FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL JUSTICE ) STANDARDS AND TRAINING )
vs. ) Case No. 97-2371
REINALDO C. PASCUAL, )
Respondent. )
Pursuant to notice, a formal hearing was held in this case on September 4 and 5, 1997, at Miami, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Karen D. Simmons
Whether Respondent violated Sections 943.13(7) and 943.1395(6), (7), Florida Statutes, and Rule 11B-27.011(4)(a), (c), Florida Administrative Code, and if so, what penalty should be imposed.
On May 7, 1996, Petitioner, Criminal Justice Standards and Training Commission (CJSTC), served Respondent, Reinaldo C. Pascual (Pascual), with an administrative complaint, alleging that Pascual violated Sections 943.13(7) and 943.1395(6), (7), Florida Statutes, and Rule 11B-27.011(4)(a), (c), Florida Administrative Code. Pascual requested an administrative hearing. On May 16, 1997, the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.
At the final hearing, Petitioner called the following witnesses: Gary Banks, Edward Batcho, Lionel J. Coney, Delores Ferguson, Della Gilmore, Alfonzo Iglesias, Howard Manten, Kim Smith, Valerie Rao, Eladio Vega, and Everald Gillings.
Petitioner's Exhibits 1-10 were admitted. At the final hearing, Respondent testified in his own behalf and called the following witnesses: Edward Preston, Guillermo Del Castillo, and Alfonzo Iglesias. Respondent's Exhibit 1 was admitted.
The parties agreed to file proposed recommended orders within ten days of the date of the filing of the transcript with
the Division of Administrative Hearings. The transcript was filed on October 14, 1997. On October 21, 1997, Respondent filed an unopposed motion requesting that the time for filing proposed recommended orders be extended to October 31, 1997. The motion was granted. The parties filed their proposed recommended orders on October 31, 1997.
On November 10, 1997, Respondent filed a Motion to Strike Petitioner's Proposed Recommended Order. Petitioner filed a response to the motion on November 12, 1997. The motion to strike is denied.
Respondent, Reinaldo C. Pascual (Pascual), has been certified by the Petitioner, Criminal Justice Standards and Training Commission (CJSTC), as a corrections officer since June 17, 1988. His certificate number is 65593.
On May 24 and 25, 1993, Pascual was employed by the Metropolitan Dade County Department of Corrections and Rehabilitation (Corrections) as a corporal. He was assigned to the ninth floor of the pretrial detention facility. The ninth floor is the psychiatric ward. Pascual was working the 11 p.m. to 7 a.m. shift.
On May 21, 1994, Eladio Vega appeared in court on a traffic matter after which the judge instructed him not to drive his vehicle because Mr. Vega had been drinking all night. Mr. Vega went to his vehicle after the court appearance. As a result
of his actions, he was held in contempt of court and sentenced for a number of days in jail.
Mr. Vega was incarcerated in the Dade County Jail and was placed on the fourth floor of the pretrial detention facility with the general inmate population.
Late in the evening of May 24 or early morning hours of May 25, 1993, Mr. Vega began to exhibit some bizarre behavior, touching other inmates and changing the channels on the television set in the dayroom. Officer Gary Banks received complaints from the other inmates about Mr. Vega's behavior. Officer Banks went to Mr. Vega's cell and asked him to step outside the cell. Acting nervously, Mr. Vega complied but told Officer Banks that he had to get back in the cell because his son was in the cell. Mr. Vega's son was not in the cell. Thinking that Mr. Vega's behavior was strange, Officer Banks contacted his superior and requested authorization to take Mr. Vega to the clinic so that a nurse could take a look at him.
Around 1:45 a.m., Officer Banks escorted Mr. Vega to the clinic. While Vega was in the clinic, he was pacing, sweating, and acting nervously. The nurse on duty determined that Mr. Vega should be transferred to the ninth floor until he could be evaluated by the day nurses.
