STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4482

)

THOMAS E. GIBBONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 5 and 6, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Dawn Pompey Whitehurst, Esquire

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Bruce H. Little, Esquire

2010 North Andrews Avenue

Fort Lauderdale, Florida 33311 STATEMENT OF THE ISSUE

Whether Respondent, a certified law enforcement officer, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint on January 22, 1991, which contains certain factual allegations, which asserts that based on the alleged facts the Respondent has failed to maintain good moral character, and which seeks to discipline Respondent's certification as a law enforcement officer. Respondent denied the material allegations of the Administrative Complaint, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Robert Grant, William A. Drossman, Phillip R. Seguin, and Richard P. Herbert. All of Petitioner's witnesses are law enforcement officers employed by the City of Fort Lauderdale Police Department. Respondent testified on his own behalf and presented the additional testimony of Robert F. Lamberti, Mary M. Negrey Grimm,

B. J. Cummins, Terrance L. Thomton, David M. Geyer, and Michael Jerome Jones (by

deposition and by video deposition). Mr. Cummins is an attorney who represents Mr. Jones. Mr. Jones is the alleged victim of excessive force administered by Respondent. All of Respondent's other witnesses are police officers employed by the City of Fort Lauderdale Police Department. At the times pertinent hereto, Respondent was a police officer employed by the City of Fort Lauderdale Police Department and assigned to the canine corps. Subsequent to the alleged events that underpin the administrative complaint, the City of Fort Lauderdale Police Department discharged Respondent. Petitioner presented two exhibits and Respondent presented three exhibits. All exhibits were accepted into evidence.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Thomas E. Gibbons, was certified by the Criminal Justice Standards and Training Commission on October 19, 1979, and was issued certificate number 99-2054.

   
   

2. At the times pertinent hereto, Respondent was a certified law enforcement officer employed by the City of Fort Lauderdale Police Department.

   
   

3. At the times pertinent hereto, Respondent, Officer Robert Grant, Officer William A. Drossman, and Officer Phillip Seguin were police officers employed by the City of Fort Lauderdale Police Department and were assigned to the canine unit (K-9 Unit).

   
   

4. On December 23, 1988, several City of Fort Lauderdale police officers became involved in a vehicle chase of a burglary suspect. The sequence of events described below occurred during the early morning hours before daylight, and resulted in the arrest of Michael Jerome Jones.

   
   

5. The Respondent, Officer Grant, Officer Drossman, Officer Seguin, and several other officers heard the call on the radio and responded to assist in apprehending the suspect. Law enforcement officers from other jurisdictions became involved in the chase of the suspect.

   
   

6. After being involved in the chase for a short while, the suspect abandoned his vehicle and sought to escape on foot. Among those involved in the foot chase of the suspect were the Respondent, Officer Grant, Officer Drossman, and Officer Seguin. Each of these K-9 officers utilized his dog in the chase.

   
   

7. The chase of the suspect occurred in the vicinity of Oswald Park and the subsequent apprehension occurred in a field adjacent to the park on the north. This area is out of the geographical jurisdiction of the Fort Lauderdale Police Department. Consequently, these K-9 officers had not worked in this area before. Between the park area and the area of the apprehension is a cyclone wire fence approximately five feet in height which was, at the time of the incident, covered with vines. Oswald Park is a lighted, fairly open area. The area of the apprehension is a field that was dark and overgrown with vegetation.

   
   

8. Officer Grant exited his vehicle on Northwest 27th Street, Fort Lauderdale, in pursuit of the suspect. Officer Grant first considered releasing his dog so that the dog could make a running hit on the suspect. Because another officer came between Officer Grant's location and the direction the suspect was heading, Officer Grant could not release his dog.

9. The officers involved in the chase surrounded the area in which the suspect had run. Officer Grant and his dog were stationed on the north side of the field. Several officers, including Officer Seguin, were in Oswald Park. Officer Grant believed Respondent to be west of the suspect.

   
   

10. Officer Drossman's dog tracked the suspect into a fenced yard.

    Officer Drossman located the suspect hiding on top of a two-story barn and told the suspect he was under arrest. Instead of obeying, the suspect jumped off the south side of the roof and continued to run toward Officer Grant's position.

