STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3638

)

TONY V. WALKER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above-styled case on October 21, 1992, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Bristol, 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: Tony V. Walker, pro se

7002 Lois Street, Apartment B Callaway, Florida 32404

STATEMENT OF THE ISSUES

Whether the Respondent used excessive force to subdue a prisoner, and whether the Respondent made false official statements about the incident.

PRELIMINARY STATEMENT

The Department of Law Enforcement, Criminal Justice Standards and Training Commission, filed an Amended Administrative Complaint against the Respondent, a certified correctional officer and law enforcement officer, alleging that the Respondent unlawfully used excessive force on an inmate in the Liberty Correctional Institution on November 12, 1990, and unlawfully and knowingly made a false statement concerning material matters in the Use Force Report and the Incident Report which he prepared that date. The Amended Administrative Complaint alleges that the Respondent's actions violate Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code, by failing to maintain the qualifications for good character established in Section 943.13(7), Florida Statutes.

The Respondent timely requested an administrative hearing and the matter was referred to the Division of Administrative Hearings on or about July 14, 1992. On July 27, 1992, the case was set for hearing on October 21, 1992. The hearing was conducted as scheduled; and, at the conclusion of the hearing, the parties indicated that they might be able informally to resolve this dispute.

The parties were given an opportunity to settle this case prior to December 1, 1992. On that date, counsel for the Petitioner advised the Hearing Officer by letter that their efforts to settle the case had been unsuccessful and that she was ordering the transcript in order to prepare a proposed recommended order.

Subsequent telephonic contact between the Hearing Officer and counsel for the Petitioner revealed that there were delays in preparation of the transcript of the proceedings. The transcript was ultimately filed with the Division on January 13, 1993, and the Petitioner's proposed findings and a letter from the Respondent were received on January 26, 1993. Both of the posthearing pleadings were read and considered by the Hearing Officer. Appendix A to this order states which of the Petitioner's proposed findings of fact were adopted, and which were rejected and why. The Respondent's letter is treated as a summary and argument and, therefore, is not considered in the appendix.

FINDINGS OF FACT

1. The Respondent, Tony V. Walker, was certified by the Criminal Justice Standards and Training Commission on July 7, 1989, and issued Corrections Certificate No. 05-89-502-01; and on October 9, 1990, was issued Law Enforcement Certificate No. 05-90-222-01. (See Petitioner's Exhibit 1.)

   
   

2. At the time of the incident described in the Amended Administrative Complaint, the Respondent was working as a certified correctional officer at the Liberty Correctional Institution in Bristol, Florida.

   
   

3. On or about November 12, 1990, the Respondent was working in the E and F dormitories of the Liberty Correctional Institution supervising inmates with Correctional Officer Wanda Terry/Rogers and Sgt. Smith.

   
   

4. While Officer Terry/Rogers was on the phone with the medical department of the institution, the dining hall attempted to notify dormitories E and F to release their inmates for the noontime meal. When the dining hall was unable to contact dormitories E and F, dormitories G and H were called and told to release their inmates for the meal.

   
   

5. When the inmates in dormitory E realized that dormitories E and F had been skipped in the feeding schedule, they became rowdy and belligerent. The inmates gathered around the dormitory control station cursing and complaining at Officers Terry/Rogers and Walker. Sgt. Smith was not present, having been requested by the lieutenant to assist him in the dining hall during the meal period.

   
   

6. Officer Walker, the Respondent, attempted to calm the inmates by entering dormitory E and explaining the situation, emphasizing that the E and F inmates would be the next to go to lunch. This calmed some of the inmates, but Owen Dampier continued his verbal remonstrations about being skipped.

   
   

7. After Walker returned into the dormitory's control room, Dampier approached the voice screen to the control room and became increasingly verbally abusive to both Walker and Terry/Rogers. His actions were causing the other inmates to again become rowdy and both Terry/Rogers and Walker felt that if Dampier's acting-out continued, it would foment an inmate disturbance.

