Blake Etherton v. City of San Luis Obispo, et al.

Blake Etherton v. City of San Luis Obispo, et al., 25CV-0018

Hearing: Petition for Writ of Mandate

Date: May 20, 2026

Officer Blake Etherton (Petitioner or Etherton) of the San Luis Obispo Police Department (SLOPD or Department) filed a petition for writ of mandate 1 and for injunctive or other extraordinary relief under Government Code section 3309.5 against the City of San Luis Obispo (the City) and the Department challenging disciplinary suspensions imposed on him pursuant to incidents that occurred while he performed his duties as a police officer. Etherton contends that the discipline was unlawful, disproportionate and violated his rights under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, §§ 3300-3312, the Act).

The prayer of the petition seeks orders 1) rescinding the discipline imposed on Etherton; 2) reimbursing Etherton for his loss of pay; and 3) awarding Etherton his reasonable fees and costs. (Ptn., p. 12, ll. 8-14.)

The City opposes the petition.

For the reasons set forth below, the Court denies the petition.

I.

Background

Petitioner underwent three disciplinary investigations, two of which resulted in the imposition of discipline against him.

a. Lira Officer Involved Shooting (OIS) Incident (Department Investigative File No. FN2020-0025)

The first disciplinary incident occurred on June 11, 2020, when officers from several jurisdictions, including the San Luis Obispo Regional SWAT “Green Team” (Green Team) confronted Mason Lira, an individual who went on a shooting spree the day before, near a vineyard in Paso Robles. (Administrative Record (AR) 49, 89-90.) Etherton was a member of the Green Team in the “Number 4 intel” position. (AR 895, ll. 3-12, 913, ll. 5-6.) Members of Green Team set up behind concrete blocks overlooking the tree where officers believed Lira was hiding. (AR 89-90, 175, 186.)

At one point, Etherton moved away from Green Team to communicate with one of two snipers, Sergeant Leonard, and then moved back to his position with the other members of Green Team. (AR 138, ll. 9-25.) While Etherton moved back towards Green Team, Lira exited the tree and 1 Petitioner’s petition alleges a writ of traditional mandamus under Code of Civil Procedure section 1085. However, Petitioner’s opening brief seeks a writ of administrative mandamus under Code of Civil Procedure section 1094.5, and the parties briefed the action under section 1094.5. Because Petitioner challenges the discipline imposed in a series of administrative hearings and the administrative record arising therefrom, the Court finds the proper standard to be the one set forth in section 1094.5.

began moving down a 25-foot berm. (AR 90, 138, l. 26—139, l. 8.) Officers commanded Lira to stop, but he ignored their commands. (AR 90, 138, ll. 11-22.) Lira then turned around and several officers, including Etherton, observed what looked like a firearm in Lira’s hands and opened fire. (AR 90, 138, ll. 11-22.) Thirteen law enforcement officers fired their weapons at Lira, who was killed. (AR 90.) Because Etherton was in the process of returning to Green Team when Lira emerged, he fired fourteen rounds from his rifle from a standing position slightly to the left and approximately 10-15 feet behind the other members of Green Team. (AR 140, l. 11—141, l. 9, 142, ll. 1-6, 175, 569, ll. 8-19.)

b. Ighodaro Use of Force (UOF) Incident (Department Investigative File No. FN2020- 0038)

The second disciplinary incident occurred on October 28, 2020, several months after the Lira OIS Incident. Etherton responded to a “suspicious person/circumstance” involving an individual exhibiting erratic behavior. (AR 189, 262-263.) There were concerns that the person, Nicholas Ighodaro, was trying to open a car door. After Ighodaro walked away, Etherton followed in his patrol vehicle, and called for assistance. After trailing Ighodaro, Etherton re-initiated contact, jumped out of his vehicle, immediately commanded Mr. Ighodaro to get on the ground, delivered a knee strike to Mr. Ighodaro and then arrested him with the help of another officer. (AR Video Ex. 35; AR 258-260.)

c. Rosas Incident (Department Investigative File No. FN2022-0010)

The third disciplinary incident occurred on July 22, 2022, when Etherton followed and issued a traffic citation to Gabrial Rosas, known as the “SLO County Observer.” Rosas was known to Etherton and other SLOPD officers to track SLOPD radio traffic and record officers responding to calls for service for his YouTube channel. (AR 1209, 1227, 1614-1618, 1654.)

