Barber v. State Personnel Bd.

Filed 5/27/08 Barber v. State Personnel Bd. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Donald G. Umhofer, Judge (retired judge of the San Luis Obispo Mun. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.), and Kenneth Andreen, Judge.^[1] Affirmed.

Patrick Barber, in pro. per., for Plaintiff and Appellant.

Debra L. Ashbrook, Assistant Chief Counsel, and Stephen A. Jennings, Staff Counsel, for Real Party in Interest and Respondent.

No appearance for Defendant and Respondent.

INTRODUCTION

While employed by the Department of Youth Authority as a youth correctional counselor, Patrick Barber was disciplined for placing a ward in a restraint hold, which did not comply with the use of force policy implemented by the Department of Corrections (the Department). Upon Barbers appeal, the State Personnel Board (the Board) sustained some charges and dismissed others, and reduced the penalty from dismissal to a 45-day suspension. Barbers mandamus petition to the superior court was denied, as was his motion for reconsideration. On appeal he challenges the sufficiency of the evidence to support the Boards finding of misconduct and also contends the court erred in denying his motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In late January 2004, Barber was served with a notice of adverse action, indicating that his employment was to be terminated effective February 2, 2004. Citing Government Code section 19572, subdivisions (b), (d), (m), (o) and (t),^[2]the notice alleged that on February 6, 2003, while conducting routine patdown searches of wards returning to their living units, Barber had used an unauthorized and unapproved physical restraint hold on one of the wards, in violation of the Departments use of force policy. According to the notice, the use of force policy states that peace officers shall attempt to use a sufficient amount of chemical restraint prior to using physical restraint with wards. The approved physical restraint control holds include the Finger Lock, Rear Wrist Lock, Accordion Wrist Lock, and the Figure 4 Leg Lock. The Use of Force Policy regarding Restraint Standards states, in part, that restraints shall not be placed about the neck of a ward. According to the notice, the policy also states that restraints shall not be applied in any way so as to inflict undue physical discomfort or to restrict blood circulation or breathing. Non-approved restraints include the Carotid Artery Control Hold and any restraint not approved by the Department.^[3]

The notice also alleged that Barber had violated a rule requiring employees to conduct themselves in a manner that does not discredit the Department. It stated: You placed your forearm and bicep on each side of [the wards] neck with his neck positioned inside the crease of your elbow. [The ward] was standing on the tips of his toes, leaning backwards against your chest with his arms extended in the air. The notice further alleged that Barber had failed to follow proper security practices and policy when he physically restrained the ward. The appropriate use of force policy relating to physical restraint states whenever it becomes necessary for a peace officer to use physical restraint, the wards behavior shall be considered a disciplinary problem. You failed to notify security of [the wards] noncompliance by either activating your personal alarm or by using the radio. You also failed to inform other staff who were in close proximity to you. After you physically restrained [the ward], you allowed him to return to the living unit unescorted.

Finally, the notice alleged that when the ward walked away, apparently believing the patdown search was concluded, Barber instructed him to stop walking and return to Barber so that Barber could complete the search. After the ward then took about three steps, Barber took one step forward and grabbed him by his left shoulder, stating: Dont move, I am not done searching you yet, or words to that effect.

The notice indicated as a factor in aggravation a prior formal disciplinary action taken against Barber in 2000, when he received a 30-day suspension for failure to follow a restraint policy. He appealed that action, after which the penalty was modified to a five-day suspension.

The notice referred to observations made at the time of the incident by youth correctional officers Jess Silva and Rick Ellis. Silva observed [the ward] spin awkwardly around in a [360] degree turn and in the process brush [Barbers] midsection. Ellis observed Barber with his arm in a [chokehold] fashion around the wards neck, with the wards neck positioned inside the crease of Barbers elbow. Barbers left arm cupped his right hand that was positioned next to the wards ear. The ward was standing on his toes, leaning backwards against Barbers chest with his arms extended in the air. Ellis heard the ward say, What did I do? I didnt do anything. Ellis heard Barber respond, Dont swing at me. Ellis called out and asked, What are you doing Barber? Barber did not respond, but looked at Ellis with a smile on his face and continued to hold onto the ward.

