Post #73 - by Fred Bates - September 2, 2022
How My Lawsuits Against the City of San Jose Evolved
Introduction
In my post on July 20, 2022, I explained that meaningful access to the courts is a constitutional right guaranteed by the First Amendment of the Constitution. The First Amendment allows for citizens to petition the government for a redress of grievances, which includes the filing of lawsuits. I stated that I filed three federal lawsuits against the City of San Jose based on the racist and malicious violations of my civil rights by City officials after I retired from the police department on a medical disability. In my post on July 21, 2022, I discussed how the US District Court in San Jose and the Ninth Circuit Court of Appeals had disposed of my lawsuits by violating my due process rights established by the US Constitution, federal statutory law, and precedent. I also stated in my post on July 21, 2022, that my refusal to accept the bogus judgments in my lawsuits is the hill I will die on!
The purpose of today's post is to provide the backstory to my lawsuits against the City of San Jose that I hope will give you an understanding why I will pay any cost to hold the City of San Jose accountable for its racist retaliatory attack against me because I'm black and because of my medical disability.
My employment as a police officer with the City of San Jose ended with a medical disability retirement
I worked for over 20 years as a police officer for the City of San Jose where I reached the rank of police sergeant. In May 2001, I was diagnosed with work related hypertension or high blood pressure (HBP) that caused damage to my heart. As a result, I was placed on a work restriction of 'preclusion from psycho-emotional stress' in order to help control my blood pressure. Because my HBP was difficult to control, even with increased medications, my doctor recommended that I apply for a medical disability retirement. On April 1, 2004, my medical disability retirement was approved by the City's retirement board with support from the City's Medical Director. My history of HBP, the damage it caused to my heart, and the resulting work restriction to avoid psycho-emotional stress is well documented in medical records, memos from the City's Retirement Services and Medical Director, my application for disability retirement, and the retirement board hearing. I mention all this documentation because it is important as it relates to the backstory of my lawsuits against the City.
The denial of my privilege to carry a concealed weapon by Deputy Chief Adonna Amoroso
Upon my retirement, I was denied the privilege to carry a concealed weapon (CCW) by Deputy Chief of Police Adonna Amoroso. California Penal Code Section 12027.1 establishes the procedures relative to the certification of retired police officers to carry concealed and loaded firearms, including procedures to deny or revoke such privilege. Section 12027.1 requires that a hearing be held in all cases of denial or revocation of a retiring officer's CCW privileges except for those that retire on a psychological disability. I contacted Amoroso by phone shortly after I learned that she had denied me authorization to carry a concealed weapon in April 2004. She said that she denied me a CCW permit because my work restriction of 'preclusion from psycho-emotional stress' meant that I retired on a psychological disability. Yet, Amoroso told me that I could own a gun. She had already transferred to my custody high-capacity pistol magazines for my personal use immediately upon my retirement. No sane police administrator would tell an officer they could own a gun and transfer to their custody high-capacity pistol magazines if they believed an officer had a psychological disability. Amoroso made it clear that she understood the hearing requirement of Section 12027.1. But she refused to grant me a hearing because she said I could not prove that I did not retire on a psychological disability. This assertion by Amoroso is an outright lie! The documentation, as noted above, showing that my retirement was based on a medical disability and that my work restriction was provided in order to help control my HBP was available to Amoroso based on state law and on a consent form I signed authorizing City officials to review my medical and psychological records. Certainly, Amoroso was aware of the recommendation by my doctor, mentioned above, that was stated in a letter to City officials that I should apply for a medical disability retirement because my HBP was difficult to control. The doctor also stated that City officials could contact him if they had any questions. Additional evidence casting doubt on Amoroso's claim is that she approved three of my work assignments that were based on my work restriction. She approved of my assignments to the Internal Affairs Unit as an investigator, the Patrol Division as a supervisor, and the School Crossing Guard Program as Program Manager. It's not even necessary to say that those job assignments require the ability to exercise good judgment and to make sounds decisions under stress. Amoroso was well aware that my performance appraisals for the just stated job assignments, all during the time I had the work restriction of 'preclusion from psycho-emotional stress,' had the overall ratings of above standard, with many of the individual rating categories being exceptional. In my last performance appraisal prior to my retirement, my rating under job expertise was exceptional. My rating under relationship with others was exceptional. The rating for my performance as a supervisor was exceptional. My rating under judgment was above standard with the comment that my decisions were logical and appropriate. My rating for the category of initiative and reliability was above standard with the comment that my performance under stress was above the expectations for my position. Amoroso was asked what she remembered about my disability in her deposition relative to my first federal lawsuit against the City of