STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
vs.
Petitioner,
Case No. 19-4524PL
RUSSELL L. JOHNSON,
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Garnett W. Chisenhall of the Division of Administrative Hearings (“DOAH”), in Gainesville, Florida, on November 13, 2019.
APPEARANCES
For Petitioner: Janelle Surace, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302
For Respondent: John D. Whitaker, Esquire
Avera & Smith, LLP
2814 Southwest 13th Street Gainesville, Florida 32608
STATEMENT OF THE ISSUES
Whether Respondent failed to maintain good moral character as required by section 943.13(7), Florida Statutes (2015),1/ and
Florida Administrative Code Rule 11B-20.0012(2)(f), by committing battery and/or false imprisonment; and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On January 30, 2017, the Florida Department of Law Enforcement (“the Department”) issued an Administrative Complaint alleging that Respondent, Russell L. Johnson (“Respondent” or “Mr. Johnson”), failed to maintain good moral character as required by section 943.13(7) and rule 11B-20.0012(2)(f), by committing battery and false imprisonment on approximately November 7, 2015. Mr. Johnson executed an Election of Rights form on February 3, 2017, disputing the Department’s allegations and requesting a formal administrative hearing. The Department referred this matter to DOAH on August 22, 2019.
After granting one continuance, the undersigned convened the final hearing on November 13, 2019. At the outset of the final hearing, the undersigned granted Mr. Johnson’s unopposed motion to accept a transcript of prior testimony from Ann Marie Everson into evidence.
The Department presented the testimony of Kelly Thompson, Sergeant Loriann Hunter, and Lieutenant Jesse Sandusky. The Department’s Exhibits 1 through 14 were accepted into evidence. Mr. Johnson presented testimony from himself, Angela Chesser, John Bonner, Michael Hanson, and Michael Thompson. The
undersigned accepted Respondent’s Exhibits 1 through 6, 8, and 9 into evidence.
The one-volume final hearing Transcript was filed on November 25, 2019. On December 4, 2019, the undersigned issued an Order extending the deadline for proposed recommended orders to December 16, 2019. Each party timely filed a Proposed Recommended Order that was considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made:
The Criminal Justice Standards and Training Commission (“the Commission”) is the entity within the Department responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, and is charged with certifying and revoking the certification of law enforcement officers in Florida. § 943.12, Fla. Stat. Pursuant to
section 943.1395, the Commission is authorized to investigate incidents in which certified law enforcement officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action
against law enforcement officers found to have failed to maintain those standards.
Mr. Johnson served in the U.S. Military as a combat medic during Operations Desert Shield and Desert Storm in 1990 and 1991. He was awarded the Bronze Star for rendering aid while under enemy fire to four soldiers. He denies suffering from post-traumatic stress disorder (“PTSD”).2/
Mr. Johnson has been a certified law enforcement officer, Certificate Number 159793, since October 30, 1995, and spent approximately 20 years working in a variety of positions as a deputy sheriff in Alachua County. During that time frame, he spent 10 years instructing other officers on hand-to-hand combat, self-defense, and restraint techniques. He was also on the SWAT team for four to five years.
Kelly Thompson has lived in Gainesville for about nine years and works in marketing and public relations. She has children and is of average height and build.
Mr. Johnson and Ms. Thompson met through a mutual friend and started dating in February or March of 2015. By November of 2015, there had been considerable turmoil in their relationship.
They agreed to meet at Mr. Johnson’s residence during the evening of November 7, 2015. Mr. Johnson lives in a double- wide trailer outside the Gainesville city limits, and his property is off a dirt road.
Ms. Thompson arrived at Mr. Johnson’s residence with her Labrador Retriever between 6:00 p.m. and 6:30 p.m. Mr. Johnson had been working a University of Florida football game that day and was already home when she arrived. Their evening began with dinner, and Ms. Thompson used her iPad to set up a webpage for Mr. Johnson’s side business.3/ Ms. Thompson had at least two drinks that evening, and Mr. Johnson had at least one Jack Daniels.
