By Carlos Avalos
Two Fontana Police Department officers have filed a civil suit against the Fontana Police Department, alleging wrongdoing, racism, nepotism, and negligence on the part of the agency that employs them.
On June 30, 2016, David J. Moore Sr. & Andrew Anderson, represented by attorneys Bradley C. Gage and Milad Sadr, filed a lawsuit in San Bernardino Superior Court against the City of Fontana, alleging discrimination, retaliation and failure to take corrective action.
Despite the sensitive and explosive nature of the charges, a litigative process yet awaits Moore and Anderson, and it is an open question as to whether Gage and Sadr can marshal the proof to establish that the level of acute racism referenced in the complaint actually pervades the Fontana Police Department. The outcome of the case is likely to hinge less on the reputations of Moore and Anderson and the decorations they have accrued than the showing of whether they have actually lived up to the ideals inherent in the blue uniforms they wear and the badges pinned on them and whether their fellow officers against whom they have made allegations can do the same. Complicating this weighing of evidence and fact is that the culture of the “thin blue” line that is thought to separate the law abiding members of the community from the elements of society who would prey on them mandates loyalty and an ethos in which police officers do not speak ill of their colleagues and are obliged to both look the other way and cover up transgressions on the part of police officers if and when they occur. In this context, the foibles of humanity which infest those in uniform – the passions, ambitions, vices, venalities, arrogance, prejudices and impulses often result in mistakes – are very likely to play out before a jury.
The lawyering to be done in this case is equally important. Bradley C. Gage and Milad Sadr, the attorneys representing the plaintiffs, are respected civil rights attorneys in California with combined earnings of almost 1 billion dollars for their clients.
The law firm of Best Best & Krieger, which represents the City of Fontana, is one that represents 45 municipalities in Southern California and which has a reputation for ruthlessness in exploiting the power of government over other entities.
Gage told the Sentinel that he and Sadr did “not take on this case to lose.”
Anderson and Moore’s complaint for monetary damages, accompanied by a demand for a jury trial, consists of three key elements.
According to the suit, the Fontana Police Department is comprised of about 189 sworn officers and has never had more than four African American officers on the force at any given time, despite African Americans comprising more than 10 percent of the city’s population. Even though Hispanics comprise nearly 70 percent of the city’s population, about 15 percent of the FPD’s sworn officers are Hispanic. In contrast, the surrounding cities of Ontario and Rialto, which have similar populations to the City of Fontana, employ more African Americans and Hispanics as sworn officers than the city of Fontana.
The suit alleges that former chief of police Rodney Jones and the command staff at the Fontana Police Department condoned the mistreatment of minorities, and the department has an extensive history of unfair hiring practices and mistreatment against minorities. Many minority citizens who have had contact with Fontana Police Department officers have complained about excessive force and mistreatment.
The suit maintains that throughout his career at the department, Moore has heard other officers call out “nigger” in the locker room. The suit further states that within the culture of the Fontana Police Department, African Americans males are often referred to as “BAMAS” and African American females as “BAFAS”. This is short for Black African Male and Female. On occasion when a problematic incident involving African Americans occurred, Fontana Police personnel would tell Moore that the incident involved, “your people.”
The suit alleges that many times after an aggressive incident involving hostile or an aggressive African American, Moore has heard several employees say, “They acted like a bunch of wild monkeys.”
The suit maintains that issues or complaints involving minority citizens impacting the Fontana Police Department were often referred to Moore, duties that were added to Moore’s work on top of his actual assignments. Fontana Police supervisors have routinely made the comments to Moore such as, “They’re your people,” or “You should understand them,” according to the suit. White Fontana police officers would also, according to the suit, specifically request Moore to handle complaints made by African American citizens. The suit suggests that all officers in the department should partake in responding to the complaints and problems in the city which arise from the municipality’s predominantly minority population.
Inherent in the suit’s delineation of Moore being called upon to handle the situations that arise concerning Fontana’s African-American and Hispanic elements and to defuse potentially explosive situations growing out of circumstances pertaining to the city’s minority population is the consideration that the department was relying upon Moore more often than on his fellow white officers. This underscores that most of the Fontana Police Department officers and personnel who are white do not want to get involved with any type of encounter with the minority residents they are supposed to protect and serve if they do not have to.
Corporal David Moore is a decorated officer with the Fontana Police Department. Moore was the department’s officer of the year in 2002, and had been named officer of the month four times, in 2002, 2006, 2008, and 2010. Moore was nominated school resource officer of the year in 2006, and he received the department’s award of excellence in 2007. He was awarded the robbery homicide award in 2008. To date Moore, has earned six grand theft auto pins for the apprehension of car theft suspects while on patrol. Moore received the Noble Award from the National Organization for Black Law Enforcement Executives in 2003. Corporal Moore was also recognized by the National Latino Peace Officers Association in 2003; that same year Moore was recognized by the governor for outstanding arrest and crime prevention. Moore also achieved the Senator’s award and Assembly District 62 award. In his 15-plus year career, he has not had one write up or excessive force complaint brought against him. David J. Moore is of mixed race, African American and Caucasian.
