Appellant,
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
B298571
(Los Angeles County
Super. Ct. No. BS172100)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Strobel, Judge. Affirmed.
Gary Ingemunson, for Plaintiff and Appellant.
Office of the Los Angeles City Attorney, Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Scott Marcus, Assistant City Attorney, Blithe S. Bock, and Paul L. Winnemore City Attorneys for Defendants and Respondents.
Appellant Derek Leiphardt is an officer with the Los Angeles Police Department (LAPD). While on duty, Leiphardt fatally shot a knife-wielding suspect who lunged at him inside a recreational vehicle. The LAPD determined that the shooting itself was a reasonable use of force, but disciplined Leiphardt for violating departmental tactical policies prior to the shooting. Leiphardt sought to overturn the discipline by filing a petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5. The trial court denied the petition, and we affirm.
FACTUAL BACKGROUND
On February 14, 2016, Leiphardt was on duty in a patrol car with his partner, Officer Marsh. Marsh was a training officer with more experience than Leiphardt, who had been with the department for two years and four months. At 12:51:20 p.m., Leiphardt and Marsh were dispatched to an “unknown trouble” incident at an apartment building on Kester Avenue in Van Nuys. While they were en route, the dispatcher advised that the call was “now a screaming woman,” and provided a description of a “hot prowl” suspect who “broke into another unit at the location”: “a male white, slender, black and grey shirt, blue jeans, is armed with a knife.” The dispatcher subsequently advised that the suspect, later identified as 26-year-old Rammy Sam Jaradat, was running southbound on Kester Avenue.
Leiphardt and Marsh arrived on the scene at 12:57:25 p.m. Jaradat was on top of a recreational vehicle (RV) parked on Kester Avenue. He was scratched and bloody, and was ripping a metal ladder off the back of the RV. Jaradat ignored Leiphardt’s commands to show his hands and get down from the RV. Based on Jaradat’s erratic behavior, Leiphardt believed Jaradat was under the influence or suffering from mental illness. Marsh radioed for a supervisor and additional backup within a minute of the officers’ arrival at the scene.
As Jaradat moved around on the top of the RV, Leiphardt observed that he was holding a knife. Leiphardt also heard someone in the gathering crowd of civilian bystanders say that Jaradat had stabbed and gravely injured a man in the apartment building. Leiphardt radioed for an ambulance for the stabbing victim. While he was doing that, Leiphardt saw Jaradat drag his knife across his own neck, causing blood to trickle out. Leiphardt alerted Marsh and radioed for a second ambulance, for Jaradat, at 12:59:15 p.m. Four additional officers arrived on the scene within seconds of Leiphardt’s ambulance calls.
Leiphardt and Marsh continued to command Jaradat to drop the knife and come down from the RV. Rather than complying, Jaradat began trying to force his way into the RV through a vent on the roof. Leiphardt approached the RV and attempted to open the door on the side of the rear sleeping compartment. It was locked. Leiphardt then tried to open the front passenger door, but it was also locked. Leiphardt explained at his Board of Rights hearing that he tried to open the doors “to ensure nobody is inside.” The RV owner, who was in the crowd of bystanders, handed Leiphardt the keys to the RV and said something to the effect of, “There’s nobody inside the damn van.” Leiphardt testified that he did not hear that comment, which was captured on bystander video. He did not ask the person who gave him the keys about his connection to the RV, or whether there was anyone inside the RV. Leiphardt also did not tell Marsh or anyone else that he had the keys.
Leiphardt used the keys to open the door to the rear sleeping compartment of the RV. He did not inform any of the other officers on the scene that he was doing so; all but one of the other officers were on the other side or in front of the RV at the time. Leiphardt found that the path into the RV was blocked by a large generator. Leiphardt leaned over the generator and heard Jaradat kicking the bathroom door; Jaradat had succeeded in breaching the vent and was making entry into the RV, feet first. Moments later, Leiphardt heard Marsh yell that Jaradat was in the driver’s seat of the RV. Leiphardt maintained his position by the open rear door, but moved upon realizing that he might be at risk of crossfire there. Leiphardt left the rear door open and did not communicate to the other officers that he was relocating to the front passenger door.
Jaradat had what officers believed to be keys in his hands and appeared to be trying to start the RV. One of the officers used his baton to break the window in the driver’s side door and then fired a taser at Jaradat without warning when he refused to drop his knife. Records from the taser showed that it was deployed at 1:01:55 p.m. Realizing he was again in danger of crossfire, Leiphardt moved from the passenger side door to the front of the RV. No officers were positioned to cover the still-open rear side door.
Multiple officers later told investigators that the taser seemed to have minimal effect on Jaradat. He backed out of the driver’s seat and crawled into the sleeping area of the RV with the knife still in his hand. A blanket hanging between the driver’s compartment and the rear sleeping compartment of the RV blocked the officers’ view of the sleeping compartment.
Concerned that Jaradat might flee through the still-open and unprotected rear door, Leiphardt returned to that area of the RV. Four other officers, including Officer DeLeon, who had arrived on the scene at approximately 1:02 p.m., joined him. Marsh and another officer remained stationed by the driver’s door; Leiphardt called to them to warn them of potential crossfire.
Leiphardt leaned into the RV but was unable to see Jaradat. Leiphardt heard “moans and screams, two different levels,” coming from the interior of the RV and feared that another person was inside the RV with Jaradat. Leiphardt stepped into the doorway, leaned over the generator, and peeked into the RV. He saw Jaradat lying face-down on the floor, with his hands tucked beneath his body. Leiphardt ordered Jaradat to raise his hands, in both English and Spanish. Jaradat did not comply; instead, he scooted toward the front of the RV, out of Leiphardt’s line of sight.