Barber appealed the action, and over the course of four days during March and May of 2004, a hearing was held before a State Personnel Board Administrative Law Judge (ALJ). Among those testifying at the hearing were Barber, Silva, Ellis, Henry Cruz (a correctional officer), Edward Izaguirre (Barbers supervisor on the day of the incident), and the ward. In addition, testimony pertaining to the Departments use of force policy was presented by Captain Kenneth Fewer, on behalf of the Department, and Lieutenant Steven Cahow, on Barbers behalf.

Barber testified that he had the ward in a compliance hold, insisting that it was neither a chokehold nor a carotid hold and that the ward never appeared to lose consciousness or be in any pain. He held the ward in this hold for about 20 to 30 seconds, during which time he spoke to the ward.

The ward testified that Barber placed him in a restraint hold with his arms around [his] neck, and that he could not breathe. He further stated that he struggle[ed] to get away, after which he went limp until he was released by Barber.

Silva testified that Barber placed the ward in some kind of hold he had not seen before, but it was neither a chokehold nor a carotid restraint.

Ellis testified that Barber had his arm around the wards neck; his forearm was on one side of the neck, his biceps on the other, and his elbow right in the middle of where the throat hits. Ellis described this hold as a carotid artery hold, explaining that Barbers forearm and biceps were on either side of the carotid, with his elbow right in the middle of the throat. You apply pressure on both sides [which] stops blood flow to the brain [and] then causes unconsciousness.

Cruz testified that he was talking to Ellis and another person when he saw a ward being held by his neck, I guess. He said that Barber had his arm under the wards neck.

Fewer and Cahow both testified that staff members are not limited to approved holds and may use such force as is reasonable and necessary when acting in self-defense in response to an immediate threat to their physical safety.

Izaguirre testified that Barber called him after the incident and told him he had held a ward in a head lock, chokehold. Izaguirre acknowledged that he had previously told investigators that Barber told him he had to restrain the ward in a compliance hold, not that he had used a head lock or [chokehold]. Barber admitted calling Izaguirre to report his use of a compliance hold, but denied telling him that he had used a chokehold.

In reaching its decision, the ALJ essentially believed Barbers version as to how the incident began. The ALJ also believed Barbers testimony that he had placed the ward in a compliance hold. The ALJ concluded the evidence did not establish that Barber choked the ward or that the compliance hold was administered in a manner that restricted the wards circulation or breathing. The ALJ rejected the testimony given by the experts to the effect that staff are allowed to use non-departmentally approved holds when acting in self defense because it was inconsistent with the written policy. However, the ALJ believed the experts testimony that officers were erroneously taught that they were not limited to approved defense techniques. Finally, the ALJ disbelieved the ward, finding that he had a motive to fabricate or exaggerate.

In light of the evidence presented, the ALJ determined that Barber used a non-approved hold about the neck of a ward when he reacted to the wards sudden turn and thereby violated the departments Use of Force policy. The charge of inexcusable neglect of duty, discourteous treatment of the public, and other failure of good behavior, are sustained on this basis. . . . [] The evidence failed to establish the charge of incompetence and willful disobedience. These charges are dismissed. . . .

As for the penalty imposed by the Department, the ALJ found that dismissal was mitigated by reason of the following: The evidence established that appellant reacted to a sudden movement, which he was taught to treat as an immediate threat. The uncontradicted testimony by both Use of Force experts established that officers, such as appellant, were (erroneously) taught that department standards governing approved physical restraints were inapplicable when acting in self-defense. This circumstance mitigates dismissal.

By resolution dated November 3, 2004, the Board adopted the findings and proposed decision of the ALJ, and formally reduced the penalty from dismissal to a suspension for 45 calendar days.