Rosas, Officer Paul Sisemore who was Etherton’s partner that day, and Etherton responded to the same call for service where a woman was yelling (Call 1). (AR 1330, 1658) While all three traveled to Call 1 on the same street, Sisemore texted Etherton that if he observed Rosas make a traffic violation, he would cite Rosas. (AR 1658.)

Officer Sisemore was unable to locate the yelling woman and closed out Call 1 and self-dispatched himself and Etherton to another call for service (Call 2) where someone was challenging cars and throwing metal pipes into the roadway near the 101-freeway off-ramp. (AR 1330-1337, 1667- 1668, 1696.)

Etherton split off from Rosas for approximately a block before finding himself once again behind him at the intersection of Pismo Street and Higuera Street. (AR Video Exhibit 69.)

Etherton observed Rosas committing what he believed were traffic violations while Sisemore was en route to Call 2 and pulled Rosas over. Etherton explained the bases for the traffic stop and the two disputed the validity of the traffic stop. (AR Video Exhibit 69.) Officer Sisemore abandoned the second call in order to back up Petitioner in ticketing Rosas. (AR 1669-1670.) Rosas responded that Etherton should just “write it up” and “make it full on retaliation” for a recent YouTube video Mr. Rosas posted that garnered negative attention for SLOPD. (AR Video Exhibit, 69.) The two

continued to dispute the grounds for the citation as Mr. Rosas signed the citation and the traffic stop concluded. (AR Video Exhibit 66.)

a. Disciplinary Proceedings

The Department issued Petitioner two Notices of Intent to Discipline (NOID) stemming from the Lira OIS Incident, the Ighodaro UOF Incident, and the Rosas Incident, and which led to Notices of Decision to Discipline. Petitioner appealed the Notices to the City Council. (AR 1503-1511, 2030-2040 [City Councils’ Findings of Fact, Decisions and Final Orders].)

December 1, 2021, NOID—Lira and Ighodaro Incidents (FN2020-0025/FN2020-0038)

The first NOID, issued on December 1, 2021, arose from the Lira OIS Incident and the Ighodaro UOF Incident. (AR 35-42, 1503-1504.)

The NOID stated that the incidents brought to light a pattern of questionable to poor decision making. As to the Lira OIS Incident, it contended that although the use of lethal force was justified during the June 2020 SWAT callout, Etherton had discharged his firearm in an unsafe location and manner despite seven trained SWAT operators in a better shooting position, created an extreme risk by shooting 10-15 feet behind his partners, and showed a lack of global awareness that was unacceptable given his level of firearms and SWAT training. (AR 37.) The NOID notified Etherton of a 40-hour suspension and removal from collateral assignments as a police officer based on those two incidents. (AR 35, 1504.)

A Skelly2 hearing with Chief Rick Scott of the SLOPD, Etherton and his representative was held on January 18, 2022. (AR 1508.) On February 1, 2022, Chief Scott issued a Notice of Decision to Discipline, reducing the discipline to a 24-hour suspension and removal from all collateral assignments. (AR 26-34, 1508.)

Etherton appealed the Notice of Decision to the City’s Manager Derek Johnson. On April 7, 2022, Johnson issued a memo to Etherton to uphold the discipline of a 24-hour suspension without pay as to the Lira incident and dismissed the charges related to the Ighodaro incident basis that the Department's investigation and findings were outside of the one-year statute of limitations. (AR 11-17, 503-509, 1508-1509.) Johnson’s disciplinary appeal decision sets out his reasoning in detail. (AR 11-17, 503-509.)