San Jose. She said that I had a heart condition that was affected by psychological stress. She also stated that the police department and the City's Medical Director work closely together so that there is no misunderstanding about an officer's work restriction. Amoroso stated in her deposition that I was never required to submit to a mental fitness evaluation. Based on the above, Amoroso's claim that she believed my work restriction meant I retired on a psychological disability has no credibility whatsoever. She also stated in her deposition that she was not supposed to interpret whether my work restriction was based on a medical disability or a psychological disability. This is in fact San Jose Police Department policy. The policy also states that until such time as any question or confusion about an officer's work restriction is cleared by the City's Medical Director, any decisions about work restrictions will be based on the conditions stated by the employee. When I contacted Amoroso in order to appeal her decision to deny me a CCW permit, I told her repeatedly that my work restriction was based on my HBP, and it had nothing to do with a psychological condition based on conversations I had with the doctor that provided my work restriction. Yet, she refused to change her decision and steadfastly refused to provide me a hearing as required by Section 12027.1, even though, she was aware she was required to do so by law. Perhaps the biggest lie Amoroso told during this CCW permit fiasco is that she misinterpreted my work restriction to mean I retired on a psychological disability because she did not have authority to review my medical records. She made this ridiculous claim despite the fact that, as noted above, state law and my consent form gave her authorization to review all of my confidential medical and psychological records. Furthermore, Amoroso authorized her subordinates to review confidential medical records; and she stated in a letter she wrote to another officer that she had reviewed his medical records. The evidence is overwhelming that Amoroso's decision to deny me a CCW permit was malicious and retaliatory, and an intentional violation of my constitutional rights.
The denial of my CCW privileges by Captain Tuck Younis
The denial of my CCW permit by Amoroso was not the primary reason for my federal lawsuits against the City of San Jose. I never even considered a lawsuit after she denied me a CCW permit. The primary reason for my lawsuits is the egregious conduct of City officials months after Amoroso denied my request for a CCW permit. Amoroso's bigoted and discriminatory conduct pales in comparison to the conduct of the City officials I contacted months later seeking to appeal Amoroso's decision. In August 2004, I contacted police captain Tuck Younis and asked if the police department would reconsider the decision of Amoroso. I contacted the doctor that provided my work restriction requiring me to avoid psycho-emotional stress and asked him to send a letter to Younis explaining my work restriction. The doctor told me that City officials knew that my work restriction did not mean I had a psychological disability. The doctor said, "they knew better than that, they are messing with you." In his letter, the doctor explained that my work restriction of 'preclusion from psycho-emotional stress' was a term of arts used to label my medical disability. The doctor stated that he had given that same work restriction to thousands of officers, and that many had continued to work as police officers. As I noted above, I worked for three years with that same work restriction in positions that required me to make sound decisions under stress. In the letter, the doctor stated that I should have no problems or difficulty carrying a concealed weapon because of the work restriction. During litigation of my first federal lawsuit, the City stated that the letter made it "crystal clear" I did not have a psychological disability. Therefore, I was entitled to a CCW permit or a hearing that is required by Section 12027.1 if the police department wanted to continue denying me a CCW permit. Yet, Younis refused to change Amoroso's decision, even though he had all of the information that was available to Amoroso, as well as the letter from my doctor stating that my work restriction did not mean I had a psychological disability. Younis told me that he had consulted with Deputy City Attorney Carl Mitchell and that Mitchell told him that my appeal was not timely, because it was not made within 45 days. This claim has no credibility because I contacted Amoroso within ten days after she denied me a CCW permit and asked for an appeal. Nevertheless, I continued my efforts to persuade Younis to reverse the decision to deny me a CCW permit. I asked him if we could resolve this matter without making it a "federal case" in order to avoid legal costs to me, as well as the City. I reminded Younis of the letter from the doctor stating that I did not have a psychological disability and that I was a suitable candidate to carry a conceal weapon. I also offered to take a psychological evaluation at my expense in order to further prove I was mentally fit. I reminded Younis of my outstanding work evaluations and the hearing requirement of Section 12027.1. Yet, he refused to reverse Amoroso's decision to deny me a CCW permit, and he refused to grant me a hearing. I then asked Younis if there was any way that we could resolve this matter without me having to hire an attorney. I told Younis I would sign an agreement that I would not file a lawsuit against the City based on Amoroso's initial decision to deny me a CCW permit if we could resolve this matter without me having to seek legal representation. I told Younis that I had learned whatever lesson the City was trying to teach me. He still refused to grant me a CCW permit without the mandatory hearing required by law. I asked Younis if the City wanted me to get down on my knees and beg for a CCW permit. He said that it would not do any good.