Upon Barbers request for a rehearing, the Board, in a ruling dated November 1, 2005, adopted the proposed decision except with regard to the rationale for the penalty determination, although the penalty was nonetheless affirmed. The decision states: [A]lthough [Barber] may have reasonably believed that the ward was acting in a threatening manner, we do not believe that his resort to the use of a head/neck restraint hold was a measured and reasoned response to the level of threat presented by the ward. The Departments policies regarding placing a restraint hold on a wards head/neck/throat area are relatively straightforward and Department staff are specifically instructed to avoid utilizing such restraint holds, as such holds can result in significant injury to wards. The Board concluded: [Barber] responded to what he reasonably believed to be a threatening movement by a ward. While [Barber] had been taught that he was not bound by Department use of force policies when acting in self-defense, and that he was authorized to use that level of force he deemed necessary to gain control over such a situation, the Board finds that [Barbers] use of a head/neck restraint on the ward was not commensurate to the level of threat presented by the ward, particularly given the significant injury that can result to a ward from such a hold. The Board does not, however, believe that [Barber] acted with a malevolent intent, as he released the ward after approximately 30 seconds when he concluded that the ward was not, in fact, acting in a hostile manner. Modification of the penalty from a dismissal to a 45 calendar days suspension is, therefore, appropriate. The Board ordered that Barber be provided with all back pay, interest, and benefits as if he had been suspended for 45 days instead of dismissed from his position.

Two board members dissented, believing the disciplinary action should be revoked in its entirety on the ground that Barber reasonably believed he was acting in self-defense to an aggressive move by a ward.

Meanwhile, on February 8, 2005, Barber filed his petition for writ of administrative mandamus. He argued the Board abused its discretion in that its findings were not supported by substantial evidence and that the penalty was arbitrary, capricious and patently excessive for any provable misconduct. In an amended petition filed January 30, 2006, Barber alleged that after the petition was filed, the Board granted his petition for rehearing, and pursuant to stipulation the writ proceedings were stayed. He pointed out that the Boards revised ruling rendered on November 1, 2005, described above, was a three-to-two decision.

A hearing was held on February 2, 2007. The crux of Barbers argument was, Wheres the harm? [The ward] was not injured! He argued that everything he did was reasonable and emphasized that he caused no injury to the ward. Furthermore, referring to his prior disciplinary action and the opinion of this court affirming that decision, he asserted: That last time I hesitated on a ward that turned on me I got pummeled and suffered a minor concussion. In this case I responded as quickly as I possibly could have and I did not hurt or injure the ward in any way. He later stated: Wards are instructed not to turn on staff when theyre conducting searches. The ward made a threatening movement. I responded to that movement. As a consequence, I controlled the situation, determined that the ward was more impulsive than assaultive at that point. [] I could not ignore the fact that he turned on me. That is in our training. You cannotyou cannot avoid those situations or say, Well, what are you really going to do? [] You have to simply make a decision in a split second of what are you going to do. And the last time I was in a situation like that was when I got pummeled in 1999 where I hesitated. He had learned from the previous incident that any hesitation would not only lead to a disciplinary action, but also a physical assault resulting in significant injury to myself. He went on: Now, how is it that I defend myself from learning from that previous adverse action of not hesitating and nobody gets injured and then I get subsequently fired? Which way is it? Do I lay [sic] down and be beaten and get suspended? Or do I defend myself and not injure anybody and get fired? Later, he insisted it [w]asnt a neck hold. It was at his head and how dangerous was it? He didnt even get hurt. He didnt suffer any injuries.

Finally, although Barber maintained that his penalty should be reduced, he refused to respond to the courts repeated inquiry as to what he thought the punishment should be, insisting that he was simply not guilty of misconduct.

The essence of the Departments position was that Barbers use of a neck hold was wrong because there was no evidence it was a life-threatening situation.

