In April 2017, Billy Bush, a Corrections Officer with the Merced County (County) Sheriff’s Department (Department) was working the graveyard shift when a jail inmate, who was HIV positive, began significantly harming himself in his cell. A number of correctional officers, including Bush, entered the cell, but they were concerned about the inmate’s HIV-positive status and the amount of blood on the inmate and around the cell. At the time, the only personal protective equipment (PPE) the officers had was latex gloves.
As the most senior line officer, Bush took the lead in controlling the situation. Bush and another officer gave verbal commands to the inmate to stop ramming his head into the glass window of his cell, but the inmate did not comply. At that point, Bush used his expandable baton to strike the inmate twice on his thigh, and the inmate then followed instructions to get into a prone position on the floor. The second officer started to handcuff the inmate, but the inmate refused to move his right arm. Bush then twice tapped on the inmate’s right arm with his baton, using “medium to light” force, and ultimately reached over and grasped the inmate’s arm and moved it so he could be handcuffed.
A nurse then attended to the inmate’s wounds, but the inmate still refused to comply with officers’ orders to remain still. Bush then briefly placed his boot over the inmate’s head to prevent movement, and later placed his boot on the inmate’s chest for approximately one minute. At a later point, the inmate tried to sit up and Bush briefly placed his boot on the inmate’s right forearm. Bush later explained that his actions were due to the inmate’s erratic behavior and failure to comply with verbal commands. Bush also expressed concern with using his hands to restrain the inmate due to his HIV-positive status and the lack of adequate PPE. Following the incident, the Department obtained additional PPE for its officers, including cover outfits and face shields.
The Department’s investigation into the incident determined that Bush violated several County and Department policies. Specifically, the investigating sergeant determined that Bush’s use of the baton and his boot to control the inmate were unjustified uses of force. Based on these findings, the Department terminated Bush in August 2017.
Bush appealed his termination, and an administrative hearing officer determined that Bush: (i) was inadequately trained on how to deal with a combative and bleeding HIV positive inmate; (ii) had inadequate PPE; and (iii) was inadequately supervised because Bush’s supervisor left during the course of the incident and did not question Bush’s use of force until after the Department initiated its investigation. Given these findings, the hearing officer found that Bush’s termination was without just cause because Bush did not violate any applicable Department or County policies.
The County then filed a petition for writ of mandate, alleging that no reasonable person, based on the entire record, would reach the same findings as the hearing officer. The trial court, applying an “independent judgment” standard, disagreed and denied the petition, finding that Bush’s use of force was reasonable given the exceptional circumstances of the incident.
The County appealed, alleging that the trial court inadvertently applied a lower “substantial evidence” standard in denying its petition. The Court of Appeal found that the trial court was legally required to review the hearing officer’s decision under the substantial evidence standard of review and not the independent judgment standard. However, since the latter standard was more favorable to the County and the trial court still denied the County’s petition, the Court of Appeal determined that the trial court’s error was neither prejudicial nor reversible. The Court of Appeal also found the trial court’s factual findings were supported by substantial evidence. Based on the foregoing, the Court of Appeal affirmed judgment for Bush.
Merced County v. Kong-Brown, et al., 2021 WL 5407446 (Cal. Ct. App. Nov. 19, 2021)– unpublished.
Note:
The hearing officer, trial court, and Court of Appeal all noted that the circumstances of the correctional officer’s use of force were out of the ordinary, but reasonable.
