McCoy v. City of L.A.

BRENT McCOY et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

B288165

c/w B288166

c/w B288167

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

September 3, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. Nos. BS166003, BS166004, BS166005)

APPEALS from judgments of the Superior Court of Los Angeles County. Amy D. Hogue, Judge. Affirmed.

Rains Lucia Stern St. Phalle & Silver and Christopher D. Nissen for Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant City Attorney, and Paul L. Winnemore, Deputy City Attorney, for Defendants and Respondents.

____________________ Appellants Brent McCoy (McCoy), Julio Cortez (Cortez), and Joshua Tornek (Tornek) (collectively appellants) are former officers of the Los Angeles Police Department (LAPD). They appeal from the denial of their petitions for administrative writ of mandate, under Code of Civil Procedure section 1094.5, in which they sought to overturn the termination of their employment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Underlying Incident

On October 16, 2014, appellants and Cortez's partner, Officer Richard Garcia (Garcia), were at a community outreach event when they heard and responded to a request from Detective Steve Razo for assistance stopping an individual on a bicycle fitting the description of a robbery suspect. When partners McCoy and Tornek saw the suspect, McCoy pulled over their marked police vehicle and Tornek exited. The suspect failed to heed Tornek's order to stop, dismounted the bicycle, threw it at Tornek, and started running. A foot pursuit ensued.

At various times during the pursuit, the suspect was seen reaching toward his waistband and sock/shoe area. Eventually the suspect stopped between two parked cars and discarded contraband. He emerged and ran into the middle of the street. While avoiding a baton strike from Cortez, the suspect lost his balance and fell to the ground.

Cortez and McCoy applied their body weight on top of the suspect, but they struggled to gain control of his arms. Garcia arrived at the scene and kicked the suspect's left shoulder or clavicle area. Garcia placed his knee on the suspect's back, punched his head once, and administered three elbow strikes tohis head. Garcia also administered several knee strikes after the suspect was handcuffed.¹

The suspect was eventually placed in a police vehicle and, after complaining of shortness of breath, transported by ambulance to the hospital.

II. Use of Force Investigation

LAPD's Force Investigation Division (FID) assumed responsibility from Internal Affairs for the administrative investigation into the use of force incident approximately one week after it occurred. After another week, FID took over the entire investigation, including the criminal component. Detective Gregory McKnight oversaw the FID investigation and interviewed appellants nearly three weeks after the incident.²

A. McCoy's interview

Detective McKnight interviewed McCoy on November 4, 2014.

According to McCoy, at around Noon on October 16, 2014, he heard the broadcast requesting a stop of a possible robbery suspect. Because McCoy, Tornek, Cortez, and Garcia were very close to the suspect's reported location, they responded to the request. McCoy drove, with Tornek in the passenger seat.

When they saw the suspect, McCoy bypassed him, pulled over, and activated his lights. Tornek exited the car and made contact with the suspect. As the suspect attempted to pedal away, Tornek grabbed the rack on the rear of the bicycle. The suspect then got off and threw the bicycle at Tornek. McCoy thought that the suspect might be armed. McCoy and Tornek began to pursue the suspect on foot. McCoy saw the suspect dip behind a car and reach for something in his shoe area.

Cortez appeared in the street and yelled for the suspect to get on the ground. McCoy saw Cortez with his baton and the suspect on the ground. Cortez jumped on the suspect's left side, while McCoy jumped on his right side. To handcuff the suspect, McCoy attempted to get the suspect's right arm behind his back. Cortez attempted to control the suspect's left arm. McCoy was "not particularly watching that side [be]cause [he was] fighting [his] own fight."

McCoy and Cortez eventually gained control of the suspect's hands. They were unable to put his hands together, however, because the suspect was in a "rigid plank" position. At that point, Garcia began to "deliver[] force." McCoy was "not sure if [Garcia] used a palm strike, a punch, [or] an elbow. He used some kind of force." Each time Garcia used force, the suspect's arms moved closer together until McCoy and Cortez were able to handcuff him.

Although the suspect had been handcuffed, he had not yet been searched and "might still have a gun possibly." The suspect began to reach for the back of his pants. McCoy did not "remember if it was a knee or an elbow, but [Garcia] delivered some kind of force and the [suspect] stopped reaching in the waistband."

