STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS & ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2593

)

GLEN H. THURLOW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on May 10-12, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Dawn P. Whitehurst, Esquire

Paul B. Johnston, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: G. Hal Johnson, Esquire

Florida Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

and

Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson One Clear Lake Center, Suite 1400

250 Australian Avenue, South

West Palm Beach, Florida 33401-5012 STATEMENT OF THE ISSUES

Whether Respondent failed to maintain the qualification set out in Section 943.13(7), Florida Statutes, which requires an officer to have good moral character, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On December 18, 1992, the Criminal Justice Standards and Training Commission (Commission) issued an Administrative Complaint against Glen H. Thurlow (Thurlow), alleging that while acting as a law enforcement officer he used unnecessary or excessive force upon Robert Jewett and failed to render aid to Robert Jewett, an injured person in his custody, and that such actions

constitute a failure to maintain the qualification established in Section 943.13(7), Florida Statutes, which requires that a law enforcement officer have good moral character. Thurlow requested an administrative hearing. The case was referred to the Division of Administrative Hearings for assignment to a hearing officer. The case was assigned to Hearing Officer David Maloney and was transferred to Hearing Officer Susan B. Kirkland for final hearing. The case was originally scheduled for final hearing for September 8-10, 1993. Thurlow filed an unopposed motion for continuance which was granted and the case was rescheduled for hearing commencing on December 15, 1993. Thurlow filed another unopposed motion for continuance which was granted, and the final hearing was rescheduled to commence on May 10, 1994.

At the final hearing, the Commission called the following witnesses: Russell Bruce, John H. Conklin, David A. Hughes, James Wilburn, David A. Diandria, Oscar Smallwood, Timothy D. Cook, Brian E. Bouchillion, Joseph A. Huffman, James A. Benz, Robert T. Mooney, David Frisby, and Ronald A. Kirkman. Petitioner's Exhibits 1-10, and 13-20 were admitted in evidence. Thurlow testified in his own behalf and called Charles S. Petty as a witness.

Respondent's Exhibits 1-4 were admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within 20 days of the date the transcript was filed. The transcript was filed on June 10, 1994. On June 28, 1994, the Commission filed an unopposed motion for extension of time to file proposed recommended orders. The motion was granted and the parties were given until July 15, 1994 to file their proposed recommended orders. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Glen Thurlow (Thurlow), was certified by the Criminal Justice Standards and Training Commission (Commission) on June 15, 1982, and was issued Certificate Number 02-3128. Thurlow has been employed by the West Palm Beach Police Department (WPBPD) for the last eight years.

   
   

2. On the evening of November 24, 1990, Thurlow was assigned as a police officer to the WPBPD Criminal Apprehension Team (CAT), which is a street crimes unit. That evening Thurlow was partnered for the first time with Lee Rollins (Rollins), a fellow police officer on CAT.

   
   

3. Thurlow and Rollins were assigned as plain clothes officers in an unmarked police vehicle, an old, gold Cadillac. Thurlow had on a black T-shirt, combat pants, black combat boots, duty leather and underneath his shirt a bullet-proof vest with a trauma plate. Rollins was dressed in a black T-shirt and jeans. He was not wearing duty leather, but was wearing a utility belt fastened with velcro. Both officers wore their police badges on a chain underneath their shirts.

   
   

4. Around 10:30 p.m., near the end of their duty shift, they were returning to the police station. Thurlow was driving south on South Dixie Highway headed toward the Belvedere Road intersection. As they approached the intersection, the officers saw a man, later identified as Robert Jewett (Jewett), dressed in cut-off jeans, a T-shirt, and a cap standing near the middle of the south bound lanes on South Dixie Highway past the Belvedere Road intersection, near the Palm Beach Post Building.

5. The officers continued through the Belvedere Road intersection toward Jewett. As they approached Jewett, he stuck out his left hand in a "hitchhiking gesture." Thurlow pulled over to the side of the road near the parking lot of the Palm Beach Post Building.

   
   

6. When Thurlow pulled over, Jewett ran up to the car and got in the back seat. Rollins showed Jewett his police badge, told Jewett that he was a police officer, and requested Jewett to step outside the car. Jewett complied. Rollins exited the Cadillac and Thurlow remained inside.

   
   

7. Rollins asked Jewett for his driver's license, which Jewett gave him. Rollins radioed the police dispatcher with the information on the driver's license in order to determine whether there were any outstanding warrants on Jewett.

