From: PORAC LDF
By: William J. Hadden, ESQ., 5/1/2002
In what has to be one of the most astounding rulings in the annals of LDF cases, a Culver City arbitrator has exonerated two Riverside police officers in the sensationalized December 1998 shooting of Tyisha Miller and awarded them full back pay and benefits, but refused to order the city to restore them to full-time duties. Arbitrator Robert Steinberg found that the officers did virtually nothing wrong in the incident, in which they were forced to fire at Ms. Miller in response to her picking up a firearm while they were attempting to rescue the seemingly comatose 19 year old African-American woman from her locked and idling car. The officers had been summoned to the scene as a result of a 911 call from panic-stricken family members who had been unable to rouse her.
While emphatically stating that the termination of the officers was “an administrative abuse of discretion”, Steinberg declined to order the city to put them back to work, incredibly citing racial politics, and not the evidence, for his justification:
“…The black population in particular with its apparent perception of being a victim of institutional discrimination (totally wrong in this case), must be viewed as a real party in interest….Maybe time has healed, and the minority community will accept that grievants were trying to save Tyisha Miller’s life, not take it. But the community or communities which constitute the city, and in particular the black population or perhaps other racial or ethnic minorities, may not be so understanding or forgiving.” (emphasis in original).
“The officers were fired because they are white, and they were not reinstated because they are white”, said Bill Hadden of Silver, Hadden & Silver, who has represented both officers throughout their three-plus year ordeal. “Given the factual findings of innocence made by the arbitrator, the decision not to reinstate them is logically and legally indefensible,” he said. “We’ll remedy this travesty in Superior Court as soon as possible.”
On December 28, 1998, Officers Michael Alagna and Wayne Stewart were at a McDonald’s restaurant in the City of Riverside when they heard a call over their police radios for service at Central and Brockton in Riverside. The call was dispatched as a “10-57″ (unconfirmed circumstances) as the 911 caller had hung up. The situation as described to the officers included an unresponsive female in a locked car, engine running, gun on her lap. Officers Paul Bugar and Dan Hotard broadcast their response to the scene, Officers Alagna and Stewart decided that they would quickly roll to assist.
Upon his arrival, Officer Bugar contacted two females, Antoinette Joiner and Chilean King, who were later identified to be cousins to the person in the vehicle, which was still idling in the parking lot. Ms. King had called 911 because of her concerns for the welfare of her cousin in the vehicle, a 19-year-old female named Tyisha Miller. Ms. Joiner and Ms. King later told investigators that they did not know the cause of Ms. Miller’s distress, but knew that there was definitely something wrong with her, as they observed Ms. Miller’s eyes and entire body shaking, while she was completely non-responsive to their yelling and banging on the car. Ms. King also told Officer Bugar that Ms. Miller had a gun and was unresponsive.
Officers Bugar and Hotard approached the car with their weapons out, and quickly confirmed the information given to them by the reporting parties. Both Hotard and Bugar found Ms. Miller trembling, unresponsive, in apparent need of immediate medical attention and not at all like someone who was only drunk.
Shortly thereafter, Officer Stewart arrived at the scene, almost instantaneously followed by Officer Alagna. Appellants each confirmed the presence of a gun as Bugar and Hotard focused their weapons on Ms. Miller. Almost immediately upon observing Ms. Miller reclined in the driver’s seat of the car, Alagna determined that Ms. Miller was in dire need of medical attention. He observed the symptoms described by Hotard and Bugar, and that Ms. Miller’s eyes would not respond to the 20,000 candle power flashlight that he shined on her. She did not respond to the various forms of auditory stimulation that the officers tried to generate, and she had a white substance around her mouth. The officers tried all the doors, but they were locked. Ms. Miller’s keys were in the ignition of the idling car.
In their law enforcement experiences, Officers Stewart and Alagna had witnessed such calamities as overdoses, seizures and attempted suicides, and were mindful that time was of the essence. Just a few months before, Alagna had gone to a call for an overdose victim, who expired despite Alagna’s efforts to revive him. The officers were also aware by training and experience that statistically females attempting suicide with a firearm tend to fire a round in the chest, from which little blood may emerge. Since Ms. Miller was wearing bulky clothing, the officers were concerned that she may have been suffering from a gunshot wound that was not otherwise visible to them. Whether the cause of her condition was a drug overdose, a seizure or a suicide attempt, the officers could not help but conclude that Ms. Miller was in urgent need of medical attention.