8. Walker had picked up an inmate's walking cane which was kept in the office for security reasons. Walker was preparing to issue the cane to the inmate to whom it belonged when Dampier screamed at Terry/Rogers and him.

   
   

9. Walker slammed the cane against the plexiglass window and whistled at Dampier, who had turned and was walking towards the inmates clustered near the control room. Walker called Dampier back to the control room, and told Dampier that he was going to be placed in the laundry room in isolation.

   
   

10. Terry/Rogers observed that Walker at this time was calm and was not upset by Dampier.

    
    

11. Having told Dampier that he was going to be placed in isolation, Walker opened the door to the control room to let in Dampier. The control room door was hinged on the left side and opened into the control room. It was secured by a dead bolt lock located over the door handle on the right side of the door.

    
    

12. As Dampier entered the room, Terry/Rogers left the desk and moved to the laundry room door to open it. Dampier stepped into the control room and stopped immediately inside the room. At this point, Dampier attempted to engage in a debate with Walker about the meal delay and refused to proceed into isolation. Dampier was facing Walker, and Walker, still holding onto the door, was standing partially behind the door, holding the door handle with his left hand. Walker released the door and it closed but was not locked.

    
    

13. The statements of Walker, Terry/Roger and Dampier about what occurred next differ in their specifics. The following findings are based upon the testimony of Walker and Terry/Rogers and the written statement of Dampier which is corroborative of both of their statements.

    
    

14. Dampier described his posture at this juncture as "being in Walker's face." Both Walker and Dampier were in close proximity with one another.

    
    

15. Walker reached with his left hand to lock the door which had closed, but which had not been locked. As Walker started to reach for the door lock, Dampier perceived that he was grabbing for him and slapped Walker's hand away.

    
    

16. Terry/Rogers, observing from across the room, saw Walker reaching for the door and assumed that he was reaching for Dampier who was standing in front of the door handle and lock.

    
    

17. When Dampier slapped Walker's hand away, Walker felt threatened and pushed Dampier away from him with his right hand. Terry/Rogers, across the room, perceived Walker's action as an effort by Walker to grab Dampier.

    However, because of the location of the two men and the laundry room, it would have been extremely awkward for Walker to have grabbed at Dampier with his right hand in an effort to lead him to the laundry room which was to Walker's right and Dampier's left. Dampier's statement confirms that when Walker pushed him, Dampier pushed Walker back. Walker described Dampier's pushing him, and stated that, at this point, he struck Dampier on the chin with his closed right fist and then wrestled Dampier to the floor. Both the testimony of Terry/Rogers and the statement of Dampier confirm this.

    
    

18. After both men fell to the floor, Terry/Rogers first locked the door to the control room, and then called the main control room for assistance. Two

    correctional officers supervising the yard immediately outside the dormitory responded in seconds. With their assistance, the tussle between Dampier and Walker was stopped.

    
    

19. The Superintendent of Liberty Correctional Institution appointed an investigating officer, Inspector Stone, who interviewed Terry/Rogers, Walker and Dampier on the afternoon of November 12, 1992.

    
    

20. Walker denied grabbing Dampier. Walker stated that he struck Dampier after Dampier pushed him. Dampier stated that Walker had grabbed him (page 4 of Dampier's statement), and also that Walker grabbed at him (page 6 of Dampier's statement). Walker admitted physical contact with Dampier and admitted striking Dampier; however, Walker stated consistently that he no recollection of grabbing Dampier by the arm. Both Walker and Dampier describe the same occurrences.

    
    

21. Dampier's statement reports "he (Walker) grabbed at me (when) I was in his face." (Emphasis supplied.) "Then he told me to come. . . (page 6) "I pulled back like this, here, I was going to walk a little bit." (page 4, paragraph 5) "When I snatched my arm back, that's when he came up to me and pushed me." (page 4, paragraph 6) "I thought maybe he was going to swing, so I kinda like shoved him back, and he came up to be mad and he swung . . . he hit me." (page 4, paragraph 13)

    
    

22. Walker states, "I asked him to step to me (inside the officer's station), and when he did he, uh, bowed up and he walked over to me and I opened up the door[.] I asked him to step on back to the laundry room[.] [W]hen he did, he slapped my hand back, and pushed me back and things went from there. .

