STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-0181
)
MARK A. EMME, )
)
Respondent. )
)
RECOMMENDED ORDER
The formal administrative hearing in this case was held before William C. Sherrill, Jr., Hearing Officer, in Ft. Myers, Florida, on July 16, 1987.
Appearing for the parties were:
For Petitioner: Joseph S. White, Esquire
Florida Department of Law Enforcement Post Office Box 1498
Tallahassee, Florida 32302
For Respondent: William G. Whitcomb, Esquire
1534 Hendry Street, Suite 202 Fort Myers, Florida 33901
On November 28, 1986, the Criminal Justice Standards and Training Commission filed an administrative complaint alleging that the Respondent, Mark
Emme, used excessive force in the arrest and intentional beating of two persons on April 29, 1985. The administrative complaint proposed to revoke the Respondent's law enforcement certificate. The Respondent requested a formal administrative hearing.
The Petitioner presented the testimony of Marc Jay Haag, Ronald Hudnall, Steven Ford, Curtis Richard Roberts, Steve Edlin, Charles C. Powell, and George Mitar, and 6 exhibits which were admitted into evidence. The Respondent presented the testimony of Arlan Roan, Bernard Moorer, Sergeant Beckler, Daniel Timothy McGill, and Mark A. Emme, and 6 exhibits which were admitted into evidence. There is a transcript. The parties submitted proposed findings of fact and conclusions of law.
The Respondent filed a motion to dismiss on July 2, 1987, and that motion was taken under advisement.
FINDINGS OF FACT
The Respondent, Mark A. Emme, was certified by the Criminal Justice Standards and Training Commission on June 6, 1983, and issued certificate number 02-33713. Answer, para. 1. On the night of April 29, 1985, the Respondent was employed as a Deputy Sheriff for the Lee County Sheriff's office and was on duty as a patrol officer assigned to a patrol car.
The Respondent received a call to go to the Malibu Apartments to investigate a complaint of trespass or disturbance caused by Marc Haag. T. 151. In the week or so prior to this, the Respondent had investigated an alleged assault by Mr. Haag upon his former girlfriend. Id. In the few days following that investigation, the Respondent had been called to the apartment two or three times due to alleged disturbances by Mr. Haag, but each time he and other officers arrived, Mr. Haag had departed. T. 150-51. Two people lived in the apartment, Jean Price and Lori Johnson. T. 151. Ms. Price had informed the Respondent that Mr. Haag was not allowed in her apartment.
Upon arrival at the apartment, the Respondent learned from Ms. Johnson that Mr. Haag did not have permission to be in the apartment. The Respondent was escorted to Ms. Price's bedroom by Ms. Johnson and her boyfriend, Dan Polakoff. Mr. Haag was inside the bedroom. T. 151.
Mr. Haag has studied and trained in an oriental martial art (tae kwon do) for 25 years, and has fought in over 400 amateur fights. T. 11, 38.
Mr. Haag was intoxicated on the evening of April 29, 1985. T. 48.
Mr. Haag asserted that Ms. Johnson was the only person who lived in the apartment. T. 28. Thus, Ms. Johnson, upon Mr. Haag's own admission, had the authority to ask him to leave.
Mr. Haag admitted that the events that occurred on April 29, 1985, were "domestic-related," and that he and his girlfriend were having "domestic problems." T. 9, 26.
Mr. Haag was evasive about these "domestic problems" or about "his case," the charge of trespass or disorderly conduct. He initially refused to answer any questions concerning the nature of these problems. T. 26-27.
Mr. Haag denied that Ms. Johnson had asked him to leave the apartment prior to the arrival of the police officers. T. 28. He initially disclaimed memory of whether Mr. Polakoff was present outside the apartment when he had been escorted outside by the Respondent. T. 30. He disclaimed any memory of Mr. Polakoff saying anything to him or arguing with him outside the apartment.
T. 31. He claimed he could not remember having any problem with Mr. Polakoff, or arguing with Mr. Polakoff. T. 37. It is not credible that Mr. Haag would forget these matters given the clear evidence that Mr. Haag was trying to sleep in a bedroom in Ms. Johnson's apartment, Ms. Johnson had called the police to have Mr. Haag evicted and arrested, and Mr. Polakoff yelled at Mr. Haag and assaulted him outside the apartment. Mr. Haag had an interest in avoiding conviction of criminal charges arising from his presence in the apartment and his arrest on April 29, 1985. (Charges against Mr. Haag were ultimately not prosecuted.) This, coupled with his apparent evasion of the issues underlying his emotional state at the time of the arrest make his version of his own arrest unworthy of belief.