Nonetheless, hopeful that she might possibly provide some assistance so that the gun might be removed from the equation, the officers made every effort to evoke a response from her. For five-to-seven minutes the officers announced their presence, yelled commands to her, asked her to take her hands away from the gun, and to open the doors. They pounded loudly on the car, smacked the windows, and even rocked the car. Ms. Miller’s head was located a mere two to three feet from the point at which some of the officers were yelling, leading the officers to conclude after a time that no further efforts at creating noise would not be productive. The officers thus faced the ultimate dilemma. They knew that no medical personnel would come to assist Ms. Miller until the gun was recovered but that the situation seemed urgent, and that they had no quick means to enter the car except to smash the window. The critical factor in deciding to make entry was a firm conclusion, formed after several minutes of pounding and screaming, that Ms. Miller appeared physically incapable of using the weapon against them. Accordingly, they quickly formulated a plan that would include smashing a window to facilitate its removal. They were convinced that any action they took should be accomplished immediately.
The officers conferred as to which window they should break. When the right front passenger window was offered as a possibility, Officer Hotard suggested that the driver’s window would provide greater access to the gun, which lay in Ms. Miller’s lap. The smashing of other windows was determined to be likely to result in glass particles falling in Ms. Miller’s open eyes and mouth. It was then understood that the driver’s window would be broken by Officer Stewart swinging a metal asp, with Officer Alagna, who was wearing gloves, breaching the window to remove the firearm. Bugar and Hotard were to take positions covering Officer Alagna in the event that the worst-case scenario emerged with Ms. Miller grabbing the firearm to use against the officers.
Officer Stewart proceeded to smack the driver side window with a metal asp two or three times, causing noise as loud as gunshots. The window did not break. As this occurred, Ms. Miller appeared to move slightly and groped with her hand in the area of her lap. Officer Alagna yelled to his fellow officers, “Everybody hold your fire. Let’s see what she picks up.” As Ms. Miller lethargically moved her hand as in a trance-like state, and did not immediately move towards the weapon, Alagna felt that the officers had additional time so as not to require the discharge of their weapons in self-defense.
None of the officers fired. Ms. Miller, still seemingly completely disoriented and incoherent, brought a pager up to her head, but did not focus on it. She then collapsed in her seat, totally unresponsive to the officers who continued to yell at her to move her hands away from the gun and to open the door. Given the lethargy with which Ms. Miller moved and the disorientation that she displayed, none of the officers viewed her action in raising the pager as a sign that she had any awareness of her surroundings. Indeed, at no time did Ms. Miller make direct eye contact with any of them, and at no time did any of the officers feel that she had any understanding of their presence.
The officers’ barrage of noise was vigorously renewed. Ms. Miller did not respond at all and her breathing, previously noted as shallow, became nearly impossible to see. Ms. Miller made no response to these additional efforts to rouse her. The officers’ conclusion that she lacked the capacity to use the firearm was reinforced, and the officers devised another attempt to break the window.
Officer Alagna walked towards his vehicle to obtain a different baton with which to make entry, while Officer Hotard offered to use Officer Stewart’s baton to smash the window and grab the firearm. When Alagna saw that Hotard had volunteered to break the window, Alagna assumed a cover position at the right rear of the vehicle. Hotard then tapped the window before smashing it, and started to lean into the window to secure the gun. At this point, at approximately 2:07 a.m., Ms. Miller bolted to the gun and sat up, with what Officer Alagna described as a “grab and wrap” motion. In fear for the safety of themselves and fellow officers, Officers Bugar and Alagna fired their weapons, as did Officer Stewart almost immediately thereafter. After breaching the plane of the window, Officer Hotard heard a gunshot, and assumed that Ms. Miller had fired at him. He fell outside Ms. Miller’s door, and, seeing her above him, fired through the door at her. When Officers Bugar and Alagna saw Ms. Miller again reach for her gun, they fired a second volley of rounds. When those movements ceased, Officer Stewart radioed for medical personnel. The officers knew that the department’s routine practice was to send medical personnel to this type of call, and the officers assumed that such personnel was staging outside the area awaiting further instructions. In fact, a dispatcher had erroneously cross-referenced the call, and sent the paramedics elsewhere. Nonetheless, when medical personnel arrived at approximately 2:11 a.m., it was apparent that Ms. Miller had instantly expired from her wounds. Initial toxicology reports showed Ms. Miller to have had a blood alcohol content of .16, but otherwise provided no explanation for her bizarre behavior leading to the shooting.