    ." (page 3). "I hit the glass to get his attention[.] [T]hen I came down and I asked him to step inside the officer station[.] I told him to step on back to the laundry room[,] and that is when he slapped my hand and pushed me back, and started swinging[.]" Page 4. "I had my hand out to open the door, and as he stepped in[,] I let it,. . . the door[,] go back in behind me, . . . I took my hand [and] put it by my side like this, and he slapped my hand back, and pushed me back. . . I have [sic] not touched him then, until, up until then, 'til the actual squabble itself. . . . No, sir, I didn't grab him by the arm." (page 5 and 6) "He pushed me backwards, . . . finally I pushed him back and he reared back and I hit. It happened mighty fast." (Walker, page 6).

    
    

23. In summary, both men testified to the same events, in the same order. Just after Dampier entered the room, Walker made some motion with his hand, and Dampier slapped it away. Walker pushed Dampier away from himself after Dampier slapped his hand, and a scuffle ensued in which Walker struck Dampier. What Terry/Rogers observed from across the room was not Walker grabbing Dampier with his right hand, but Walker pushing Dampier away. The slapping of Walker's left hand by Dampier with his right hand, which occurred first, was not observed by Terry/Rogers.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter subject to Chapter 120, Florida Statutes.

    
    

25. The Petitioner, Criminal Justice Standards Training Commission, charges that the Respondent used excessive force and made false statements contrary to Chapter 943, Florida Statutes. Section 943.1395, Florida Statutes, provides for the revocation or suspension of the certification of any officer who is not in compliance with the provisions of Section 943.13,(1)-(10), Florida

    Statutes, or who intentionally executes a false affidavit regarding their qualifications for employment. The Commission asserts that the Respondent does not possess a good moral character as required in subsection 7 of Section 943.13, Florida Statutes because he used excessive force and executed a false official statement.

    
    

26. The excessive force which the Respondent is alleged to have used is not the Respondent's striking the inmate with his fist, but his allegedly grabbing the inmate at the commencement of the confrontation to direct him to the laundry room. The Commission did not cite any rule which it has promulgated which prohibits or defines excessive force. The Commission's charges are based upon the officer's alleged violation of a rule or policy of the employing agency. Although no specific rule or written policy was cited, it was asserted by the witnesses for the Commission that placing hands on an inmate to direct him to a place of isolation is contrary to the policies of the Department of Corrections of the State of Florida. The existence of this policy was not controverted by the Respondent.

    
    

27. From the testimony received, it appears that the policies of the Department of Corrections would require a correctional officer to isolate an inmate who is creating a disturbance. In isolating the inmate, according to the policies, a correctional officer may not physically touch the inmate until a lieutenant takes the inmate into custody for disciplinary proceedings if the inmate refuses to be isolated. However, a separate policy provides that if an inmate violates a correctional officer's space, the officer may use any amount of force necessary to reestablish his or her space, and to subdue the inmate if the inmate refuses the officer's request to move out of his or her space. This policy exists separate and apart from the policy regarding standards for taking an inmate into physical custody.

    
    

28. The false statement which is the basis of the Petitioner's charges against the Respondent is the Respondent's statement that he did not grab the inmate's arm. Both Walker and the inmate state that they pushed one another and tussled with one another. Clearly, under these circumstances, both men grabbed one another's arms at some point in their confrontation. The real issue is whether the Respondent's statements denying he grabbed the inmate's arm at the outset of the incident was correct.

    
    

29. The Respondent's testimony and statement denying he grabbed the inmate's arm at the commencement of the confrontation are consistent with the inmate's statement. The testimony and statements of both participants are that, while standing in close proximity to Dampier, Walker moved his left hand. At that time, from Dampier's statement, it is clear that Dampier was "in Walker's face," and perceived that Walker was grabbing at him. Dampier states that he brushed Walker's hand away and pushed Walker back. Walker stated that he moved his left hand and Dampier slapped it away, and then pushed him. Dampier states that, after he brushed Walker's hand away, he snatched himself back. Dampier gives the impression that Walker did not successfully take hold of him at this juncture in the confrontation. Walker's statement that he did not grab Dampier's arm is supported by Dampier's statement.