Thus, the findings of fact which follow concerning the arrest of Mr. Haag are based upon the testimony of Deputy Sheriff Hudnall and the Respondent, rather than of Mr. Haag. It should be noted that the "statements" of Mr. Polakoff and Ms. Johnson were never properly placed into evidence (see the discussion in the Appendix), and thus are not evidence in the record concerning the arrest of Mr. Haag.
The Respondent knocked on the bedroom door. The door was closed and locked. T. 151. Mr. Haag came to the door and opened it. Seeing that it was a police officer, he tried to close the door. The Respondent inserted his flashlight in the opening, and forced his way in. Id.
The Respondent asked Mr. Haag why he was present in Ms. Johnson's apartment. Mr. Haag stepped back and assumed a karate stance. T. 152. Prior to confronting Mr. Haag, the Respondent had been warned that Mr. Haag had a violent temper, that he knew an oriental martial art (tae kwon do), and that he could easily injure the Respondent. T. 167.
Mr. Haag was advised that he must leave or be arrested for disorderly conduct or trespass. T. 152. Mr. Haag insisted he had a right to be there. Id. The Respondent ordered Mr. Haag to leave, telling Mr. Haag that Ms. Johnson had called the police and wanted him to leave. Id. At that point, the Respondent informed Mr. Haag that he was under arrest. Id.
The Respondent then tried to grab Mr. Haag. Mr. Haag backed away and assumed a karate stance. T. 152. The Respondent seized Mr. Haag's arm, wrestled him to the floor, placed his flashlight behind Mr. Haag's neck, and handcuffed Mr. Haag. T. 152-53. Mr. Haag struggled, but did not use his martial arts skills either by choice or due to the fact that he was intoxicated. T. 167.
The Respondent then forcibly escorted Mr. Haag out of the apartment to the patrol car. Mr. Haag repeatedly asked the Respondent for his shoes, but the Respondent continued to move Mr. Haag out of the apartment. T. 9. Mr. Haag resisted all of the way, and the Respondent had to pull up on the handcuffs to make Mr. Haag move out of the room to the car. T. 153-54. During the entire arrest, Mr. Haag talked back to the Respondent, and physically resisted the arrest, but did not offer violent resistance (resistance intended to or likely to harm the arresting officer).
On the way out, the Respondent and Mr. Haag were followed by Mr. Polakoff. T. 153.
Once outside, the Respondent "put" Mr. Haag on the hood of the car.
T. 154. It is likely due to the resistance of Mr. Haag that Mr. Haag was placed upon the hood of the car in a rough manner. At this point, Deputy Sheriff Ronald Hudnall arrived to assist. T. 44. When he arrived, Deputy Sheriff Hudnall observed Mr. Haag on the hood of the patrol car and the Respondent behind Mr. Haag "keeping him secure." T. 45.
Deputy Sheriff Hudnall became primarily involved with Mr. Polakoff. Mr. Polakoff was "very verbal," and was angrily yelling at Mr. Haag. T. 45,
154. While Mr. Haag was lying on the hood, Mr. Polakoff assaulted Mr. Haag, trying to strike Mr. Haag in the face, and causing Mr. Haag to hit the hood of the patrol car. T. 47-48, 154. Deputy Sheriff Hudnall took Mr. Polakoff to the rear of the car. T. 154, 48.
During the time that Deputy Sheriff Hudnall was present, Mr. Haag was very loud and obnoxious. T. 48. He was yelling such things as "what are you arresting me for," and generally screaming and yelling. T. 46. He also was screaming that he wanted his shoes. T. 154. The Respondent was having a difficult time getting Mr. Haag into the patrol car, and kicked Mr. Haag on the leg or in the mid-section to put him in the car. T. 46. Mr. Haag's shoes were then placed in the patrol car. T. 155.
Mr. Haag suffered a bruise to his arm and hip and the tops of his toes on one foot were skinned during the arrest. P. Exs. 3-6. Mr. Haag had no shoes on during the arrest. Mr. Haag was injured when his foot was caught beneath a door during the arrest. T. 116. These injuries were proximately caused by Mr. Haag's resistance to the arrest and by the reasonable efforts of the Respondent to effectuate the arrest in the face of this physical resistance.
The Respondent then left the Malibu Apartments intending to take Mr. Haag to the Lee County Jail.
Enroute to the Lee County Jail, the Respondent saw a car making a left hand turn the wrong way into the south bound lane of highway 41, which is a divided highway, and driving the wrong way. The Respondent pursued the car at a high rate of speed, and three oncoming cars were forced off the road. Eventually, the Respondent pulled the driver over on the median of the highway. T. 155-56.