In the days following the shooting, certain segments of the public and the media reiterated in near hysterical tones that four white officers had shot a supposedly helpless young African-American woman. The officers were called racists and murderers. The Miller shooting became the biggest media event in the history of the city.
Shortly after the incident, then-Chief Jerry Carroll told the media that the officers would have been “heroes” if they had successfully retrieved the gun from Ms. Miller. He also spoke enthusiastically of the officers’ action to an academy class, and later told the officers themselves, “I don’t care if it means my job, I’ll stand behind you.”
The first four months after the shooting saw continual protests by certain segments of the community and persistent allegations of racism, some of which were occasioned by visits by such national figures as Jesse Jackson and Al Sharpton. Riverside politicians did almost nothing to educate the community in what they knew had really happened, and cowered in the face of the protests. Chief Carroll had regular meetings with those segments of the community that sought the prosecution and firing of the four officers.
Nonetheless, the Riverside District Attorney’s office rejected the case for criminal prosecution. As part of its investigation, the District Attorney’s Office commissioned a report from tactics expert Curtis Cope who concluded that the officers had acted reasonably in making entry into the car to attempt to rescue Ms. Miller. Deputy District Attorney Michael Soccio, who spearheaded the criminal investigation, publicly stated that the District Attorney’s office had tried to formulate a better plan than that chosen by the officers, but failed to come up with one.
After the rejection of criminal charges by the DA, the protests and attendant media circus were furiously renewed as demands were made for Carroll to fire the officers. In response, the Riverside Police Officers’ Association and Bill Hadden prepared three full-page ads for publication in the Riverside Press Enterprise, describing the facts of the incident, the reasons behind the officers’ actions, and the officers’ previous contributions to the Police Department. Hadden also spoke to local civic groups and numerous media outlets, including Time Magazine and Black Entertainment Television, to inform the public that the shooting categorically had nothing to do with race.
Chief Carroll’s posture in favor of the officers began to shift with the political winds, and, despite his earlier statements, he fired the officers on July 12, 1999.
In terminating the officers, the city alleged that the officers:
– Participated in the formulation of an unreasonably dangerous plan;
– Participated in the execution of the unreasonably dangerous plan that seriously jeopardized the lives of other officers and resulted in the death of Ms. Miller;
– Failed to obtain additional information while in route or at the scene prior to taking action;
– Placed Ms. Miller, and other officers on scene, in unnecessary danger prior to formulation of the plan;
– Failed to confirm the status of medical aid prior to implementing the plan; and failed to request supervision.
Almost one year later, in May 2000, the officers and the city were in receipt for the first time of test results of a urine sample of Ms. Miller that was analyzed at the behest of the District Attorney’s office in May 1999. The results revealed the presence of “GHB” (Gamma Hydroxybutyrate) a dangerous substance which, when mixed with alcohol, can produce coma-like symptoms followed by intermittent and unpredictable physical responses, just as was described by the officers. Left unattended, GHB users, especially those who have also consumed alcohol, may suffer respiratory arrest and even death. The results for the first time helped to explain why Ms. Miller could appear so lifeless and vulnerable at one time, yet capable of rising and grabbing her weapon to use against her would-be rescuers just moments later.
