The slipshod investigative techniques used by the San Bernardino County Sheriff’s Department and Deputy Luis Ortiz in particular will likely cost San Bernardino County taxpayers in excess of $3 million, based on a 9th U.S. Circuit Court of Appeals ruling handed down Monday September 10.
That ruling, made by a three member panel and written by Judge Jacqueline H. Nguyen, upheld a previous ruling by Federal Judge Virginia A. Phillips that Ortiz had violated the Fourth Amendment rights of three girls, then aged 12 and 13, who were students at Etiwanda Intermediate School and had been bullied and physically assaulted by another student, when he arrested them on October 8, 2013 based on his assertion that they were uncooperative in his investigation of the incident.
“No reasonable officer could have reasonably believed that the law authorizes the arrest of a group of middle schoolers in order to teach them a lesson or to prove a point,” Nguyen wrote in the opinion.
While lawyers for the district and the county had sought to assert that Ortiz had probable cause for making the arrests, an audio tape of the attempted interrogation of the students established that Ortiz pointedly gave no regard to whether the girls he was arresting were perpetrators or victims of the bullying he was investigating.
In the lawsuit, the three students were identified only by their initials, S.S., L.R. and R.H. The three actual plaintiffs in the case consist of a parent of each of girls, who are identified as the underaged girls’ guardian ad litems, that is, those suing on their behalf. S.S.’s father, David Scott is so identified, as is Angelica Santana suing on behalf of her daughter L.R., and Dejah Hall, suing on behalf of her daughter R.H.
Those named in the suit as defendants were the County of San Bernardino, Deputy Luis Ortiz, Deputy Anthony Thomas and Deputy Andrew Garcia. In turn, the four defendants filed a cross-complaint, in so doing naming the Etiwanda School District; the school’s then-assistant principal, Balbina Kendall; and the school’s principal, Janella Cantu-Myricks, as cross-defendants. As the case proceeded, Garcia was dismissed from the lawsuit.
Identified by their initials in the lawsuit and in the ruling related to the suit’s outcome and its appeal but not named as a defendants are two other students, L.V. and A.J., whose action precipitated the investigation that resulted in Ortiz’s action leading to the lawsuit, along with two other girls, M.L. and H.P., whose actions for the most part were incidental to the circumstance of the suit, but were also arrested.
According to the ruling, “In September and October of 2013, seventh-grade student L.V. harassed and bullied several classmates, including plaintiffs L.R. and S.S., at the Etiwanda Intermediate Middle School in Rancho Cucamonga. On September 6, 2013, L.V. assaulted L.R. on the school’s playground. L.V. approached L.R. during a classroom break, grabbed her hair, and punched her in the face. R.H., the third plaintiff in this case, tried to pull L.V. off L.R. L.R. did not hit L.V. back, but the school suspended both girls. According to L.R.’s mother, Angelica Santana, the assistant principal, Balbina Kendall, told L.R. and Santana that it was school policy to suspend any student involved in a fight, regardless of who was at fault. After the incident, Santana asked school officials for help in filing a police report with the San Bernardino County Sheriff’s Department. Deputy Anthony Thomas, a school resource officer, met with L.R. and Santana about the altercation.”
A resource officer is a law enforcement officer given a primary assignment at a school or set of schools.
“Santana asked Deputy Thomas about filing a restraining order against L.V. to protect her daughter L.R., but he replied that it would not be ‘practical’ since the girls attended school together,” Judge Nguyen’s narrative of the appellate court’s ruling states. “Deputy Thomas also told his colleague, Deputy Ortiz, that he had taken a report regarding a fight on campus, but did not share any further details. Santana maintains that she told Deputy Thomas that her daughter was the victim of L.V.’s aggression, but Deputy Thomas’s police report described the fight as ‘mutual combat.’ A few weeks later, L.V. told other students that she was going to assault S.S. On October 2, 2013, S.S. confronted L.V. and said ‘[i]f you’re going to beat me up, get it over with,’ and ‘hit me, bitch.’ L.V. made good on her threat by punching S.S., who did not hit L.V. back. S.S. later successfully asked the school to change her schedule to separate her from L.V. Over the following weekend, L.V. and another student, A.J., attempted to assault L.R. and S.S. in a local park. The victims fled, seeking assistance at the home of a stranger, who allowed them to call their parents to pick them up.”
