STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE No. 92-3102

)

JOHN DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on December 3, 1992, and at Fort Lauderdale, Florida, on December 17, 1992, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Monica A. White, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Robert D. Klausner, Esquire

Klausner & Cohen, P.A.

6565 Taft Street, Suite 200

Hollywood, Florida 33024 STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations set forth in an Administrative Complaint. The gravamen of the charges against the Respondent are that on one occasion he used unlawful and excessive force during the course of an arrest.

PRELIMINARY STATEMENT

At the formal hearing on December 3 and 17, 1992, the Petitioner presented the testimony of six witnesses. The Respondent testified on his own behalf and also presented the testimony of one other witness. Both parties also offered several exhibits.

At the conclusion of the hearing the parties requested, and were granted,

20 days from the filing of the transcript within which to file their proposed recommended orders. A transcript of the proceedings at the formal hearing was filed with the Hearing Officer on January 6, 1993. Thereafter an extension of

time was requested and the parties were allowed until February 2, 1993, within which to file their proposed recommended orders. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.

FINDINGS OF FACT

1. The Respondent was certified by the Criminal Justice Standards and Training Commission on September 26, 1986, and was issued certificate number 19- 86-002-03. At all times material to this case, the Respondent was a certified law enforcement officer working for the City of Miami Police Department.

   
   

2. On June 18, 1989, the Respondent was assigned as a police officer on the day shift in the Patrol Division of the City of Miami Police Department and was assigned to Sector 20. Sector 20 encompasses a section of the city known as "Little Haiti." On that day the Respondent was working in uniform and was driving a marked City of Miami Police Department vehicle. While stopped at the corner of Miami Avenue and North 58th Street attending to paperwork, the Respondent observed an automobile and driver, both of which were similar to the description in a BOLO that he had issued earlier during his shift.

   
   

3. The automobile observed by the Respondent was being driven by a person who appeared to be a Haitian male and who was later identified as Mr. Jerome Jean-Pierre. The Respondent observed the car driven by Mr. Jean-Pierre as it approached the intersection at a high rate of speed and as it slammed on brakes and ran a stop sign. The Respondent also observed the same car as it began to leave the scene in reverse at a high rate of speed. The Respondent activated his emergency lights and siren and gave chase. Mr. Jean-Pierre jumped out of his car and started running towards a dwelling. The Respondent jumped out of his police car and drew his handgun because he was concerned that Mr. Jean-Pierre might be armed. This concern came from the fact that Mr. Jean- Pierre appeared to be trying to conceal something in his waistband and also because the Respondent thought that Mr. Jean-Pierre might have been one of the participants in the armed robbery that resulted in the earlier BOLO.

   
   

4. The Respondent followed Mr. Jean-Pierre into the dwelling. Inside the dwelling Mr. Jean-Pierre attempted to elude the Respondent. At one point the Respondent got close enough to Mr. Jean-Pierre to confirm that the latter did not have a weapon in his waistband. At that point the Respondent reholstered his own firearm, and called on the radio for back up. The Respondent then told Mr. Jean-Pierre that he was under arrest and ordered him to get down. Mr. Jean- Pierre refused to cooperate. Instead, Mr. Jean-Pierre punched the Respondent in the chest, whereupon a physical struggle began. Mr. Jean-Pierre attempted to flee by running into the bathroom and the Respondent made another radio call for assistance.

   
   

5. Other officers arrived soon thereafter, and with the help of Police Officer Munoz, the Respondent attempted to handcuff Mr. Jean-Pierre. During this process, Mr. Jean-Pierre hit the Respondent repeatedly in the face. Police Officers Marshall and Wright also joined in the fight, during the course of which the Respondent was pushed through a glass shower door. During the course of the struggle, Mr. Jean-Pierre also struck the Respondent several times with a pair of handcuffs that were fastened to one of Mr. Jean-Pierre's hands and with a piece of non-metallic plumbing pipe.

6. The struggle with Mr. Jean-Pierre was eventually moved out of the bathroom and into the kitchen. During the struggle in the kitchen area, while the Respondent was holding Mr. Jean-Pierre in a carotid restraint, Mr. Jean- Pierre lunged forward causing the Respondent to hit his shoulder on the door.