The driver, John Mossup, was very intoxicated, and had to lean on his car for support. T. 156. Mr. Mossup had been arrested once before for driving under the influence, loitering, and prowling. T. 160. The Respondent attempted to administer a field sobriety test, but had difficulty because Mr. Mossup was so drunk and had trouble paying attention. T. 157. An officer often has to raise his voice to get the attention of an intoxicated person to administer a sobriety test in the field. T. 176. The engines of nearby cars were running, and additional background noise came from passing traffic. T. 157.
As the Respondent attempted to administer the sobriety test, City of Ft. Myers officer Curtis Richard Roberts arrived. Officer Roberts was accompanied by an Officer Dennison, who did not testify. The Respondent was by this time quite upset, and was yelling at Mr. Mossup to shut up. T. 76.
At about the same time, Lee County Deputy Sheriff Steven Ford also arrived. T. 50-51. He told the Respondent to stop the test and arrest Mr. Mossup. T. 158.
The Respondent then placed Mr. Mossup under arrest, and told him to place his hands on the hood of the car so that the Respondent could conduct a frisk search. T. 52. Mr. Mossup refused and tightened up, thus making it difficult for the Respondent to handcuff him. T. 52-53. He was yelling obscenities, but was not trying to hit the police officers. T. 77-78. The Respondent had to overcome this resistance with force. He did so with the assistance of Deputy Ford. T. 53. The force used by these offices to handcuff Mr. Mossup at this point was reasonable in light of the resistance put up by Mr. Mossup.
After Mr. Mossup had been handcuffed, he continued to be uncooperative, stating at times that he needed his medicine in his car, and would not go to the Respondent's car. T. 54. He was pulling away, and
attempting to keep himself from being pulled to the rear of the sheriff's car. The Respondent struck Mr. Mossup several times in the ribs with his fist. T. 55, 159, 78.
When the Respondent and Mr. Mossup got to the sheriff's car, Mr. Mossup refused to get in. T. 53. The Respondent struck Mr. Mossup in the stomach with his flashlight, causing Mr. Mossup to double over; Mr. Mossup sat in the car, and his feet were moved inside by the officers. T. 53-54, 161.
There are ways to persuade an uncooperative person to submit to an arrest and handcuffing, which include talking to him and, if that fails, to apply pressure to places such as finger joints or on the handcuffs, or bending a finger out of place, all of which cause pain to the person arrested and make struggle less attractive. T. 56-57, 79. One of the two other officers on the scene would have used other such tactics to get Mr. Mossup into the patrol car.
T. 57. The arresting officer on the scene the longest will typically have greater insight into which techniques are needed to subdue a belligerent person during an arrest. T. 62. The Respondent struck Mr. Mossup during the arrest in the ribs with his fists and in the stomach with his flashlight because the arrest was taking place in the median of a busy highway, and the Respondent wanted to complete the arrest quickly before Mr. Mossup pushed or caused a bystander or an officer to fall into the highway to be injured or killed. T. 159-60.
Mr. Mossup may have had a small lump above his left eye when he was placed in the car, and had a scab on his nose, but otherwise his face was not injured in the way it became injured later; that is, the left eye was not swollen shut, and his face was not lacerated and bleeding. T. 63, 156, 68-69, 17.
After Mr. Mossup had been placed in the left-hand side (driver's side) of the back seat of the Respondent's car, he continued to yell and began to kick the screen separating the back seat from the front seat, and to hit the top of his forehead against the window. T. 17, 67-68. Mr. Mossup's primary concern continued to be his medicine. T. 61, 57. The Respondent walked to the back of his car and told Mr. Mossup to stop. T. 80. Mr. Haag testified that the Respondent sprayed mace into the back seat, T. 24, but this testimony is rejected as not credible. T. 83, 64-66, 108, 141, 144.
Although he was doing everything possible to cause a disturbance, T. 32, and it was a possibility that the window might have been broken, T. 68, Mr. Mossup did not appear to be banging on the car with enough force or with the intention to hurt himself, T. 80, 33, and neither of the two of the other officers on the scene observed any injuries to Mr. Mossup's face or head after he caused this commotion. T. 81, 84. While it is true that the windows in the back seat were tinted, T. 168, it is unclear to what degree this might have made it more difficult to see Mr. Mossup in the back seat. Several officers testified that they saw Mr. Mossup acting violently in the back seat, and no officer testified that it would have been impossible to see into the back seat from the outside.