   
   

8. Rollins advised Jewett that he was going to charge him with hitchhiking, but that if there were no warrants against Jewett that he would be given a Notice to Appear and released at the scene, rather than being taken down to the police station.

   
   

9. Rollins told Jewett to place his hands on top of the car and spread his legs so that Rollins could search him for weapons. Jewett complied.

   
   

10. Thurlow, still sitting in the driver's seat, was monitoring the conversation between Rollins and Jewett.

    
    

11. Rollins began the weapons search at Jewett's shoulder and continued down to his left pocket. Finding nothing, he started to search the right pocket. At that time Jewett brought his right arm down from the top of the car. Rollins caught his arm, put it back on top of the car, and told him to keep his hands on the top of the car. As Rollins proceeded to search Jewett's right pocket, Jewett brought his right arm down and stuck it in his pocket. At the same time he came around with his left elbow and hit Rollins on the left side of his chest, knocking him around. Rollins pulled Jewett's hand out of his pocket and they began to struggle.

    
    

12. Rollins pulled his flashlight from his back pocket and tried to hit Jewett on his left forearm. Jewett tried to kick Rollins in the groin and Rollins grabbed Jewett's T-shirt. Their feet tangled, the men went down and Rollins fell back toward the car, hitting his head on the back door. Rollins was stunned from the blow to his head.

    
    

13. Thurlow felt the Cadillac rock as if someone had bumped against the car. Rollins called to Thurlow to give him some assistance. Thurlow exited the car and came around to the passenger side, where he saw Rollins sitting on the ground with his back to the car, and Jewett straddling and leaning over Rollins with his arms raised as if he were preparing to hit Rollins. Thurlow ran up behind Jewett and put his arm below Jewett's Adam's apple in Jewett's upper chest area in order to pull Jewett back from Rollins.

    
    

14. Jewett began to fight and had Thurlow on the balls of his feet. They went towards the front of the car. Jewett went down on his knees with Thurlow's arm still around him. Jewett stood up with Thurlow on his back and they both went backwards, and as a result Thurlow's arm slipped up towards Jewett's chin. Rollins, seeing Jewett put his right hand in his pocket, ran over to Jewett and

    tried to grab his right hand. The three men fell to the ground and rolled backwards landing in a grassy area. Thurlow still had his arm around Jewett's neck. Thurlow was on the bottom, Jewett in the middle and Rollins on top.

    
    

15. Thurlow released his hold on Jewett and slipped out from under Jewett. Thurlow was on Jewett's left side and Rollins was sitting to Jewett's right, about, waist-high facing away from Jewett.

    
    

16. Jewett was grabbing at his right pocket. Rollins saw a metal object in the area of Jewett's right pocket. Rollins took his flashlight and swiped at the metal object, sending both the flashlight and the metal object flying off in an easterly direction.

    
    

17. Rollins told Jewett to quit struggling. Jewett grabbed the butt of Rollins' gun. Rollins hollered to Thurlow that Jewett had his gun. Rollins hit Jewett in the groin three to four times. Thurlow got up and threw a punch at Jewett connecting at Jewett's left eye. At that point Jewett quit fighting.

    
    

18. Thurlow held Jewett's arm over the curb and told Rollins to handcuff Jewett. Having lost his handcuffs in the struggle, Rollins used Thurlow's handcuffs and cuffed Jewett's hands behind his back. All three men were breathing hard and sweating.

    
    

19. Rollins told Thurlow that he had lost his flashlight and that something had been thrown out of Jewett's hand during the struggle. Thurlow left Rollins with Jewett and went to look for the lost items. At the time Thurlow left Rollins and Jewett, Jewett was breathing.

    
    

20. During the struggle, Rollins' handcuffs, radio, and ammo pouch came off his belt. Rollins found his radio and called the dispatcher at 22:35:52 hours to report the incident. He then went to look for the rest of his missing equipment and was gone approximately one to one and a half minutes.

    
    

21. Rollins returned to Jewett and started to pick him up; however Jewett was limp. Rollins put him back on the ground and tried to take his pulse. Because Rollins was still in an excited state from the fight, he could not tell whether he was getting a pulse from Jewett. He tried to take Jewett's pulse again but still could not determine whether he was getting a pulse.

    
    

22. Thurlow, having found the flashlight in the grass and an open pocketknife on the sidewalk, walked back over to Rollins and Jewett. Thurlow asked Rollins if something was wrong with Jewett, and Rollins replied that Jewett did not look well. At 22:39:54 hours Thurlow radioed for the paramedics. At 22:43:35 hours, Thurlow again radioed for the paramedics to hurry and get to the scene. Rollins again checked for a pulse but could not determine whether there was a pulse.

