Arbitrator Awards Game Warden Pay for Off-duty Enforcement Action
CLSEA Victory Reinforces 24/7 Nature of Peace Officer Authority
The two dogs had plagued the hatchery grounds almost from the moment they arrived. Belonging to a non-enforcement hatchery employee, they frequently escaped their yard and roamed State property. Hatchery staff confronted the dog owners often, asking that the dogs be better contained in their yard. On several occasions, hatchery staff – including Warden Dervishian – returned the snapping, growling dogs to their enclosure in the owners’ absence. Fearing for his own dog’s safety, Dervishian constructed a higher fence between their properties, at his own expense.
Despite frequent requests from coworkers, the owners failed to control the animals and the dogs continued to run loose.
On the date of the incident in question, Warden Dervishian pulled up to his house and found his neighbor’s brown dog wandering in front of a shared garage. This dog was slightly less aggressive, when alone, than the black dog with which it lived. The warden got out of his truck and tried to shoo the dog back to its side of the property line. Then the black dog, a Shar-Pei (or Chinese fighting dog as it’s sometimes called), and Chow mix rounded the corner of the garage.
The black dog displayed an aggressive posture. The other dog turned and joined its mate. Both approached the warden, who was now trapped between his truck and the garage door. Dervishian attempted to slowly back away as the dogs advanced. The black dog lunged, biting the warden’s leg. Dervishian drew his State-issued firearm and fired twice at the animal, but it continued to attack. Dervishian then fired a final shot, which resulted in the animal’s death.
Several agencies responded to the incident, including the Fresno County Sherriff’s Department, local animal control, the California Highway Patrol, hatchery staff and Fish & Game supervisors. Warden Dervishian also sought treatment for his dog bite. He spent a total of approximately 8 hours dealing with agencies, paperwork, and medical care. However, when Dervishian put in for the time he had spent relative to the incident, Fish and Game refused to recognize the incident’s enforcement nature.
Conflicting opinions soon developed between Warden Dervishian’s supervisor, then-Lieutenant Baker, and the Department regarding the enforcement nature of the warden’s actions. Lieutenant Baker supported compensating Warden Dervishian because a warden’s statutorily granted peace officer status extends regardless of whether the warden is on duty, and department policy clearly allowed for compensation of off-duty enforcement actions.
The Department, argued that Warden Dervishian did nothing more than defend himself, and declined to compensate him for his time.
CSLEA filed a grievance alleging the Department of Fish & Game violated Article 7.6 of the Unit 7 contract when it failed to compensate Dervishian for the hours he worked that day. The Department claimed that because Dervishian was on his day off and because he acted to protect himself, it owed no compensation.
Over two days of arbitration in February and March, 2007, CSLEA and the Department presented witnesses and arguments in support of their contentions. CSLEA relied on case law, department policy, and the testimony of Lt. Baker to support its contention Dervishian deserved compensation.
The Department never investigated, nor even questioned, the propriety of Warden Dervishian’s response to the situation. All testimony – from both CSLEA’s and the Department’s witnesses – indicated that he acted reasonably and consistent with the tactical situation.
The Attorney General has previously opined that wardens retain their peace officer status at all times, as do all California peace officers. Accordingly, a warden may act as a peace officer, even if not on-duty, when he or she witnesses a public offense. The California Penal Code and several Fresno County ordinances address vicious animals. Unconfined dogs with known propensities toward vicious behavior and aggression towards humans presented a threat to public safety in response to which Warden Dervishian was authorized to take action.
Instead of focusing on law or policy, the Department argued that because Dervishian was off-duty, out of uniform, acting in self-defense against dogs he knew, his actions were non-law enforcement in nature and he deserved no compensation. The Department argued that Warden Dervishian was protecting himself, not the public, and he was not acting under color of authority.
Further, the Department argued, Warden Dervishian acted as an angry neighbor, not as a peace officer. DFG claimed he had a personal grudge against the dog owners and was attempting to use his badge to avoid liability for the incident. The Department called the dog owners as witnesses. They testified that they received no complaints about the dogs and that the dogs seldom escaped their enclosures. They testified that Warden Dervishian taunted and antagonized the dogs while doing yard work by wearing camouflage colored clothing along with sunglasses and a dust mask.
One of the owners, went so far as to testify that she ran from her house to find the warden standing over the dog with his gun still drawn – and that he continued to fire on the animal, after she had gathered it in her arms in an attempt to protect it. However, the owners’ testimony was contradicted by hatchery staff and ballistics data gathered by the Fresno County Sheriff’s Department.