The ruling continues, “On the morning of October 8, 2013, Santana notified the school that L.V. had attacked her daughter, L.R., over the weekend, and that she was afraid L.V. would attack L.R. again at school. That same morning, L.R., S.S., and R.H. went together to the school office and asked to speak with someone about L.V.’s bullying and threats. No administrator was available to speak with them, and the girls were sent to class. Later, the three girls and two other students, L.V. and A.J., were summoned to a group meeting to discuss the conflict. Two other students, M.L. and H.P., were brought to the room shortly after.”
The ruling continues, “Assistant Principal Kendall had asked Deputy Ortiz to come to school in order to speak to the students. Kendall, Deputy Ortiz, and the school’s principal, Janella Cantu-Myricks, were present at the meeting. Kendall told Deputy Ortiz that she had gathered a group of female students who had been involved in an ‘ongoing feud.’ Kendall had previously told Deputy Ortiz that Etiwanda Intermediate School had made multiple unsuccessful attempts to stop the conflict and that the problem was escalating. Deputy Ortiz had responded to an ‘unusually high’ number of physical fights between students since the start of the school year. Kendall addressed the students first, stating that ‘the threats, the fights after school, the threats [to] fight [at] school . . . this needs to end.’ She told them ‘[s]o far as I know, all five . . . all seven of you are, have been part of this continuous argument, on campus and off campus. And that is why the officer, Officer Ortiz, is here today. We are going to put an end to this.’ Deputy Ortiz then spoke to the students, in an ‘attempt to mediate the problems between the two factions of students and verify the information provided’ to him by Kendall. Deputy Ortiz quickly formed the view that the students were unresponsive to his efforts and were behaving disrespectfully, based on their ‘body language and continued whispering.’ An audio tape of the incident, however, reflects mostly silence in response to Deputy Ortiz’s questioning; no student is captured on the audio as speaking loudly or being verbally aggressive. Within minutes after his arrival, Deputy Ortiz threatened to take all of the students to jail to ‘prove a point.’ He told the students, ‘And for the one lady laughing that thinks it’s funny, I am not playing around. I am dead serious that we are taking you guys to jail. That might [be], it might be-is, the most easiest thing to do . . . to wanting to prove a point . . . that I am not playing around. . . . Eventually, maybe, you guys will make it into high school, then I will have to deal with you even more. Here is a good opportunity for me to prove a point and make you guys mature a lot faster.'”
According to the 9th Circuit Court panel’s ruling, “At most, the tape reflects some whispering and quiet giggling from unidentified students. The two students who appeared to be the aggressors in the conflict, L.V. and A.J., both made comments to Deputy Ortiz suggesting that they would not stop their behavior. But no similar statements were made by L.R., S.S., or R.H. Indeed, the transcript shows that none of them spoke until Deputy Ortiz asked if they needed to be handcuffed, after he had initiated their arrests. Deputy Ortiz also said that he did not care ‘who is at fault, who did what. . . . To me, it is the same, same ticket, same pair of handcuffs.’ Deputy Ortiz then announced that he was arresting all of the students for unlawful fighting in violation of California Penal Code § 415. He called Deputy Thomas for backup, and together the two deputies cited and handcuffed all seven students. L.R. and S.S. were handcuffed in the classroom, and R.H. was handcuffed outside of the school while waiting for police transport. Six of the seven girls, including the three plaintiffs, were driven in police vehicles to the San Bernardino County Sheriff’s Department, where they were separated, interviewed, and released to their parents. L.V. – the alleged aggressor – was released to her father on the school campus. Deputy Ortiz later stated that he decided to arrest all seven girls, instead of releasing them to their parents, to avoid what he believed would be further disruption to the school’s campus, and to prevent potential conflict between the girls’ parents. The school took no disciplinary action against any of the seven students, and no criminal charges were filed.”