The administrative evidentiary appeal hearing consumed 16 days, spread out over several months. During his opening statement, Bill Hadden utilized a replica of Ms. Miller’s car to simulate the officers’ loud and clamorous efforts to rouse her, vividly demonstrating the reasonableness of the officers’ conclusion that only a person in great medical distress would not have responded to their efforts. Hadden continually emphasized that it was the city’s burden to prove that what the officers did was unreasonable, and challenged the city to produce an alternative to their actions given the undisputed facts they encountered at the scene. Chief Carroll, who refused to offer an alternative action to the officers’ plan until the hearing, testified that they should not have approached the car and instead should have interviewed all the witnesses in the parking lot before making any effort to rescue Ms. Miller, notwithstanding the apparent urgency of her medical condition. It was preferable, he said, to let Ms. Miller die in the car even of an apparent drug overdose rather than for any officer to risk his safety in any way to provide assistance. The officers, he said, should have recognized that Ms. Miller was merely drunk, and called out the SWAT team, notwithstanding the GHB results, and the fact that the symptoms exhibited by Ms. Miller were consistent with those of a person undergoing a life-threatening drug overdose. To their credit, none of the city’s witnesses supported Chief Carroll’s statements, which appeared to be a belated contrivance to support a political outcome.
The defense called tactics experts Ron McCarthy (ex-LAPD) and Riverside City PD Sergeant Andy Wiesmann, both of whom testified that in this, as in any tactical situation, minor criticisms could have been made of the manner in which the officers deployed themselves. However, given the urgency of the situation, they concluded that the officers had acted reasonably and admirably, and that a rescue attempt was mandated.
The defense also called GHB expert Trinka Porrata, who testified that the officers had every reason to believe that Ms. Miller’s symptoms were life-threatening, as they were totally consistent with Miller undergoing a combined GHB/alcohol overdose, and that a rescue attempt by the officers was the only reasonable response.
Hadden also called witnesses to the shooting at the Riverside City Hall in October 1998 to show that the department was actually seeking to discipline Alagna and Stewart for an undesired outcome as opposed to bad tactics. In that earlier incident, a gunman barricaded himself in the City Hall chambers while taking the Mayor and members of the City Council hostage. The matter was successfully resolved when a detective fired blasts from a shotgun through the closed door of the council chambers, striking the suspect as well as a city councilperson. At each step of the way, it was shown, the officers involved in the Miller shooting used tactics that were no less reasonable, and Hadden argued that under such circumstances they should not be penalized for a result that was politically unsatisfactory.
Furthermore, of the four witnesses who testified regarding the propriety of the disciplinary action on behalf of the city only one, Chief Carroll, testified that the officers deserved to be fired. Carroll’s flip-flopping on his position as to the propriety of the officers’ actions, his handling of the City Hall shooting, his failure to articulate a reasonable alternative and the frequent distortions in his testimony of the officers’ description of events rendered him a less than credible witness.
The arbitrator found the facts precisely as Bill Hadden had argued them throughout the hearing. Indeed, said Hadden, “We couldn’t have written the findings any better ourselves.”
Preliminarily, the arbitrator noted that there was nothing to support a conclusion that the shooting had anything to do with racial animus:
“…There is not one scintilla of evidence that the four young officers who shot (at) Ms. Miller were motivated in any respect by racism. On the contrary, they were motivated only by their sense of duty and to save a person in distress, whom they believed would have died absent their intervention.”
While finding that the officers made some minor tactical decisions that could have been improved upon, the arbitrator said:
“As ultimately carried out, and given the understandable perception of the officers as recounted at the hearing and during the earlier interviews, the plan ultimately formulated to gain access to Ms. Miller’s gun and to retrieve her from the vehicle was not proven to be an irrational plan. Any rescue of Ms. Miller was inherently dangerous, and while one less officer may have made the plan safer, the plan as executed was not exceedingly unsafe to the officers. The cover officers were reasonably situated at the vehicle door posts and behind, and the department did not propose any preferable plan or alternative course of conduct designed to save Ms. Miller, and which reduced the exposure to gunfire, especially for the officer entering the vehicle. The suggestion that grievants should have considered calling out the SWAT team does not suffice. Prompt action was called for, not severely delayed action or inaction. The District Attorney did not fault the officers for their plan… Chief Carroll’s analysis of this situation as being akin to a barricaded hostage episode, or even a high-risk felony stop, was completely miscast and unsupported by his supervisory team overseeing the investigation.”