On July 2, 2007, Arbitrator Catherine Harris agreed with CSLEA and found the Department violated the Unit 7 contract because Warden Dervishian had, in fact, taken an enforcement action to protect public health and safety – action compensable under our contract, Department policy, and California law recognizing the 24/7 nature of a peace officer’s authority.
Relying on State law and the Department of Fish and Game’s own policy manual, the arbitrator concluded that Warden Dervishian acted to protect the public interest and was due compensation for cooperating with responding agencies and following department protocol subsequent to his being attacked by a neighbor’s vicious dog.
Case law and the Attorney General have found that off-duty peace officers may take enforcement actions under appropriate circumstances. The Department’s policies recognize that an off-duty officer may take enforcement action to protect public safety. Policy also allows game wardens to enforce non-fish and game code violations when appropriate. Warden Dervishian engaged in an enforcement action to protect public health and safety when he killed the neighbor’s dog; an animal known by all hatchery residents to be ill-socialized and aggressive.
The arbitrator concluded that the firing of a duty weapon in response to an act of aggression must be considered an enforcement action unless the weapon was fired inappropriately or without justification. She went on to add that once a duty weapon is fired, there are two possible outcomes: either the officer acted within his authority as a peace officer; or he acted outside that authority, in which case, he is subject to discipline. It would be an oxymoron, to find a middle ground where an officer intentionally fires a duty weapon in self defense while retaining their private citizen status.
Arbitrator Harris also found that nothing in the record supported the Department’s contention that Warden Dervishian bore or acted out a grudge against his neighbors. Rather, the evidence established that he tried to bring the potential liability of the situation to the attention of his supervisors and took steps at his own expense to minimize his interaction with the dogs and their owners. There is simply no factual basis for the contention that Warden Dervishian sought a confrontation or that he killed the dog as part of a premeditated plan of vengeance.
CSLEA is proud to have championed Warden Dervishian’s grievance to a successful outcome – a decision affirming both his right to compensation and his authority as a peace officer dedicated to protecting not just California’s resources, but public health and safety as well.
A copy of the Arbitration Award is attached at the link below.
CLSEA Victory Reinforces 24/7 Nature of Peace Officer Authority
Source: Christiana Dominguez, Legal Counsel
Date: 7/13/2007
The two dogs had plagued the hatchery grounds almost from the moment they arrived. Belonging to a non-enforcement hatchery employee, they frequently escaped their yard and roamed State property. Hatchery staff confronted the dog owners often, asking that the dogs be better contained in their yard. On several occasions, hatchery staff – including Warden Dervishian – returned the snapping, growling dogs to their enclosure in the owners’ absence. Fearing for his own dog’s safety, Dervishian constructed a higher fence between their properties, at his own expense.
Despite frequent requests from coworkers, the owners failed to control the animals and the dogs continued to run loose.
On the date of the incident in question, Warden Dervishian pulled up to his house and found his neighbor’s brown dog wandering in front of a shared garage. This dog was slightly less aggressive, when alone, than the black dog with which it lived. The warden got out of his truck and tried to shoo the dog back to its side of the property line. Then the black dog, a Shar-Pei (or Chinese fighting dog as it’s sometimes called), and Chow mix rounded the corner of the garage.
The black dog displayed an aggressive posture. The other dog turned and joined its mate. Both approached the warden, who was now trapped between his truck and the garage door. Dervishian attempted to slowly back away as the dogs advanced. The black dog lunged, biting the warden’s leg. Dervishian drew his State-issued firearm and fired twice at the animal, but it continued to attack. Dervishian then fired a final shot, which resulted in the animal’s death.
Several agencies responded to the incident, including the Fresno County Sherriff’s Department, local animal control, the California Highway Patrol, hatchery staff and Fish & Game supervisors. Warden Dervishian also sought treatment for his dog bite. He spent a total of approximately 8 hours dealing with agencies, paperwork, and medical care. However, when Dervishian put in for the time he had spent relative to the incident, Fish and Game refused to recognize the incident’s enforcement nature.
Conflicting opinions soon developed between Warden Dervishian’s supervisor, then-Lieutenant Baker, and the Department regarding the enforcement nature of the warden’s actions. Lieutenant Baker supported compensating Warden Dervishian because a warden’s statutorily granted peace officer status extends regardless of whether the warden is on duty, and department policy clearly allowed for compensation of off-duty enforcement actions.