    
    

30. Both statements reveal that Dampier initiated the physical confrontation (1) by being "in Walker's face," (2) by brushing or slapping Walker's hand while in Walker's space, and (3) by pushing at Walker while in Walker's space. It is the initial "touching" which is at issue in this case. Under the policies of the Department of Corrections, Walker was justified in

    initiating physical contact with Dampier and in striking Dampier in order to restore his space after Walker slapped his hand and pushed him.

    
    

31. The facts presented support a finding that Walker did not use excessive force, and that Walker did not make unlawful and false statements about what occurred. Contrary to the Petitioner's argument in the Proposed Recommended Order that the Respondent struck Dampier, who was not attacking Walker, Dampier's own statement is that he was in Walker's face, and was pushing Walker prior to being struck by Walker in the face. The testimony was that it was the Department's policy and the correctional officers' practice to use any amount of force necessary to reestablish their space.

    
    

32. Neither Section 943.1395 nor Section 943.13, Florida Statutes, proscribe the use of excessive force. The authority under which the Commission seeks to revoke or suspend the Respondent's license is Section 943.1395,(5), Florida Statutes, which makes failure to maintain minimum standards a basis for discipline, and Subsection (7) of Section 943.13, Florida Statutes, which makes good moral character a minimum qualification for certification. This raises the legal issue of whether the failure to follow agency policies, violation of which are not malum per se, indicate an absence of good moral character.

    
    

33. An analogous issue was addressed in the case of Pfeifer v. Police Standards Training Commission, 360 So.2d 1326, which addressed whether conviction of a misdemeanor was disqualifying. The court held conviction of a misdemeanor did not show automatically an absence of good character, and whether the applicant was qualified was based upon the facts of the case. Given the court's analysis in Pfeifer, supra, it is very doubtful that violation of an agency policy prohibiting the use of any force to enforce an isolation order would be disqualifying. Conversely, a false official statement would show a lack of good character. However, in this instance, the evidence supports the finding that the Respondent did not violate the agency's policy and did not make a false statement about what happened.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the charges against the Respondent, Tony V. Walker, be dismissed.

RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of February, 1993.

STEPHEN F. DEAN

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 24th day of February, 1993.

APPENDIX TO RECOMMENDED ORDER

The Respondent did not file proposed findings. The proposed findings filed by the Petitioner were read and considered. The following states which of those findings were adopted, and which were rejected and why:

Petitioner's Findings Recommended Order

Paragraphs 1-9 Paragraphs 1-9

Paragraphs 10,11 Walker advised Dampier he was going to be isolated before letting Dampier into the Control Room, and it was only

after Dampier entered the Control Room that they had an argument.

Paragraph 12 The testimony that Walker grabbed Dampier is rejected as

being contrary to that of Walker's testimony which is corroborated by Dampier's statement.

Paragraphs 13-15 Paragraph 17,18

Paragraphs 16 See Comments to Paragraph 12, above.

Paragraphs 17,18 Irrelevant.

Paragraphs 19-21 Paragraphs 19 and 23.

Paragraph 22 The testimony of Stone, as quoted in the proposed finding, makes it appear that Walker changed his story. This is incorrect. Walker never denied striking Dampier, although, he denied having grabbed Dampier by the arm at the commencement of the altercation.

Paragraph 23 Irrelevant.

COPIES FURNISHED:

Dawn Pompey Whitehurst, Esquire Assistant General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, FL 32302

Tony V. Walker

7002 Lois Street, Apt. B Callaway, FL 32404

Jeffrey Long, Director Criminal Justice Standards

and Training Commission Post Office Box 1489 Tallahassee, FL 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 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: 92-003638

Orders for Case No: 92-003638