Mr. Vega was transferred to the ninth floor and placed in a cell with fifteen to twenty other psychiatric patients. The inmates complained about Mr. Vega's behavior, and Mr. Vega was
transferred to cell 9-C-2, which is a single-man cell. The cell is one of five or six pods which are locked with no access to the dayroom. Each pod is approximately eight feet by six feet and contains a metal bunk, a toilet, and a sink. The only opening to the pod is a chow hole, which is a slot that is approximately two feet by one foot with a metal cover. The chow hole is used to serve food to the inmates. The door to the pod is made of steel with chicken wire enclosed by glass. The wall to the pod is transparent and made of glass. There are slots in the glass wall so that the inmates and officers can communicate.
Mr. Vega began to bang on the cell walls, yelling and screaming. Officer Del Castillo was on duty on the ninth floor and went to see what was wrong with Mr. Vega. Officer Del Castillo tried to verbally calm Mr. Vega, but he did not succeed. Mr. Vega was trying to kick out the window in the cell, using a donkey kick by having his back to the window and kicking the window with his feet.
Unable to quiet Mr. Vega, Officer Del Castillo went to his supervisor, Pascual, and told him about Mr. Vega's behavior and of his fear that Mr. Vega would harm himself. Pascual got the leg shackles and went to Mr. Vega's cell with Officer Del Castillo. Both officers unsuccessfully tried to calm Mr. Vega. Pascual decided to go into the cell and restrain Mr. Vega. As Officer Del Castillo opened the cell door, Pascual was standing directly in front of the door. When the door opened, Mr. Vega
ran out, hitting Pascual in the abdominal area and knocking him toward the floor.
Mr. Vega testified that he ran out of the cell because he thought the officers were trying to poison the air in his cell. Pascual managed to hit Mr. Vega in the face. Mr. Vega then turned and started to throw punches at Officer Del Castillo. None of Mr. Vega's punches found their mark. Officer Del Castillo was able to land a couple of punches on Mr. Vega's head and face. Having recovered from Mr. Vega's initial hit, Pascual hit Mr. Vega in the face. Mr. Vega fell backward and landed on the floor with his back to the cell wall. Mr. Vega hit the left side of his head on the chow hole in the cell. Pascual told Mr. Vega to turn onto his stomach and to put his hands behind his back. Mr. Vega did not comply but started to get up on his feet. Pascual, thinking that Mr. Vega was going to attack him again, grabbed Mr. Vega around the throat and tried to implement a lateral vascular neck restraint (LVNR). Mr. Vega was thrashing from side to side and leaned forward carrying Pascual upward on his back, piggy back style, until they lost their balance and fell forward hitting the metal bunk in the cell. Pascual was able to apply the LVNR, and Vega passed out for a few seconds.
By this time Mr. Vega was bleeding profusely on the left side of his head.
Pascual and Officer Del Castillo, placed handcuffs on Mr. Vega's wrists and shackles on his ankles. Mr. Vega was
placed stomach down on a stretcher, which was between six to twelve inches from the floor.
Pascual and Officer Del Castillo placed Mr. Vega in the elevator to take him to the clinic. While they were in the elevator, Mr. Vegal rolled off the stretcher at least two times. The stretchers were old and were not equipped with straps to hold the inmate down.
When they arrived at the clinic, Nurses Kim Smith and Dorothy Ferguson were on duty along with Officer Lionel Cloney.
Nurse Ferguson completed a medical addendum at 4:45
a.m. concerning Mr. Vega. She completed the section entitled "Specific description of any and all injuries" as follows:
Bizarre behavior. Irrational. Out of control. Violent Behavior! Bleeding from R eye/Laceration in ear. Bright red-Large amt bleeding. Harmful to self & others.
Nurse Ferguson completed the section of the medical report entitled "Treatment Rendered and/or Medical Recommendations" as follows:
4 point restraints. Harmful to self & others. Refer Ward-D Emergency.