Around this time, Sergeant Othar Richey arrived on the scene. Marsh, who was still near the driver’s side window at the front of the RV, directed Richey to the rear door, where Leiphardt and the others were standing. Richey asked Leiphardt and DeLeon if there was anyone else in the RV. They told him they did not know. Richey “formed a tactical plan” “in [his] mind” and ordered Leiphardt and DeLeon to go into the RV and get Jaradat without further communicating his plan to them.
Leiphardt did not immediately obey the order because he was unable to see Jaradat’s hands and did not believe it was safe to enter. He instead peeked further into the RV and saw the legs of someone seated on a bench inside the RV. After moving further inside, Leiphardt was able to see that the legs belonged to Jaradat. Jaradat was moaning and groaning, and Leiphardt saw him place his hands over his abdomen. Leiphardt saw the handle of the knife protruding from Jaradat’s abdomen; Jaradat pulled it out and appeared to push it back in. Leiphardt saw blood flowing from the area and believed Jaradat was grievously injured. Leiphardt accordingly entered the RV, with his gun drawn, “to go in and help him out.” DeLeon advised Leiphardt that “he had less lethal,” unholstered his taser, and followed Leiphardt inside.
Leiphardt and DeLeon positioned themselves in the back corner of the RV, as far as away from Jaradat as possible. Because the vehicle was small, however, Leiphardt was only about eight feet away from Jaradat. Leiphardt repeatedly commanded Jaradat to show his hands. Leiphardt saw Jaradat drop his hands from his abdomen and relax them; he believed it was possible that Jaradat was complying or bleeding out. Jaradat then moved his hands back toward the knife, and DeLeon, who was about seven feet away, deployed his taser without warning. According to the taser’s records, it was fired at 1:03:08 p.m.
Both Leiphardt and DeLeon reported that the taser seemed to energize Jaradat. He stood up, brandished the knife, and lunged toward Leiphardt. Leiphardt fired his gun at Jaradat six times, from a decreasing distance of five to three feet. Jaradat fell to the floor with the knife still in his hand. Richey made a radio call at 1:03:20 p.m., stating, “Officer needs help shots fired. We need to get an [ambulance] over here, for a male appears to be unconscious.” A total of six minutes had elapsed since Leiphardt and Marsh first arrived on the scene.
Paramedics arrived at approximately 1:07 p.m. They transported Jaradat to a nearby hospital, where he was pronounced dead at 1:30 p.m. An autopsy revealed that Jaradat sustained four fatal gunshots to the chest and back, in addition to a “potentially fatal” stab wound to his liver. It also revealed five other self-inflicted superficial stab wounds, including the one to Jaradat’s neck. The medical examiner ruled the death a homicide.
PROCEDURAL HISTORY
I. Investigation, Allegations, and Board of Rights Review
The Force Investigation Division (FID) of the LAPD investigated the incident. FID reenacted the incident, separately interviewed the officers present, canvassed witnesses, and collected evidence. It also obtained several short videos from bystanders, which it incorporated into a presentation that accompanied its report. The FID submitted its report to the Use of Force Review Board, the Chief of Police, and the Police Commission. It is also part of the administrative record in this case.
According to LAPD Captain Paul Espinosa, who testified at the Board of Rights hearing, the Use of Force Review Board evaluates “the drawing, exhibiting of the weapon. In addition . . . we look at the tactics that the officer employs during the shooting, and we also get the actual use of deadly force and whether . . . that is in policy or not.” According to Espinosa, “we look at them separate [sic] to see if the tactics employ[ed], what the officer did, was either in policy or out of policy, which out of policy would be administrative disapproval.”
After the Use of Force Review Board convenes, it renders an opinion that is forwarded to the Chief of Police in a report. The Chief may either concur or disagree with the Use of Force Review Board’s opinion. The Chief then prepares his or her own report, which is presented to the Police Commission along with other materials, including an independent report prepared by the Inspector General. “The Board of Commissioners then reviews all the material, through their own eyes and decides whether to concur or disagree with the Chief of Police.”
In this case, the Chief of Police concluded and the Board of Commissioners agreed that Leiphardt committed two acts of misconduct. In Count 1 of the “Complaint and Relief from Duty,” the Chief alleged that “On or around February 14, 2016, you, while on duty, used Lethal Force that resulted in a finding of ‘Out of Policy Administrative Disapproval.’” In Count 2, the Chief alleged, “On or around February 14, 2016, you, while on duty, substantially and unjustifiably deviated from approved Department tactical training, requiring a finding of, ‘Administrative Disapproval.’” The Chief of Police recommended a 10-day suspension with loss of pay. Leiphardt was served with the recommendation on February 13, 2017.
Leiphardt timely appealed the Chief’s decision to the Board of Rights. The three-member Board of Rights, which included one civilian, heard the matter October 2, 2017 through October 5, 2017. Leiphardt was represented by counsel at the hearing, at which the Board of Rights heard testimony and evidence from both LAPD and Leiphardt, including the FID presentation. The Board of Rights also called Sergeant Richey as a witness after neither side elected to call him.
