LCW Associate Tony G. Carvalho Convinces The Court To Uphold A Sergeant’s Termination

CATEGORY: Law Enforcement Briefing Room
CLIENT TYPE: Public Safety
DATE: Sep 07, 2023

A police sergeant was fired after several incidents of misconduct.  When the sergeant was the Watch Commander on duty, he served as backup to a welfare check on a 17-year-old.  Upon arrival, the sergeant yelled at the boy to “shut up” and goaded the boy into a physical altercation by shouting “you wanna go?”  The department received a recording of the incident.

The second incident involved a suspect who was not cooperating with an arrest, though not actively resisting either.  At the time of the incident, the suspect was handcuffed and non-violent. Without alerting the arrestee or his subordinate officers, the sergeant placed the suspect in a neck restraint and both men went to the ground. The sergeant kept hold of the arrestee by his neck while on the ground.  A subordinate officer who was concerned for the arrestee’s well-being, told the sergeant to let the arrestee go several times.  The sergeant responded “You don’t talk to me that way.”  When the sergeant finally released the arrestee and got off the ground, he began yelling and cursing at the officer who told him to let go, saying “you’re nobody to speak to me that way” and “Don’t f***ing tell me what to do.”  When the officer suggested they discuss this at the station, the sergeant became more agitated and upset, so much so that a third officer had to step between them.

On appeal, the city’s personnel board sustained the sergeant’s termination.  He filed a writ in superior court to have his termination overturned.  His writ argued that the board abused its discretion when it terminated him.

The day before his opening brief was due, the sergeant filed paperwork to continue the trial date and the briefing schedule. When the sergeant failed to get the trial date moved by stipulation, he then moved the court to grant a trial continuance. The City opposed. The court denied the motion. The sergeant failed to file an opening brief or to lodge any administrative record with the court.  The sergeant also did not attempt a late filing of his opening brief.

The city timely filed its opposition brief, which gave the sergeant an opportunity to timely draft a reply.  The sergeant missed that deadline as well, and did not file his reply brief for yet another week.  The court exercised discretion to accept and review the reply, but concluded that the sergeant had not provided any theory or argument to explain how the city’s personnel board abused its discretion.

On the same day the sergeant filed his late reply brief, he filed 10 additional supplemental pleadings, each titled “Amended Petitioner’s Reply Brief: Memorandum of Points & Authorities.”  After a quick review of these 10 pleadings, the court declined to consider them, noting that it was inappropriate to consider new matters raised for the first time in a reply and that none of the exhibits were identified or authenticated.  The Court noted that even if it did review this new record, the sergeant made no arguments linking any of the new record to his claims.  The court summarily denied the writ and the sergeant’s termination remained intact.


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