Garcia "contain[ed]" the suspect as Tornek and Cortez recovered evidence. Garcia asked McCoy for help to lift the suspect. Because the suspect was uncooperative, Garcia and McCoy "kind of drag[ged] him to the back of the car." They put the suspect in a police car, where he was interviewed by a detective. The officers came to a consensus to call an ambulance even though the suspect did not request one and did not appear to be in pain.

McCoy surmised that surveillance cameras must have captured the incident. He told Garcia to record a video of the footage on his phone to assist them when they wrote their report. McCoy later viewed that video briefly and saw Garcia kick the suspect. He did not, however, have an independent recollection of Garcia administering the kick.

McCoy stated that he did not see Garcia deliver any force but could feel his blows. McCoy was focused on his own "fight" and "not watching to see."

B. Cortez's interview

Cortez was interviewed on November 4, 2014.

According to Cortez, he and his partner, Garcia, along with Tornek and McCoy, responded to Detective Razo's request to detain a possible robbery suspect. Garcia drove and, from the vehicle, Cortez saw McCoy and Tornek chasing the suspect on foot. Cortez observed the suspect run between cars several times and reach into his waistband and shoe area.

Cortez started chasing the suspect on foot along with Tornek and McCoy. He saw the suspect duck between two cars and discard something that he believed to be narcotics. He ordered the suspect, "[L]et me see your hands. Stop running." He tried to strike the suspect's thigh with his baton but missed.In attempting to avoid the baton strike, the suspect fell to the ground.

McCoy placed his body weight on the suspect's shoulder and upper back area, gaining control of his right hand. Cortez placed his knee on the suspect's lower back and ordered the suspect to give him his left arm. After Cortez and McCoy put their body weight on him, the suspect "start[ed] yelling, pigs, and F-U guys[.]" Cortez repeatedly told the suspect to stop resisting.

Cortez saw Garcia running toward them and "from the corner of [his] eye" saw Garcia kick the suspect in the clavicle or left shoulder. Cortez was able to grab the suspect's left arm, which had been loosened by the kick. McCoy had gained control of the suspect's right arm, allowing Cortez to handcuff his right wrist. Cortez bent the suspect's left elbow and handcuffed that wrist as well. Cortez was "just looking at the [suspect's] arms" and could not see "anything above . . . the suspect's shoulders."

Detective McKnight asked Cortez whether, while he was attempting to handcuff the suspect, he saw "Garcia[] administering any type of elbow strikes or punching the suspect or anything of that nature[.]" Cortez answered, "No, not from the angle I was in. I couldn't—I didn't see any of that."

Cortez got up and retrieved the narcotics. He also went to a nearby business to obtain surveillance footage. He viewed the footage, which Garcia recorded on his phone. By the time Cortez exited the business, the suspect was already in the back of a police car. The suspect's "only complaint was . . . that he had asthma." Cortez observed "a little bit of blood" on the suspect's earlobe.

C. Tornek's interview

Tornek's interview took place on November 5, 2014.

According to Tornek, appellants were at a community outreach event when they heard a radio broadcast requesting a pedestrian stop of a possible robbery suspect. Tornek answered, stating that he and his partner, McCoy, would respond along with Cortez and his partner, Garcia.

When Tornek and McCoy saw the suspect, McCoy pulled over and Tornek exited the police car. Tornek ordered the suspect to stop and put his hands behind his head. The suspect looked directly at Tornek and said a few unintelligible words. Concluding that the suspect did not intend to stop, Tornek reached out to grab the bicycle to prevent him from fleeing. The suspect dismounted, threw the bicycle at Tornek, and ran away.

Tornek and McCoy began to pursue the suspect on foot. At one point, Tornek observed the suspect make a motion toward the pockets on his shorts. At another time, Tornek saw the suspect crouch between two parked cars and extend his hand toward his shoes. Tornek thought that the suspect might be reaching for a weapon or narcotics.

From his peripheral vision, Tornek saw McCoy and Cortez also pursuing the suspect on foot. Tornek again saw the suspect crouch down and make a motion toward his shoe area. As the suspect emerged from between two cars, Tornek observed that he...