From: PORAC LDF
By: William J. Hadden, ESQ., 6/1/2003
More than four years after the shooting of Tyisha Miller, a Riverside County Superior Court judge has ordered the reinstatement of one of the involved officers. Miller, as you may recall, appeared to be in the throes of a drug overdose in her locked car with a gun on her lap when family members, who had been unable to rouse her, called 911. Riverside PD officers Wayne Stewart, Mike Alagna, Paul Bugar and Dan Hotard unsuccessfully attempted for several minutes to obtain a response from her, while commanding her to keep her hands away from her gun. Fearful that Miller might expire, and confident that in her seemingly comatose state she lacked both the ability and inclination to respond to her weapon, they broke a window to retrieve the gun and bring medical attention. Upon their doing so, Miller quickly sat up and grabbed her gun, resulting in the officers’ firing in self-defense. Miller’s toxicological tests showed a blood/alcohol content of .16, as well as the presence of “GHB”, a drug which when mixed with alcohol produces comatose symptoms, unpredictable responses, respiratory arrest or death.
The Riverside County District Attorney’s office refused to prosecute the officers. As part of its report to the public, the DA’s office included an analysis that it had commissioned from tactics expert Curtis Cope, who wrote in his conclusion:
“…I feel the officers did have a [medical] condition which they felt compelled to act upon. Their decision to try to make entry into the vehicle was reasonable, even faced with an apparent loaded handgun in Miller’s lap. Police work is a dangerous business, and officers are sometimes expected to take risks. They have a duty to uphold, and are expected by the public as well as their superiors to keep the community safe.”
Former Chief Gerry Carroll made numerous statements in support of the officers, claiming he would back them “even if it means my job.” Yet, after certain segments of the community engaged in protests following the DA’s rejection of criminal charges, Carroll changed his tune. On July 12, 1999, he fired all four officers. Unfortunately, officers Bugar and Hotard were left without any administrative appeal rights as probationary employees.
Stewart and Alagna appealed, represented by Bill Hadden of Silver, Hadden & Silver. After 16 days of hearing, Hadden convinced hearing officer Robert Steinberg that Stewart and Alagna had committed no material wrongdoing, and that their firings were in Steinberg’s own words, “not for just cause” and “an abuse of administrative discretion.” Steinberg noted that in all the years since the shooting, the department still had not formulated a more reasonable tactical plan designed to rescue Miller than the officers had put together in a mere six minutes. While ridiculing community members who asserted that the shooting was racially motivated as “totally wrong”, Steinberg astoundingly refused to reinstate the officers, saying that the African-American community might not want them back. As part of what he called a “remedy” for the case, he awarded the officers full back pay, several months of “front pay”, and told them to find other jobs. Both the city and the officers appealed Steinberg’s decision by filing Petitions for Writ of Mandate in Superior Court in Riverside.
Getting the case to hearing turned out to be a difficult task. Two judges assigned to the case in Riverside disqualified themselves, and the presiding judge moved the case out of Riverside to the desert community of Indio. Later, still another judge relinquished the case with the assignment finally going to the Honorable Charles E. Stafford, Jr.
In February 2003, the US Attorney’s office announced that it had no basis for a criminal prosecution. Shortly thereafter, Mike Alagna finalized a financial settlement with the city of Riverside related to all issues between them. Wayne Stewart chose to seek reinstatement.
In briefs in support of officer Stewart, Hadden argued that Steinberg’s “remedy” had no place in this case, for several reasons. First, Stewart, as a permanent public employee had a vested, constitutionally based property right in his position, which could not be removed without just cause. Once Steinberg found that there was no material misconduct, Stewart was entitled, Hadden said, to keep that job, and Steinberg had no authority to impose a gratuitous remedy to appease non-parties to the litigation. The issue in the review of a disciplinary matter pursuant to Code of Civil Procedure ’1094.5 was solely one of “penalty”, not “remedy.” Second, the sentiments of non-party “community” members were irrelevant to the penalty, and were in any event not supported by any evidence properly introduced into the record. Third, Steinberg’s determination that Stewart should receive a mere eight months pay as a “front pay remedy” in exchange for losing his job was also not based on any factual evidence in the record. As a public employee entitled to his position absent a significant showing of misconduct, Stewart’s damages upon the unjust loss of his job would have far exceeded the mere pittance offered by Steinberg. Fourth, Steinberg’s refusal to reinstate Stewart because of Steinberg’s concern for the reaction of the African-American community was tantamount to upholding Stewart’s termination solely based on the color of his skin, a position legally repugnant and morally outrageous. In short, Hadden insisted, there was no legal authority in California justifying any result other than reinstatement.
At the April 25, 2003 hearing on the Writ, Judge Stafford agreed. In contrast to the media circus that often attended coverage of the case, Stafford’s analysis was refreshingly direct, and carefully focused on the factual and legal issues. He immediately noted that it was his responsibility, as it had been that of Steinberg, to uphold the law. He proceeded to denounce Steinberg’s decision for improperly including irrelevant political considerations. Once Steinberg concluded that Stewart committed no significant misconduct, Stafford said, it was Steinberg’s duty to reinstate Stewart. He then proceeded to remand the matter to Steinberg for an order specifically reinstating Stewart with full back pay, interest, and without loss of seniority. Furthermore, Stafford made an award of attorneys’ fees (limited by statute to $7,500) pursuant to Government Code Section 800, based upon a finding that Steinberg’s decision regarding the penalty was arbitrary and capricious. In his denial of the city’s petition, Stafford found that Steinberg’s findings on the factual issues, stating that Stewart committed no misconduct worthy of even a letter of reprimand, were all supported by substantial evidence in the record.
Thus, to date, the Riverside DA’s office, the US Attorney’s office, a hearing officer and a Superior Court judge have yet to find fault with what the officers did, or a better solution to the unique situation with which they were faced. While Stewart is certainly relieved and gratified by the judge’s ruling, it remains to be seen if the city will waste more of the taxpayers’ money by filing an appeal, or instead return Stewart to his rightful position with the Riverside Police Department.