The Respondent asked Deputy Sheriff Ford if he could transport Mr. Mossup, but he could not because he was needed to stay on patrol in the area.
T. 163. Thus, the Respondent had to take both prisoners to the jail in his car. The Respondent normally would not have attempted to transport two such prisoners when one was violent to begin with. T. 163. Deputy Sheriff Ford was the senior officer, however. Id.
During the drive to the jail, Mr. Mossup continued to yell obscenities at the Respondent, to taunt the Respondent with insults, to kick the screen between the front and back seats, and to bang either his head or his feet against the window in the back seat. T. 18, 163-64. Mr. Mossup was directly behind the Respondent, and thus could not be seen by the Respondent. T. 164. The Respondent told Mr. Mossup that if he did not stop, he (the Respondent) would do something about it. T. 18. Mr. Mossup continued the disturbance. Id. Mr. Haag shouted that Mr. Mossup was about to break the window. Id. The Respondent called headquarters on his radio stating that his prisoner was becoming disorderly in the back-seat and mentally disordered, and asked for another unit to meet him. T. 58, 164. Headquarters dispatched Deputy Sheriff Steven Edlin to assist. T. 58, 87.
The Respondent stopped his car, got out, and opened the back door on the driver's side. Mr. Mossup may have then kicked the Respondent in the wrist,
T. 164, 25, 36, but if he did, the blow was not enough to cause the Respondent to be unable to use his hand to punch. The Respondent's wrist was bruised after the incident. T. 164.
The Respondent then lost control of his temper. T. 26. He took Mr. Mossup out of the car and punched him seven or eight times in the face. T. 19-
Mr. Mossup's hands were still handcuffed behind his back. Mr. Mossup fell to the ground screaming that the Respondent not hit him any more. T. 20-21. The Respondent punched him a few more times while he was on the ground. Id. Mr. Mossup continued to scream not to hit him any more. T. 21. All of his hostilities were gone at this point. Id.
Deputy Sheriff Steven Edlin then arrived. T. 87. He arrived after the beating had ceased. T. 21, 166. As he arrived, he saw the Respondent's car parked in the roadway, and saw Mr. Mossup lying face down on the ground by the vehicle. T. 87. Mr. Mossup's head was towards the front of the vehicle, about four feet from the car. T. 92. The Respondent was standing by the door of his car, and the back door on the driver's side was open. T. 92-93.
The Respondent said to Deputy Sheriff Edlin that he thought he had broken his hand. T. 88.
Deputy Sheriff Edlin immediately took Mr. Mossup into custody to transport him to the jail. T. 89. Mr. Mossup was hysterical and crying; his left eye was swollen completely shut, he had a cut across the bridge of his nose, and he was bleeding badly from his face. Id.; T. 59, 20; P. Ex. 1. While Mr. Mossup was crying, he told Deputy Sheriff Edlin that the Respondent had "beat the shit out of him." T. 59. This statement apparently occurred within only a few minutes of the beating, and while Mr. Mossup was still in a hysterical state from the beating. T. 21, 166.
Upon arrival at the jail, Sergeant Charles C. Powell determined that Mr. Mossup needed medical treatment; he refused to allow Mr. Mossup to be admitted to the jail until he had had medical treatment. T. 98. Mr. Mossup was still extremely upset, and stated that an officer had beat him up. Id.
The injuries that Mr. Mossup had when he arrived at the jail were much different than the small lump observed above his eye when he was first arrested. T. 69.
The next morning, there was a red substance that appeared to be blood on the edge of the front seat, the cage area separating the front and back seat, and on the floor of the back seat of the Respondent's car. T. 139. The substance was never analyzed to verify that it was blood. T. 144.
Since Mr. Mossup had a scab on the bridge of his nose when he was arrested, and a blood-like substance was found the next day in the Respondent's car, it is possible that banging around in the back seat by Mr. Mossup caused the scab to have been torn and to have been a partial cause of the bleeding later observed on Mr. Mossup's face.
This, however, does not explain how Mr. Mossup received the injury to his eye. Nor is the existence of some bleeding caused by Mr. Mossup himself inconsistent with additional bleeding injuries caused later by the Respondent. As will be discussed ahead, the preponderance of the evidence leads to the conclusion that the Respondent beat Mr. Mossup as found in finding of fact 36.
The Respondent related to Sergeant Powell what had happened with Mr. Mossup on the way to the jail. The Respondent's version of what happened as related briefly to Sergeant Powell was essentially the same as his testimony at the formal administrative hearing.