    
    

23. A few minutes later firefighters, responding to a medical call, arrived on the scene. One of the firefighters checked Jewett's pulse and breathing and determined that Jewett was not breathing and did not have a pulse. Jewett was pale with some discoloration and swelling about the face. Within several seconds, the rescue team arrived. The rescue team got Jewett uncuffed and began to administer advanced life support. Jewett was transported to a hospital where he was pronounced dead.

24. Both Thurlow and Rollins were trained to administer CPR; however the unmarked police vehicle did not contain rubber gloves or a bag which are used in administering CPR to protect the person administering CPR from diseases such as AIDS which could be transmitted by bodily fluids. Additionally, Jewett appeared to be breathing, which would mean that he was not a candidate for CPR.

    
    

25. At the time of the incident, Joseph Huffman and his girlfriend were traveling north on South Dixie Highway in a van. The van had windows on the rear doors and on the passenger and driver doors. As Mr. Huffman approached the Palm Beach Post parking lot, he saw two men scuffling on the hood of the gold Cadillac. He began to slow down to watch the fracas. He observed the fight for approximately 20 to 30 seconds, during which time he looked over to the El Cid Bar to see if anyone was watching. His girlfriend observed that Huffman tried to look at the fight through his side mirror but couldn't see so he stuck his head out the driver's window and glanced back once or twice, looking forward to check the approaching traffic.

    
    

26. Huffman recalled seeing a third man strike Jewett at least 20 times in the groin with a flashlight; however the medical evidence does not support Mr. Huffman's assertion. Having judged the credibility of the witness, I find that Mr. Huffman's recollection is not credible.

    
    

27. An autopsy was performed on Jewett by the Palm Beach County Medical Examiner, Dr. James Benz. The autopsy revealed that Jewett had a black eye, markings on the forehead and neck area, minor bruises and abrasions on the right forearm, abrasions on the knees, and abrasions on the right wrist. Jewett suffered fractured ribs and bruising of the left lung underlying the rib fractures. There was a "blow out" of the heart. There was hemorrhaging underneath the Adam's apple and an irregular fracture in the lamana below the Adam's apple. The hyoid bone, which sits above the voice box, was fractured. There were no injuries to the upper thighs, penis or lower abdomen. There was a mild bruise in the testicle area and hemorrhaging in the left testicle. The injuries to the testicles are not consistent with Jewett's being hit between 10 to 20 times with a flashlight in the groin.

    
    

28. The "blow out" of Jewett's heart is called a cardiac tamponade. Most probably as a result of the impact to Jewett's chest when he, Rollins, and Thurlow fell to the ground, a thin area of Jewett's heart blew out forming a small hole in Jewett's heart. The heart pumped blood through the small hole into the pericardial sac. As a result of the blood flowing into the pericardial sac, the heart could not expand and death occurred. The cardiac tamponade did not occur after Jewett died nor did it occur in a peri-mortem, near-death state. The cardiac tamponade did occur while Jewett was alive and death occurred some time later.

    
    

29. Based on the testimony of Dr. Charles Petty, an expert in forensic pathology, I find that the injuries to Jewett's neck occurred as a result of forceful application of force to the neck, which is consistent with a fall across a rounded object such as a forearm rather than police carotid holds and choke downs.

    
    

30. The Use of Force Matrix from the Florida Department of Law Enforcement is the state standard concerning the use of force by law enforcement officers. The matrix lists the resistance levels of a subject and indicates the appropriate level of force to be used by an officer in responding to the various levels of resistance. An aggressive physical resistance is defined as overt, hostile attacking movements which may cause injury, but are not likely to cause

    death or great bodily harm to the officer or others. Aggravated physical resistance is when the subject makes overt, hostile, attacking movements with or without a weapon, with the intent and apparent ability to cause death or great bodily harm to the officer or others.

    
    

31. The resistance level of Jewett when he was straddled and leaning over Rollins as Rollins was up against the fender of the Cadillac and Jewett's actions at the front of the car with Thurlow constitutes aggressive physical resistance. The matrix guidelines indicate that an officer may use all levels of force with the exception of deadly force in dealing with aggressive physical resistance.

    
    

32. When Thurlow grabbed Jewett from behind to remove Jewett from his position of standing over Rollins, Thurlow was not using deadly force. His arm was not under Jewett's chin but was lower, nearer the upper chest area.

