The Issue 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.
Findings Of Fact 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.
Recommendation 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 Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997. COPIES FURNISHED: Karen D. Simmons Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Teri Gutman Valdes Assistant General Counsel Dade County Police Benevolent Association 10680 Northwest 25th Street Miami, Florida 33172-2108 A. Leon Lowry, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003),1 and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(b), and 11B-20.0012(1)(f), and, if so, what discipline should be imposed.
Findings Of Fact On December 13, 1991, Ms. Sanders was certified as a correctional officer in the state of Florida. Her correctional officer certificate is numbered 122576. On January 30, 2004, Ms. Sanders was employed as a sergeant by the Florida Department of Corrections at the Brevard Correctional Institution (Brevard), where Joseph Sonntag was an inmate. Mr. Sonntag is a diabetic, who must have insulin injections two times each day. On the morning of Friday, January 30, 2004, Bertie Gladys Florich, a correctional officer at Brevard, went to Mr. Sonntag's cell to awake him to take him to the medical unit for his insulin injection. Mr. Sonntag pulled the cover over his head and did not get up. Ms. Florich told Ms. Sanders that Mr. Sonntag would not get up and asked her to tell him to get up for his injection. Ms. Sanders went into Mr. Sonntag's cell, pulled the cover from Mr. Sonntag, and told his cell mate to leave the cell. Ms. Sanders snatched Mr. Sonntag by the collar of his shirt and flung him across the cell. As he landed, his leg hit the sink. Ms. Florich, who was on the next cell level, heard a thump. She looked at Mr. Sonntag's cell and saw Ms. Sanders helping Mr. Sonntag up. Mr. Sonntag had landed too far from his bunk to have fallen from his bunk. After Ms. Sanders left the cell, Mr. Sonntag told Ms. Florich that Ms. Sanders had pulled him forcibly off his bunk and that he had hurt his leg. Ms. Florich called Sergeant Carter, who was a superior officer. Sergeant Carter went into Mr. Sonntag's cell and came out later, stating that Mr. Sonntag needed to be taken to the medical unit. Mr. Sonntag told a male sergeant that Ms. Sanders had thrown him off the bunk. The male sergeant told Mr. Sonntag that if he made such an allegation that an investigation would be conducted and he would be placed in confinement while the investigation was being conducted. Because he feared being placed in confinement, Mr. Sonntag filled out an incident report, stating that he sustained his injuries by falling off his bunk. Mr. Sonntag was taken to the medical unit for treatment, and he also told medical personnel that he had fallen from his bunk. In an effort to cover up her injury to Mr. Sonntag, on January 30, 2004, Ms. Sanders completed and signed a Report of Injury or Illness, which was submitted to Brevard, indicating that Mr. Sonntag fell off his bunk. The report was false. On Sunday, February 1, 2004, Mr. Sonntag's mother came to visit him at Brevard. He told her that Ms. Sanders had thrown him off his bunk, causing the injury to his leg. Apparently, Mr. Sonntag's mother informed officials at Brevard of her son's allegations, because on Monday, February 2, 2004, Mr. Sonntag was asked by officials at Brevard to give another statement detailing the events that led to his injury. Senior Prison Inspector Barry Glover was assigned to investigate Mr. Sonntag's allegations. As part of the investigation, Mr. Glover interviewed Ms. Florich, who did not actually see how Mr. Sonntag sustained his injuries. While the investigation was being conducted, Ms. Sanders approached Ms. Florich in an attempt to get their stories straight. Ms. Sanders tried to get Ms. Florich to tell the investigator that Mr. Sonntag had either fallen off the bed or jumped off the bed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lucinda Sanders did not violate Subsection 943.1395(6), Florida Statutes, or Florida Administrative Code Rule 11B-20.0012(1)(f); finding that Lucinda Sanders did violate Subsection 943.13(7), Florida Statutes; suspending her Correctional Officer Certificate for two years; placing her on probation for two years following the suspension of her certificate; and requiring her to complete such training courses as deemed appropriate by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 27th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2006.
The Issue The issue is whether Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (2002), by unlawfully soliciting a woman to commit prostitution, in violation of Section 796.07(2)(f), Florida Statutes (2002).