After the lawsuit was filed, the district court granted partial summary judgment to the defendants on several claims, but sustained other elements of the suit and set the case for trial.
Federal Judge Virginia A. Phillips, after hearing the case in district court, found that deputies Ortiz and Thomas had not acted reasonably under the circumstances. The 9th U.S. Circuit Court of Appeals panel stated, “[W]e agree with the district court that the arrests of L.R., S.S., and R.H. were unreasonable because they were not ‘justified at [their] inception.’ The deputies were given only generalized allegations of group bickering and fighting, not specific information about L.R., S.S., or R.H. At most, Deputy Thomas knew that L.R. had been in a fight on campus one month prior. [T]he Fourth Amendment requires particularized suspicion; Moreover, while the traditional Fourth Amendment analysis ‘is predominantly an objective inquiry,’ the ‘actual motivations’ of officers may be considered. And, here, Deputy Ortiz’s actual motivations are clear —he explicitly told the students that he was arresting them to prove a point and to ‘teach them a lesson.’ Deputy Ortiz told them: “I am not playing around. . . . Here is a good opportunity for me to prove a point and make you guys mature a lot faster. Then, unfortunate [sic] for you guys, you guys will probably now be in the system. You will have a criminal record. Just because you guys can’t figure something out here.’ He continued: ‘[H]ere is the thing right now . . . I don’t care who is at fault, who did what. You hear that? I don’t care who did what, who is saying what, and whose fault it is. To me it is the same, same ticket, same pair of handcuffs.’ Deputy Ortiz clearly stated that the justification for the arrests was not the commission of a crime, since he did not ‘care who is at fault,’ nor the school’s special need to maintain campus safety, but rather his own desire to ‘prove a point’ and ‘make’ the students ‘mature a lot faster.’ The arrest of a middle schooler, however, cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect. The special needs exception simply “do[es] not apply where the officer’s purpose is not to attend to the special need” in question. Indeed, where it is ‘clear from the testimony’ of the arresting officer that the seizure occurred for an impermissible motive, ‘[t]his alone is sufficient to conclude that [a] warrantless [arrest] [is] unreasonable.'”
According to the ruling, “The summary arrest, handcuffing, and police transport to the station of middle school girls was a disproportionate response to the school’s need, which was dissipation of what Vice Principal Kendall characterized as an ‘ongoing feud’ and ‘continuous argument’ between the students. We do not diminish the seriousness of potential violence between students, or the need for conflict resolution in the educational setting. But ‘[s]ociety expects that children will make mistakes in school –and yes, even occasionally fight.’ Deputy Ortiz faced a room of seven seated, mostly quiet middle school girls, and only generalized allegations of fighting and conflict amongst them. Even accounting for what Deputy Ortiz perceived to be non-responsiveness to his questioning, the full-scale arrests of all seven students, without further inquiry, was both excessively intrusive in light of the girls’ young ages and not reasonably related to the school’s expressed need. Ironically, the primary instigator of the conflicts, L.V., was the only one released to a parent at the school campus. An arrest meant only to ‘teach a lesson’ and arbitrarily punish perceived disrespect is clearly unreasonable. Under the circumstances of this case, we hold that the arrests of the students were unreasonable and in violation of the Fourth Amendment.”
The 9th U.S. Circuit Court of Appeals panel further found that even if Ortiz and Thomas had grounds to make an arrest of one or two of the students who had in fact assaulted other students, in arresting all seven of the girls the distinction was blurred between the offenders and the victims, the guilty and the innocent.