The arbitrator specifically rejected one of the department’s most emphasized arguments, i.e., that the officers’ plan provoked a dangerous and unnecessary cross-fire, stating:
“While it is tragic Ms. Miller was shot and died from her wounds, not one of the 24 shots fired from the four officers hit another officer. This would suggest more than blind luck was involved, and the cover officer positions were appropriate. Even the most vulnerable officer, Hotard, escaped without injury. This is true also of all the innocent bystanders.”
Steinberg found that none of the tactical criticisms of the department were significant or directly contributed to the adverse results.
“While grievants should have confirmed that medical personnel were on their way, this failure is mitigated by the fact the officers reasonably expected medical personnel to be dispatched as a matter of course.”
They had been, but were dispatched to the wrong location. The presence of medical personnel outside the gas station would not have saved Ms. Miller’s life. Accepting the city’s premise that the use of one of the four officers for crowd control would have been preferable, Steinberg commented:
“While the area had not been cleared of non-essential personnel, no bystander or resident was shot, injured, or killed. None of the officers was hit in crossfire. The absence of one of the four officers, under the circumstances, would not have made Ms. Miller any less dead.”
While Steinberg said contacting a supervisor was feasible and preferable, he again found that the failure to do so was not significant. A sergeant ultimately did arrive on scene before the shooting, and did nothing to interrupt the officers’ carrying out of their plan. “By failing to do so,” Steinberg wrote, “it must be assumed he approved the officers’ deployment and observable conduct, and would not have materially altered their plan.”
Steinberg left no doubt that he felt that the officers had acted reasonably, finding:
“…It is impossible for an appointing authority, or an arbitrator in review, to sustain serious discipline for the grievants, no less their dismissal. They were placed on the horns of a dilemma where their choice was either to act or refrain from acting. To do nothing, as Chief Carroll suggested was proper, in the face of Ms. Miller’s dire medical predicament and run the risk of her expiring, would have been contrary to the officers’ training and instinct and contrary to the department’s credo of acting reasonably to save lives and preserve human dignity. The officers exercised the correct option. If Ms. Miller had died because of their non-action, the public outcry and discredit to the department would have been just as negative and accusatory…Meaning no disrespect to the deceased, Ms. Miller was not an innocent bystander who could have been removed from harm’s way. Unwitting as it may have been, she placed herself in a position where her death was a distinct possibility, either by the officers’ inaction or by their failed action.”
Steinberg concluded his factual analysis by emphasizing that, while firing the officers was the politically expedient thing to do, their dismissals were a “clear abuse of administrative discretion”. “These were outstanding young men and dedicated officers”, he said, “that deserve to have their reputations and careers salvaged,” and they did not deserve to be fired merely because the outcome was not what everyone would have preferred.
Yet, amazingly, in blatant contradiction of his own factual findings, Steinberg, as noted above, refused to order their reinstatement, because the black community might not want them back. This determination was particularly ludicrous since the city neither presented evidence nor argued that the officers could not function in the field if returned to duty. Moreover, if it was “an abuse of administrative discretion” to fire the officers to begin with in 1999, how does the arbitrator leap to the conclusion that not reinstating them is appropriate for a minor tactical errors that he said were worthy of no more than a letter of reprimand?
At the Superior Court level, in accordance with Code of Civil Procedure §1094.5, a disciplinary decision must be supported by the findings, and the findings must be supported by the evidence. Any penalty determination, where some misconduct is found, is evaluated in accordance with the “abuse of discretion” standard. Here, the arbitrator already said that no significant discipline should be administered, and that firing them was absolutely an abuse of discretion. His concern about the reaction of the minority community was not only not covered in the evidentiary record, but otherwise factually and legally irrelevant to whether employees with vested rights in their positions should be reinstated.
As temporarily disappointed as they were in learning that their quest for complete vindication was to be delayed, Officers Alagna and Stewart emphasized how grateful they were for the support they had received from PORAC, LDF, RPOA Presidents Jeff Joseph and Jay Theuer, and its board and entire membership. “LDF gave us a great attorney, and the RPOA financially and emotionally helped us through some very tough times,” said Alagna. Added Stewart, “We received more help from more sources than we ever could have imagined, and everyone worked as a team toward a common goal. We haven’t achieved total victory yet, but we’re getting close.”