After Younis denied me a CCW permit in my direct appeal to him, I asked a police union representative (Jeff Ricketts) to intervene on my behalf with the hope that this matter could still be resolved without involving an attorney. Ricketts contacted Younis by phone in my presence and asked him what was going on with the denial of my CCW privileges. Younis told Ricketts that the decision to deny me a CCW permit was not going to be changed and that the decision was final. Ricketts informed Younis about the hearing requirement of Section 12027.1 that allows for an appeal. Younis told Ricketts that the phone conversation I had with Amoroso in April 2004 was my appeal and that the matter was closed. It is indisputable my phone conversation with Amoroso that has been discussed above, does not meet the hearing requirement of Section 12027.1 of the California Penal Code. A hearing pursuant to Section 12027.1 requires a three-member hearing board where one member is selected by the officer, one member is selected by the law enforcement agency, and the third member is selected jointly by the officer and law enforcement agency. It is noteworthy that Section12027.1 was amended in 1988 to require the hearing as just described due in part to a lawsuit involving the City of San Jose and the San Jose Police Officers Association. California legislators added the hearing requirement because they did not want the head of a law enforcement agency to deny a CCW permit based on their subjective feelings about an officer. It's important to note that the judge in my first federal lawsuit against the City ruled that the hearing requirement of 12027.1 was a constitutionally protected interest. It is without a doubt that the decisions to deny me a CCW permit by Amoroso and Younis were made based on their subjective feelings about me. In his deposition relative to my first federal lawsuit, Younis admitted that he told me and union representative Ricketts that I was not entitled to an appeal of the denial of my CCW privileges. Younis made this claim after he had already received the letter from the doctor stating that my work restriction should not prevent me from carrying a concealed weapon. It is clear that Younis violated my constitutional rights based on his own admission that he denied me a CCW permit without a hearing. Keep in mind the District Court judge ruled that the hearing requirement is a constitutionally protected interest.
The failure of Chief of Police Rob Davis and City Attorney Richard Doyle to reverse the decisions of Amoroso and Younis to deny my CCW privileges
With no other option but to obtain legal representation based on the repeated denials of my requests for a CCW permit or a hearing by Amoroso and Younis, I hired attorney Stuart Kirchick to assist me in securing a CCW permit in October 2004. The retainer I paid Kirchick was $1500. Kirchick sent a letter to San Jose Chief of Police Rob Davis in early October 2004 detailing my failed attempts to obtain authorization to carry a concealed weapon from Deputy Chief Amoroso and Captain Tuck Younis. A copy of the letter was sent to San Jose City Attorney Richard Doyle. The letter documented the hearing requirement of Section 12027.1. Included with the letter was a copy of the letter from the doctor explaining that my work restriction of 'preclusion from psycho-emotional stress' did not preclude me from carrying a concealed weapon. Relevant to discovery during my first federal lawsuit, a copy of the letter was obtained from the City that was date-stamped as being received by the Office of the Chief of Police. This is compelling evidence that Chief Davis was aware of the letter and its contents, along with the letter explaining my work restriction. The letter demanded that Davis immediately issue me a CCW permit or face legal action. Neither Chief Davis nor City Attorney Richard Doyle responded to the letter from my attorney despite the threat of litigation.
My complaint against the City of San Jose with the California Department of Fair Employment and Housing
In December 2004, after not receiving a response from Davis or Doyle, I filed a discrimination complaint against the City of San Jose with the California Department of Fair Employment and Housing (DFEH) for violating my rights that were guaranteed under Section 12027.1. Because the evidence was so strong that San Jose city officials had discriminated against me when denying my CCW permit, DFEH said they would take my case. The implication was that DFEH would sue the City of San Jose on my behalf. About a week after my complaint with DFEH, Captain Younis called me and informed me that the police department had reversed its decision to deny me a CCW permit, even though he had informed me and union representative Jeff Ricketts months earlier that the decision to deny me a CCW permit was final. Younis refused to give me a reason why the police department had unexpectedly reversed the denial of my CCW permit. I learned later from the City Attorney's Office legal adviser, Jim Brennan, that the police department reversed Amoroso's decision to deny me a CCW permit because Deputy Chief of Police Pete Oliver said that the City would lose a lawsuit. This is clear evidence that the denial of my CCW permit had no legitimate basis whatsoever; and that the denial was based on the subjective feelings of the officials involved.