At the hearing, LAPD argued that Leiphardt was guilty of count 1 due to his violation of LAPD Policy 556.10, “Policy on the Use of Force” (“Use of Force policy”). The Use of Force policy provides that LAPD personnel “may use only that force which is ‘objectively reasonable’ to: [¶] Defend themselves; [¶] Defend others; [¶] Effect an arrest or detention; [¶] Prevent escape; or [¶] Overcome resistance.” It further provides that reasonableness is examined under the standards articulated in Graham v. Connor (1989) 490 U.S. 386 (Graham), and “from the articulated facts from the perspective of a Los Angeles Police Officer with similar training and experience placed in generally the same set of circumstances.” The Use of Force policy was amended in 2014 to conform to Hayes v. County of San Diego (2013) 57 Cal.4th 622, 626 (Hayes), which held that negligence liability “can arise if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of the circumstances, that the use of deadly force was unreasonable.” The amended Use of Force policy includes the following sentence, which Leiphardt and the trial court referred as the “Hayes Amendment” : “The reasonableness of an officer’s use of deadly force includes consideration of the officer’s tactical conduct and decisions leading up to the use of deadly force.” LAPD contended that Leiphardt erred tactically when he “entered a confined space of a motorhome to confront an armed barricaded suspect,” and thus used deadly force unnecessarily.
Leiphardt argued that exigent circumstances excused his failure to comply with the barricaded suspect policy, under which he should have requested a SWAT response rather than entering the RV. The exigent circumstances he identified were the possibility of other victims inside the RV and the self-inflicted injuries Jaradat had sustained. Leiphardt further contended that “department policy states that reverence for human life is the primary consideration in developing tactics and strategies,” and he acted with that policy in mind when he entered the RV.
With respect to count 2, LAPD first argued that Leiphardt failed “to recognize a barricaded suspect situation.” Per a departmental training bulletin, a “barricaded suspect” situation occurs when the following four criteria are met: “1. The suspect is probably armed; and [¶] 2. the suspect is believed to have been involved in a criminal act or is a significant threat to the lives and safety of citizens and/or police; and [¶] 3. is in a position of advantage, affording cover and concealment; or is contained in an open area and the presence or approach of police officers could precipitate an adverse reaction by the suspect; and [¶] 4. the suspect refuses to submit to arrest.” LAPD’s expert, Espinosa, opined that Jaradat presented a barricaded suspect situation. The training bulletin states that “Once these criteria are met, the Field Commander should immediately request SWAT to respond.” No one on the scene called SWAT, even though Leiphardt and Richey admitted at the Board of Rights hearing that the barricaded suspect criteria technically had been satisfied.
LAPD also argued that Leiphardt was guilty on count 2 because he engaged in deficient tactical communication and planning. First, he “obtained the keys to the motorhome from the owner without taking the time to ask the owner questions that would have provided them with information necessary to make a sound tactical decision, and then he did not advise any of the other officers that he had keys and unlocked the side R.V. door. As a result, the officers were confronted with a fluid tactical situation that placed the officers in a tactical disadvantage and unnecessary risk.” LAPD further contended that Leiphardt “never once, through the entire incident, called out to anyone inside the R.V. or bang [sic] on the R.V. to get someone’s attention.” Moreover, LAPD added, “There was no evidence that there was [sic] any additional people inside the R.V. It was parked, locked, and secured. Leiphardt himself obtained the keys and unlocked it. The whole time Jaradat was on top of the R.V. trying to force his way inside, anybody inside would have had ample opportunity to exit or yell out. That did not happen. It was not reasonable to assume that there was anybody else inside.”
LAPD also contended that Leiphardt put himself in crossfire situations several times. It also assigned fault to Leiphardt’s decision to enter “a small cramped space with no cover, no distance between him and the suspect.” That decision left him with only three options: order Jaradat to drop the knife, use less lethal force (the taser), or shoot Jaradat. In LAPD’s view, Leiphardt “had no plan on how to help Jaradat,” and “forced the situation” when Jaradat failed to comply with verbal commands and did not respond to the taser.
Leiphardt contended that the evidence did not support a finding that he “substantially and unjustifiably” deviated from departmental tactics during the incident. He argued that he did not “conduct an interview” with the person who handed him the keys because his focus was on Jaradat and protecting bystanders from him. He also pointed to his own testimony that it would not have been reasonable for him to rely on the statement from the RV owner even if he had heard it. Leiphardt argued that he adequately responded to the possibility of crossfire, and further argued that no one on the scene had recognized the situation as a barricaded suspect situation at the time. Indeed, Sergeant Richey testified that the “exigency of the circumstances” led him to conclude it would not be “a good idea for us to wait and do a whole barricaded situation like we would typically do.” Leiphardt also pointed out that the other officers on the scene who were disciplined for violating departmental tactical policy, including Richey, Marsh, DeLeon, and the officer who pulled down the curtain, only received “extensive retraining,” not a suspension.
The Board of Rights found Leiphardt guilty of both counts under the preponderance of the evidence standard. It explained that its “independent evaluation and opinion of the evidence presented is that [Leiphardt’s] tactical conduct and decisions in this incident did substantially and unjustifiably deviate from approved department tactical training.” In its view, “the poor communication at the scene, and the failure of everyone present to slow down the pace of events contributed to an unnecessary escalation that resulted in a use of lethal force.”
Specifically, the Board of Rights found: (1) “A lack of tactical communication. The Board was presented with testimony that made it clear that while there was some communication, no effective communication took place between officers at the scene and senior officers and a supervisor as they arrived on scene.” (2)“A lack of tactical planning. The Board heard evidence that no tactical plan was communicated to the officers once senior officers and a supervisor arrived on scene.” (3) “The potential for crossfire. The Board was presented with evidence that crossfire situations arose at various points throughout this incident. The Board believes that the underlying reason for these crossfire situations was the lack of tactical communication and planning.” (4) “Entering the location of an armed and violent barricaded suspect. This tactical deficiency limited your options in a confined space. While the Board recognizes that this was a rapidly evolving situation and you testified that you could not be certain that no other individuals were in the R.V. and that the suspect was injured and may bleed out, your actions to enter the R.V. placed you in a position where your options were limited.” The Board acknowledged that numerous other officers were present, including a sergeant, and therefore “had a part in the responsibility for the tactics utilized and the outcome.” It also acknowledged that Leiphardt “had no malice or nefarious intent.”