“The officers lacked probable cause to arrest under state law,” according to the panel. “Defendants alternatively argue that Deputy Ortiz had probable cause to arrest the students for violating California Penal Code § 415(1), which criminalizes ‘unlawfully fight[ing] in a public place or challeng[ing] another person in a public place to fight.’ Defendants’ reliance on Penal Code § 415(1) is a nonstarter for two reasons. First, §415(1) does not apply to school grounds; rather, a parallel provision, § 415.5 expressly covers this setting. As a ‘general rule . . . where the general statute standing alone would include the same matter as’ a more specific parallel statute, ‘and thus conflict with it, the special act will be considered as an exception to the general statute.’ Section 415.5 criminalizes unlawful fighting ‘within any building or upon the grounds of any school,’ but expressly exempts registered students from its scope. Applying § 415(1) to school grounds would eliminate that exception. Deputy Ortiz lacked probable cause to arrest the three plaintiffs. Other than general information from school officials about ongoing conflicts between a group of girls, Deputy Ortiz had no information suggesting that L.R., S.S., or R.H. were individually responsible as the instigators or aggressors instead of as the victims. In fact, had Deputy Ortiz even minimally inquired about the circumstances of the conflict, as he initially intended to do, he would have learned that the three plaintiffs had tried that very morning to report L.V.’s aggression to school administrators.”
The panel’s finding continues, “Defendants also claim that the students’ behavior in the classroom justified the arrest because there was reason to believe the students would engage in imminent fights. That assertion is belied by the audio record of the encounter, which ‘quite clearly contradicts the version of the story told by’ the officers. The students were mostly silent, only speaking to respond to the questions posed to them. But even taking at face value Deputy Ortiz’s claim that the girls were being disrespectful to him, and whispering among themselves, this conduct in no way rose to the level of probable cause that could have justified their arrests. In short, the evidence available to Deputy Ortiz was wholly insufficient to create probable cause to believe that any one of the three plaintiff students violated § 415(1).”
The 9th U.S. Circuit Court of Appeals panel took up the county attorneys’ assertion that Ortiz had probable cause to arrest the students for violating California Welfare and Institutions Code § 601, which allows a warrantless detention of a minor if there is “reasonable cause” to believe she is “persistently or habitually refus[ing] to obey the reasonable and proper order or directions of his or her parents, guardian, or custodian, or who is beyond control of that person.” The panel stated that “Assuming that Etiwanda Intermediate School could be considered a ‘custodian’ for the purposes of the statute, there was simply no evidence that S.S., L.R., and R.H. were ‘habitually refus[ing] to obey’ the directions of school officials. Because the arrests of L.R., S.S., and R.H. were unjustified, we also affirm the grant of summary judgment in their favor on the state false arrest claim. A law enforcement officer cannot be civilly liable for false arrest when “[t]he arrest was lawful. Lacking both justification and probable cause for their arrests, defendants cannot avoid liability for false arrest under state law.”
The 9th Circuit Court’s ruling sends the case back to Judge Virginia Phillips, who is to oversee the determination of damages by means of submitting the court’s findings to a specially impaneled jury or through settlement negotiations between the parties. In the initial complaint filed in 2014, Jerry Steering, who represented Scott, Santana, Hall and their daughters, sought $10 million in compensatory damages and $10 million further in punitive damages.
Seasoned court observers indicated Steering’s request was considerably beyond the likely monetary awards to be meted out in the case, given the entirety of the circumstance. Still the same, the three girls now have arrest records despite having been the victims in the circumstance that led to their false arrest. They, and Steering, appear to be headed toward a substantial payday.
Whatever the amount of money that will be conferred on them, the county and the sheriff’s department may continue to run a considerable risk in the department’s continued employment of Ortiz, who has been identified as a “rogue cop” in a national data base devoted to officers deemed as such.
Less than six months after the arrests of the seven girls at Etiwanda Middle School, Ortiz found himself the center of attention when, in another incident of student-on-student violence occurring at nearby Etiwanda High School, Ortiz afterward filed a police report in which he characterized the victim, who was suspended from school, as the perpetrator/aggressor. Shortly thereafter, a student-made video of the matter at hand surfaced and went viral on YouTube, demonstrating the facts were diametrically opposite from what Ortiz had written in his report.