The court took the matter under submission, and on March 1, 2007, rendered its ruling denying relief. The court found that Barber had failed to establish an abuse of discretion, the decision is supported by the findings, the findings are supported by substantial evidence in light of the whole record, and the penalty was not arbitrary, capricious or excessive as a matter of law.

Barber then moved for reconsideration, contending, among other things, that newly discovered evidence of the wards extensive criminal history subsequent to the incident justified his use of force. After a hearing, the court denied the motion on the ground Barber had not presented new evidence warranting a change in its ruling.

DISCUSSION

A. Standard of review.

Under its constitutional grant, the Board is empowered to review disciplinary actions and acts in an adjudicatory capacity. As such, the Board acts much as a trial court would in an ordinary judicial proceeding. Thus, the Board makes factual findings and exercises discretion on matters within its jurisdiction. The decisions of the Board are entitled to judicial deference on review. The record must be viewed in a light most favorable to the decision of the Board and its factual findings must be upheld if they are supported by substantial evidence. In addition, the Boards exercise of discretion must be upheld unless it abuses that discretion. [Citation.] (Larson v. State Personnel Bd. (1994) 28 Cal.App.4th 265, 273 (Larson).)

At such hearing, the appointing power has the burden of proving by a preponderance of the evidence the acts or omissions of the employee upon which the charges are based and of establishing that these acts constitute cause for discipline under the relevant statutes. [Citations.] The employee may try to avoid the consequences of his actions by showing that he was justified in engaging in the conduct upon which the charges are based. [Citation.] (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 204, fn. 19.)

On appeal we review the decision of the Board, not that of the trial court. The standard to be applied is identical to that of the trial court. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334-335.) Thus, we cannot reweigh the evidence, must ignore evidence contrary to the judgment, and must accept the credibility determinations of the ALJ as our own, even if we would have concluded otherwise, if the determinations are supported by substantial evidence. (Larson, supra, 28 Cal.App.4th at p. 273.)

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. [Citation.] Such evidence must be reasonable, credible, and of solid value. [Citation.] (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584-585.) In performing our function, we refrain from substituting our own judgment where the Boards decision is one which could have been made by reasonable people. . . . [Citation.] [Citations.] (Id. at p. 584.)

B. Substantial evidence supports the Boards finding that Barber violated the Departments use of force policy.

The Board, having adopted the ALJs findings and proposed decision, found the evidence did not establish that Barber choked the ward, but rather, that Barber placed the ward in a compliance hold, which did not restrict the wards circulation or breathing. The Board further found that the expert testimony regarding the use of nondepartmentally approved holds when acting in self-defense was inconsistent with the Departments written policy, and that officers were erroneously taught that they were not limited to approved defense techniques. And, based on the evidence presented, including the testimony of Ellis, Cruz, Barber, and the ward that Barber held the ward about the neck in one manner or another, the Board determined that Barber had used a non-approved hold about the neck of a ward when he reacted to the wards sudden turn and thereby violated the departments Use of Force policy. Moreover, the Board believed Elliss testimony that the ward was held on the tips of his toes, from which it concluded the ward was in obvious physical discomfort as [Barber] held him.

Insisting that he acted in self-defense in restraining the ward with a compliance hold, that the wards actions were threatening and that he had to respond to that threat, and that what he did was reasonable, necessary, and excusable, Barber contends there is insufficient evidence to support the Boards conclusion. Moreover, he maintains that because the ward sustained no injury, he could not possibly have used unreasonable force. Barbers position is flawed, as he is asking us to reweigh the evidence.