Andrew Anderson is a decorated police officer, as well, with many awards and commendations. Anderson has been twice named officer of the month, received the department’s 2005 robbery and homicide award, and received the department’s excellence award, among other commendations.
Throughout Anderson’s career at the Fontana Police Department, he has constantly heard the Fontana Police Department personnel including supervisors make derogatory comments about Hispanics, who have been referred to, according to the suit, as “wetbacks and beaners.” In the Department, Hispanics are referred to as “pink panties,” which is a racial slur based upon Hispanics asking officers or dispatch if they speak Spanish. In the Fontana Police Department station, the department hangs photographs of white officers giving sobriety tests to Hispanics and other minorities being detained.
There is not a single picture on the wall at the Fontana Police Department station that shows a Fontana Police officer detaining a person of white descent; rather, according to the suit, whites are depicted in ways that accord them higher regard and respect.
According to the suit, in 1994 an African American male murder victim was discovered behind the Kentucky Fried Chicken enterprise on Sierra Ave in Fontana. A cop while at the scene of the murder thought it would be funny to place a piece of chicken in the deceased victim’s hand, to make it look like he was stealing chicken from the restaurant before he was killed. A photograph was taken and this photo was circulated around the department for years.
This behavior by a Fontana Police Department officer or officers would potentially have been prosecutable as a felony under PC 141, which pertains to the planting or tampering of evidence, which is an obstruction of justice crime. In the specific instance of the deceased man at KFC, tampering with his body could be viewed as tampering with evidence.
In this case, the tampering with evidence was done as some order of a joke or prank, intended to be taken in a comical spirit among police officers. This conduct by a Fontana Police Department member or members was also potentially prosecutable as a violation of the California Health and Safety Code Section 7070.5, which states that every person who knowingly mutilates, disinters, wantonly disturbs, or willfully removes any human remains in or from any location is in violation of the law.
In 2006, according to the lawsuit, recently retired lieutenant Bob Morris gave an electronic Martin Luther King doll to retiring lieutenant Tim Newsome. The doll was designed to play the “I have a dream speech.”
Morris did this as a prank, knowing Newsome was a bigot and wanted to get a rise out of him and see his reaction, the suit propounds. When Newsome opened the present and saw it contained the MLK doll, he said “get this shit out of here” and violently threw the doll against the wall, damaging the voice mechanism, according to the suit. Lieutenant Morris picked up the doll and tied a noose around its neck and hung it from the ceiling rafter inside the crime prevention unit. The doll hung there aimlessly making grotesque noises, according to the suit.
The lawsuit states that In December of 2003, Black Crime Free Housing Liaison Ernestine Jones was assigned to the department’s “multiple enforcement team,” the MET unit. Former police chief Rodney Jones set up various Christmas decorations inside the office. Jones placed a Black Santa Claus just outside Jones’ office with a Christmas tree. As a joke, Billy Green and several other MET officers covertly misappropriated the Black Santa. The officers created a wanted flyer which read, “Wanted for Rooftop Burglaries,” according to the suit.
In 2012, according to the suit, Moore was at a baseball game, seated in front of numerous other Fontana Police Department officers. When Moore began speaking to a woman, Sergeant Brian Binks yelled to the woman, “Why are you talking to that silverback when you could be talking to me.”
Throughout his career former Chief of Police Rodney Jones sent emails throughout the department addressing himself as “Adolf,” according to the suit.
Currently, Corporal Moore is assigned to the most difficult and politically sensitive cases such as Acute Political Emergency (“APE”) cases. It is alleged that several of these APE cases are racially charged. If these cases are not handled properly with the utmost care and correctness, it could cost the investigator his or her career. Other corporals in the department are not assigned to these cases. This has led to the perception that the department’s upper chain of command is engaging in some “strategic planning” to better the chances of corporal Moore making a mistake and being terminated, according to the suit.
The lawsuit states over the past several years, Fontana’s Police command staff has been drawn almost exclusively from the Special Enforcement Detail (SED), which is reportedly part of then-captain and now-police chief Robert Ramsey’s seven year plan. His goal was to hand pick the future command echelon of the department, according to the suit. Currently there are 19 white members and one Hispanic. There are no African American Members.
In 2002, Corporal Moore applied for a Special Enforcement Detail position. Moore scored extremely high on the SED promotional process. According to the suit, when his results were announced, Moore was told by a member of the department’s upper ranks, “Wow, you will be the first.” Subsequently, lieutenant Robert Doyle informed Moore that he was not selected for SED because it was determined by the department’s command that Moore “didn’t fit.” Instead SED chose white officers with less experience and training.