   At about the same time Mr. Jean-Pierre struck his head on the stove and while he appeared to be dazed, the police officers were successful in getting him down to the floor. Once on the floor, Mr. Jean-Pierre continued to struggle and resist.

   
   

7. The officers eventually succeeded in getting handcuffs on both of Mr. Jean-Pierre's hands. Even after he was handcuffed, Mr. Jean-Pierre continued to struggle and thrash about and in the course of doing so he kicked the Respondent in the shin. Immediately thereafter the Respondent kicked Mr. Jean-Pierre once in the midsection in an effort to further control the arrestee and in an effort to dissuade the arrestee from further resistance. Mr. Jean-Pierre curled up for an instant following the kick and the Respondent took advantage of that reaction and picked him up and started leading him out of the house. Throughout the efforts to take Mr. Jean-Pierre into custody, the situation was dangerous and chaotic as a result of the conduct of Mr. Jean-Pierre.

   
   

8. The Respondent and Mr. Jean-Pierre exited the building and walked to the Respondent's police car. During the walk to the car Mr. Jean-Pierre was still being generally uncooperative. At that time Mr. Jean-Pierre already had a visible cut on his head as a result of the struggles inside the house. When they got to the Respondent's police car, the Respondent laid Mr. Jean-Pierre down over the trunk of the car for the purpose of searching him before putting him inside the police car. While the Respondent was attempting to search Mr. Jean-Pierre, the arrestee suddenly raised himself up from the car trunk and stiffened his body. The Respondent's response to the arrestee's sudden action was to push the arrestee back down over the trunk of the car until he finished his search of the arrestee's pockets. The Respondent did not slam the arrestee's head onto the car when he pushed him back down onto the car. The arrestee's face may have come into contact with the car trunk or with the car rear window area, but the arrestee's head did not strike any portion of the car with any significant force. The force the Respondent used to push the arrestee back down against the car was reasonable under the circumstances and was necessary to maintain control over the arrestee.

   
   

9. The act of leaning an arrestee over the trunk of a car for the purpose of searching the arrestee was a police procedure approved by the City of Miami Police Department. When arrestees use physical violence in the course of efforts by police officers to arrest them, arrestees are sometimes injured even in the absence of misconduct by the arresting police officers.

   
   

10. During the course of the struggle with Mr. Jean-Pierre, the Respondent received numerous scratches and bruises, his uniform became torn, his watch and glasses were broken, and he was, in general, substantially beaten up. The severity of the injuries he received was such that the Respondent missed three weeks of work immediately following the struggle with Mr. Jean-Pierre. The only evidence of injury to Mr. Jean-Pierre was a small cut on his forehead, as shown on Respondent's Exhibit 5, which cut resulted from the activities inside the house before Mr. Jean-Pierre was taken to the Respondent's car.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

12. In a case of this nature, in order to prevail the Petitioner must prove the essential allegations of the administrative complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The evidence in this case is insufficient to meet that standard. To the contrary, the greater weight of the evidence is to the effect that the Respondent did not at any time use any unnecessary or inappropriate force in the course of bringing about the arrest of Mr. Jean- Pierre.

    
    

13. As mentioned several places in the appendix, this is a case in which there was a great deal of conflicting testimony to be resolved, as well as a great deal of evidence to consider concerning the bias, prejudice, motives, and general credibility of several witnesses. The Hearing Officer has resolved the conflicts in a manner consistent with the basic version of the facts described by the Respondent, including the ultimate fact that the Respondent did not use unnecessary or inappropriate force. The proof being insufficient to establish the conduct charged in the Administrative Complaint, the charges in the Administrative Complaint should be dismissed.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 10th day of November, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 10th day of November, 1993

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3102

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in substance.

Paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17: There is a great deal of conflict in the evidence in this case with regard to what happened at several points along the way in the handling of the arrestee, Mr. Jean-Pierre. To the extent that the version of the facts set forth in these paragraphs conflicts with the version of the facts offered by the Petitioner, the Hearing Officer has, for the most part, accepted the version of the facts set forth by the Respondent. Accordingly, to the extent of such conflict, the assertions in these paragraphs are rejected.