Etherton appealed City Manager Johnson’s decision pursuant to City of San Luis Obispo Personnel Rules and Regulations, Sections 2.36.340 and 2.36.350 as set forth in the City of San Luis Obispo Municipal Code. (AR 1504.) The parties were provided an opportunity to present evidence through exhibits and sworn testimony of witnesses who were subject to cross-examination. (AR 1504.)

2 Skelly v. State Personnel Board (1975) 15 Cal.3d 194.

Arbitrator Mark Keppler made advisory findings and recommendations. 3 (AR 1442-1443, 1504- 1505.) The arbitrator recommended that the appropriate remedy was for Etherton’s discipline to be modified as follows:

• The charges relating to the Ighodaro UOF incident should be dismissed and removed from the Appellant's personnel file. • The Appellant's 24-hour suspension should be converted to a written warning and the Appellant should be made whole on or before July 11, 2025; provided he has no future violations of the Department's policies regarding officer involved shootings or use of force. • The Appellant will be reinstated to collateral assignments at the discretion of the Department, but in any event no later than July 11,2025, provided he has not been involved in any future unwarranted officer involved shooting or use of force. (AR 1443.)

Ultimately, the City Council upheld the 24-hour unpaid suspension and removal from collateral assignments for the Lira Incident (AR 15003-1511 [City Council’s Findings of Fact, Decision and Final Order]), finding that Etherton displayed poor decision-making skills and took unnecessary risks when using lethal force that placed other officers in peril. (AR 1509-1510.)

Officer Etherton’s actions in the Lira incident on June 11, 2020, displayed poor decision-making skills and took unnecessary risks when using lethal force that placed other police officers in peril during a Regional SWAT team callout. (CE 7). Etherton's position behind other officers during the SWAT team response on June 11, 2020, raised the potential for injury to other officers and did not afford Etherton an advantage or better shot than other officers located on higher ground than Etherton with a better view of the entire vineyard from their elevated positions. (AR 1509.)

The City Council found as a result of these actions that Etherton violated Department policies on use of force (Lexipol 300.3.2 and 339.5.10.) (AR 1509.)

The City Council upheld the dismissal of the charges for the Ighodaro UOF Incident, and no discipline was imposed based on that incident. (AR 1510.)

3 The City’s applicable rules for suspensions of peace officers for less than four days (i.e., the Lira OIS Incident) state the City Manager’s decision is final. (AR 1124.) For the Lira OIS Incident, and to avoid further prolonging disputes over Etherton’s objections to the adequacy of the otherwise applicable processes, the City made a one- time exception to provide a full evidentiary hearing before a neutral arbitrator (Arbitrator Keppler) to issue advisory findings of fact, conclusions of law, and recommendation. (AR 521, 526-527.)

This procedure tracks the City’s rules for suspensions greater than four days (i.e., the Rosas Observer Incident), where the City’s rule states the hearing officer makes recommendations for the City Council to consider for final action. (AR 1126-1127.) The City Council is authorized to “affirm, revoke, or modify” the findings of an arbitrator, and the City Council may appropriately reject the arbitrator’s findings following the Council’s independent review of the record. (AR 1505, 2032; see Ramirez v.

City of Indio (2024) 105 Cal.App.5th 939.)

April 20, 2023, NOID—Rosas Incident (FN2022-0010)

The second NOID, issued on April 20, 2023, arose from the issuance of a traffic citation to Mr. Gabriel Rosas (Rosas Incident). (AR 1144-1148, 2032-2037.)

