Guest Opinion | Why Did Chief Sanchez Fail to Fire Ballew-beating Officer Esparza During His Probationary Period?

Published : Sunday, February 25, 2018 | 6:41 AM

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A knowledgeable police chief viewing the videos of Chris Ballew’s beating by Pasadena Police Department Officer Lerry Esparza likely would conclude that Esparza’s five baton-blows makes him a problematic officer.

When the police chief knows the Pasadena PD’s policies – as Pasadena’s Chief Phillip Sanchez surely does – he likely would also conclude that Officer Esparza’s multiple policy violations tag him as an officer he should fire if he can.

For a period of at least three weeks after the Ballew beating, Chief Sanchez could have fired Officer Esparza for no cause because he was a probationary employee.

During that three week period, Chief Sanchez and his staff had access to all of the videos of the beating – the Officer Lujan body camera video, the Officers’ car camera video, and the bystander’s video. Nevertheless, Chief Sanchez failed to fire Officer Esparza prior to his probation ending. Chief Sanchez’ failure to pull the trigger and fire Officer Esparza during his probationary period is saddling the City with unnecessary costs and keeping a rogue officer on patrol despite his conduct demonstrating he is not fit to carry a badge. More significantly, Chief Sanchez erodes community trust in his police administration by signaling that his department will protect what we and a wide swath of the community believe are hyper-aggressive, racial-profiling, officers such as Office Esparza.

The rock-solid case against Officer Esparza evident from the videos

The videos of Officer Esparza’s baton-beating of Chris Ballew – which now have been viewed by millions – evoke nauseating images of Rodney King’s beating. A knowledgeable police chief would likely view those videos and draw the conclusion that Officer Esparza applied excessive force that violated Mr. Ballew’s civil rights, that his conduct will inevitably lead to a lawsuit with a seven-figure payout by the City, and that it is a danger to the City and its residents to leave him on the force.

But beside that obvious conclusion, a reasonable police chief would see repeated violations of Pasadena PD policy, each of which are grounds for discipline and the totality of which would lead a reasonable chief to fire Officer Esparza:

Violations of extra-territorial arrest policy: The composite video prepared by Mr. Ballew’s attorney begins with Officers Esparza and Lujan violating the PD’s Policy #100.3.1 concerning extra-territorial arrests.

That policy provides that Pasadena PD officers should not make extra-territorial arrests “except in cases of hot or fresh pursuit, while following up on crimes committed with [sic – within] the City, or while assisting another agency.”

None of these exceptions applied to the officers travelling up North Fair Oaks in Altadena, circling back, and arresting Mr. Ballew at the Altadena Mobil station that is a half block up from the Pasadena-Altadena border.

The Officers also likely violated Policy #100.3.1 because they should have considered contacting the Altadena Sheriff’s Department before attempting the arrest but their immediately accosting Mr. Ballew suggests they did not.

Violations of the body-camera policy: When the officers get to the Mobil station, Esparza is out of the patrol car and approaching Ballew for more than 5 seconds before he first puts his hand on Ballew – more than ample time to turn on his body camera, but he failed to do so in violation Policy #450.6, which provides that officers should activate body cameras for traffic stops, pedestrian stops, detentions, and arrests.

Not activating his body-cam suggests that from the beginning Mr. Esparza did not want his conduct recorded.

Violations of the use-of-force policy: From start-to-finish, Officer Esparza’s conduct repeatedly would lead a reasonable police chief to be concerned over whether he violated the PD’s Policy #300 on “Use of Force.” Policy #300.3 requires that officers only use force “that reasonably appears necessary…to accomplish a legitimate law enforcement purpose.”

Officer Esparza’s stated law enforcement purpose was “tinted windows” – a minor infraction that legitimately justifies only a citation, not a detention nor arrest.

Policy #300.3.2 expressly recognizes that a control hold is a use-of-force that has to be justified by the circumstances that include the “seriousness of the suspected offense or reason for contact with the individual” and the “immediacy and severity of the threat to officers of others.”

But, after failing to turn on his body camera, Officer Esparza gave no verbal commands to Mr. Ballew but rather aggressively accosted him by first putting a hand on him and then by applying the force of a control hold with both of his hands and pushing Mr. Ballew across the driveway and up against his car.

The initial use of force was thus not warranted by the circumstances and in violation of Policy #300.3.2 because no force should have been applied in the circumstances.