After hearing testimony from several character witnesses who spoke highly of Leiphardt and reviewing his personnel records, the Board of Rights unanimously reduced the recommended penalty from a 10-day suspension to a five-day suspension. The Chief of Police adopted the recommendation of the Board of Rights on October 19, 2017.
II. Writ Petition
On January 11, 2018, Leiphardt filed a verified petition for a writ of mandate against respondents City of Los Angeles and then-Chief of Police Charlie Beck under section 1094.5. He requested that “a writ of mandate be issued compelling Respondents to (a) set aside the Police Chief’s decision that sustained allegations of misconduct against Petitioner, (b) make a new decision that exonerates Petitioner and put that new decision in Petitioner’s personnel file, (c) remove all traces of the Chief’s original decision from Petitioner’s personnel file and any other files used for personnel purposes; (d) restore with interest the cost of Petitioner’s lost wages.” Leiphardt also sought attorney fees under section 1021.5, as well as damages under Government Code section 3309.5.
In his supporting memorandum, Leiphardt made arguments similar to those he made at the Board of Rights hearing. He contended that the findings on count 1 should be overturned because it was either mandated or reasonable for him to enter the RV. He first argued that his decision to enter the RV was mandated by the LAPD policy of reverence for life. Leiphardt further argued that he was obligated to enter the RV because his superior, Sergeant Richey, lawfully ordered him to do so. If he failed to obey the order, he asserted, he would have been in violation of LAPD policy.
Leiphardt also argued that it was reasonable for him to enter the RV because it was possible that there were other victims inside who needed protection. Leiphardt asserted that homeless individuals often reside in RVs, that he had heard screaming and moaning “on two different levels,” and that he did not hear—and would not have relied on in any event—the RV owner’s statement that no one was inside the RV.
Leiphardt incorporated these arguments into his contention that count 2 was not supported by sufficient evidence that he “substantially and unjustifiably” deviated from departmentally approved tactics. He argued he was justified in entering the RV, made numerous communications, followed a tactical plan devised by Sergeant Richey, and properly accounted for the possibility of crossfire.
Leiphardt also raised for the first time a legal challenge to the Board of Rights’ findings on count 1. He argued that the United States Supreme Court overruled a principle analogous to the Hayes Amendment in County of Los Angeles v. Mendez (2017) 137 S.Ct. 1539 (Mendez), and LAPD “cannot fairly convict an officer on a constitutionally overruled concept.”
Respondents filed a written opposition refuting Leiphardt’s arguments. They contended that the evidence supported the Board of Rights’ findings, and further that Mendez was inapplicable because “[r]eviewing the tactical decision-making process before an [officer-involved shooting] is not the same as using the provocation rule” overturned in Mendez, and the case “does not involve violation of the Fourth Amendment” in any event. They also requested a written statement of decision. Leiphardt filed a reply.
III. Hearing and Ruling
The trial court heard the matter on April 16, 2019. Prior to the hearing, the court issued a lengthy tentative ruling indicating its intention to deny the writ petition.
In its tentative ruling, the trial court summarized the evidence introduced at the Board of Rights hearing. In addition to making factual findings about the incident itself, the trial court found that LAPD expert witness Espinosa opined that the incident met the “barricaded suspect” policy, yet also testified on cross-examination that “if at the time the officer acted, he or she had an objectively reasonable belief that the barricaded suspect was in imminent danger of dying, the officer would be authorized to ‘go into life saving mode.’” Espinosa further opined that at least one of the officers on the scene should have asked the RV owner or his son whether anyone was in the vehicle, and that Sergeant Richey’s order to enter the RV “did not absolve Petitioner if he thought it was unsafe.” The trial court additionally noted testimony from Leiphardt’s expert witness, Sergeant Barbara Riggs, that exigent circumstances supported Leiphardt’s entry into the RV, namely the possibility that others might be inside and Leiphardt’s belief that Jaradat was in danger of dying. The court found that Riggs also testified “that there were issues with communication tactics before the shooting,” because no one took control of the situation.
The trial court explained that it was exercising its independent judgment on the record, while affording a strong presumption of correctness to the findings made by the Board of Rights. The court noted that its inquiry focused “on the totality of the circumstances, including Petitioner’s pre-shooting tactical conduct and decisions.” Applying those principles, the trial court concluded that “[e]xpert testimony supports that exigent circumstances, including concerns for the health of the suspect, are relevant to a police officer’s response to a barricaded suspect.” It further found that “[t]he weight of the evidence supports that Petitioner could reasonably believe that Jaradat was at immediate risk of serious bodily injury or death,” and it was “unclear from the Board’s decision why it felt Petitioner’s observations . . . were insufficient to justify entry to protect Jaradat’s life without waiting for SWAT.” It thus concluded that “[t]he weight of the evidence supports that Jaradat presented exigent circumstances that could justify a departure from the barricaded suspect policy.”
The court rejected Leiphardt’s invitation to end its analysis there, concluding that the Hayes Amendment to the use of force policy made Leiphardt’s other tactical conduct relevant. Thus, it reasoned, “even if Petitioner had good reasons to disregard the barricaded suspect policy and enter the RV without waiting for SWAT, the manner in which he did so remains relevant to the reasonableness of his use of deadly force.”