After the iPad session and dinner, Mr. Johnson fell asleep watching a football game, and Ms. Thompson began sending text messages of a sexual nature to female contacts in Mr. Johnson’s cell phone.4/ She was attempting to ascertain whether Mr. Johnson was cheating on her.5/
Ms. Thompson confronted Mr. Johnson around midnight that evening about suspicious text messages on his cell phone, an argument ensued, and she either threw his cell phone or smashed it against a wall.6/
Ms. Thompson announced that she was leaving, gathered her dog, retrieved the bags she had brought with her, and got into her car. Ms. Thompson started her car and was in the process of contacting a friend when Mr. Johnson followed her out of his trailer, grabbed her car keys, and threw them and her cell phone into the woods.7/
Both parties remained outside Mr. Johnson’s trailer for at least several minutes. Ms. Thompson then reentered the trailer and found a pocket knife in the kitchen.8/
According to Mr. Johnson, Ms. Thompson threatened him with the knife once he reentered the trailer. While he did not fear for his life, he was concerned about being cut. When
Ms. Thompson came at him with the knife, Mr. Johnson responded by using a “straight arm-bar takedown” in which he grabbed Ms. Thompson’s wrist and forced her face down onto the floor. Mr. Johnson described this action as his effort to “deescalate this thing.”
After forcing Ms. Thompson to the floor,
Mr. Johnson took handcuffs from his weapons belt and cuffed Ms. Thompson’s arms behind her back. He also described this action as an effort to “deescalate this thing.”
According to Mr. Johnson, Ms. Thompson was struggling, and he was worried that she would hurt herself. He had been in the process of returning unneeded equipment to the sheriff’s department, and several sets of leg shackles were among the equipment that he was returning.9/ Mr. Johnson then used a nearby set of leg shackles to further confine Ms. Thompson.
As for why he decided to use leg shackles, Mr. Johnson gave the following testimony demonstrating he did not consider himself to be in danger:
ALJ: Unless she’s - - so at that point in time, why put leg shackles on her? She’s face down. It probably would be difficult for her to get up. Maybe I’ll go test it myself when I get home tonight to see if I can get off the floor.
A: I was doing everything I could to keep Ms. Thompson from hurting herself or me. The way the layout was, and it’s not to scale, of course, but if this was the loveseat or, I’m sorry, if this was the loveseat, the altercation occurred right here (indicating). My window out the front door, or I’m sorry, what we call the front of the trailer is right there (indicating). And it’s no higher than that step.
* * *
ALJ: Sounds like a very low window. A: Correct. Yes, sir.
ALJ: How wide is this window?
A: It’s a double-paned – it’s actually two windows side by side with the – they just slide up and down, just your standard home window, but they’re side-by-side.
ALJ: Why was that of concern with regard to Ms. Thompson while she was face down on the floor?
A: When she was face down, she was kicking, she was flailing. I was scared she was going to hurt herself. I didn’t know what to do at this point. I’m not going to sit on her, you know, and do all that silliness. That’s ridiculous.
After he had Ms. Thompson handcuffed and shackled, Mr. Johnson sat her on his couch and warned that he would be forced to call the authorities if she did not calm down.
Mr. Johnson removed the restraints once Ms. Thompson gained a measure of composure. He is adamant that she was in handcuffs and shackles for no more than 15 to 20 minutes. He also testified that the time period from when she allegedly hit him with his cell phone to when he removed the leg shackles was
30 to 35 minutes.
Mr. Johnson notified Ms. Thompson that their relationship was over and that he was going to bed. According to Mr. Johnson, Ms. Thompson followed him to the bedroom, disrobed, and attempted to have sex with him. However, he refused her advances, and they fell asleep together.10/
Mr. Johnson and Ms. Thompson went outside during the morning of November 8, 2015, and located her car keys within 10 minutes. According to Mr. Johnson, he returned to the trailer to look for the iPad, at which time Ms. Thompson started her car, and she drove off saying “I’m going to destroy you, mother
f- - -.”
Other than preventing Ms. Thompson from leaving when she was impaired, Mr. Johnson denied doing anything to prevent Ms. Thompson from departing his residence.
Upon driving away from Mr. Johnson’s residence,
Ms. Thompson immediately began looking for the police. She saw a Gainesville police car driving down an off-ramp from I-75, and she drove up the ramp in order to make contact with the officer.