My CCW permit was denied numerous times without a hearing as required by Section 12027.1
It should be very clear from what has been presented here is that San Jose city officials were not acting in good faith when they denied me a CCW permit numerous times, even though they were presented with indisputable evidence that I was a suitable candidate to carry a concealed weapon. As noted above, Deputy Chief Amoroso was given the opportunity to change her initial unlawful decision to deny me a CCW permit in April 2004. She refused to do so. In August and September 2004, Captain Tuck Younis was given at least two opportunities to reverse Amoroso's decision on my direct appeal to him and when police union representative Jeff Ricketts intervened on my behalf. Keep in mind in my direct appeal to Younis, I made several overtures to him that included taking a psychological evaluation and signing an agreement not to sue. Yet, Younis refused to reverse Amoroso's decision and said the matter was closed. In October 2004, Chief of Police Rob Davis and City Attorney Richard Doyle were given the opportunities to reverse the decision to deny me a CCW permit. They both failed to act on the letter they received from my attorney demanding that I be issued a CCW permit or face legal action. Each of these City officials knew for a fact they were violating my rights to a due process hearing under Section 12027.1. Their actions were done with the clear intent of causing me monetary loss from having to hire an attorney. And more importantly, their actions were calculated to inflict upon me emotional pain and suffering; and their actions did in fact, cause me severe emotional distress. Even with this egregious conduct by City officials, there was not an immediate decision on my part to file a lawsuit against the City or the officials involved.
My claim against the City of San Jose
Instead of filing a lawsuit, I chose to file a claim with the San Jose City Clerk's Office against the City in the Spring of 2005 in the amount of the $1500 retainer I paid my attorney. It was my hope that the City would take advantage of this opportunity to put this matter to rest without having to deal with any potentially costly litigation. The City failed to respond to my claim.
My small claims complaint against the City of San Jose
With no other option available to hold the City accountable for the malicious violation of my constitutional rights relating to the denial of my CCW privileges, I made the decision to take legal action. I filed a small claims action against the City in the Superior Court of Santa Clara County Small Claims Court in December 2005 because it placed the least burden on our judicial system. My claim sought damages in the amount of the $1500 retainer I paid my attorney because of City officials' violation of Section 12027.1 of California's Penal Code. I subpoenaed three of the City officials involved in the decision-making regarding the issuance of my CCW permit, Captain Tuck Younis, Chief of Police Rob Davis, and Deputy City Attorney Carl Mitchell. On the day of the hearing, all three witnesses failed to appear on their subpoenas. It was necessary to reschedule the hearing because of their failure to appear. It is important to note that prior to the hearing, I made an offer to the City's legal adviser, Jim Brennan, to settle my claim for $1000 in a good faith effort to avoid litigation. This offer was $500 less than the $1500 retainer I paid my attorney which was my actual monetary damages. Brennan told me that the City did not want to settle. On the next hearing date in January 2006, Younis, Davis, and Mitchell failed to appear a second time on their subpoenas. The Small Claims Court Commissioner (Gregory Saldivar) who appeared to be agitated because of my case, ruled that attorney fees are not awarded in Small Claims Court. He made his ruling without allowing any testimony from me or the City's legal adviser. Commissioner Saldivar never made a ruling on my claim that City officials violated my due process rights based on their violation of the hearing requirement of Section 12027.1. It is important to note that there is no record from the Small Claims Court that shows what was litigated and decided. This small claims action, in which there was no litigation or record, plays a major role in my first federal lawsuit and my third federal lawsuit against the City of San Jose.
My last attempt to negotiate a settlement in this matter without further litigation
After my small claims action, I contacted the San Jose City Attorney's Office in another attempt to negotiate a monetary settlement as compensation for the $1500 retainer I paid my attorney to assist me in securing my CCW privileges. This would be my last attempt to try and resolve this matter without having to engage in further litigation. I spoke to Assistant City Attorney George Rios. Rios admitted that the decision to deny me a CCW permit was wrong but claimed that it was an honest mistake. He said that I had a right to be upset but stated that the City would not compensate me for the money I spent unnecessarily for an attorney.
Summary and conclusion