The suit states that there have been consistent rumors that SED members studied Nazi related literature and kept white supremacist paraphernalia at work.
The suit alleges that in 2003, Moore submitted a memo requesting a position in the narcotics unit after he effectuated several major drug busts, including taking down a meth lab, but his request was denied. In 2004 Moore attended the required training for a K-9 position and assisted with K-9 drills each week, Moore submitted interest for this position. Again he was denied, according to the suit.
In 2004, when Anderson sought to become a field training officer, the field training sergeant, Liam Coughlin, told Anderson that he lacked the requisite experience. Yet several white officers were selected who had similar or less experience, according to the suit.
The suit states that in 2005 Anderson submitted a memo of interest in the gang unit; Anderson was passed over by less experienced officers. The suit also claims the same thing happened to him when he applied for the narcotics unit. In 2007, Anderson was selected for the narcotics unit corporal position. At that time, Anderson was the only applicant.
The suit states that Anderson and Moore have made several complaints and remarks about the lack of minorities and women in the organization, especially at the sergeant level and above. Moore and Anderson believe that this lack of minorities in the upper hierarchy at the FPD is not a mistake but a calculated decision made by them to keep the “good ol’ boy” network that has characterized the department intact.
The suit claims that Fontana Police Department utilizes a promotional process that requires candidates to privately lobby their superiors for the position they are applying to; supervisors only chose the officers they favor to relinquish information about the test and answers to those officers.
On numerous occasions, Moore and Anderson have taken tests for advancement to the position of sergeant, and on many occasions Moore and Anderson have done extremely well on the tests, according to the suit. What has been reported is that they have narrowly missed the cut. They have not been provided with a copy of their test results to see where they made a mistake, according to the suit. A Latina officer, characterized by some officers as well qualified, was preparing for the corporals exam and encountered several white special enforcement detail officers studying test material that she was not given, though she attended the same test preparation symposiums, according to the suit. Most of those who pass are white. The suit highlights the fact that Moore and Anderson have noticed the lack of diversity and disparate treatment of minority officers seeking advancement within the department.
When the Sentinel asked Anderson for a statement about the pending lawsuit against the city of Fontana, he curtly responded, “You are wasting your time,” indicating he would not speak with the Sentinel about anything to do with the Fontana Police Department.
Moore, too, said he did not appreciate the tenor of recent articles by the Sentinel and statements by its reporters with regard to the police department. “Although I am going through this situation with the city and my department, I do not like how you have been badmouthing the department. I have no comment,” Moore said.
A moment later, he relented. “You can quote me on this: A man, police chief, sergeant, or captain may move a man or fellow officer. But even for those who move a man or who become kings or men of power, a person’s soul is in their keeping alone. When a person stands before God, they cannot say but I was told by others to do thus, or that virtue was not convenient at the time; this will not suffice.”
Corporal Moore has been with the FPD since 2003. Anderson has been with the department since 2001. Combined between the two officers they have worked under chiefs of police Frank Scialdone, Larry Clark, Rodney Jones, and current Chief Robert Ramsey. They have also worked under the supervision of mayors Mark Nuami, Frank Scialdone and Acquanetta Warren.
With the allegations of unchecked racism at play in this civil lawsuit, a question running through the community is whether the allegations are true, and if so, whether they represent a set of isolated incidents or a larger reality that impacted on the careers of officers other than Moore and Anderson.
On August 18, 2016, Best Best & Krieger attorneys Howard B. Golds and Joseph Ortiz on behalf of the City of Fontana filed a demurrer and motion to strike a major portion of the lawsuit. In that motion to strike, Golds and Ortiz contest some of the assertions made by Moore and Anderson and, while appearing to concede the accuracy of others, suggest they are not relevant to the plaintiff’s underlying claim.
“This case is about two police officers of the City of Fontana’s defendant police department, (FPD), that ascribe departmental scrutiny of their work and their inability to obtain promotions to institutional racism,” the motion to strike states. “Plaintiffs David J. Moore, Sr and Andrew Anderson have filed a suit limited to three causes of action, 1) discrimination, 2) FEHA retaliation, and 3) failure to take corrective action. Thus, the issues before the court should be focused on the elements of those causes of action. Unfortunately, however, the complaint meanders through twelve pages of general allegations rife with unsubstantiated rumors and inflammatory statements in many cases completely unrelated to any element of the alleged causes of action. The irrelevant and inflammatory issues broadly range in scope from the specter of 1950s Klu Klux Klan activity, unsubstantiated rumors of white supremacist tendencies of a chief of police who retired before either plaintiff was employed and the shooting of Tyisha Miller by Riverside Police Department officers, to name but a few. Further, in an apparent attempt to cast coworkers as villains, the plaintiffs include random statements related to asserted police violence and investigations wholly unrelated to the causes of action. For instance, plaintiffs identify a sergeant as having come from Riverside Police Department and without even tying the sergeant to the incident assert that he was involved in the racial aftermath, whatever that means, related to the racially charged Tyisha Miller incident in Riverside. Likewise, plaintiffs identify a highly ranked Hispanic officer and then gratuitously indicate that he was involved in a questionable shooting of an African American. No effort is made to tie these apparently random inflammatory statements to a theory related to the causes of action. It would be a profound waste of judicial resources to litigate these spurious claims. Given the irrelevant and inflammatory nature of these offensive allegations, defendant respectfully requests that the court order plaintiffs to file a clean pleading free of such matter.”