Ms. Thompson reported that she had been assaulted and held against her will, and the police eventually persuaded her to accompany them to the police station where they took photographs showing she had bruises and scratches on the inside of her upper arms. The photographs also depict markings on her wrists and bruising on her calves.
Mr. Johnson ultimately pled no contest to misdemeanor battery and received one year of probation. His probation was terminated early, and the case was sealed.
Ultimate Findings Regarding Witness Credibility and the Allegations
While there were some issues with Ms. Thompson’s testimony, none of those issues substantially detracted from her credibility. For instance, she testified that the closest neighbor to Mr. Johnson’s residence was 500 yards away, and other witnesses testified that it was only 50 to 100 yards away.
Ms. Thompson testified that she attempted to climb that neighbor’s fence. However, the owner of that property testified that the gate is not locked and was slightly ajar. The same person testified that he saw a female walking by his gate during the morning of November 8, 2015. But, that is not inconsistent with Ms. Thompson’s testimony that she and Mr. Johnson were looking for her cell phone that morning. Her estimate of how long she was sending text messages to female contacts in Mr.
Johnson’s cell phone was also questioned. Finally, Ms. Thompson testified that Mr. Johnson ripped the cord attached to his landline telephone from a wall, and other witnesses testified that the cord was undamaged. Overall, Ms. Thompson’s testimony was compelling, and there were no clear indications that she was being untruthful.
Certain aspects of Mr. Johnson’s testimony cast doubt on his version of events. For example, after removing the handcuffs and leg shackles from Ms. Thompson, Mr. Johnson testified about how he decided to go to bed:
ALJ: And so grand total, how long was it between when you put the cuffs on her and then when you took the shackles off?
A: Fifteen minutes. ALJ: Fifteen minutes.
A: Would be my best guess.
ALJ: And if I recall your testimony correctly, you said at that point that the relationship was over.
A: Absolutely, yes, sir.
ALJ: And then you went to bed. A: I sure did.
ALJ: All right. But she was still in your trailer.
A: Correct.
ALJ: So given everything that transpired and the fact that you put cuffs on her and
shackles, and if I recall, you said you went to your bedroom alone initially, why was that, why did you feel safe with her still there in light of what happened?
A: I wasn’t threatened necessarily. You know, the woman was inebriated, or I’m sorry, under the influence. It’s hard to explain.
Ms. Thompson, the best way I can explain it was she would -- prior to this incident, she would do things to get me agitated and then calm right back down.
Looking back on it now, I see it crystal clear. And it was almost – I don’t know how to explain it, but it was just – it was a continuous pattern. And this was just an extreme version of an interaction as far as – minus all this other silliness. But as far as the cussing and all this kind, that’s normal. That was normal.
ALJ: I guess where I’m going with that, so at one point you felt – I think you said you were worried about being cut.
A: Yes, sir.
ALJ: At least you felt threatened enough to take her down with an armbar, get her face down, put cuffs on her.
A: Yes, sir.
ALJ: And then after only 15 minutes you take the cuffs and shackles off. And then you feel safe enough to go to sleep. But then there’s a pocket knife around, there’s this box of stuff, shackles. I think there’s testimony that you have multiple guns in the house. In light of what happened earlier that evening, that doesn’t seem to be a very wise thing to do.
A: You’re exactly right. I agree.
Mr. Johnson’s testimony was self-serving at times. For instance, Ms. Thompson was supposedly well aware of his habit of keeping keys inside the two personal vehicles Mr. Johnson kept at his residence, and the Commission’s prosecutor elicited the following testimony:
Q: She wanted to leave your house? A: She could have left.
Q: Okay. Well, she couldn’t have left because you threw her keys.
A: Yes, ma’am, she could. I’ve got two pick-up trucks, but she refuses to ride in them because she is above that.
Q: But you wouldn’t have allowed her to – it was your testimony earlier you didn’t want her to drive drunk.
A: Not to argue with you, I went to sleep. I wasn’t threatened by this woman anymore. Once again, she manipulated me thinking everything was fine. Everything was fine. She stripped down, ma’am, and tried to have relations with me.