The court then considered the manner in which Leiphardt entered the RV and his stated reasons for doing so. First, it rejected Leiphardt’s contention that the possibility of other persons inside the RV justified his entry. The trial court found that Leiphardt and the other officers on the scene “had additional reasonable steps they could have taken to determine if other persons were in the RV before they entered,” including inquiring of the RV owner and more expeditiously removing the curtain between the driving and sleeping compartments to allow better visual assessment. Next, the trial court concluded that the weight of the evidence supported the Board of Rights’ findings of inadequate command and control of the scene and “the failure of everyone present to slow down the pace of events contributed to an unnecessary escalation that resulted in a use of lethal force.” The court found that the officers failed to devise and communicate a tactical plan, and further found that Leiphardt “made his own decision to enter the RV” despite his lack of a plan beyond commanding Jaradat to drop the knife and tasing him if he did not. The trial court explained, “Given Jaradat’s violent behavior, his non-compliance with verbal commands, and the ineffectiveness of [the] prior taser use, it was unreasonable for Petitioner to have no tactical plan for how to disarm Jaradat or respond if Jaradat charged.” The court reiterated that Jaradat’s “suicidal behavior and injuries may have justified departure from the barricaded suspect policy,” but concluded “it does not follow that it was reasonable for Petitioner to enter the RV without a tactical plan or communication of how to deal with Jaradat. Contrary to Petitioner’s suggestion, there is a difference between waiting an hour for SWAT to respond, and taking the time necessary to formulate and communicate a tactical plan before entry into a confined space with an armed and violent suspect.”
The trial court next considered whether Sergeant Richey’s order to enter the RV justified Leiphardt’s actions. It concluded that it did not. The trial court found that although “Richey’s testimony generally supports the conclusion that there may have been exigent circumstances that could justify entry into the RV, . . . the presence of exigent circumstances does not, in itself, establish that Petitioner’s use of deadly force was reasonable.” The court was “not persuaded that blind obedience of Richey’s order was mandated by Department policy, or would absolve Petitioner of liability.” It pointed to testimony from Espinosa as well as Leiphardt’s own actions in delaying entry until he could see Jaradat’s hands, which the court found “belie his assertion that he was mandated to obey Richey’s order even if it was unsafe for him.” The trial court agreed with Leiphardt that “the crossfire potential” did not contribute to his use of force against Jaradat.
The trial court rejected Leiphardt’s reliance on Mendez, supra, 137 S.Ct. 1539. It explained, “Neither the ‘provocation rule’ nor Mendez apply here because Petitioner’s case does not involve liability for an alleged violation of the Fourth Amendment occurring prior to the use of force. Board’s function was to determine whether Petitioner violated Department policy, including the Hayes amendment included in the UOF [use of force] policy. Petitioner does not show that Mendez had any impact on Department’s UOF policy, especially where a Fourth Amendment violation is not alleged.”
The trial court tentatively denied the writ as to both counts 1 and 2: “Exercising its independent judgment, the court concludes that Jaradat presented exigent circumstances that could justify a departure from the barricaded suspect policy. However, as discussed, the presence of an exigency does not end the analysis. The court must consider the totality of the circumstances, including Petitioner’s pre-shooting tactical conduct and decisions. The weight of the evidence supports Board’s findings that Petitioner’s lack of tactical planning and communication, ‘and the failure of everyone present [including Petitioner] to slow down the pace of events contributed to an unnecessary escalation that resulted in a use of lethal force.’ Based on those findings, the weight of the evidence supports the conclusion that Petitioner’s use of deadly force was unreasonable and violated Department policy. [¶] Count 2 alleged that Petitioner substantially deviated from Department Tactical Training. As discussed above under Count 1, the court has found that the weight of the evidence supports a finding that Petitioner substantially deviated from LAPD’s tactical planning and policies under the circumstances. Since Count 2 is supported by the findings regarding lack of tactical planning and communication, the court need not decide whether crossfire potential also supports Count 2.”
At the April 16, 2019 hearing, both parties acknowledged receipt of the tentative ruling. Leiphardt informed the court that he wanted to reiterate though not restate his written arguments. He also emphasized for the court an excerpt of his testimony from the Board of Rights hearing: “‘I looked in further, and he had dropped his hands briefly to the side by his legs and remained motionless for a moment. At this time I could see blood gushing out of his stomach, and the knife was inside his stomach. He’s going. Hey, he’s going. This guy’s bleeding out. If we don’t do something, he is going to die. We need to go in and help him out.’ And Officer Leiphardt does. And I think the central thing I’m arguing is that reverence for life trumps everything. Leiphardt had no choice under his duty as a Los Angeles police officer but to go in.” Respondents submitted without further argument. The trial court adopted the tentative ruling as its final decision and denied the writ petition. The court entered judgment to that effect on April 23, 2019.
Leiphardt timely appealed.
DISCUSSION
I. Standard of Review
A trial court’s review of an adjudicatory administrative decision under section 1094.5 is subject to two possible standards of review depending upon the nature of the right involved.
(§ 1094.5, subd. (c); Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313 (Wences).) If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. In such a case, the trial court independently reviews the administrative record for errors of law and determines whether the weight of the evidence supports the administrative findings. (Wences, supra, at p. 313.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda).) The trial court appropriately applied this standard here, because discipline imposed on public employees affects their fundamental vested right in employment. (Wences, supra, 177 Cal.App.4th at p. 314.)