    Officer Drossman and another officer advised Officer Grant by radio that the suspect was heading in his direction.

    
    

11. Officer Grant, who was on the northeast corner of the field, observed the suspect jump over the fence into the field. Officer Grant had his dog on a leash that was approximately fifteen feet in length. Officer Grant's dog tracked the suspect to the southeast corner of the field and located the suspect while he was lying face down on a sand hill. At no point after the point of apprehension did the suspect offer any resistance to any law enforcement officer. 1/

    
    

12. The conflicts in the evidence are resolved by finding that Petitioner established the following facts by clear and convincing evidence. Officer Grant's dog bit Mr. Jones at least once on the shoulder area of his outstretched right arm and held on to the shoulder, causing Mr. Jones to cry out in pain. Officer Grant placed Mr. Jones under arrest and handcuffed Mr. Jones using metal handcuffs with his hands in front. No other officer assisted Officer Grant in handcuffing Mr. Jones.

    
    

13. Respondent was in Oswald Park when he heard Officer Grant's dog make contact with Mr. Jones. Respondent believed that only one officer was at the arrest scene and decided to assist that officer. After he tied his dog to the fence separating Oswald Park and the arrest site, Respondent leaped over the fence, which was approximately five feet in height, and proceeded to the arrest area. Respondent dropped his flashlight 2/ while crossing the fence and located the arrest scene from the noises being made by Mr. Jones, Officer Grant, and Officer Grant's dog. Respondent ran from the southern area of the field over to where Officer Grant was standing with Mr. Jones.

    
    

14. After Mr. Jones was handcuffed, Officer Grant took his dog off and pulled Mr. Jones to his feet by pulling on the handcuffs. Officer Grant saw Officer Drossman and Officer Drossman's dog standing behind him while Officer Grant was lifting Mr. Jones off the ground.

    
    

15. Respondent arrived on the scene of the arrest just as Officer Grant was pulling Mr. Jones to his feet.

    
    

16. Respondent grabbed Mr. Jones and pulled him away from Officer Grant.

    
    

17. Respondent was making comments about how he had hurt his hand and got dirty trying to find Mr. Jones and then started striking Mr. Jones while Mr. Jones was handcuffed and not resisting. Respondent struck Mr. Jones with his fists in the upper torso area, causing him to fall to the ground, and kicked him several times. Respondent helped Mr. Jones to his feet and subsequently struck him again, causing him to fall to the ground.

18. Officer Seguin, who was stationed across the fence in Oswald Park, heard the suspect screaming and heard sounds like someone was being hit.

    Officer Seguin also testified that he saw the light from flashlights in the area of the arrest.

    
    

19. Mr. Jones never slipped a cuff during this incident, nor did he ever try to fight Respondent.

    
    

20. After Respondent stopped hitting Mr. Jones, Respondent walked south of the field with Mr. Jones to the fence. At the fence, Respondent prodded Mr. Jones to climb up on the fence by kicking him on the back of his legs. Once Mr. Jones was on the fence, Respondent pushed him so that Mr. Jones fell to the other side of the fence and into Oswald Park where Officer Seguin and Officer Salisbury were waiting. While the proof was sufficient to demonstrate that Respondent committed a battery upon Mr. Jones immediately following his arrest, it was insufficient to demonstrate that the manner in which Respondent caused Mr. Jones to cross the fence entailed the use of excessive force or that it constituted a battery on the person of Mr. Jones. Officers Salisbury and Seguin then took custody of Mr. Jones. 3/ Mr. Jones was handcuffed to the front at the time he came into the custody of Officer Seguin and Officer Salisbury. Officer Salisbury re-cuffed Mr. Jones with his hands behind his back and placed Mr. Jones in his police car. Officer Salisbury later returned Officer Grant's handcuffs to him.

    
    

21. Mr. Jones was transported back where he had abandoned his vehicle and the foot chase began. Respondent and most of the other officers involved in the chase gathered at this location. Sgt. Runnerstrom, who was the supervisor for the K-9 unit officers, was also present. The officers present thereafter engaged in a bull session wherein Respondent bragged about having made Mr. Jones, whom he called an "ass-hole", a lesson for making him sweat, jump the fence, and get dirty.