Q: Mr. Johnson, all that to say it just aligns itself to be very – I don’t want to testify. Let me ask a different question. With all of her manic craziness, she is getting naked with you and she’s trying to stab you and she’s trying to drive drunk and craziness –
A: Yes, ma’am.
Q: -- why on earth, with all of your guns and your duty belt in the living room, would you feel safe enough to go into the room after you didn’t feel safe enough [because]
she was crazy and you had to restrain her with leg shackles?
A: Because she’s a manipulator, ma’am. Q: Okay. Let’s leave it at that.
As discussed below in the Conclusions of Law,
Mr. Johnson had no duty to retreat when Ms. Thompson confronted him with a knife. However, he testified multiple times that he wanted to “deescalate” the situation, and he agreed that the best way to accomplish that objective under the circumstances he described would have been to walk out the door from which he reentered his trailer:
ALJ: And so why did you – I think you testified that you didn’t feel in danger for your life, but so why did you take her down with the armbar?
A: I believe it was a reaction, you know, from doing this for so many years.
ALJ: Did she lunge at you with the knife?
A: She did, yes, sir. And she was waving it and screaming obscenities.
* * *
A: But anyhow, long story short, I disarmed her. Actually, I should have used some type of distraction technique prior to. Like maybe kicking her or doing something to distract her to get that knife away, but she was under the influence. She was intoxicated, your Honor. She was.
We had – we were in a relationship, and I just had to deescalate this thing the safest way I knew how. If I had known all of this
would have transpired after that, there would have been no question that I would have done the same exact thing. I would have picked up my radio and called someone and had this monster arrested.
ALJ: How many – how many entrances or exits are there to your trailer?
A: Two.
ALJ: Two. One way to deescalate would be for you to go out the other exit.
A: Yes, sir, you’re right. You’re correct.[11/]
The findings in paragraphs 12 through 19 above
are based on Mr. Johnson’s testimony, and his testimony clearly and convincingly demonstrates that he committed battery.
It also clearly and convincingly establishes that he was not acting in self-defense when he placed leg shackles on
Ms. Thompson.
As for the false imprisonment charge, Mr. Johnson raised an affirmative defense by arguing that Ms. Thompson was intoxicated and unable to drive safely. If the Commission only had to disprove Mr. Johnson’s affirmative defense by a preponderance of the evidence, then the undersigned would conclude that Mr. Johnson also committed false imprisonment. However, the undersigned is not left with a firm belief or conviction, without hesitancy, that Mr. Johnson’s assertion that Ms. Thompson was too intoxicated to drive safely is false.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569
and 120.57(1), Florida Statutes.
Certificate Holders Must Have Good Moral Character
In disciplinary proceedings such as the instant case, a tribunal applies the statutes and rules that were in effect during the conduct at issue. Childers v. Dep’t of Envtl. Prot.,
696 So. 2d 962, 964 (Fla. 1st DCA 1997).
Section 943.13(7) mandates, in pertinent part, that “any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer” shall “[h]ave a good moral character as determined by a background investigation under procedures established by the commission.”
Rule 11B-20.0012(2)(f) provides that the Commission is authorized to discipline an instructor’s certification if that instructor “commits an act or acts establishing a ‘lack of good moral character.’” Rule 11B-20.0012(8)(b) of the aforementioned rule provides that such a violation is subject to “a penalty consistent with subsections 11B-27.005(4)-(7), F.A.C., for an act or acts establishing a ‘lack of good moral character’ defined in subsection 11B-27.0011(4), F.A.C.”
Rule 11B-27.0011(4)(a) provides that a certified officer fails to maintain “good moral character” as required by
section 943.13(7) by “[t]he perpetration . . . of an act that would constitute any felony offense, whether criminally prosecuted or not.” Rule 11B-27.0011(4)(b) further provides that a certified officer also fails to maintain “good moral character” by committing one or more of several enumerated “misdemeanor or criminal offenses whether criminally prosecuted or not.”
Relevant to the instant case is the inclusion of battery under section 784.03, Florida Statutes, among the prohibited misdemeanors.
The Allegations at Issue In the Instant Case
The Commission is required to prove the allegations in its Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano, 696 So.