The NOID stated that the facts of the investigation showed a continued pattern of poor decision making resulting in unnecessary risk to his partners and the public and generally reflecting poorly on the Department and the City. (AR 1145.) It stated that specifically, Etherton delayed his response to two calls for service in an attempt to write a very minor and non-egregious traffic citation, which was ultimately determined by his supervisors to be legally unwarranted and inconsistent with Department expectations. (AR 1145.) “Officers may conduct traffic enforcement at any time during their shift, but must constantly evaluate the severity of the violation, the continued risk to public safety at that moment if they do not stop the vehicle, and the urgency of other duties they are assigned at the time.” (AR 1146.)

It further contended that Etherton’s actions caused mistrust among the public. (AR 1146.) The NOID notified Etherton of a temporary pay reduction equivalent to a 100-hours unpaid work suspension, and at least 16 hours of remedial training. (AR 1144, 2030.)

Etherton responded in writing on June 6, 2023. (AR 1135-1143, 2037.) The City issued a Notice of Decision to Discipline on June 29, 2023, which contained the same charges and proposed discipline as in the Notice of Intent. (AR 1128-1134, 2030, 2038.)

Etherton appealed the temporary pay reduction pursuant to City of San Luis Obispo Personnel Rules and Regulations, sections 2.36.340 and 2.36.350 as set forth in the City of San Luis Obispo Municipal Code. (AR 2030.) The parties were provided an opportunity to present evidence through exhibits and sworn testimony of witnesses who were subject to cross-examination. (AR 2031.) A neutral arbitrator, Jeffrey Hauptman, made detailed advisory findings and recommendations. (AR 1989-2029, 2030-2031.) The advisory “award” made by the arbitrator stated that:

I do find that Officer Etherton could have and should have used better judgement given his level of experience and training and responded to the call for service and not stopped and cited Mr. Rosas. However, such a lapse in judgement with no prior documented history of discipline does not merit a one-hundred-hour pay suspension. Having found thusly, I would impose a suspension equal to forty hours pay and the sixteen hours of remedial training imposed in the memorandum dated June 29, 2023, from Chief Scott to Officer Etherton. 4 (AR 2029.)

4 Arbitrator Hauptman’s advisory opinion stated the “city’s argument reads as if this Incident was the culmination of a history of examples of poor judgment on the part [of] Officer Etherton,” but arbitrator Hauptman did not consider that history because the discipline was “not fully adjudicated at the time of this hearing.” (AR 2027.) For that reason, he recommended the discipline be lowered from 100 hours to 40 hours in light of the lack of “prior documented history of discipline.” (AR 2029.) However, both disciplinary proceedings can now be considered together, which provides additional support for the 100 hours of discipline. The Court further notes that Etherton seeks a rescission of all discipline, not a reduction to the amount recommended by the arbitrator.

Ultimately, the City Council upheld the 100-hour reduction in pay and 16 hours of remedial training for policy violations it found in the Rosas Incident (AR 2030-2040 [City’s Findings of Fact, Decision and Final Order]), finding that Etherton’s actions resulted in a delay in responding to calls for service and that his conduct reflected a series of poor decisions and lapses in judgment that created a situation in which Etherton appeared to misuse his authority to target and cite Rosas in retaliation, since Rosas often attempts to place law enforcement in a poor light. (AR 2039.)

The City Council found as a result of these actions that Etherton violated Department policies Lexipol 339.5.7(b) and 339.5.2(b).) (AR 2039.)

In total, Etherton was penalized 124 hours.

II. Standard of Review

Section 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313 (Wences).)

Under Code of Civil Procedure section 1094.5, subdivision (b), the Court’s inquiry extends to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.

A trial court's review of an adjudicatory administrative decision is subject to two possible standards of review depending upon the nature of the right involved. (Code Civ. Proc., § 1094.5, subd. (c).) If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. [Citations.] The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings.

(Wences supra, at p. 313.)

Here, the discipline imposed against Etherton affects his fundamental vested right in employment; therefore the Court is required to exercise its independent judgment on the evidence. (Wences, supra, at pp. 314-320 [administrative decision sustaining charges of misconduct against police officer and upholding official reprimand substantially affected the officer’s fundamental vested right in his employment and the trial court was required to exercise its independent judgment on the evidence].)