The Board recognized that Barber felt threatened. In its decision on rehearing, the Board found [t]he evidence established . . . that [Barber] reacted to a sudden movement from a ward, which he reasonably believed to be a threat. However, although it acknowledged there was expert testimony establish[ing] that correctional staff are taught that they may utilize whatever force they deem necessary to gain control over a situation when they reasonably believe that they are acting in self-defense, the Board concluded even in such situations, the employees response must be measured and reasonable in light of the threat presented. Thus, without questioning Barbers belief that the ward was acting in a threatening manner, the Board explained: [W]e do not believe that [Barbers] resort to the use of a head/neck restraint hold was a measured and reasoned response to the level of threat presented by the ward. The Departments policies regarding placing a restraint hold on a wards head/neck/throat area are relatively straightforward and Department staff are specifically instructed to avoid utilizing such restraint holds, as such holds can result in significant injury to wards. The public service is harmed when a Youth Correctional Counselor fails to abide by applicable standards governing the treatment of wards. Substantial evidence supports that conclusion.

Barber cites Peters v. Mitchell (1963) 222 Cal.App.2d 852, for the proposition an employee cannot be found culpable for following his supervisors directions. In Peters, a psychiatric technician was disciplined for an allegedly improper action that she did not initiate. Her supervisors were aware of the action and did not indicate that it was improper, nor were there any written rules or regulations that forbade the restraint of patients in that manner. (Id. at pp. 861-862.) The court held that these facts prevented a finding that the employees actions were in any way inexcusable as having been done without just cause. (Id. at p. 862.) Here, in contrast, the evidence clearly established that a written policy precludes the type of restraint used by Barber. Thus, notwithstanding the testimony of Fewer and Cahow to the effect that employees are not limited by the holds taught by the Department and that they can do whatever is reasonably necessary to avert danger, which the Board rejected in light of the written policy, substantial evidence supports the conclusion that Barbers actions were not reasonable in light of the nature of the threat.

Barber also cites Coomes v. State Personnel Board (1963) 215 Cal.App.2d 770 (Coomes), another case involving a psychiatric technician at a state hospital. There, the court reversed the dismissal of an employee who was doing nothing more and nothing other than he was supposed to do, having found insufficient evidence that he intentionally participated in conduct of two other technicians who had applied excess or improper force in restraining a patient. (Id. at p. 777.) Insisting that he acted in self-defense, Barber points to the following language from that decision: There are cases where the exercise of superior force passes by gradations from passive restraint, at one extreme, to brutality at the other. There is nothing subtle, however, about the difference between the extremes. It is usually quite apparent. (Id. at p. 776.) He argues that what he did was entirely consistent with the actions taken by Lawrence Coomes . . . to prevent [the patient] from harming himself or others. He also contends the Coomes decision recognized that personnel must be ready to apply a degree of superior strength in order to restore order, quiet, and safety. And, asserting that he needed to control the situation which he deemed a threat to his safety, he maintains he did nothing brutal, acted without malevolent intent, and did not cause injury to the ward. But this is not the test. Our task is to determine if substantial evidence supports the Boards finding that Barber violated the Departments use of force policy. It is immaterial whether or not Barber intended to or did cause injury to the ward.

In short, there was evidence from which the ALJ could reasonably have concluded that Barber violated policy when he performed a hold involving placement of his arm about the wards neck. We cannot conclude, as Barber urges, that this evidence should not be considered substantial simply because he believes he was acting in self-defense, the ward sustained no injury, and upon rehearing by the Board two members dissented. Moreover, Barber ignores the reality that in reducing his penalty from dismissal to suspension, the Board actually showed him some leniency when it recognized that he believed his actions were justified. As stated in its decision on rehearing, given some ambiguity in the Departments self-defense policies, and [Barbers] good faith belief that his actions were reasonable under the circumstances, we find that the imposition of a suspension for 45 calendar days is a just and proper penalty.

Nonetheless, Barber maintains that because no bodily harm was inflicted upon the ward, the hold can hardly be considered excessive or unreasonable. Citing In re Ramon T. (1997) 57 Cal.App.4th 201, a case in which a minor charged with various crimes complained that a peace officer used excessive force in arresting him, Barber points to language in that opinion indicating that testimony to the effect the officers actions in placing his arm across the minors throat did not put the minor in any distress or cause any facial discoloration constituted substantial evidence that the officer did not use excessive force. Thus, he asks, how can [he] be guilty of excessive or unreasonable force in this case? No injuries occurred to [the ward]. This is characteristic of Barbers arguments wherein he takes language out of context from an appellate decision and relies on it to support his position, even though the two cases have nothing to do with each other. Indeed, simply because there was no bodily harm to the ward does not mean that Barber did not act in contravention of the Departments use of force policy.