Ward D is a section of Jackson Memorial Hospital for inmates that need to go to the hospital for medical treatment. There are three ways to transport an inmate from the pretrial detention facility to Ward D: first, inmates with the most extreme emergencies are transported by Fire Rescue; second, inmates with less extreme emergencies are transported by
ambulance; third, inmates needing routine medical care are transported by Corrections.
The medical staff at the pretrial detention facility decides how the inmates will be transported to the hospital. In the case of Mr. Vega, the nurses determined that Mr. Vega would be transported to Ward D by Corrections.
Officers Del Castillo and Pascual took Mr. Vega to the lobby of the detention facility to wait to be transported to Ward
D. Officer Del Castillo went back to the ninth floor to write his report, and Pascual stayed with Mr. Vega. They were in the lobby approximately fifteen minutes before they left for the hospital.
While Mr. Vega and Pascual were waiting in the lobby, Sergeant Alfonso Iglesisas observed Mr. Vega yelling and screaming. He also saw Mr. Vega roll off the stretcher two or three times.
Pascual and Officer Marshall transported Vega to Ward D in a Corrections station wagon. Mr. Vega was placed in the rear of the vehicle, and Pascual sat in the front seat with Officer Marshall. The trip to Ward D took less than five minutes.
Upon their arrival at Ward D, Pascual advised Corrections personnel there that he had a violent inmate in a four-point restraint and that he needed assistance to bring the inmate inside. Two or three officers assigned to work Ward D came out with a wheelchair and took Mr. Vega inside.
Pascual accompanied Mr. Vega inside, where Mr. Vega was placed in a holding cell. Mr. Vega was still behaving violently and screaming. Pascual returned to the pretrial detention center.
Mr. Vega had the following injuries when he was admitted to the intensive care unit hospital on May 26, 1993 at 4:04 a.m.: fractures of the orbit, a large bruise on his flank, fracture of the nasal bone, fracture of the second cervical vertebra, a cut over the left ear, a punctured eardrum, extensive bruising on his arms, deep abrasions on the right side of his abdomen and left side of his chest and abdomen, and a rotator cuff tear. Additionally he was suffering from alcohol withdrawal delirium and rhabdomyolysis, which is damage to the muscle. Rhabdomyolysis can be caused by trauma or alcohol withdrawal. In Mr. Vega's case, it could not be determined what was the cause of his rhabdomyolysis.
The injuries noted are consistent with more than three blows to the head. The rotator cuff tear likely occurred when the officers were trying to apply handcuffs to Mr. Vega. All of Mr. Vega's injuries were sustained at approximately the same time and could have occurred within a time period of five to six hours. Mr. Vega's injuries were caused by blunt trauma sustained as a result of being punched or kicked.
Mr. Vega spent 13 days in intensive care at Jackson Memorial Hospital. As a result of his injuries, he required
oral-facial surgery. The rotator cuff tear will produce some pain in the shoulder after it has healed and may result in arthritis in the future.
At the time of the incident at issue, a Use of Force/Levels of Resistance Matrix established by the CJSTC was in effect. The matrix serves "as a guideline for an officer to select effective reasonable and legal force options in a verbal or physical encounter." (Petitioner's Exhibit 6) The matrix has six resistance levels and six response levels. Resistance level four is active physical resistance and is defined as follows:
A subject makes physically evasive movements to defeat an officer's attempt at control.
This may be in the form of bracing or tensing, attempts to push/pull away or not allowing the officer to get close to him/her.
Resistance level five is aggressive physical resistance and means the following:
A subject makes overt, hostile attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the officer or others.
The highest response level on the matrix for active physical resistance is the use of intermediate weapons, such as a baton, side handle baton, aerosol tear gas, and flashlight.
These weapons are used primarily to control a person.
The highest response level on the matrix for aggressive physical resistance is incapacitation, which is defined as:
Techniques that are intended to stun or render a subject temporarily unconscious, delivered with or without an impact weapon, such as a strike to a major nerve area.