    
    

22. On January 12, 1989, some unknown party wrote a letter to Captain Thomas of the City of Fort Lauderdale Internal Affairs Department which in detail complained of Respondent's behavior on December 23, 1988. This letter was written from the perspective of someone who was at the scene of the arrest and charged Respondent with having used excessive force against Mr. Jones. The letter was delivered to an area of the police department that has restricted access.

    
    

23. This letter was assigned to Internal Affairs Sgt. Richard Herbert for investigation.

    
    

24. After Officer Grant, Officer Drossman, and Officer Seguin gave statements to Sgt. Herbert, each was separately approached by Respondent. Respondent first learned of the Internal Affairs investigation through another officer on March 9, 1989. Officer Grant testified that he could not remember exactly what Respondent had said to him, but that he construed the conversation as a request to modify the statement that Officer Grant had given to internal affairs by saying that it had been too dark for him to see whether Mr. Jones had slipped a cuff. Officer Grant also testified that Respondent never asked him to lie and that the conversation could have been interpreted differently. Officer Drossman testified that Respondent asked him to say that it was too dark for him to have seen what had happened. Officer Drossman also testified that Respondent did not ask him to lie. Officer Seguin testified that he had several conversations with Respondent about the matter, but that Respondent did not try to tell him what to say. Petitioner failed to establish by clear and convincing

    evidence that Petitioner asked Officer Grant or Officer Drossman to lie about the incident.

    
    

25. While discussing the manner in which Mr. Jones came over the chain link fence, Respondent stated to Officer Seguin that Respondent would have to "out and out lie about how the guy came over the fence."

    
    

26. On March 21, 1989, Respondent gave a sworn statement to Sergeant Herbert which was consistent with the version of the events of December 23, 1988, to which Respondent testified at formal hearing. This sworn statement did not accurately describe the events that occurred at the scene of the arrest on December 23, 1988.

    
    

27. At the conclusion of the Internal Affairs investigation, Respondent's employment with the City of Fort Lauderdale Police Department was terminated.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

29. Section 943.13 (7), Florida Statutes, requires that a law enforcement officer possess "good moral character."

    
    

30. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent that he failed to maintain good moral character. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v.

    Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

31. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977) the court discussed the meaning of moral character 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.

32. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458 (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of 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.

    
    

33. Rule 11B-27.0011(4), Florida Administrative Code, provides a definition of "good moral character" for purposes of disciplinary proceedings involving Florida law enforcement officers. The rule states, in pertinent part, as follows:

    
    

    (4) For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.2395(5) or (6), a certified officer's failure to maintain good moral character, as required by Section 943.13(7), is defined as:

    * * *

    (b) The perpetration by the officer of an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not: Sections ... 784.03, ... F.S. ...

    
    

34. Section 784.03, Florida Statutes, provides as follows:

    
    

    1. A person commits a battery if he:

       1. Actually and intentionally touches or strikes another person against the will of the other; or

       2. Intentionally causes bodily harm to an individual.

    2. Whoever commits battery shall be guilty of a misdemeanor of the first degree ...

       
       

35. Petitioner has established by clear and convincing evidence through the testimony of Officers Grant, Drossman, and Seguin that Respondent committed a battery against the person of Michael Jerome Jones on December 23, 1988, by using excessive force after Mr. Jones had been taken into custody. That conduct establishes, pursuant to Rule 11B-27.0011(4)(b), Florida Administrative Code, that Respondent failed to maintain good moral character, thereby subjecting him to discipline pursuant to Section 943.1395(5) and (6), Florida Statutes, and to Rule 11B-27.005(3), Florida Administrative Code.

    
    

36. Petitioner failed to establish by clear and convincing evidence that Respondent asked either Officer Grant or Officer Drossman to lie on his behalf. Petitioner established by clear and convincing evidence that Respondent gave statements to internal affairs that are contrary to the findings of fact contained in this Recommended Order.

37. Section 943.1395(5) and (6), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The commission shall revoke the certification of an officer who fails to comply with s. 943.13 (1) - (10) ...