The Respondent's version of events is contradicted in significant ways by Deputy Sheriff Edlin's observations. The Respondent asserted that after he stopped the car and opened Mr. Mossup's door, Mr. Mossup came out of the patrol car aggressively, kicking and moving toward the Respondent. T. 164-65, 100.
The Respondent further claimed that he and Mr. Mossup fell to the ground, and that he (the Respondent) then stood up and closed the back door of the patrol car. T. 165. The Respondent then stated that Mr. Mossup tried to get up, and the Respondent had to hold Mr. Mossup as close to the car as possible to hold him down, and that Mr. Mossup's head was toward the trunk, or the rear of the vehicle. Id. At the jail on the night in question when he arrived, the Respondent told Sergeant Powell that he had had to hold Mr. Mossup down until another officer got there. T. 100.
Mr. Mossup was six feet two inches tall and weighed from 180 to 190 pounds. T. 156. The Respondent was five feet eight inches tall. If Mr. Mossup in fact had continued to struggle, to try to get up and assault the Respondent, as the Respondent testified, the Respondent would have been holding Mr. Mossup down when Deputy Sheriff Edlin arrived, and Mr. Mossup would have been struggling angrily.
Yet Deputy Sheriff Edlin testified that when he arrived, the car door was open, the Respondent was not holding an angry, violent Mr. Mossup down, but was standing up. Mr. Mossup was lying with his head toward the front of the car, not wedged against the car toward the trunk. Mr. Mossup was not behaving like an angry drunk who had just assaulted a police officer, but was behaving like a drunk who had just been beaten: he was crying and hysterical. See finding of fact 39 above.
These are important differences. If true, the observations of Deputy Sheriff Edlin show that when Deputy Sheriff Edlin arrived, the door was open, Mr. Mossup was no longer violent or aggressive, but was defeated and hysterical, that the Respondent was not holding down a violent prisoner, but was standing over a substantially intoxicated prisoner who had been beaten into submission.
Another bit of evidence consistent with the conclusion that the Respondent beat Mr. Mossup is the fact, as testified to by the Respondent, that the Respondent opened the back door after he stopped. It would have been more consistent with a finding that Mr. Mossup assaulted the Respondent had Mr. Mossup opened the back door himself. But Mr. Mossup's hands were handcuffed behind his back. Mr. Mossup probably could not have opened the door himself. The Respondent did not explain why he opened the back door after he stopped. With a backup officer on the way, it would seem to have been more prudent for the Respondent to have left Mr. Mossup inside the car until help had arrived instead of opening the door to try to deal with Mr. Mossup alone. The only other reason for opening the door would have been to beat Mr. Mossup.
The Respondent testified that after Mr. Mossup left the car, he (the Respondent) closed the back door. However, this testimony has been rejected in favor of Deputy Sheriff Edlin's testimony that the door was open when he arrived. The fact that the door was open leads to the inference that Mr. Haag had a better view than had the door been closed. However, even if Mr. Haag viewed the beating through the tinted windows, there is no evidence that one could not see the outside through the tinted windows of the patrol car. It is inferred that the Lee County Sheriff's office did not tint the windows of its patrol cars so that one could not clearly see the outside from the inside of the patrol car.
While it is true that Mr. Haag was an unreliable witness with regard to the circumstances of his own arrest, his testimony concerning the beating of Mr. Mossup is supported by the physical evidence of injury to Mr. Mossup, by Mr. Mossup's own statements immediately after the incident and while still hysterical from the beating, and, most importantly, by the observations of Deputy Sheriff Edlin as discussed above. Deputy Sheriff Edlin had no reason to testify untruthfully, nor did it appear that he was mistaken in his observations when he arrived at the scene. His demeanor was straightforward, clear, and unequivocal. His observations are believed. The testimony of the Respondent is rejected as not credible.
There is insufficient credible evidence to conclude that the Respondent used excessive force in the arrest of Mr. Haag.
An internal investigation was conducted by Lieutenant George Miter of the Lee County Sheriff's Department. The allegations of excessive force against Mr. Mossup and Mr. Haag were sustained, and the Respondent was terminated from employment. T. 109-123. The reasons that the allegations were sustained are not known on this record because the evidence considered in the internal investigation is not a part of this record. Thus, this fact is of little weight in resolving issues presented in this case.
Prior to the night of April 29, 1985, there is no evidence that the Respondent used excessive force in making an arrest. His prior work with the Ft. Myers Police Department was acceptable and without complaint. T. 171; R. Exs. 5 and 6. He had made over 200 arrests, including arrest of persons driving under the influence, and had had no complaints or reports of excessive force.