If a specific level of response is not available to an officer, the officer can go up one level to respond to the resistance.
Neither Pascual nor Officer Del Castillo had intermediate weapons available at the time that Mr. Vega ran out of his cell and starting fighting the officers. The Metro-Dade Corrections and Rehabilitation does not use intermediate weapons.
The LVNR is not included in or classified in the response levels of the Use of Force/Levels of Resistance Matrix. If it had been classified, it would come under incapacitation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Petitioner must establish the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Petitioner has alleged that Pascual violated Section 943.13(7), Florida Statutes, which requires that a law enforcement officer have good moral character. Rule 11B- 27.0011(4), Florida Administrative Code defines "good moral character" and provides:
For the purposes 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 subsection 943.13(7), F.S. is defined as:
The perpetration by the officer of an act which would constitute any felony offense, whether criminally prosecuted or not, or
* * *
(c) 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 conduct constitutes a crime. . . .
In the administrative complaint, Petitioner alleges essentially that that Pascual committed an aggravated battery upon Eladio Vega. Section 784.045, Florida Statutes, provides:
(1)(a) A person commits aggravated battery who, in committing a battery:
Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
Uses a deadly weapon.
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(2) Whoever commits aggravated battery shall be guilty of a felony of the second
degree. . . .
Section 784.03(1)(a), Florida Statutes, provides that a battery is committed when a person:
Actually and intentionally touches or strikes another person against the will of the other; or
Intentionally causes bodily harm to another person.
By statute, use of force is justified in certain circumstances. Section 776.012, Florida Statutes, provides:
A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.
Pascual was defending himself and Officer Del Castillo when he struck Mr. Vega. His use of force was justified. Mr. Vega was acting violently, struck Pascual in the abdomen, and starting throwing punches at Officer Del Castillo. When Mr. Vega was knocked down he refused to obey the orders of the officers to put his hands behind his back. Instead, Mr. Vega started to get up. Given Mr. Vega's bizarre and violent behavior, Pascual was justified in considering Mr. Vega's action as the start of another round of fighting. While Pascual was attempting to subdue Mr. Vega, Mr. Vega continued to resist Pascual by thrashing around and carrying Pascual piggyback style.
Petitioner also alleged that Pascual "did unlawfully, while acting as a corrections officer, use excessive and/or unnecessary force, by punching and/or hitting and/or kicking and/or choking, upon Eladio Vega."
Respondent has failed to establish by clear and convincing evidence that Pascual used excessive or unnecessary force during the incident at issue.
When Mr. Vega rushed out of the cell and kicked Pascual, his actions constituted resistance level 5, aggressive physical. As such it was appropriate for Pascual to respond using any force up to and including response level 5, incapacitation. Pascual chose to use a lower response level.
When Mr. Vega continued throwing punches at Officer Del Castillo, his actions constituted resistance level 5, and again, Pascual could have used force up to and including incapacitation. Again Pascual chose a lower response level, striking Mr. Vega with his fist.
After Mr. Vega fell to the floor, he failed to follow the instructions of the officers. He then started to get up.
His refusal to obey the officers' orders coupled with his attempt to get up constituted resistance level 4, active physical. Based on the Use of Force/Levels of Resistance Matrix, Pascual could use up to response level 4, intermediate weapons to respond to Mr. Vega. The Metro-Dade Corrections and Rehabilitation does not use intermediate weapons; thus intermediate weapons were not available to Pascual. He was justified in moving up to the next response level, which was incapacitation. The LVNR is a method of incapacitation. Pascual was justified in using LVNR to subdue Mr. Vega.
Petitioner has failed to establish by clear and convincing evidence that Pascual has not maintained good moral character.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed.
DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997.
Karen D. Simmons Assistant General Counsel Florida Department of
A. Leon Lowry, Director Florida Department of
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