Findings Of Fact Respondent has been a certified correctional officer since 1990. He holds Correctional Certificate Number 53627. On December 8, 1999, Respondent was operating his motor vehicle in a light rain in the vicinity of 68th Avenue and 17th Street at approximately 8:45 p.m. He saw a young female standing alongside the road. Respondent stopped his car and rolled down the passenger side window. He asked the woman if she needed a ride. She replied, "Do I ride?" This response implied to Respondent that she would assume the superior position in any sexual activity. Respondent repeated his initial question, and the woman replied with the same answer. The woman was a police officer who was conducting a prostitution sting operation with other officers, who were not visible to Respondent. The woman did not testify, and the other officers did not hear the conversation that took place between the woman and Respondent, so the sole source of the conversation is Respondent, who testified at the hearing and gave a statement to investigators. The conversation as described in these findings of fact is derived entirely from Respondent. Respondent replied to the woman, "I got $20." The woman asked, "For what?" Respondent answered, "For a fuck." The woman asked Respondent would he give her a ride back to their current location, and Respondent assured her that he would. The woman then turned away, explaining to Respondent that she was getting her pocketbook, but actually signalling to her fellow officers to take down Respondent. Respondent had felt that something was wrong and had started to drive away, but the officers quickly apprehended him. Following his arrest, Respondent was charged with soliciting a prostitution. However, he completed a pretrial diversion program, and the State Attorney's Office dismissed the case.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302-1489 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William Chennault Chennault Attorneys & Counsellors at Law Post Office Box 1097 Fort Lauderdale, Florida 33302-1097
The Issue Whether Respondent, Carl C. Brown (Respondent), failed to maintain good moral character required of law enforcement officers by engaging in the acts alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on January 27, 2017, and issued Law Enforcement Certification Number 340839. The Department is the state agency responsible for enforcing standards applicable to law enforcement certificates, pursuant to section 943.12 and chapter 120. Respondent had notice of the time and date of the hearing, but did not attend or present any evidence. Respondent was employed by the Quincy Police Department from April 3, 2017, to July 28, 2017. During Respondent's employment with the Quincy Police Department, Respondent worked in the W.A. Woodham Justice Center. The W.A. Woodham Justice Center is a public building that, during Respondent's employment, housed both the Gadsden County Sheriff's Office and the Quincy Police Department. At the time, the ground floor of the W.A. Woodham Justice Center was designated for the Gadsden County Sheriff's Office. The floor above the ground floor was designated for the Quincy Police Department. Marketa Powell (Inmate Powell or Ms. Powell) was an inmate at the Gadsden County Jail during the months of June and July 2017. During that time, she held trustee status as an inmate and was assigned to work at the W.A. Woodham Justice Center. Respondent did not know Inmate Powell prior to June 2017. Respondent first came into contact with Inmate Powell in June 2017, at the W.A. Woodham Justice Center. When they met, Respondent struck up a conversation with Ms. Powell and gave her his personal cell phone number so that she could contact him. Respondent also met with Inmate Powell at the Gadsden County Jail during his personal time. In June 2017, Respondent asked Inmate Powell to meet him in the men’s restroom on the ground floor of the W.A. Woodham Justice Center. Sometime later, Inmate Powell met Respondent in the men's restroom and performed oral sex on Respondent. On a separate, later occasion that same month, Respondent again asked Inmate Powell to meet him in the men’s restroom of the W.A. Woodham Justice Center. Once again, Inmate Powell met Respondent in the men’s restroom. On that occasion, she and Respondent had sexual intercourse and Inmate Powell performed oral sex on Respondent. Rachel McPherson, custodian at the W.A. Woodham Justice Center, was the supervisor in charge of Inmate Powell. Ms. McPherson witnessed Respondent fraternizing with Ms. Powell several times during June 2017. One day in June 2017, while Ms. McPherson was searching for Inmate Powell, she saw Respondent between the men’s and women’s restrooms of the W.A. Woodham Justice Center. Ms. McPherson entered the men’s restroom and observed someone’s feet in a stall of the men’s restroom. Ms. McPherson called out, but the person in the stall failed to respond. Ms. McPherson then exited the men’s restroom and asked Sheriff’s Assistant Betty Carter to watch the men’s restroom to see who exited. Ms. Carter's office was no more than 30 feet from the men’s restroom. Later that day, Ms. Carter witnessed Inmate Powell exiting the men’s restroom. The incident was reported and an internal investigation of Respondent was initiated. During the internal investigation, Inmate Powell was initially reluctant to come forward and tell authorities about her sexual