2d 744, 753 (Fla. 1997). The court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), stated that:
[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 testimony 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
a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
The First District Court of Appeal has followed the Slomowitz
test and added the interpretive comment that “[a]lthough this standard of proof may be met where the evidence is in
conflict . . . it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986,
988 (Fla. 1st DCA 1991).
The Commission’s Administrative Complaint alleges that Mr. Johnson committed battery upon Ms. Thompson on approximately November 7, 2015, in violation of section 784.03 or any lesser included offense by “restraining Kelly Thompson in handcuffs and leg restraints ”
The Commission’s Administrative Complaint also alleged that Mr. Johnson falsely imprisoned Ms. Thompson on approximately November 7, 2015, in violation of section 787.02(1)(a), Florida Statutes, or any lesser included offense by “unlawfully and without lawful authority, forcibly, by threat, or secretly confin[ing], abduct[ing], imprison[ing], or restrain[ing]”
Ms. Thompson against her will.
As a result of the aforementioned allegations, the Commission further alleges that Mr. Johnson failed to exhibit good moral character in contravention of section 943.13(7) and rule 11B-20.0012(2)(f).
The Commission Proved by Clear and Convincing Evidence that Mr. Johnson Committed Battery.
With regard to the battery allegation, section 784.03 provides that one commits first degree misdemeanor battery when he or she: (a) “[a]ctually and intentionally touches or strikes another person against the will of the other;” or
(b) “[i]ntentionally causes bodily harm to another person.”
Mr. Johnson’s own testimony, as described in paragraphs
12 through 17 above, is clear and convincing evidence that he actually and intentionally touched Ms. Thompson by placing handcuffs and leg restraints on her on approximately November 7, 2015.
Mr. Johnson argues in his Proposed Recommended Order that he was acting in self-defense. Section 776.012, Florida Statutes, provides, in pertinent part, that:
A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (emphasis added).
Self-defense claims are not generally presented in an administrative context. However, the charge against Mr. Johnson is based upon the commission of battery as defined in the
criminal statute, so resorting to the criminal definitions and procedures related to the prosecution of battery is instructive.
“When a defendant claims self-defense, the State maintains the burden of proving the defendant committed the crime and did not act in self-defense.” Alexander v. State, 121 So. 3d
1185, 1188 (Fla. 1st DCA 2013)(quoting Montijo v. State, 61 So. 3d 424, 427 (Fla. 5th DCA 2011)); see also Stieh v. State, 67 So.
3d 275, 278 (Fla. 5th DCA 2011)(when the defense presents a prima facie case of self-defense, the State has the burden of proving that the defendant did not act in self-defense). While these criminal cases indicate that the State’s burden is to prove the defendant did not act in self-defense beyond a reasonable doubt, in this proceeding, the burden would be one of clear and convincing evidence. Osborne Stern.
If one accepts Mr. Johnson’s version of the events on November 7 and 8, 2015, as being accurate, then Ms. Thompson ran into his trailer and began brandishing a pocket knife when
he followed her inside. Under those circumstances,
section 776.012(1) indicates he had no duty to retreat. Also, Mr. Johnson reasonably believed that he needed to protect himself against an aggravated assault from Ms. Thompson. Section 784.021 defines an aggravated assault as an assault with a deadly weapon without an intent to kill, or an assault with an intent to commit a felony. An aggravated assault is a third-degree felony.
The question then turns to whether Mr. Johnson’s actions were reasonable under the circumstances. See State v. Iverson, 316 P.3d 682, 693 (Idaho Ct. App. 2014)(noting that
“[i]n exercising self-defense, a person must exert only reasonable, and not excessive force.”); State v. Alcantar-
Maldonado, 340 P.3d 859, 869 (Wash. Ct. App. 2014)(noting that “[t]o invoke self-defense, a defendant may not use more force that is necessary or more force than is reasonably prudent.”).
Accepting Mr. Johnson’s version of events as being true, a reasonable person could conclude that Mr. Johnson was justified in applying an arm-bar to Ms. Thompson and taking her down to the floor when she threatened him with a pocket knife. While it is a much closer question, a reasonable person might even conclude that Mr. Johnson was justified in applying handcuffs to Ms. Thompson. However, even if one gives
Mr. Johnson every benefit of the doubt, his own testimony demonstrated that Ms. Thompson no longer posed a threat to him when she was face down on the floor of his trailer with her hands cuffed behind her. See Dep’t of Health, Bd. of Nursing v.