Specifically, Golds and Ortiz want the statement that the “Fontana Police Department was founded in the 1950s when the KKK was very active in Fontana” removed from the suit language. They further ask that the assertions that “Former chief [Ed] Stout is rumored to have SS lightning bolts tattooed on his back and Swastikas on his forearms” and that sergeant Bob Moritz and Darren Robbins had knowledge about Stout’s alleged Nazi-themed body art taken out of the suit as well. Further, the motion to strike deems the lawsuit’s assertion that recently departed police chief Rodney Jones worked closely with Stout and was mentored by him as irrelevant. So, too, do Golds and Ortiz deem that section of the suit pertaining to the 1994 incident in which a police officer placed a piece of chicken in the hand of an African American male murder victim and that Jones, then a detective, was the lead investigator on the case as irrelevant and inflammatory. Reference to the incident relating to lieutenant Bob Morris’s presentation of an electronic Martin Luther King doll to retiring lieutenant Tim Newsome and the subsequent defiling of that doll should likewise be removed from the suit, according to Golds and Ortiz, as should also be excluded mention of the Christmas Season 2003 incident in which Billy Green absconded with the black Santa Claus doll crime free housing liaison Ernestine Jones had and used it to design a flyer which implied the black Santa Claus was “Wanted for Rooftop Burglaries.”
Additionally, Golds and Ortiz want the court to excise from the civil complaint the reference to the language about sergeant Brian Binks referring to Moore as a “silverback” when a group of officers were at a baseball game. The motion to strike also characterizes the lawsuit’s claim that “for years there were consistent rumors that SED [Special Enforcement Detail] members studied Nazi related literature and kept white supremacist paraphernalia at work” inflammatory and irrelevant, along with the language that “Moore’s son joined the FPD [and] after initial success under his first training officer Moore’s son was routinely scrutinized and demeaned by other officers especially sgt Keith Zagorin.” And the motion says that there is no probative value to the lawsuit’s narrative “which states sgt Zagorin had issues with women and minorities throughout his career [and] before lateraling to FPD Zagorin was a member of the Riverside Police Department [where] Zagorin was involved in the racial aftermath of the Tyisha Miller shooting in 1998.”
Miller was a 19-year old African American woman who was sleeping in a car with a handgun in her lap and was shot and killed by Riverside Police Department officers after they awakened her.
Golds and Ortiz are asking the court to deem irrelevant the suit’s claim that “After investigations [into the Miller shooting] were launched and the involved officers terminated, Zagorin was among the officers who shaved their heads in solidarity and used racial jokes such as ‘It’s Miller Time.’” Further, Golds and Oritiz are seeking a finding that the language “in 2009 Zagorin shot and killed an unarmed Hispanic male which resulted in a financial settlement with the decedent’s family” and that in “2010 Zagorin was the sergeant on scene during a questionable shooting in the city of Fontana where they shot a man with 120 rounds and killed him” should be removed from the lawsuit.
The motion to strike says that the suit’s mentioning that “Eventually Moore’s son was let go by FPD” and that when Moore met with chief Rodney Jones to discuss the situation, Jones said “I did not want to hire your son initially but he was such a good applicant I had no choice” but that Jones acknowledged “your son is a great young man he could work anywhere just not here” has no probative value to Moore and Anderson’s case.
Golds and Ortiz also maintain that the suit’s claim that the ranking of a Hispanic officer, Raul Fileto, on top of sergeants list despite Fileto having “less time on the force and experience than Anderson and Moore [and that] Fileto was involved in an extremely questionable shooting of an African American male which resulted in a financial settlement between the city and the shooting victim” should be excised from the suit.
Golds and Ortiz said there motion to strike was being made pursuant to Code of Civil Procedure sections 435 and 436, which, they assert, “allows the court to strike out any irrelevant, false or improper matter inserted in the pleadings or all or any part of any pleading not drawn or filed in conformity with the laws of this state. The defendant seeks the cited language to be stricken as irrelevant or legally improper since the allegations inappropriately and impermissibly exceed the scope of the causes of action within the complaint and are gratuitously derogatory.”
By Carlos Avalos