    
    

33. The resistance level of Jewett when he was trying to get Rollins' gun constitutes aggravated physical resistance. The matrix guidelines for force to counter aggravated physical resistance include among other things, counter moves, incapacitation, and deadly force. Deadly force includes techniques that may result in imminent or serious injury, unconsciousness or permanent disfigurement, such as impact weapon strikes to the head or use of firearms. Thus, Thurlow's punch to Jewett's face was within the matrix guidelines.

    
    

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

35. The Commission has the burden of establishing by clear and convincing evidence that Thurlow failed to maintain good moral character as alleged in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

36. The Commission alleged that in the Administrative Complaint that Thurlow violated Section 943.13(7), Florida Statutes and Rule 11B-27.0011(4)(b) and (c), Florida Administrative Code, by using unnecessary or excessive force upon Jewett and failing to render aid to Jewett, an injured person in his custody, while Thurlow was acting as a law enforcement officer.

    
    

37. Section 943.13(7), Florida Statutes, provides:

    
    

    On or after October 1, 1984, any person employed

    or appointed as a full-time, part-time, or auxiliary law enforcement officer . . . shall:

    * * *

    (7) Have a good moral character as determined by a background investigation under procedures established by the commission.

38. Rule 11B-27.0011(4), Florida Administrative Code, defines the conduct which violates the "good moral character" standard for purposes of the implementation of disciplinary action upon Florida law enforcement officers and includes the following:

    
    

    (4) For the purpose of the Commission's implementation of any of the penalties enumerated in Section 943.1395(6) or (7), a certified officer's failure to maintain a good moral character, as required by Section 943.13(7)

    is defined as:

    * * * *

    1. 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. or

    2. The perpetration by the officer of an act or conduct which causes substantial doubts concerning the officer's honesty, fairness, or respect for the rights of others or for the laws of the state and nation, irrespective of whether

    such act or conduct constitutes a crime or

    
    

39. Petitioner has failed to establish by clear and convincing evidence that Thurlow used excessive force against Jewett on the night of November 24, 1990. The force used by Thurlow was justified.

    
    

40. Sections 776.05 and 776.07(1), Florida Statutes, establish the parameters of the use of force by law enforcement officers in making an arrest and in preventing the escape of an arrested person.

    
    

41. Section 776.05, Florida Statutes, provides:

    
    

    A law enforcement officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a

    lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest or when necessarily committed in retaking felons who have escaped or when necessarily committed in arresting felons fleeing from justice.

    
    

42. Section 776.07(1), Florida Statutes provides:

    
    

    A law enforcement officer or other person who

    has an arrested person in his custody is justified in the use of any force which he reasonably believes

    to be necessary to prevent the escape of the arrested person from custody.

    
    

43. Thurlow reasonably believed that the force he used against Jewett in removing Jewett from his stance over Rollins was necessary to protect Rollins from bodily harm. When Thurlow came around to the back of the car he saw that

    Jewett was straddled Rollins and leaning over Rollins with his hands in the air, poised as if he were going to strike Rollins. Thurlow did not use a choke hold on Jewett at that time nor did he intend to use a choke hold at that time.

    
    

44. Thurlow's arm came up around Jewett's chin as a result of the struggle between Thurlow and Jewett. When Rollins ran into Jewett and Thurlow, the impact sent all three men rolling backwards, flipping over and landing in the grassy area. Based on the medical testimony of Dr. Petty, the injuries to Jewett's neck were more consistent with a fall on a rounded object such as a forearm rather than a choke down. Thus, it is logical to conclude that the neck injuries could have resulted when the three men fell and flipped over onto the grassy area since by that time Thurlow's arm had slipped under Jewett's chin. The impact from the fall would be consistent with Dr. Petty's conclusion.

    
    

45. Thurlow's punch to Jewett's face was justifiable in light of Rollins' verbal warning that Jewett had his gun. At that time Thurlow reasonably believed that Jewett had Rollins' gun and that it was necessary to defend Rollins and himself from being shot by Jewett.