Barber also contends the use of force policy is not cast in stone. He points to the self-defense rules providing that an employee may use departmentally approved self-defense techniques to escape without injury, but insists that the listed techniques, although they can only be used in self-defense, are not the only techniques which can be used. Without belaboring this issue, suffice it to say the evidence establishes that, even if Barber felt threatened by the ward, he responded in a manner which was inappropriate in light of the nature of the threat.

Finally, Barber contends he should be excused from any misconduct because he was influenced by this courts opinion in his prior appeal, i.e., case No. E033028, where we concluded that he failed to perform his duty when he intentionally opened a cell door without first ensuring that the ward inside was handcuffed, thereby causing injury to himself and placing other people in danger. Asserting that [t]his Court told [him] to defend himself, he contends he learned from his previous adverse actionand from the prior opinionthat any hesitationmight not only lead to an adverse action but also physical injuries.^[4] We construe Barbers position as a blatant attempt to legitimize his inappropriate conduct. Indeed, Barber is presumably well aware that as a youth correctional counselor, he is required to adhere to Department rules, no matter what.

C. The trial court acted appropriately in denying Barbers motion for reconsideration.

By his motion, Barber asked the court to revise its ruling and find that as a matter of law [he] was wrongfully punished and that the finding and punishment as set forth in the ruling of the State Personnel Board be set aside and dismissed. In the alternative, [he] request[ed] the matter be referred back to the State Personnel Board for further hearing based on the new evidence attached . . . with this motion. He based his motion on what he viewed as new evidence pertaining to the wards extensive criminal history since the time of the incident. He argued that this evidence, which was unknown to him at the time the Board considered the matter, was enough to establish that what he did to discipline the ward was appropriate. His motion also referenced a statement made at the July 2005 oral argument when opposing counsel purportedly misled the Board when she described the ward, who by then was in state prison, as a child and/or a boy. He argued [t]he truth of the matter is that [the ward] was a monster and the split-second decision [he] made to defend himself from [the wards] violent and dangerous actions was correct on February 6, 2003 . . . . Had this violent nature of [the ward] been known to the [Board] at the time of the hearing, it is reasonable to assume the decision would have been different as to the propriety of [his] exercise of his right to self defense, particularly in view of the fact the vote was 3 to 2. Finally, he cited a case which he claimed he was previously unaware of, i.e., Coomes, supra, 215 Cal.App.2d 770.

In essence, Barber asserted he did nothing other than that which he was trained to do. He is expected to use his intuition as to the nature of the threat posed by an inmate (ward) when assaulted, and not be second-guessed. Based on the accurate record of this ward, [he] acted properly.

The matter was heard on May 9, 2007. The court denied relief, finding that the motion was not supported by a proper declaration establishing that Barber, with reasonable diligence, could not have known what he told the court at the time the matter was first heard. Said the court: There is no new valid . . . evidence warranting a change in the ruling. Barber responded, I would differ with that, your Honor, to which the court replied: I dont care whether you differ or not. Im telling you what the law is. So I have to deny your motion for reconsideration.

Code of Civil Procedure section 1008, subdivision (b), requires a party seeking consideration to establish, by affidavit, the new or different facts justifying the relief sought. Furthermore, the moving party must demonstrate that the new evidence could not have been produced with due diligence at the initial hearing. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1200.) Code of Civil Procedure section 1008, subdivision (e), provides that the statute is jurisdictional; thus, no relief can be granted unless the specified requirements are met.