When the trial court is required to review an administrative decision under the independent judgment standard of review, we review the trial court’s determination under the substantial evidence test. (Fukuda, supra, 20 Cal.4th at p. 824; see also Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 99.) “Substantial evidence is evidence that a rational trier of fact could find to be reasonable, credible, and of solid value. We view the evidence in the light most favorable to the judgment and accept as true all evidence tending to support the judgment, including all facts that reasonably can be deduced from the evidence. The evidence is sufficient to support a factual finding only if an examination of the entire record viewed in this light discloses substantial evidence to support the finding.” (Pedro v. City of Los Angeles, supra, at p. 99.) We review de novo whether the Board of Rights “prejudicially abused its discretion by failing to proceed in the manner required by law, such as by failing to comply with required procedures, applying an incorrect legal standard, or committing some other error of law.” (Ibid.)
II. Analysis
Leiphardt’s numerous arguments fall into two primary categories. First, he contends that the LAPD policies at issue in this case are themselves illegal or were misinterpreted by the Board of Rights and the trial court. Second, he argues that substantial evidence does not support the trial court’s findings that he substantially and unjustifiably deviated from approved departmental tactics. We address these contentions in turn.
A. LAPD Policies
1. Leiphardt has not shown the Hayes Amendment is invalid.
The LAPD Use of Force policy provides that department personnel “may use only that force which is ‘objectively reasonable’” to defend themselves or others. The policy defines the phrase “objectively reasonable” as follows: “The legal standard used to determine the lawfulness of a use of force is the Fourth Amendment to the United States Constitution. See Graham versus Connor, 490 U.S. 386 (1989). Graham states in part, ‘The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation. The test of reasonableness is not capable of precise definition or mechanical application.’ The force must be reasonable under the circumstances known to the officer at the time the force was used. Therefore, the Department examines all uses of force from an objective standard, rather than a subjective standard.”
The policy further provides that LAPD “examines reasonableness using Graham and from the articulated facts from the perspective of a Los Angeles Police Officer with similar training and experience placed in generally the same set of circumstances. In determining the appropriate level of force, officers shall evaluate each situation in light of facts and circumstances of each particular case. Those factors may include, but are not limited to: [¶] The seriousness of the crime or suspected offense; [¶] The level of threat or resistance presented by the subject; [¶] Whether the subject was posing an imminent threat to officers or a danger to the community; [¶] The potential for injury to citizens, officers or subjects; [¶] The risk or apparent attempt by the subject to escape; [¶] The conduct of the subject being confronted (as reasonably perceived by the officer at the time); [¶] The time available to the officer to make a decision; [¶] The availability of other resources; [¶] The training and experience of the officer; [¶] The proximity or access of weapons to the subject; [¶] Officer versus subject factors such as age, size, relative strength, skill level, injury/exhaustion and number officers [sic] versus subjects; and, [¶] The environmental factors or other exigent circumstances.” When deadly force is at issue, the Use of Force policy mandates consideration of an additional factor, “the officer’s tactical conduct and decisions leading up to the use of deadly force.” As noted above, this final factor was added to the Use of Force policy after the California Supreme Court held in Hayes, supra, 57 Cal.4th at p. 639, that “[l]aw enforcement personnel’s tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining whether the use of deadly force gives rise to negligence liability.”
Leiphardt first contends that application of the Hayes Amendment was improper, because the “LAPD use of force policy is grounded on Graham,” thereby giving him “a right to be judged according to Fourth Amendment interpretations” exclusively. This contention lacks merit. Leiphardt has not pointed to any authority holding that a use of force conduct policy must derive from a single source, and we have not located any. LAPD’s citation to Graham, which provides relevant guidance on assessing whether a use of force is excessive under the Fourth Amendment, does not preclude LAPD from also incorporating other relevant considerations into the same policy. Indeed, in addition to relying on Hayes, the Use of Force policy explicitly draws on “California Penal Code Section 243(f)(4)” for its definition of “Serious Bodily Injury.” The policy’s reference to one applicable body of law does not preclude its reference to another.
Leiphardt next contends that Mendez, supra, 137 S.Ct. 1539, applies to this case and invalidates the Hayes Amendment. In Mendez, the Supreme Court considered the validity of the “provocation rule,” which provided that “‘an officer’s otherwise reasonable (and lawful) defensive use of force is unreasonable as a matter of law, if (1) the officer intentionally or recklessly provoked a violent response, and (2) that provocation is an independent constitutional violation.’” (Mendez, supra, 137 S.Ct. at p. 1545.) The provocation rule came “into play after a forceful seizure has been judged to be reasonable under Graham,” and “instruct[ed] the court to ask whether the law enforcement officer violated the Fourth Amendment in some other way in the course of events leading up to the seizure. If so, that separate Fourth Amendment violation may ‘render the officer’s otherwise reasonable defensive use of force unreasonable as a matter of law.’” (Id. at p. 1546.) Mendez held that the provocation rule was “incompatible with [its] excessive force jurisprudence,” which “sets forth a settled and exclusive framework for analyzing whether the use of force used in making a seizure complies with the Fourth Amendment.” (Ibid.) Mendez identified Graham, supra, 490 U.S. 386, as the continuing source of that exclusive framework (see ibid.), and concluded that “[a] different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.” (Id. at p. 1544.)
Leiphardt suggests that the Hayes Amendment, which requires consideration of tactics employed prior to the use of force, is “almost identical” to the provocation rule the Supreme Court disapproved in Mendez and therefore should not have applied. He further contends that “[d]isciplining an officer based on a use of force policy concept (Hayes Amendment and/or provocation rule) that has been overruled by the Supreme Court and now [sic] in conflict with the basis of the LAPD use of force policy (Graham) is not fair and is therefore a violation of the [Los Angeles City] Charter” provision ensuring a full, fair, and impartial hearing. We are not persuaded.
