On September 14, 2017, the California Court of Appeal held, in a case entitled Diego v. City of Los Angeles,[1] that the City of Los Angeles did not discriminate against two Hispanic police officers by keeping them off field duty following their fatal shooting of an unarmed black man.  The Court held that the officers did not introduce evidence to discredit the City’s non-discriminatory reasons for “benching” the officers, which included risk management, public perception, and the officers’ own safety.  Further, because the jury improperly considered the shooting victim’s race and not simply the officers’ race, the trial court should have granted the City’s motion for a directed verdict.



Close to midnight on March 19, 2010, two Hispanic police officers shot and killed a 27 year-old black male who the officers thought was reaching into his waistband for a gun.  In fact, the suspect was autistic and reaching for a cell phone clipped to his waistband.

Los Angeles Police Department policy required that the officers be taken off field duty while an investigation into the shooting took place.  Ultimately, the officers received a reprimand for their conduct and were not recommended to return to field duty.  They were instead assigned to various jobs that did not require field certification.  When it became clear that the officers were not likely to be returned to field duty, they filed a discrimination suit, claiming they were denied field certification and promotional opportunities based on their race, citing examples of other officers of different races involved in shootings that were returned to active field duty.

After the trial court denied the City’s motion for a directed verdict, the jury found in favor of the officers, awarding them cumulative damages of almost $4 million.


A claim for employment discrimination generally requires a burden shifting analysis. If the employee establishes he/she is a member of a protected class and was subject to a disparate employment decision, the burden shifts to the employer to demonstrate non-discriminatory reasons for the disparate treatment.  If the employer meets this burden, it then shifts back to the employee to demonstrate these reasons were pretextual and that discriminatory action was the actual reason for the disparate treatment.

In this case, the Court found that the City’s decision not to certify the officers for field duty for risk-management and political reasons were valid, non-discriminatory justifications for the disparate treatment.  The Court further determined that the jury should have been instructed not to consider the race of the shooting victim.

The Court also found that the trial court should have granted the City’s motion for a directed verdict because the officers’ discrimination claim was based on an improper legal theory.  Specifically, the officers claimed that they were denied field certification because they are Hispanic and the decedent was black.  In support of this claim, they introduced evidence of a white officer who shot a Hispanic suspect and subsequently was returned to field duty.  Essentially, the officers’ theory was that the jury could and should consider whether they were treated differently by the Department not simply because of their race, but also based upon the race of the decedent.

The Court noted that the jury was not given any instruction regarding how to consider the race of the decedent in determining whether the officers’ race was a substantial motivating factor for the denial of their field certification.  The Court determined that the absence of such an instruction allowed the officers to improperly argue that any decision based on race, including the race of the decedent, was sufficient to support a verdict finding discrimination.  However, to prevail in an action for discrimination, a plaintiff must establish that unfair treatment was based on the plaintiff’s race, not the race of a third party.  As the Court noted, “[a] claim that asserts disparate treatment based upon the race of the victim of police conduct is not an employment discrimination claim.”

The Court found that the City’s reasons for not certifying the officers for field duty, namely reducing the risk to the department if the officers were involved in another shooting, negative public perception, and the officers’ own safety were valid non-discriminatory reasons.  Because the officers failed to discredit these non-discriminatory reasons for keeping them from field duty, their discrimination claim failed.


The Diego case reinforces the fact that law enforcement agencies may properly consider factors such as risk-management, public perception, and officer safety when making employment decisions without violating anti-discrimination laws.  In defending claims based upon violations of an employee’s rights, employers must be prepared to demonstrate through competent evidence that their employment decisions were founded upon these permissible factors, rather than a discriminatory reason based upon an employee’s protected status.  This decision also clarifies that it is improper to rely upon a third party’s status in order to establish a discrimination claim under facts and circumstances similar to those presented in the Diego case.

As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at jrt@jones-mayer.com [for James Touchstone] or kfc@jones-mayer.com [for Keith Collins].

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[1] 2017 Cal.App.LEXIS 797.