    
    

46. Petitioner has failed to establish by clear and convincing evidence that Thurlow failed to render aid to an injured person in his custody. At the time that Jewett was being handcuffed, he was alive, breathing hard, and moaning. When Thurlow left Rollins and Jewett to look for the flashlight and knife, Jewett was breathing. There was no indication at that time that Jewett may have been in need of emergency medical assistance. Rollins was checking Jewett's pulse. When Rollins told Thurlow that Jewett did not look very well, Thurlow called for the paramedics. Rollins was still taking Jewett's pulse. Petitioner contends that Thurlow should have administered CPR to Jewett while he was waiting for the paramedics to arrive. However, neither Rollins nor Thurlow had the proper equipment with which to administer CPR. The Cadillac did not contain rubber gloves or a bag which is used in administering CPR in order to protect the resuscitator from diseases such as AIDS. Thurlow's actions did not rise to a deliberate indifference to the medical needs of the prisoner nor did it constitute a lack of good moral character.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative

Complaint against Respondent, Glen H. Thurlow.

DONE AND ENTERED this 27th day of October, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 27th day of October, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2593

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact

1. Paragraphs 1-3: Accepted in substance.

2. Paragraph 4: Rejected as subordinate to the facts actually found.

3. Paragraphs 5-8: Accepted in substance.

4. Paragraph 9: The first sentence is accepted in substance with the exception of the word "allegedly" which is rejected. The second sentence is accepted in substance.

5. Paragraphs 10-12: Accepted in substance.

6. Paragraph 13: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence.

7. Paragraph 14: Accepted in substance.

8. Paragraph 15: Accepted in substance.

9. Paragraph 16: The first sentence is accepted in substance. The second sentence is accepted in substance; however it should be noted that it appeared to Thurlow that Jewett was about to strike Rollins.

10. Paragraph 17: The first and second sentences are rejected as not supported by the greater weight of the evidence. The evidence established that Thurlow jumped across Jewett's back, placing his arm across Jewett below Jewett's Adam's apple. The second sentence is accepted in substance.

11. Paragraph 18: Accepted that Thurlow and Jewett continued to struggle. Rejected that Thurlow continued to maintain a choke hold on Jewett. The greater weight of the evidence established that Thurlow's arm did not slip up under Jewett's chin until Jewett and Thurlow began to fall backward.

12. Paragraph 19: Rejected as not supported by the greater weight of the evidence.

13. Paragraph 20: Accepted in substance with the exception of "continued to hold Mr. Jewett in a choke hold." The evidence established that Thurlow's did not have a choke hold on Jewett until they fell backwards and that the choke hold was not an intentional action but rather resulted from the struggle between Jewett and Thurlow and Rollins running into them.

14. Paragraph 21-22: Accepted in substance.

15. Paragraphs 23: Accepted in substance except to the extent that such finding implies that Thurlow had a choke hold on Jewett at the time that Huffman saw them.

16. Paragraphs 24-26: Having judged the credibility of the witnesses, I find that Huffman's testimony concerning the repeated striking of Jewett in his groin not to be credible, particularly considering the medical evidence and the fact that Huffman was driving down the street while he was trying to look at the fight and keep track of traffic both in front of and behind him.

17. Paragraph 27: Rejected as not supported by the greater weight of the evidence.

18. Paragraph 28: Accepted in substance.

19. Paragraph 29: Rejected as not supported by the greater weight of the evidence.

20. Paragraph 30: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett the entire time that they were struggling. The evidence established that Thurlow did not start out with a choke hold but that during the struggle, Thurlow's arm slipped underneath Jewett's chin.

21. Paragraphs 31-35: Accepted in substance.

22. Paragraph 36: Accepted in substance to the extent that at one point in time while Jewett was supine on the ground his head was turned toward Thurlow and he grabbed Thurlow's shirt but rejected to the extent that it implies that during the entire time Jewett was on the ground he was looking at Thurlow and grabbing Thurlow's shirt.

23. Paragraph 37: Accepted in substance.

24. Paragraph 38: Accepted in substance to the extent that Thurlow did hear Rollins shout that Jewett had grabbed his gun and to the extent that Thurlow did not see Jewett actually grab the gun. Rejected to the extent that the word "claiming" implies that Rollins may not have shouted to Thurlow that Jewett had his gun and rejected to the extent that the last part of the sentence could be construed to mean that Thurlow did not see Jewett's right arm reach in the direction of Rollins' holster.

25. Paragraphs 39-40: Accepted in substance.

26. Paragraph 41: Accepted in substance with the exception of the word "allegedly."

27. Paragraphs 42-45: Accepted in substance.

28. Paragraph 46: The portion relating to rendering medical assistance is accepted in substance. The portion relating to never checking on the well being of Jewett is rejected as not supported by the evidence. Thurlow did inquire of Rollins concerning the condition of Thurlow before he called for the paramedics.