Delpozzo, Case No. 17-1628PL (Fla. DOAH July 3, 2017; Fla. Dep’t of Health Sept. 22, 2017) (concluding that “[t]he force used by the Respondent in slapping the patient’s arm was not reasonably necessary for self-defense.”); Lee Cnty. Sch. Bd. v. Denson, Case
No. 06-4995 (Fla. DOAH April 18, 2007; Lee Cnty, Sch. Bd. May 16,
2007)(concluding that “[e]ven if Mr. Denson had established that his first swing at Mr. Baker was committed in self-defense, his self-defense theory disappeared when he continued to strike
Mr. Baker while he was down and the sprayer wand had been knocked away.”).
The Commission Failed to Prove by Clear and Convincing Evidence that Mr. Johnson Committed False Imprisonment.
While the Administrative Complaint does not specify which of Mr. Johnson’s actions amounted to false imprisonment, the Commission’s Proposed Recommended Order argues that the false imprisonment occurred by Mr. Johnson throwing Ms. Thompson’s car keys into the woods, throwing her cell phone into the woods, dragging her back to his house by her arms, handcuffing her, forcibly moving her throughout his residence, and locking her in the back of his patrol car.
Section 787.02(1) defines “false imprisonment” as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.”
Mr. Johnson conceded during his own testimony that he threw Ms. Thompson’s cell phone and car keys into the woods. He also conceded that he had Ms. Thompson in handcuffs and leg shackles for 15 to 20 minutes. Therefore, Mr. Johnson’s own testimony demonstrates that he forcibly confined, imprisoned, or
restrained Ms. Thompson. The question is whether he had lawful authority to do so.
Mr. Johnson is raising Ms. Thompson’s alleged intoxication as an affirmative defense and arguing that he prevented her from breaking the law by driving under the influence. See generally State v. Furr, 723 So. 2d 842 (Fla. 1st DCA 1998)(holding that the appellee’s drunk driving was a breach of the peace that authorized an officer outside his jurisdiction to make a citizen’s arrest). Mr. Johnson has the burden of establishing the basis for that affirmative defense; if he does, then the burden shifts to the Commission to disprove it. See Hammon v. State, 679 So. 2d 1216, 1218 (Fla. 4th DCA
1996)(noting that “[t]he defendant has the burden of going forward with evidence that the affirmative defense exits. Once the defendant has presented competent evidence of the existence of the defense, the burden of proof remains with the State, and the State must then prove the nonexistence of the defense beyond a reasonable doubt.”); Fla. Bd. of Prof’l Eng’r v. Wood, Case No. 11-5348PL (Fla. DOAH Nov. 16, 2012; FEMC March 21,
2013)(noting that Respondent raised seven affirmative defenses and bore the burden of proving the facts supporting each one).
Mr. Johnson’s testimony that Ms. Thompson was intoxicated established a prima facie case for his affirmative defense, and the Commission was unable to disprove that assertion
by clear and convincing evidence. Therefore, the undersigned is not left with a firm belief or conviction, without hesitancy, that Mr. Johnson’s affirmative defense is false. Accordingly, the Commission has not proven by clear and convincing evidence that Mr. Johnson violated section 787.02(1)(a).
Penalty Recommendation
If a certified officer is found to have not maintained good moral character, then section 943.1395(7) authorizes the Commission to impose one or more of the following penalties: revocation of certification; suspension of certification for a period not to exceed two years; imposition of probationary status for no longer than two years and subject to terms and conditions imposed by the commission; successful completion of career development training or retraining; and issuance of a reprimand.
Rule 11B-20.0012(8)(b) provides that if an instructor commits an act establishing a lack of good moral character, then that violation is subject to “a penalty consistent with subsections 11B-27.005(4)-(7), F.A.C. . . .” Rule 11B- 27.005(4)(a) sets forth “a range of disciplinary guidelines from which disciplinary penalties shall be imposed upon certified officers who have . . . violated Section 943.13(7), F.S.”