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda); see also Front Line Motor Cars v. Webb (2019) 35 Cal.App.5th 153, 160.) Therefore, the trial court

begins its review with a presumption of the correctness of the administrative findings, and then, after affording the respect due to these findings, exercises independent judgment in making its own findings. (Fukuda, supra, at p. 819.)

In reviewing the record, the court focuses on whether the employer appropriately performed its job in reviewing the manner of discipline imposed on the employee in light of the employer's administration of its own standards and rules. (Kolender v. San Diego County Civil Service Com. (2007) 149 Cal.App.4th 464, 471.)

The Court has reviewed the record, AR 1-2040, plus the video exhibits and exercises its independent judgment in this matter.

III. Discussion

a. Violation of Department Policies 300.3.2 and 339.5.10.(d) in Lira Incident

Petitioner contends that the determination that he violated Department Policies 300.3.2 and 339.510(d) is not supported by the evidence.

The City Council found that Etherton violated the following Department policies:

Lexipol 300.3.2 Factors Used to Determine the Reasonableness of Force Etherton's failure to consider the availability of other reasonable and feasible options and their possible effectiveness such as other officers who may have had a better position to fire at Lira and the potential for injury to officers based on firing from your position. Etherton took unnecessary risks by failing to adequately assess the situation, and the capability of other members of the SWAT team.

Lexipol 339.5.105 - Failure to observe or violating department safety standard or safe working practices by Etherton firing 14 rounds from his position.

(AR 150-160 [SLOPD Policy Manual, Use of Force, 300.1-300.13]; AR 161-167 [SLOPD Policy Manual, Use of Force, 339.1-339.5.11]; AR 1509-1510 [City Council Findings].)

Petitioner argues that he was justified in using deadly force, and that he was unfairly singled out for investigation and discipline despite other officers, in particular Officers Benson and Bishop, engaging in conduct that resulted in collateral damage.

Petitioner contends that expecting him to hold his fire and rely on other officers in better shooting positions to fire is unreasonable. Petitioner testified that he knew Sergeant Kemp’s firearm was incapable of effective action from that distance, and that he was concerned that other officers 5 Subdivision (d) addresses “unsafe firearm or other dangerous weapon handling to include loading or unloading firearms in an unsafe manner, either on- or off- duty.” (AR 24.) Petitioner contends that this provision is limited to the loading and unloading of firearms and not general unsafe firearm or weapon handling, but provides no authority showing that it should be so limited. “As a basic principle of statutory construction, ‘include’ is generally used as a word of enlargement and not of limitation.” (Rea v. Blue Shield of California (2014) 226 Cal.App.4th.)

weren’t capable of shooting or were scared to shoot and many Green Team members lacked the necessary training or experience as they had never been to SWAT training. (AR 931-933.) Etherton meanwhile had full confidence in his ability to make a precise shot from that distance and contends that alternative options were not reasonable or feasible. (AR 925-929.) He testified that there were officers ahead of him when he fired, but that if they moved laterally, he would have seen them. (AR 927.)

Petitioner cites to the report by use of force expert Sean McCann. (AR 498-502.) The McCann opinion stated that “the criticisms of Etherton are highly debatable” and that “[t]he calculus of risks needs to be calculated in milli-seconds, and every course of action or inaction incurs some risk in such a scenario. Etherton calculated and acted; he chose reasonably and the assertion that he should have not addressed the emergent threat is contrary to training and common sense.” (AR 500-501.) The report nonetheless recognizes that Etherton’s tactics were sub-optimal. (AR 500.) Petitioner contends that if the Department disagrees with Etherton’s tactics, it needs to train its officers differently.