29. Paragraph 47: Accepted in substance.

30. Paragraph 48: Accepted in substance to the extent that Rollins did not render any first aid but rejected to the extent that Thurlow always had an unobscured view of Jewett. The evidence established that Thurlow was looking for the knife and the flashlight during a portion of the time .

31. Paragraph 49: Rejected as constituting a conclusion of law.

32. Paragraphs 50-51: Rejected as subordinate to the facts actually found.

33. Paragraphs 52-53: Accepted in substance.

34. Paragraph 54: Rejected as not supported by the greater weight of the evidence.

35. Paragraph 55: Rejected as not supported by the greater weight of the evidence.

36. Paragraph 56: Accepted in substance.

37. Paragraphs 57-59: Rejected as subordinate to the facts actually found.

38. Paragraphs 60-73: Rejected as unnecessary.

39. Paragraph 74: Accepted in substance to the extent that Jewett was lying on the ground, was bloody, and was not moving. In light of the testimony of Mr. Cook that Jewett's skin was pale and there was discoloration about his face, I do not find Mr. Bouchillion's testimony that Jewett was turning blue to be credible.

40. Paragraph 75: Accepted in substance.

41. Paragraphs 76-77: Rejected as subordinate to the facts actually found.

42. Paragraphs 78-86: Accepted in substance.

43. Paragraphs 87: Rejected as not supported by the greater weight of the evidence.

44. Paragraph 88: Accepted in substance.

45. Paragraph 89: Rejected as subordinate to the facts actually found.

46. Paragraphs 90-96: Accepted in substance.

47. Paragraph 97: Having considered the opinions of Dr. Benz and Dr. Petty, I reject the finding to the extent that it implies that the fractures resulted from a choke hold applied prior to Thurlow, Jewett, and Rollin falling down and rolling into the grassy area.

48. Paragraph 98: The first sentence is accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence.

49. Paragraph 99: Accepted in substance.

50. Paragraph 100: Rejected as not supported by the greater weight of the evidence.

51. Paragraphs 101: Rejected as subordinate to the facts actually found.

52. Paragraph 102: Rejected as subordinate to the facts actually found.

53. Paragraph 103: Rejected as unnecessary.

54. Paragraph 104: Accepted in substance.

55. Paragraphs 105-109: Rejected as subordinate to the facts actually found.

56. Paragraph 110-111: Accepted in substance.

57. Paragraph 112: Rejected as subordinate to the facts actually found.

58. Paragraph 113: Accepted in substance.

59. Paragraph 114: Rejected as subordinate to the facts actually found.

60. Paragraph 115: Rejected as unnecessary.

61. Paragraphs 116-117: Rejected as subordinate to the facts actually found.

62. Paragraph 118: Rejected as not supported by competent substantial evidence.

63. Paragraph 119: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett from the time there were at the rear of the Cadillac until they fell backwards. The evidence established that Thurlow did not have Jewett in a choke hold when Thurlow grabbed Jewett from behind.

64. Paragraph 120: Rejected as constituting argument.

65. Paragraph 121-125: Rejected as subordinate to the facts actually found.

Respondent's Proposed Findings of Fact

1. Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary.

2. Paragraphs 2-3: Rejected as subordinate to the facts actually found.

3. Paragraph 4: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary.

4. Paragraphs 5-8: Accepted in substance.

5. Paragraph 9: The first sentence is accepted in substance. The portion of the second sentence relating to Thurlow being able to hear is accepted but the portion that Thurlow could see everything is rejected as not supported by the greater weight of the evidence.

   The last sentence is accepted in substance to the extent that Thurlow thought that he needed to monitor the traffic but the greater weight of the evidence established that the Cadillac was not in the lane of traffic while it was parked.

6. Paragraphs 10-27: Accepted in substance.

7. Paragraph 28-30: Rejected as unnecessary.

8. Paragraph 31: Accepted in substance.

9. Paragraph 32: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found.

COPIES FURNISHED:

Dawn P. Whitehurst, Esquire Paul D. Johnston, Esquire Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Gene "Hal" Johnson, Esquire

Florida Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson One Clear Lake Center, Suite 1400

250 Australian Avenue, South

West Palm Beach, Florida 33401-5012

A. Leon Lowry, II, Director Division of Criminal Justice

Standards and Training Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage General Counsel

Division of Criminal Justice Standards and Training

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 ten 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: 93-002593

Orders for Case No: 93-002593