T. 173. None of the five officers who testified and who worked for the Lee County Sheriff's office had heard any reports that the Respondent had previously used excessive force with respect to an arrest. T. 185, 146, 148, 49, 85. Reports of excessive force normally get around to other officers when excessive force occurs. T. 185, 149. He has been commended on several occasions for his work with other officers in making arrests or, on one occasion, in the confrontation and calming of a mentally ill person. R. Exs. 1-4. While this
evidence is favorable to the Respondent, it is not inconsistent with the finding that on the night of April 29, 1985, the Respondent lost his temper and beat Mr. Mossup.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this proceeding.
On July 2, 1987, the Respondent filed a motion to dismiss. The motion argues that the allegations of the administrative complaint do not constitute lack of "good moral character" as intended by sections 943.1395(5) and 943.13(7), Florida Statutes (1986). The motion was taken under advisement since it was filed so close to the commencement of the formal hearing.
The law governing beverage licenses uses the same licensing standard, "good moral character," as the standard at issue in this case. The First District Court of Appeal has stated that this standard is a matter to be developed by the facts. White v. Beary, 237 So.2d 263, 266 (Fla. 1st DCA 1970). That Court further has defined the "good moral character" standard contained in the beverage license law as follows:
Moral character ... means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character. But ... repeated acts in violation of law wherever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that the legislature ... has determined should not be entrusted with a liquor license.
Zemour, Inc. v. State of Florida, Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977).
"Good moral character" was defined by the Florida Supreme Court with respect to licensing as an attorney at law to include " ... acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners, re: G.W.L., 364 So.2d 454, 458 (Fla. 1978).
The Zemour, Inc. case pointed out that an "isolated act or acts of indiscretion ... do not necessarily establish bad moral character." (E.S.) 347 So.2d at 1105. The same principle guided the First District Court of Appeal in Bachynsky v. State of Florida, Department of Professional Regulation, Board of
Medical Examiners, 471 So.2d 1305, 1311 (Fla. 1st DCA 1985), where the offense was not related to the practice of medicine, was an isolated event, and there was evidence of rehabilitation.
The administrative complaint alleges that on April 29, 1985, the Respondent intentionally beat and inflicted physical injury upon two persons after those persons had been subdued and were submissive to arrest. A law enforcement officer occupies a special and difficult position of public trust. A law enforcement officer is privileged under the law to use reasonable force to effectuate a lawful arrest. Sections 776.05 and 776.07, Florida Statutes (1986). The grant of such authority carries with it a correspondingly substantial responsibility to refrain from the intentional infliction of harm during an arrest. While only two instances of intentional beating are alleged, such acts would clearly be condemned by law-abiding people. The administrative complaint cannot be said to be defective as a matter of law, but should await development of the facts. For these reasons, the motion to dismiss should be denied.
A law enforcement license cannot be revoked unless there is clear and convincing proof of substantial causes justifying the forfeiture. Ferris v. Turlington, 12 F.L.W. 393 (Fla. 1987).
The proof of use of excessive force in the arrest of Mr. Haag was not clear and convincing, and thus that portion of the administrative complaint has not been proven on this record.
With respect to the issue of excessive force in the arrest of Mr. Mossup, the Respondent objected that the statement by Mr. Mossup to Deputy Sheriff Edlin that he had been beaten was inadmissible hearsay. T. 90-91.
Mr. Mossup's statement was made immediately after the beating had occurred, was spontaneous, and was made during Mr. Mossup's excitation caused by the beating. The statement described and explained an event or condition (the beating) that had occurred immediately before. The statement also related to a startling event and condition (the beating) and was made under the stress of excitement caused by that event or condition. Thus, the statement is admissible as an exception to the hearsay rule. The Unavailability of Mr. Mossup to testify is immaterial in this instance. Sections 90.803(1) and (3), Florida Statutes (1986).
The Respondent also argued that the statement made by Mr. Mossup to Sergeant Powell upon arrival at the jail was hearsay. T. 106. This second statement was made while Mr. Mossup was still in a highly disturbed condition caused by the beating. While there is no direct evidence as to how long it took to drive to the jail, it is probable that the drive was not long in duration. Thus, the second statement is probably also an exception to the hearsay rule. But whether it is or is not an exception to the hearsay rule need not be decided because the second statement, even if hearsay, may properly be relied upon to substantiate the finding of fact that Mr. Mossup was beaten because that fact is supported by evidence that is not hearsay: the earlier statement of Mr. Mossup and the testimony of Deputy Sheriff Edlin and Mr. Haag. Section 120.58(1)(a), Florida Statutes (1986).