Paragraph 18: Accepted in substance.

Paragraphs 19, 20 and 21: There is a great deal of conflict in the evidence in this case with regard to what happened at several points along the way in the handling of the arrestee, Mr. Jean-Pierre. To the extent that the version of the facts set forth in these paragraphs conflicts with the version of the facts offered by the Petitioner, the Hearing Officer has, for the most part, accepted the version of the facts set forth by the Respondent. Accordingly, to the extent of such conflict, the assertions in these paragraphs are rejected.

Paragraphs 22, 23, 24, and 25: Rejected as subordinate and unnecessary details.

Paragraphs 26, 27, 28, 29, and 30: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraphs 31 and 32: Rejected as irrelevant in view of the finding that the Respondent did not slam anyone's head on the trunk of the car.

Paragraph 33: Rejected both as constituting a summary of testimony and as constituting opinions that are not warranted by the persuasive evidence.

Paragraphs 34 and 35: Rejected as subordinate and unnecessary details in view of how the conflicts in the evidence have been resolved.

Paragraphs 36, and 37: Rejected as subordinate and unnecessary details and also rejected as contrary to the greater weight of the evidence or as suggesting inferences not warranted by the greater weight of the evidence.

Paragraph 38: Accepted that the Respondent kicked the arrestee inside the house, but the quoted portion of this paragraph is rejected as contrary to the greater weight of the persuasive evidence.

Paragraphs 39 and 40: Rejected as subordinate and unnecessary details.

Paragraph 41: Rejected as comprised primarily of argument, rather than proposed findings of fact.

Paragraph 42: Rejected as comprised primarily of argument, rather than proposed findings of fact. Also rejected as being contrary to the Hearing Officer's resolution of the credibility conflicts.

Paragraph 43: Rejected as subordinate and unnecessary details.

Paragraphs 44 and 45: Rejected as comprised primarily of argument, rather than proposed findings of fact. Also rejected as being contrary to the Hearing Officer's resolution of the credibility conflicts.

Paragraph 46: Rejected as contrary to the greater weight of the persuasive evidence.

Findings submitted by Respondent:

Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17:

Accepted in substance, but with a number of subordinate and unnecessary details omitted.

Paragraphs 18, 19, 20, 21, 22, 23, and 24: Rejected as constituting summaries of conflicting testimony and argument about which version is most believable. No useful purpose is served by summarizing all of the conflicting evidence.

Paragraph 25: Rejected as subordinate and unnecessary details. Paragraphs 26, 27, and 28: Accepted in substance.

Paragraph 29: Accepted in substance with the exception of the reference to kicking.

Paragraphs 30, 31, 32, and 33: Rejected as subordinate and unnecessary details.

Paragraphs 34, 35, 36, 37, 38, and 39: Accepted in substance.

Paragraphs 40, 41, 42, 43, 44, 45, 46, and 47: Rejected as constituting summaries of conflicting testimony and argument about which version is most believable. No useful purpose is served by summarizing all of the conflicting evidence.

Paragraphs 48, 49, and 50: Rejected as subordinate and unnecessary details.

Paragraph 51: Rejected as constituting summaries of conflicting testimony and argument about which version is most believable. No useful purpose is served by summarizing all of the conflicting evidence.

Paragraphs 52, 53, 54, 55, 56, and 57: Rejected as subordinate and unnecessary details.

Paragraphs 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, and 71:

Accepted in substance.

Paragraph 72: Rejected as subordinate and unnecessary details.

COPIES FURNISHED:

Monica A. White, Esquire Robert D. Klausner, Esquire Department of Law Enforcement Klausner & Cohen, P.A.

Post Office Box 1489 6565 Taft Street, Suite 200

Tallahassee, Florida 32302 Hollywood, Florida 33024

James T. Moore, Commissioner Michael Ramage, General Counsel Florida Department of Law Florida Department of Law

Enforcement Enforcement

Post Office Box 1489 Post Office Box 1489 Tallahassee, Florida 32302 Tallahassee, Florida 32302

Jeffrey Long, Director Criminal Justice Standards and

Training Commission 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: 92-003102

Orders for Case No: 92-003102