Policy #300.3.5 required Officer Esparza to consider de-escalation alternatives . However, a reasonable police chief would question whether he did so. He began with initially unjustified escalatory responses and continued escalating by pushing Mr. Ballew to the ground as Mr. Ballew asked for the names of the officers’ commander. Officer Esparza then continues escalating, ending with his Rodney-King-moments of the last three baton blows while Mr. Ballew is on the ground with Officer Lujan on top of him.

Officer Esparza’s third baton blow (first blow while Officer Lujan was on top of him on the ground) was to Mr. Ballew’s back; it thereby violated Policy #308.5′s prohibition against baton blows to the spine.

Racial-profiling violation: Officer Esparza’s hyper-aggressive over-reactions seem inexplicable. A reasonable police chief would at least question him whether Officer Esparza’s conduct was driven by his misperceiving Mr. Ballew as a gang member simply because he is a young African-American.

Such possible racial-profiling would violate Policy #340.3.3′s prohibition against discriminatory conduct based on race and Policy #402.3 prohibition against race-based profiling.

Policy #402.4.1 required Esparza to be able to articulate a non-racial reason as the basis for his detaining Mr. Ballew at the moment that he began his detention by his force-hold; in our view, any reasonable police chief would require prompt documentation of such a non-racial reason to detain Mr. Ballew and would view any such explanation as a pretextual excuse for racial profiling.

Any one of these policy violations ought to lead a reasonable police chief to question whether an officer should stay on the force; cumulatively, they show such repeated and egregious violations of policy that they make an overwhelming case that Officer Esparza should be discharged if he can be.

Chief Sanchez’ inexplicable failure to fire Officer Esparza during the 3 weeks he remained a probationary officer

Like all California municipal employees, police officers are “probationary” employees for a year from the date of their employment; after a year, they become “permanent” employees.

The difference between a probationary and a permanent employee is that a probationary employee can be fired for NO cause but a permanent employee can only be fired for good cause. Because a probationary employee can be discharged for no cause, the probationary employee has no right to challenge a firing; the permanent employee has the right to grieve a discharge and to proceed to a quasi-judicial hearing where the public agency has the burden to prove good cause. (An exception for probationary employees is if the firing is because of an illegal reason – for example, racial bias or retaliation for whistle-blowing – which allows a probationary to go to court but does not allow him to grieve or have a quasi-judicial hearing.)

The requirement of good cause to fire a permanent employees and the public agency’s burden to prove good cause in a quasi-judicial hearing makes it hard to fire a permanent employee and expensive trying to do so. In contrast, firing a probationary employee just takes the stroke of the police chief’s pen.

Officer Esparza was sworn into the Pasadena PD at a ceremony on December 1, 2016; his baton-beating of Mr. Ballew was on November 9, 2017. He remained a temporary employee for three weeks and a day after the incident.

The Police Department had immediate access to Officer Lujan’s body camera and to the officers’ car camera. All of the foregoing policy violations are evident from the videos; it was evident that Officer Esparza was a rogue officer who should not wear a badge.

Chief Sanchez had the power and right to fire Officer Esparza during those 22 days by a stroke of his pen. His failure to do so allowed Officer Esparza to become a permanent employee. Chief Sanchez could have and should have fired Officer Esparza before he became a permanent employee.

Because Chief Sanchez allowed Officer Esparza to become a permanent employee, he can no longer just fire him. Rather, Officer Esparza can only be fired after the cost and delay of initiating disciplinary proceedings in which the City now has to prove there was good cause to fire him.

In the meantime, it has to pay Officer Esparza a hefty salary. But it will also have to pay an administrative law judge and its attorneys to go through the quasi-judicial process and probable resultant writ of mandate in Superior Court and even a subsequent appeal – hundreds of thousands of dollars recklessly caused by failing to timely fire Officer Esparza.

Chief Sanchez’ failure to fire Officer Esparza for no cause when he could do so was police management malpractice. Chief Sanchez’ conduct sends the message that his department is a police structure that claims omnipotence in the face of Black bodies and places the Pasadena PD within the damning observation of Joy James:

“Black Americans are regularly taxed to pay salaries, pensions, and benefits to police forces that disproportionately target Black life through penalties and fines, brutality, and disrespect.”

 

Skip Hickambottom and Dale Gronemeier are local civil rights attorneys. They have represented five police chiefs, including three former Pasadena PD chiefs and are presently enrolled in coursework for certification from the National Association for Civilian Oversight of Law Enforcement.

 

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