There is clear and convincing evidence in this record that the Respondent lost his temper and intentionally beat Mr. Mossup. When Deputy Sheriff Edlin arrived, Mr. Mossup was not struggling on the ground, and the Respondent was not attempting to hold him down. Mr. Mossup was lying on the
ground, and the Respondent was standing over him. Moreover, Mr. Mossup was hysterical and crying when Deputy Sheriff Edlin arrived, and was not belligerent and violent. His face was bloody, and his eye was injured so badly that it became swollen shut. In that injured and hysterical state, Mr. Mossup told Deputy Sheriff Edlin that he had been beaten. None of these injuries existed when Mr. Mossup was placed in the car at the scene of the arrest. It is improbable that the injuries shown in the photograph, P. Ex. 1, could have been caused by Mr. Mossup himself in the back seat of the car.
Moreover, it was the Respondent himself that had called for help, characterizing Mr. Mossup at that time as dangerously violent. When Deputy Sheriff Edlin arrived, the door of the car was open. The Respondent did not adequately explain why he opened the door to let an allegedly violent six foot two inch drunk out instead of waiting until help arrived. It must be concluded that the Respondent opened the door to beat Mr. Mossup.
Mr. Mossup's behavior was unquestionably reprehensible, and the Respondent would understandably have been angered by his taunts, obscenities, and violence. But Mr. Mossup was drunk and helpless; his hands were handcuffed behind his back. A law enforcement officer is entrusted with the high responsibility of preservation of the rights of all citizens. Preservation of public peace and prevention of personal violence are fundamental goals of law enforcement. The angry, uncontrolled beating of a drunken, handcuffed prisoner as shown in this case, even though a single instance, is substantial evidence of an inability to distinguish right from wrong, and to observe the difference. It is inconsistent with the qualities generally acceptable to the populace for a position of trust and confidence, that of law enforcement. Zemour, inc., supra,
347 So.2d at 1102. Even though the proof in this case establishes only a single act of wrongdoing, the lack of control that it evidences causes a reasonable man to have substantial doubts about the Respondent's fairness and respect for the rights of others and the laws of the state. Florida Board of Bar Examiners, supra, 364 So.2d at 458.
The Respondent, therefore, has not maintained good moral character as required by section 943.13(7), Florida Statutes (1986), and thus, pursuant to section 943.1395(5), Florida Statutes (1986) the Respondent's certification as a law enforcement officer should be revoked.
For these reasons, it is recommended that the Criminal Justice Standards and Training Commission enter its final order denying the motion to dismiss and revoking the certification of Mark A. Emme as a law enforcement officer.
DONE and ENTERED this 14th of September, 1987.
WILLIAM C. SHERRILL, JR.
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0181
The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties.
Findings of fact proposed by the Petitioner: As to Marc Haag:
10a, 10b, 14a, 14b, 14c. These proposed findings of fact are based upon statements of witnesses that were not properly offered into evidence. The statements were read or paraphrased by counsel, but were never authenticated, identified, or offered into evidence, and no witness testified that such statements were in fact made by anyone. Thus, these proposed findings are rejected for lack of evidence.
28, 29, 30, 31. These proposed findings are essentially irrelevant.
32, paragraphs 2, 4, and 5. These proposed findings are not relevant since Mr. Haag's testimony as to his own arrest has been rejected.
32, paragraph 7. Rejected for the reasons stated above with respect to proposed findings of fact 10 and 14.
As to John Mossup:
6 and 7. Subordinate to findings that Mr. Mossup was quite intoxicated.
13. There is no issue regarding the propriety of having administered a sobriety test, and thus this proposed finding is not relevant.
17, 18, 19, 19a, 19b, 20, paragraph 4. Subordinate to finding of fact 26. Moreover, the Petitioner does not assert in its proposed findings of fact that the portion of the arrest from handcuffing of Mr. Mossup to placement in the patrol car involved excessive force.
25, paragraph 2, "and that he was banging his head on the screen." Rejected due to subsequent clarifying testimony. T. 67.
25, paragraph 7. The time for manifestation of a black eye injury is not supported by the record. T. 73.
The proposed finding that Mr. Mossup was banging his head on the cage is not supported by clear enough testimony. See finding of fact 31.
The proposed finding that Mr. Mossup's injuries occurred prior to the arrest is rejected as discussed in finding of fact 30.
35, 36, 51. These proposed findings, based upon the testimony of the Respondent, have been rejected as not credible for the reasons discussed in findings of fact 36-52.