Respondents argue that Etherton appears not to understand the risk posed to his fellow officers that arose from his decision to fire at Lira from behind the other officers, which demonstrates flawed judgment. A police department can set its own policies and hold its officers to a higher standard of conduct than the minimum floor of what may be legally defensible. (AR 853 [Testimony of use of force expert Sean McCann].)

Respondents explain that Etherton contradicted his justification for firing from his position, testifying both that members of Green Team were inexperienced and lacked SWAT training, while at the same time defending the safety of his actions on the ground that officers had such training and knew not to get up and run laterally, such that they would not move into his line of fire. (AR 13, 28, 175, 911-934.) They also contend that Etherton failed to abide by his own, extensive training that calls for officers to fire only if the threat is in their zone of responsibility, instead of firing out of formation from behind other officers. (See, e.g., AR 904. 928, 932, 933.)

Petitioner responds that he had one of the best vantage points, well within his zone of responsibility. (Reply, p. 3, ll. 9-11.) However, the portion of the report cited by Petitioner to support this contention states that Etherton had a valid reason for moving from his original position because he was “trying to ascertain information from officers with a better vantage point and better optics” and that his new position offered a better angle. (AR 500.) The cited page of the report does not state that Etherton had “one of the best vantage points, well within his zone of responsibility” when he fired his weapon.

Additionally, Administrative Deputy Chief Brian Amoroso testified that Etherton was arguably “in the worst position to shoot based on everyone else having a fixed position where they hadn’t been moving.” (AR 565, ll. 16-19.) Amoroso further testified that Etherton firing from that position was not consistent with the training and tactics that the SWAT team practices. (AR 568, ll. 15-18.) He stated that “[j]ust because there’s a lethal situation where you’re legally allowed to shoot doesn’t necessarily mean that everyone on scene with a gun should shoot, and in this particular situation, Officer Etherton chose to take shots from a position that was behind other officers.” (AR 569, ll. 4-9.)

As to Officers Benson and Bishop, Respondents state that Etherton was the only officer to fire from behind other officers. (AR 564, l. 3—566, l. 5, 569, ll. 4-19.) Moreover, Bishop is not a SLOPD officer or employee and Benson retired shortly after the LIRA OIS Incident. (AR 613, ll. 20-22, 661, l. 8.) Nor are other officers’ disciplinary records at issue here.

The Court has considered the parties’ arguments and reviewed the entirety of the record and finds in its independent judgment that the weight of the evidence supports the City Council’s decision upholding the 24-hour discipline imposed on Etherton for the Lira OIS Incident. The Court recognizes the challenging and chaotic scene facing officers and the fact that Etherton’s use of force was not excessive. However, the evidence shows Etherton had extensive training but nonetheless took an unreasonable risk firing his weapon from behind other officers during the Lira OIS Incident and failed to demonstrate firearm safety during the Lira OIS Incident in violation of Department policy.

b. Ighodaro UOF Incident

Etherton’s petition seeks an injunction requiring Respondents to rescind the disciplinary action taken against him over one-year after Respondents’ discovery of the alleged misconduct. (Ptn., ¶ 37.)

Petitioner contends in his opening brief that the City punished him for appealing City Manager Johnson’s decision with regard to the Lira OIS Incident by unilaterally deciding to include the Ighodaro UOF Incident at arbitration, despite the fact that Johnson had dismissed the claim based on the statute of limitations. Petitioner contends that this indicates punitive intent in violation of Government Code section 3304, and the applicable statute of limitations. 6

However, the City Manager, arbitrator Keppler, and the City Council all explicitly stated that their discipline recommendations and decisions were based solely on the Lira OIS Incident and were not based on the Ighodaro UOF Incident; the Ighodaro UOF Incident claims were dismissed at every level. (AR 16, 1442, 1509-1510.)

The Court finds no basis for this requested relief.

c. Rosas Incident

The City Council found that Petitioner violated Lexipol 339.5.7(b) and 339.5.2(b) during his stop and citation of Rosas. (AR 150-160 [SLOPD Policy Manual, Use of Force, 300.1-300.13]; AR 161-167 [SLOPD Policy Manual, Use of Force, 339.1-339.5.11]; AR 2031, 2039.) Petitioner contends that this decision is not supported by evidence and that he is being unfairly targeted.