Mendez is inapposite. There was no allegation that Leiphardt’s entry into the RV was itself a violation of the Fourth Amendment. There could not have been such an allegation (or violation), as Leiphardt entered the RV after receiving the keys and tacit permission from the vehicle’s owner. Moreover, as the trial court recognized, “[n]either the ‘provocation rule’ nor Mendez apply here” because, as respondent asserts, “the question whether Leiphardt’s shooting complies with the Fourth Amendment is not at issue.” Hayes addresses an issue of state tort law, and the case at hand addresses Leiphardt’s compliance with LAPD policy. Mendez, which addresses the Fourth Amendment, is not applicable.
Finally, Leiphardt contends that the Hayes Amendment placed him in a catch-22 that deprived him of his right to defend himself against Jaradat’s lethal force. In Leiphardt’s view, “when [he] peered inside the RV and saw Jaradat bleeding to death and made the decision to enter, he was at that point in time already precluded from using deadly force by LAPD policy. . . . No one was going to be allowed to look at the reasons for using deadly force at the time that it was actually used because it had already been decided that it was out of policy before it had even happened. This is irrational. If the officer obeys policy, deadly force is not authorized after the improper entry and he must allow himself to be murdered.” We agree with respondents that this argument is “misguided.” As explained above, Leiphardt’s compliance with the Fourth Amendment is not at issue in this litigation. Furthermore, the Use of Force policy expressly requires an evaluation of “each situation in light of facts and circumstances of each particular case”; it nowhere states that a single circumstance, such as a tactical misstep, necessarily renders a subsequent use of force out of policy.
2. Leiphardt has not shown that the reverence for life policies negate the Hayes Amendment.
The trial court found that “[t]he weight of the evidence supports that Jaradat presented exigent circumstances that could justify a departure from the barricaded suspect policy.” Substantial evidence, including expert testimony from LAPD witness Espinosa, supports this conclusion; respondents do not dispute this. The trial court continued its analysis, however, concluding that “even if Petitioner had good reasons to disregard the barricaded suspect policy and enter the RV without waiting for SWAT, the manner in which he did so remains relevant to the reasonableness of his use of deadly force.” Leiphardt contends this was error, because the LAPD’s “reverence for life” policies constitute an exigent circumstance excusing his compliance with “any of the other policies being applied,” including the Hayes Amendment. He reasons, “If it has been established that exigent circumstances did exist because Jaradat’s condition required immediate life saving action that excused compliance with the Barricaded Suspect policy, why would it not excuse compliance with other LAPD policies or requirements?” This argument, which is not supported by any legal authority, is not persuasive.
Leiphardt identifies three “reverence for life” policies adopted by the LAPD. The first, from the LAPD code of ethics, provides, “As a law enforcement officer, my fundamental duty is to serve mankind—to safeguard lives and property . . . .” The second, itself titled “Reverence for Human Life,” provides that “Reverence for human life is the primary consideration in developing tactics and strategies in pursuit of our motto: ‘To Protect and To Serve.’” The third, embedded within the Use of Force policy, states that “The Department’s guiding value when using force shall be reverence for human life.” Nothing in these statements suggests that they are intended to negate other policies or excuse an officer from his or her obligations to comply with them. As respondents point out, it is “internally inconsistent” to rely upon language prioritizing human life “in developing tactics and strategies” as an excuse for failing to appropriately develop necessary tactics and strategies. Similarly, it is not reasonable to conclude that a “guiding value” set forth in the preamble to the Use of Force policy provides an exception to the very policy it introduces.
Leiphardt also contends, and emphasizes in his reply brief, that he did not have time to do anything but enter the RV and attempt to save Jaradat’s life. He asserts that it was “a split-second judgment—in circumstances that were tense, uncertain, and rapidly evolving. And it was objectively reasonable.” As we discuss more fully below, substantial evidence supports the trial court’s contrary finding that “there was sufficient time for the officers to implement ‘command and control,’ including for Petitioner to relinquish his active role to allow Sergeant Richey to make an informed decision. . . . [T]here is a difference between waiting an hour for SWAT to respond, and taking the time necessary to formulate and communicate a tactical plan before entry into a confined space with an armed and violent suspect.”
3. Substantial evidence supports the findings that Richey’s order did not negate the Hayes Amendment or justify entry into the RV.
Leiphardt argues that his entry into the RV could not have been out of policy because it was made in response to a lawful order given by his superior, Sergeant Richey. He contends that LAPD policy requires “unquestioned obedience of a superior’s lawful command,” and that insubordination “can result in termination.” Therefore, he reasons, “being under orders to enter, the entry was within LAPD policy. . . . The entry being correct, the entry cannot be used to convert a lawful use of force into an unlawful use of force by imputing the decision to enter as the cause of the use of force as alleged by the Department and accepted by the lower court.” Respondents contend this argument “misses the point” because “[t]here is no dispute that Officer Leiphardt was ordered to ‘[g]o in and get [Jaradat]’ or that he was obligated to comply with Sergeant Richey’s order.” Instead, he was disciplined for “follow[ing] the order without formulating and communicating a tactical plan,” not insubordination.
The trial court found that “blind obedience of Richey’s order” was not mandated by the LAPD policy, and would not have “absolve[d] Petitioner of liability.” These findings are supported by substantial evidence. As the trial court noted, “Espinosa testified credibly[ ] that Sergeant Richey’s order to enter the RV did not absolve Petitioner if he thought it was unsafe. Moreover, Petitioner’s actions belie his assertion that he was mandated to obey Richey’s order even if it was unsafe for him, other officers, or Jaradat. Petitioner did not immediately enter the RV on Richey’s command, but waited until he obtained additional visual information and made his own decision to enter the RV with De Leon.” We are bound by the trial court’s resolution of any conflicts in the evidence, and indulge every reasonable inference in presumption of its findings. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 40.)