The Department, argued that Warden Dervishian did nothing more than defend himself, and declined to compensate him for his time.
CSLEA filed a grievance alleging the Department of Fish & Game violated Article 7.6 of the Unit 7 contract when it failed to compensate Dervishian for the hours he worked that day. The Department claimed that because Dervishian was on his day off and because he acted to protect himself, it owed no compensation.
Over two days of arbitration in February and March, 2007, CSLEA and the Department presented witnesses and arguments in support of their contentions. CSLEA relied on case law, department policy, and the testimony of Lt. Baker to support its contention Dervishian deserved compensation.
The Department never investigated, nor even questioned, the propriety of Warden Dervishian’s response to the situation. All testimony – from both CSLEA’s and the Department’s witnesses – indicated that he acted reasonably and consistent with the tactical situation.
The Attorney General has previously opined that wardens retain their peace officer status at all times, as do all California peace officers. Accordingly, a warden may act as a peace officer, even if not on-duty, when he or she witnesses a public offense. The California Penal Code and several Fresno County ordinances address vicious animals. Unconfined dogs with known propensities toward vicious behavior and aggression towards humans presented a threat to public safety in response to which Warden Dervishian was authorized to take action.
Instead of focusing on law or policy, the Department argued that because Dervishian was off-duty, out of uniform, acting in self-defense against dogs he knew, his actions were non-law enforcement in nature and he deserved no compensation. The Department argued that Warden Dervishian was protecting himself, not the public, and he was not acting under color of authority.
Further, the Department argued, Warden Dervishian acted as an angry neighbor, not as a peace officer. DFG claimed he had a personal grudge against the dog owners and was attempting to use his badge to avoid liability for the incident. The Department called the dog owners as witnesses. They testified that they received no complaints about the dogs and that the dogs seldom escaped their enclosures. They testified that Warden Dervishian taunted and antagonized the dogs while doing yard work by wearing camouflage colored clothing along with sunglasses and a dust mask.
One of the owners, went so far as to testify that she ran from her house to find the warden standing over the dog with his gun still drawn – and that he continued to fire on the animal, after she had gathered it in her arms in an attempt to protect it. However, the owners’ testimony was contradicted by hatchery staff and ballistics data gathered by the Fresno County Sheriff’s Department.
On July 2, 2007, Arbitrator Catherine Harris agreed with CSLEA and found the Department violated the Unit 7 contract because Warden Dervishian had, in fact, taken an enforcement action to protect public health and safety – action compensable under our contract, Department policy, and California law recognizing the 24/7 nature of a peace officer’s authority.
Relying on State law and the Department of Fish and Game’s own policy manual, the arbitrator concluded that Warden Dervishian acted to protect the public interest and was due compensation for cooperating with responding agencies and following department protocol subsequent to his being attacked by a neighbor’s vicious dog.
Case law and the Attorney General have found that off-duty peace officers may take enforcement actions under appropriate circumstances. The Department’s policies recognize that an off-duty officer may take enforcement action to protect public safety. Policy also allows game wardens to enforce non-fish and game code violations when appropriate. Warden Dervishian engaged in an enforcement action to protect public health and safety when he killed the neighbor’s dog; an animal known by all hatchery residents to be ill-socialized and aggressive.
The arbitrator concluded that the firing of a duty weapon in response to an act of aggression must be considered an enforcement action unless the weapon was fired inappropriately or without justification. She went on to add that once a duty weapon is fired, there are two possible outcomes: either the officer acted within his authority as a peace officer; or he acted outside that authority, in which case, he is subject to discipline. It would be an oxymoron, to find a middle ground where an officer intentionally fires a duty weapon in self defense while retaining their private citizen status.
Arbitrator Harris also found that nothing in the record supported the Department’s contention that Warden Dervishian bore or acted out a grudge against his neighbors. Rather, the evidence established that he tried to bring the potential liability of the situation to the attention of his supervisors and took steps at his own expense to minimize his interaction with the dogs and their owners. There is simply no factual basis for the contention that Warden Dervishian sought a confrontation or that he killed the dog as part of a premeditated plan of vengeance.
CSLEA is proud to have championed Warden Dervishian’s grievance to a successful outcome – a decision affirming both his right to compensation and his authority as a peace officer dedicated to protecting not just California’s resources, but public health and safety as well.
A copy of the Arbitration Award is attached at the link below.
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