The proposed finding that Mr. Mossup was "giving everyone a hard time" at the sally port is rejected as discussed in findings of fact 39 and 40.
This proposed finding is not relevant. A smaller back seat is consistent with the evidence that Mr. Mossup was kicking the screen and banging his head on the window. The evidence does not suggest that the back seat was so small that Mr. Mossup's body was compressed into a position of complete immobility.
43 through 48. These proposed findings of fact are subordinate to, and supportive of, finding of fact 54.
52. The evidence supports a finding of that a blood-like substance was found, but a finding that it was blood is not supported by the evidence. Finding of fact 42.
Findings of fact proposed by the Respondent:
4. With respect to the second sentence, this proposed finding is based upon testimony of Mr. Haag which, in this instance, has been found to be not worthy of belief. See findings of fact 4-10. Thus, this finding of fact is rejected.
7, 9, and 11. These proposed findings are based upon testimony of Mr. Haag which, in this instance, has been found to be not worthy of belief. See findings of fact 4-10. Thus, these findings of fact are rejected. Further, proposed finding of fact 9 concerning the manner in which Mr. Haag's feet were injured, is rejected due to Mr. Haag's earlier inconsistent statement as to the cause of those injuries. Finding of fact 20.
16. The availability of "less forceful methods" was not shown by a preponderance of the evidence. It is clear that the Respondent tried to talk to him during the sobriety test, and Mr. Mossup was too drunk to respond to talking. Bending a person's finger out of place, or placing painful pressure on selected body points is not less violent than a blow to the ribs or the stomach. Use of pressure points may be less noticeable, but the pain is functionally equivalent. Moreover, Respondent was reasonably concerned about the safety of himself and others. Traffic was continuing to pass by on the highway, and Mr. Mossup was behaving drunkenly and unpredictably on the median.
COPIES FURNISHED:
Joseph S. White, Esquire
Florida Department of Law Enforcement Post Office Box 1498
Tallahassee, Florida 32302
William G. Whitcomb, Esquire 1534 Hendry Street, Suite 202 Fort Myers, Florida 33901
Rod Caswell, Director Criminal Justice Standards
Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Robert R. Dempsey Executive Director
Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Janet E. Ferris, Esquire General Counsel
Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
Petitioner,
vs. DOAH CASE NO.: 87-0181
CJSTC CASE NO.: L-1701
MARK A. EMME,
Certificate Number: 02-33713
Respondent.
/
FINAL ORDER
This above-styled matter came on for final action before the Criminal Justice Standards and Training Comission (hereinafter referred to as the "Commission") pursuant to Section 120.57(1)(b)(9), F.S., at a puilic hearing on January 28, 1988, in Atlantic Beach, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. Respondent was present with counsel, John C. Coleman, Esquire.
Upon a complete review of the transcript of record of the hearing held on July 16, 1987, in Fort Myers, Florida, the Report, Findings, Conclusions and Recommendations of the hearing Examiner dated September 14, 1987, all exceptions filed to said items and being otherwise fully advised in the premises, the Commission makes the following findings and conclusions:
FINDINGS OF FACT
The Commission, having reviewed the Recommended Findings of Fact adopts and incorporates by reference the findings of fact of the Hearing Officer except where they are in contradiction with the Respondent's exceptions which are attached hereto, adopted and fully incorporated herein by reference.
CONCLUSIONS OF LAW
Having reviewed the Recommended Conclusions of Law and the exceptions filed thereto, (which are attached hereto and incorporated by reference) the Commission adopts the Hearing Officer's conclusions of law except where they are contradicted by the Respondent's Exceptions which are attached hereto, adopted and fully incorporated herein by reference,
IT IS THEREFORE ORDERED AND ADJUDGED:
That the Hearing Officer's recommended disposition in the above referenced matter be rejected and the Administrative Complaint issued against the Respondent be Dismissed with prejudice.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this order is filed.
This Order shall become effective upon filing with the Clerk of the Department of Law Enforcement.
DONE AND ORDERED this 11th day of March, 1988.
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION
COLONEL BOBBY R. BURKETT, CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to MARK A. EMME, 604 Southeast 46th Street, Cape Coral, Florida 33910, by U.S. Mail on or before 5:00 P.M., this 16th day of March 1988.
cc: All Counsel of Record
| Issue Date | Proceedings |
|---|---|
| Sep. 14, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 11, 1988 | Agency Final Order | |
| Sep. 14, 1987 | Recommended Order | Respondent's certification as law enforcement officer should be revoked because he uncontrollably beat a drunk, handcuffed prisoner. |