Rule 11B-27.005(4)(a) specifies that “[a]ll penalties at the upper range of the sanctions set forth in the guidelines . . . include lesser penalties (i.e., reprimand, remedial training, or
probation) that may be included in the final penalty at the Commission’s discretion.” Under rule 11B-27.005(5)(b) commission of misdemeanor battery under section 784.03 is punishable by penalties up to and including suspension of certification.
Finally, rule 11B-27.005(6) indicates the Commission may deviate from the guidelines’ penalty upon a showing of aggravating or mitigating circumstances.
There is no evidence that Mr. Johnson has been disciplined since becoming a certified law enforcement officer on October 30, 1995.
If one accepts Mr. Johnson’s testimony as being accurate, then he was threatened with a knife in his home and some defensive action on his part was legally permissible. However, Mr. Johnson went too far and exercised poor judgment by placing leg shackles on Ms. Thompson after she no longer presented any threat. Accordingly, the undersigned recommends that the Commission suspend Mr. Johnson’s license for six months.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order suspending Russell L. Johnson’s Law Enforcement Certification, number 159793, for six months based on his violation of section 943.13(7), Florida Statutes.12/
DONE AND ENTERED this 16th day of January, 2020, in Tallahassee, Leon County, Florida.
S
G. W. CHISENHALL Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2020.
ENDNOTES
1/ Unless stated otherwise, all references to the Florida Statutes and the Florida Administrative Code shall be to the statutes and rules in effect on November 7, 2015, the date when the events at issue began. See McClosky v. Dep’t of Fin. Serv.,
115 So. 3d 441 (Fla. 5th DCA 2013)(noting that a proceeding is governed by the law in effect when the acts at issue allegedly occurred).
2/ The victim of the alleged battery and false imprisonment testified that Mr. Johnson suffers from PTSD and had stopped receiving treatment prior to the incident on November 7, 2015.
3/ Mr. Johnson was establishing a cattle operation in November of 2015, and he is currently self-employed as a meat processor.
4/ Ms. Thompson testified about how she sent suggestive text messages to Mr. Johnson’s female contacts and deleted the messages before confronting him.
5/ Mr. Johnson and Ms. Thompson’s descriptions of what happened during the evening of November 7, 2015, and the following morning were substantially different. Nevertheless, many of the Findings of Fact are based on the few areas of agreement in their
respective testimonies, and several of the subsequent endnotes will highlight the more pronounced areas of disagreement. For example, prior to Ms. Thompson accessing Mr. Johnson’s cell phone, she testified that she discovered him examining the text messages in her phone and iPad. Mr. Johnson supposedly got upset after mistaking a text message from a female massage therapist as being from a male. Because Ms. Thompson considered Mr. Johnson’s actions as being indicative of someone with something to hide, she decided to examine the text messages on his phone and send suggestive messages to his female contacts in order to see what kind of responses her texts elicited. In marked contrast to
Ms. Thompson’s testimony, Mr. Johnson testified that there were no issues that evening about the contents of their cell phones.
6/ Mr. Johnson testified that he awoke to Ms. Thompson hitting him in the face with his cell phone. Respondent’s Exhibit 5 is a photograph that Mr. Johnson took of himself soon after the incident described herein, and the photograph depicts a small amount of bruising on his nose and an abrasion near his left eye. After Ms. Thompson either threw or smashed his cell phone against a wall, Mr. Johnson testified that he retaliated by walking out onto his back porch and throwing her cell phone into the woods.
7/ Ms. Thompson testified that Mr. Johnson banged on her car window, she rolled it down, and he stated that she was not going anywhere. A struggle ensued, and Ms. Thompson testified that she hit Mr. Johnson in the face. The bruising and the abrasion depicted in Respondent’s Exhibit 5 could have also resulted from that blow or blows.
Mr. Johnson testified that he took Ms. Thompson’s keys because she was too intoxicated to drive. Mr. Johnson is particularly concerned about drunk driving because he had a brother who died in 1994 while driving under the influence.
8/ Mr. Johnson and Ms. Thompson gave vastly different testimony about what transpired after their confrontation at her car and Ms. Thompson’s reentry into the trailer. According to
Ms. Thompson, she left her car, yelled for help and ran toward the closest neighboring house with Mr. Johnson in pursuit.