On appeal, Barber does not expressly challenge the trial courts action with regard to his motion for reconsideration. Rather, he simply reiterates, almost verbatim, the contents of his trial court motion, without any argument as to why the court erred in denying his motion. Appellate briefs must provide argument and legal authority for the positions taken. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.] (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784.)

In any event, as the Department aptly points out, not only is it illogical to believe that Barbers use of force was somehow justified because of the wards subsequent criminal history, but also, Barber at no time established that he was unable to obtain this evidence by exercising due diligence. Nor did Barber establish why the transcript from the 2005 Board hearing was not available to him at the time of the hearing on his writ petition. Finally, even if the Coomes decision could have been helpful to his position, we reject his contention his in propria persona status denied him access in that he provides no explanation as to why he was somehow able to obtain appellate decisions other than Coomes.

DISPOSITION

The orders denying appellants petition for writ of mandate and motion for consideration are affirmed. Respondent is entitled to costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ McKINSTER

Acting P.J.

/s/ RICHLI

J.

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^[1] Retired Associate Justice, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^[2] These subdivisions of Government Code section 19572 provide for discipline of a state civil service employee based upon incompetency, inexcusable neglect of duty, discourteous treatment of the public or other employees, willful disobedience, and [o]ther failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the persons employment. (Gov. Code, 19572, subd. (t).)

^[3] What follows are pertinent portions of the Departments use of force policy:

A Youth Authority employee may use physical force in self-defense, or in the defense of others. In such situations, employees shall use only the minimum force necessary to ensure their safety or the safety of others.

Force means [a]ny effort used to control, restrain, or overcome the resistance of another. Necessary Force is that required to gain compliance/control of a situation to overcome resistance. Force is [u]nnecessary if it is without sufficient cause, i.e., when the use of force is not fully justified by the circumstances. Reasonable Force means [t]he necessary force which an employee must exert to protect themselves, others, or to overcome resistance to their lawful authority. Finally, [t]he use of force against a person who has been subdued, restrained, or otherwise incapacitated, and who clearly no longer represents an immediate threat to Youth Authority employees or to others, is unreasonable force.

Peace officers shall utilize only those restraining techniques and equipment which are approved and provided by the Department. When restraint is used, a peace officer shall utilize only the minimum force necessary to control the ward . . . and only for the length of time necessary to gain their compliance or to insure staff safety. Peace officers may use physical force to restrain a ward who becomes violent or displays signs of imminent violence, to prevent escape or suicide, or to physically move a resistant or non-compliant ward from one place to another. . . .

Approved control holds include: Finger Lock, Rear Wrist Lock, Accordion Wrist Lock and Figure 4 Leg Lock.

Non-approved restraints include: Carotid Artery Control Hold and Any restraint not approved by the Department.

Restraints Shall Not: [] . . . [] Be placed about the neck of a ward.

Physical restraints may be utilized whenever it is necessary to subdue a hostile ward, to physically move a ward from one place to another, or for the purpose of applying mechanical restraining equipment. Whenever it becomes necessary for peace officer staff to use physical restraint, the wards behavior shall be considered a disciplinary problem and the situation shall be documented . . . . [] . . . Peace officers shall attempt to use a sufficient amount of chemical restraint, prior to using physical restraint with wards. It is the Departments position that physical restraint of wards is to be avoided as much as reasonably possible. (Emphasis in original.)

Finally, with regard to self-defense, Youth Authority employees, to the extent possible, may use departmentally approved self-defense techniques to escape without injury, when faced with a potentially dangerous situation. In such situations, employees shall use only the minimum force necessary to ensure their safety or the safety of others. Self-defense escapes include Front Choke Extended Arm Escape, and Rear Choke Extended Arm Escape.

^[4] Barbers position of course reminds us of the familiar proverb, once bitten, twice shy, which means that one is cautious in the future if one has been hurt in the past. (See Wiktionary . . . a wiki-based Open Content dictionary http://www.wiktionary.org/wiki/once_bitten_twice_shy [as of May 14, 2008].)