B. Substantial Evidence Review
The trial court found that “[t]he weight of the evidence supports Board’s findings that Petitioner’s lack of tactical planning and communication, ‘and the failure of everyone present [including Petitioner] to slow down the pace of events contributed to an unnecessary escalation that resulted in a use of lethal force.’” It further found that “the weight of the evidence supports a finding that Petitioner substantially deviated from LAPD’s tactical training and policies under the circumstances.” Leiphardt broadly contends that “there is no substantial evidence to find [him] guilty of ‘substantially and unjustifiably’ deviating from approved department tactical training.” We disagree.
1. Substantial evidence supports the finding that tactical communication was lacking.
Pointing to six places in the record showing communication on his part, Leiphardt contends “[t]here is no evidence of a lack of communication on Appellant’s part and plenty of evidence that he communicated often.” On a substantial evidence review, however, “[w]e view the evidence in the light most favorable to the judgment and accept as true all evidence tending to support the judgment, including all facts that reasonably can be deduced from the evidence.” (Pedro v. City of Los Angeles, supra, 229 Cal.App.4th at p. 99.) “‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’” (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143, italics omitted.)
Under this standard, Leiphardt’s examples of communication cannot overcome the substantial evidence on which the court relied to conclude his communication was lacking. The record shows that Leiphardt failed to ask the RV owner whether anyone was in the RV. He did not tell the other officers on the scene that he had the keys, or that he had used them to open the door of the RV’s rear sleeping compartment. Leiphardt did not inform the other officers that he left the rear door open when he relocated to the front of the RV to avoid crossfire. He also neglected to inform them that he had entered the RV; one officer realized Leiphardt was inside with Jaradat only after removing the curtain separating the RV’s compartments. While it is fortunate that none of these missteps resulted in harm to the officers or bystanders at the scene, or immediate harm to Jaradat, they still properly support the trial court’s finding that tactical communication was lacking.
2. Substantial evidence supports the finding that a tactical plan was lacking.
The trial court found that Leiphardt’s testimony before the Board of Rights “shows that he did not formulate or communicate a plan for disarming Jaradat safely in a confined space, especially given the ineffectiveness of prior verbal commands and taser.” Leiphardt disputes this finding, asserting not only that there was a plan but that “[i]t was a good plan that had several possibilities of success.”
Leiphardt’s argument again disregards the standard of review. Viewed in the light most favorable to the judgment, the record supports the trial court’s findings. We quote the trial court here, omitting its citations to the record, as Leiphardt relies on the same general testimony as evidence of adequate planning. “As presented to the Board, Petitioner’s plan was to enter the RV, begin a dialogue with Jaradat, and see what happened. Petitioner admitted that, prior to entry of the RV, he did not have a plan if Jaradat failed to cooperate: [¶] Q: And how would you take the knife out of play? [¶] A: By maintaining cover with either myself or Officer De Leon. And him and I would then have to communicate with each other and formulate a plan from there to accomplish that goal. [¶] Petitioner admitted that there was no cover in the RV other than ‘our weapons, ou[r] lethal.’ Petitioner was asked if he had any plan if the ‘incident goes sideways where [Jaradat] charged at officers?’ In response, Petitioner stated ‘that wasn’t my concern.’” The trial court reasonably inferred from this testimony that Leiphardt did not have an appropriate plan, particularly “[g]iven Jaradat’s violent behavior, his non-compliance with verbal commands, and the ineffectiveness of [the] prior taser use.”
3. Substantial evidence supports the finding that the failure to slow down the events contributed to an unnecessary escalation that resulted in use of lethal force.
Leiphardt contends “[t]here is no substantial evidence that the situation that day could have been slowed down to preclude an unnecessary use of force. Jaradat was the one in control of events and things that needed immediate attention happened one after another because of his actions with no opportunity for anyone to pause, unless it was to let him die without intervention.” He emphasizes that the entire incident lasted a mere six minutes, and asserts that the “option to slow things down ended when Appellant reasonably believed that Jaradat was bleeding out and that immediate action was required to save his life.”
It is clear from the record that Jaradat’s behavior was erratic and the scene was chaotic. Nevertheless, the trial court’s finding that Leiphardt could have taken steps to slow the situation is supported by substantial evidence. In particular, it is reasonable to infer that improved tactical communication could have bought additional time and lessened or eliminated the need for lethal force. For instance, the court found that Leiphardt “knew the RV owner or his son were present, and the officers could have inquired further with them” to see if anyone was inside the RV. It is reasonable to infer that the RV owner, who voluntarily proffered the keys and stated, “There’s nobody inside the damn van,” would have clarified that point if asked directly. With such a clarification, and appropriate communication thereof to the other officers on the scene, there would have been no need to open the rear door or enter the RV to look for occupants. Similarly, if Leiphardt had told the other officers that he, not Jaradat, had the keys to the RV, the officers would not have feared Jaradat was attempting to drive away and could have avoided confronting Jaradat while he was in the driver’s seat. They thus would have had more time to “implement ‘command and control,’” whether by calling SWAT or merely “taking the time necessary to formulate and communicate a tactical plan before entry into a confined space with an armed and violent suspect.”
DISPOSITION
The judgment of the trial court is affirmed. Respondents are entitled to their costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.