Ms. Thompson testified that she jumped on the neighbor’s fence with the intention to climb over it, but Mr. Johnson supposedly grabbed her hair and pulled her off the fence. Mr. Johnson then dragged her back to his residence by pulling on her hair. At some point, he released her hair and dragged her the rest of the way by hooking his hands underneath her shoulders. The bruising
on Ms. Thompson’s upper arms visible in Petitioner’s Exhibits 1 and 2 would be consistent with that action. According to
Ms. Thompson, Mr. Johnson released her again so that he could urinate, and she took that opportunity to use her iPad to contact a friend for help. However, Mr. Johnson threw her iPad into the woods before she could finish. Ms. Thompson then ran inside the trailer and attempted to lock Mr. Johnson outside.
After he threw Ms. Thompson’s keys into the woods,
Mr. Johnson testified that she walked up and down the dirt road near his residence three or four times screaming obscenities. He remained on his porch, and Ms. Thompson never attempted to escape to a neighboring home.
9/ Mr. Johnson explained that he had four or six sets of leg shackles in his trailer and that they were among several pieces of equipment that he was returning because he had just been assigned to courthouse duty and no longer needed them.
10/ Once she was down on the floor, Ms. Thompson testified that Mr. Johnson told her she was under arrest and Mirandized her.
After telling her to stop resisting, Mr. Johnson shackled her legs, and Ms. Thompson estimates that she was on the floor for 30 to 45 minutes. At some point, Mr. Johnson put a belt through the handcuffs and her legs and then secured the belt so that
Ms. Thompson’s arms and legs were tied together behind her. She estimates that she was left in that position for approximately 30 minutes. Mr. Johnson eventually removed the belt and shackles, took Ms. Thompson outside, and locked her in the back of his patrol car. Ms. Thompson assumes that he was looking for her car keys while she remained in the patrol car with her hands cuffed behind her. After being unable to locate the keys, Mr. Johnson took Ms. Thompson inside and told her he needed to rest because he was scheduled to be on duty again at 7:30 a.m. Ms. Thompson testified that Mr. Johnson then brought her to bed, removed the handcuffs, and placed his weapons belt between them. After the sun rose, they returned outside to look for her car keys. They found the keys, and Mr. Johnson told her that their relationship was over. However, he became upset because Ms. Thompson’s dog was anxious and digging holes in his yard. Ms. Thompson offered to fill in the holes. While Mr. Johnson was presumably looking for a shovel, Ms. Thompson got in her car and drove away.
11/ “A person acting in self defense is not held to the same course of conduct which might have been expected had he been afforded an opportunity of cool thought as to possibilities, probabilities and alternatives.” Price v. Gray’s Guard Serv.,
298 So. 2d 461, 464 (Fla. 1st DCA 1974). One could argue that the foregoing principle is not fully applicable to the instant case given that Mr. Johnson is well accustomed to stressful situations because he received the Bronze Star, was a deputy sheriff for approximately 20 years, taught defensive tactics for the Commission, and spent 4 to 5 years on a SWAT team.
12/ By stipulating that Mr. Johnson was a certified law enforcement officer at all relevant times, the parties established that Mr. Johnson had to maintain good moral character as required by section 943.13(7). The Administrative Complaint also alleged that Mr. Johnson violated rule 11B-20.0012(2)(f), and that rule provides that the Commission can discipline an instructor’s certification if that instructor commits an act establishing a lack of good moral character. While there was testimony that Mr. Johnson acted as a defensive-tactics instructor for the Commission, the parties did not stipulate that Mr. Johnson was an instructor and thus required to maintain good moral character as required by rule 11B-20.0012(2)(f).
COPIES FURNISHED:
Janelle L. Surace, Assistant General Counsel Florida Department of Law Enforcement
Post Office Box 1489 Tallahassee, Florida 32302 (eServed)
John D. Whitaker, Esquire Avera & Smith, LLP
2814 Southwest 13th Street Gainesville, Florida 32608 (eServed)
Jason Jones, General Counsel
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302 (eServed)
Dean Register, Program Director
Division of Criminal Justice Professionalism Services Florida 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 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 16, 2020 | Recommended Order | Petitioner proved by clear and convincing evidence that Respondent committed battery. |