On January 8, 2014, as Etiwanda High School freshman Kobe Nelson was transiting the campus between classes, he was confronted by a classmate who continually challenged him to fight while laying hands on him and shoving him. A video of the incident shows Nelson continuously seeking to disengage from the confrontation, keeping his hands to himself as he is being shoved and pushed repeatedly. In the audio portion of the video, someone can be heard saying “If you don’t fight, you’re a bitch.” Nelson gives that taunt no heed and continues to try to move away from the student confronting him. As Nelson, who is wearing a small backpack, heads into what appears to be a breezeway or the entrance to one of the school buildings and away from the student who is confronting him, his challenger pulls him backwards by latching onto the backpack, and then flinging Nelson to the ground. Nelson regains his feet and can be seen on the video moving back toward the building entrance, only to come face-to-face with his tormentor and be pushed sideways. With the other student yet shoving him from the side, Nelson then heads off into an alternative direction to go around the building and avoid the confrontation so he can get to class.
A report of the violent confrontation made its way to the school administration and Ortiz was called upon to conduct an investigation in which he spoke with both Nelson and the student who had assaulted him. Ortiz passed along his conclusion to Etiwanda High Assistant Principal Gayle Ross that a confrontation between the two students had occurred, and that Nelson had instigated it. Both students were suspended, though neither the high school administration nor that of the Chaffey Unified High School District would confirm the other student’s suspension had taken place. Several days after the video came to light, Nelson’s suspension was rescinded. Later, during an investigation of the matter by the sheriff’s department, the administrative sergeant at the Rancho Cucamonga San Bernardino County Sheriff’s Station learned that before filing his report, Ortiz had not spoken with any of the more than a dozen student witnesses who had seen the assault on Nelson. It was further learned that after Ross had suspended Nelson, Ortiz had words with Nelson in which he threatened to arrest him if he came to the campus while on suspension. In the course of that exchange, Ortiz mocked Nelson, in essence for not standing up his aggressor, since in any event Nelson was going to be suspended given the district’s policy is enforced against anyone involved in a fight, whether either party is the aggressor, the victim or a mutual participant. “Maybe you should eat some food and bulk up and kids won’t throw you around so much,” Ortiz told Nelson.
After Nelson was cleared for being readmitted to Etiwanda High following the rescission of the suspension, his father made clear to authorities he did not want his son back on the campus if Ortiz was to remain in his assignment there. In an interview pursuant to a complaint against Ortiz that Nelson and his farther lodged with the department which both Nelson and his father and the department recorded, Sergeant Casey Giles, the administrative officer at the Rancho Cucamonga Sheriff’s Station conducting the investigation can be heard acknowledging that available evidence not collected by Ortiz clearly indicated that Nelson had been assaulted. When Giles asks Nelson why he is reluctant to return to Etiwanda High if Ortiz is still assigned there, Nelson responds, “Obviously, Deputy Ortiz is not professional enough to be on a campus with school kids.”
Among his department colleagues, Ortiz had a reputation for being both incompetent and intellectually challenged, as well as prone to displays of machismo even within a patently macho environment. “He was assigned to schools and dealing with kids,” said one department veteran. “What does that tell you? No one wants those kind of assignments. That’s babysitting, not police work.”
It is not clear whether Ortiz is still employed by the sheriff’s department, as no one in the organization is willing to discuss him. Transparent California shows that in 2016, Ortiz topped out in terms of remuneration when he earned $83,512.22 in regular pay, $16.441.43 in overtime pay, $2,500 in other pay, together with $67,043.74 in benefits for a total compensation package of $169,497.39.
The following year, 2017, Ortiz was provided with $18,335.85 in regular pay, $3,023.87 in overtime pay, $26,697 in other pay and $66,690.88 in benefits for $114,747.88 in total compensation.
An unidentified staff member in the department’s human resource division this morning said he was not authorized to disclose Ortiz’s status with the department and patched the call through to an individual he said had that authorization. That call, and a subsequent one to the same desk reached a voice mail recording. No return call had been made to the Sentinel at press time.
Repeated efforts by the Sentinel to reach the sheriff’s department’s head of public affairs, Lieutenant Robert Warrick, to discuss with him and obtain a defense of Ortiz and both his and the department’s investigative technique were unsuccessful. Warrick’s secretary’s assurances that he would return those calls went unfulfilled.
-Mark Gutglueck