Petitioner argues that the Rosas stop was lawful and was not in violation of Department policy, but instead, was a matter of preference and judgment. (AR 1128-1134, 1153-1207, 1519, 1621, 1628, 1678.) The City responds that the ultimate issue is not the legality of the traffic stop but Etherton’s decision-making and prioritization of competing responsibilities.

6 Other than a passing reference to the “unlawful revival” of the Ighodaro UOF Incident, Petitioner’s reply appears to abandon this argument.

While it is true, as noted by Petitioner, that Investigator Wyatt’s analysis of witness statements and video evidence found that Etherton had reasonable suspicion to stop Rosas and probable cause to give him a citation, in the next sentence Wyatt states that “[h]owever, Etherton's decision to follow, stop, and cite Rosas instead of responding directly to a call for service violated several SLOPD policies. Specifically, I find that the preponderance of the evidence shows that it is more likely than not that Etherton violated SLOPD Policy Manual sections 339.5.2 (b) and (g),339.5.7 (b), and 339.5.9 (m).” (AR 1156.) Just because an action is legal in the broadest sense does not mean it is not a bad judgment call or in violation of a department policy.

An officer can be found in violation of Lexipol 339.5.7(b), Efficiency, for “[u]nsatisfactory work performance including but not limited to failure, incompetence, inefficiency, or delay in performing and/or carrying out proper orders, work assignments, or the instructions of supervisors without a reasonable and bona fide excuse.” (AR 164.)

It is undisputed here that Petitioner did not arrive at two separate dispatch calls. (AR 1669-1670.) While a traffic stop while responding to a more immediate call for service is not problematic if the traffic violation represents a “significant hazard to public safety” or a “gross violation,” Rosas’ violations were minor at most. (AR Video Exs. 67, 69, AR 1159 [“witnesses said officers are encouraged to respond directly to a call unless they observe an egregious violation. Under the circumstances, most of the witnesses did not believe it was appropriate for Etherton to stop Rosas instead of responding to the call”], 1597-1599, 1618-1619.)

Administrative Deputy Chief Amoroso testified that “if you’re responding to a call for service where your partners are depending on you being there, there needs to be a much more legitimized reason to delay your own response for an issue that constitutes a public safety threat. And not using a turn signal while stopped at a light is certainly not a public safety threat.” (AR 1619.)

Even if the units that arrived at Call 2 were ultimately adequate without Etherton, that call could have played out differently such that Etherton’s failure to arrive due to the minor traffic stop could have negatively affected the situation. (AR 1265.)

Etherton was also disciplined for violating Lexipol 339.5.2(b), Ethics, which entails “[t]he wrongful or unlawful exercise of authority on the part of any member for malicious purpose, personal gain, willful deceit or any other improper purpose.” (AR 163.)

Etherton contends he was not targeting Rosas and that there is no credible evidence that he stated an intent to follow and target Rosas to issue a ticket. (AR 1595, 1597, 1657, 1659, 1796). He also notes there was no personal gain in citing Rosas or act for improper purpose. He argues it would have been improper to overlook the violations.

However, evidence shows that Etherton knew who Rosas was, followed Rosas, and delayed responding to a call in order to issue him a minor traffic ticket, which could at the least give the appearance that Etherton misused his authority to target or retaliate against Rosas. (AR 1160-1163, 1542-1545, 1761-1762, 1848, 1851-1855, 2028-2029.)

Considering not just the documents cited above but the entirety of the record, the Court finds in its independent judgment that the weight of the evidence supports the City Council’s decision upholding the 100-hour discipline imposed on Etherton for the Rosas Incident.

ORDER

Petitioner’s petition is denied in its entirety.

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