    2. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties in lieu of revocation of certification:

       1. Suspension of certification for a period not to exceed 2 years.

       2. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       3. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       4. Issuance of a reprimand.

    
    

38. Rule 11B-27.005(3), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. When the commission finds that a certified officer has committed an act which violates Subsection 943.13(7), F.S., it shall issue a final order imposing penalties within the ranges recommended in the following disciplinary guidelines:

       * * *

       (b) For the perpetration by the officer of an act which would constitute any of the

       misdemeanor offenses as described in Rule 11B- 27.0011(4)(b), ... the action of the commission shall be to impose a penalty ranging from probation to revocation.

       
       

39. Rule 11B-27.005(4), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. The commission shall be entitled to deviate from the above-mentioned guidelines upon a showing of mitigating circumstances by evidence presented to the commission prior to the imposition of a final penalty. The commission may base a deviation from the

    disciplinary guidelines upon a finding of one or more of the following mitigating circumstances:

    * * *

    (j) The length of time the officer has been certified.

    
    

40. The recommendation which follows takes into consideration that Respondent has been certified as a law enforcement officer since 1979, that there was no evidence that he had been the subject of prior disciplinary action, and that the events occurred at night following a difficult chase. Also taken into consideration was the fact that Mr. Jones suffered no injury as a result of the acts attributable to Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent

committed battery against the person of Michael Jerome Jones on December 23,

1988, and that he subsequently gave a false statement to internal affairs about the incident. It is further recommended that Respondent's certification as a law enforcement officer be suspended for a period of one year.

DONE AND ORDERED this 2nd day of October, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1992.

ENDNOTES

1/ There is considerable conflict as to what occurred next. The conflicts in the evidence are resolved by concluding that Officer Grant and Officer Drossman's testimony (which is consistent with Officer Seguin's testimony as to the sounds he heard, the lights he saw, and the manner in which he saw Mr. Jones handcuffed) truthfully and accurately describe the events that occurred at the site of the arrest. Mr. Jones's testimony is rejected to the extent that it conflicts with that of Officers Grant, Drossman, and Seguin because Mr. Jones was scared and confused as to what had happened to him. Respondent's version of the events, that he struck Mr. Jones because Mr. Jones had slipped out of his handcuff and he had to subdue Mr. Jones, is rejected as being contrary to the testimony of Officers Grant and Drossman (and that of Officer Seguin as to how Mr. Jones was handcuffed) and to the testimony of Mr. Jones. In addition, the undersigned has considered the evidence that Respondent told Officer Seguin that

he was going to lie about how Mr. Jones came over the fence in weighing the credibility of the witnesses.

2/ This finding is made only because Mr. Jones has complained that prior to being handcuffed, he was abused by the arresting officer's dog and he was struck in the back by a long, round object he believed to be a flashlight. The acts attributable to Respondent occurred subsequent to the acts about which Mr. Jones complained. These complaints by Mr. Jones form the basis for a lawsuit against the City of Fort Lauderdale.

3/ Mr. Jones also complained that the officers who took custody of him in Oswald Park abused him by kicking him while he was on the ground.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-4482

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, and 41 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraph 42 are rejected as being unsubstantiated by the evidence. While the proposed finding is based on Officer Grant's testimony, his testimony of the conversations between himself and Respondent was vague and conflicted with other, equally credible evidence.

4. The proposed findings of fact in paragraphs 44 and 46 are rejected as being unnecessary to the conclusions reached. The prior disciplinary proceeding was relevant only to the extent it established that Respondent was no longer employed as a Fort Lauderdale police officer. No consideration was given by the undersigned as to the action of the review board in weighing the credibility of the witnesses in this proceeding.

5. The proposed findings of fact in paragraph 45 are rejected as being subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The post-hearing submittal filed by Respondent consists of recitation of testimony from witnesses and argument based on that testimony. Respondent does not make proposed findings of fact.

COPIES FURNISHED:

Dawn Pompey Whitehurst, Esquire Assistant General Counsel

Florida Department of law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Bruce H. Little, Esquire 2010 North Andrews Avenue

Fort Lauderdale, Florida 33311

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-004482

Orders for Case No: 91-004482