encounters with Respondent because of fear of further criminal penalties. However, Ms. Powell eventually admitted her contacts with Respondent and, during the final hearing, provided credible, clear, and convincing evidence that the encounters with Respondent in the men's restroom, while she was an inmate serving as a trustee at the W.A. Woodham Justice Center, had occurred. Ms. Powell also provided credible testimony that Respondent also gave her money and visited her at the jail during his personal time. During his internal affairs interview with Lieutenant Larry Gilyard, Respondent admitted that he met alone with Inmate Powell in a restroom at the W.A. Woodham Justice Center while he was employed by the Quincy Police Department. As a result of the investigation, Respondent was dismissed from his employment with the Quincy Police Department on July 28, 2017. After Ms. Powell’s release from incarceration, and while she was still on probation, Respondent maintained contact with her, engaged in sexual intercourse with her, and exchanged text messages. While still on probation, Ms. Powell contacted Respondent and apologized to him for his losing his job. Respondent, through texts, admonished Ms. Powell stating, “what was the reason for saying it”; “you probably could have easily been like nothing happened”; and “you could have refused to give a . . . .” Not once in the pages of text messages did Respondent deny the allegations or say that Ms. Powell was being dishonest with the authorities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Department of Law Enforcement finding that Respondent failed to maintain good moral character as required by law and revoking Respondent’s law enforcement certification. DONE AND ENTERED this 25th day of March, 2019, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 25th day of March, 2019.
The Issue Whether Respondent's conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent has two certifications: Correctional (No. 188545) issued on December 13, 1999; and Law Enforcement (No. 192621) issued on July 27, 2000. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a law enforcement officer with the Kissimmee, Florida, Police Department. On or about July 13, 2007, while sleeping over at the minor victim's father's residence, Respondent picked up S.R., a 15-year-old child, put her into a bed and straddled her, holding her wrists with one hand while sliding his other hand over the side of her body. He then "nuzzled" or "sucked" on her neck and ear while S.R. struggled underneath him. Respondent "jumped" or "flinched back" when S.R.'s younger sister came back into the room, while S.R. continued to struggle with Respondent. The younger sister of S.R. was in the bathroom and heard S.R. call out. When she ran into the bedroom, Respondent jumped off of the bed, and the younger sister saw S.R. jump off of the bed and get into a second bed in the room. The younger sister also noticed that S.R. was "scared." S.R. sat "quietly and cried" while telling Krista Davis, her father's girlfriend that "while her little sister . . . was in the bathroom, . . . Leo had gotten on top of her in her bed and started to kiss her down her neck and on her ear . . . and rubbed the side of her body."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Leonardo Martinez, be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that his certifications as a correctional and law enforcement officer be revoked. DONE AND ENTERED this 12th day of November, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 12th day of November, 2009. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Sharon S. Traxler, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Leonardo Martinez
The Issue The issue to be determined is whether Respondent, Larry A. Labay, failed to maintain good moral character as alleged in the Administrative Complaint, in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). If so, then the appropriate penalty to be imposed must also be determined.
Findings Of Fact Respondent is a certified correctional officer licensed by the Criminal Justice Standards and Training Commission. He received his correctional certificate, number 285033, on July 17, 2009. Respondent was employed by the Clay County Sheriff’s Office (CCSO) from February 16, 2010, through July 18, 2011. Respondent was in a relationship with a woman named Marissa Meszaros. Their relationship began in approximately May of 2011. Ms. Meszaros was the subject of an investigation by the narcotics unit of CCSO, which believed that she might be involved in selling narcotics. A confidential informant had been used to make controlled purchases of controlled substances from Ms. Meszaros. During the course of the investigation into Ms. Meszaros, the drug task force learned that a possible CCSO employee was at the scene of some of the controlled purchases. A video recording of some of the buys showed Respondent directly in front of an illegal drug transaction. As a result, Respondent’s conduct was also investigated. On June 27, 2011, Respondent and Ms. Meszaros were observed riding in Respondent’s red 2000 Dodge pickup truck in the Orange Park area. They were observed leaving the Orange Park mall and going into an area known as a high drug-traffic area, and then south on Blanding Boulevard toward Labay’s residence. Once Respondent left Orange Park and returned from Duval County to Clay County, Detective Mark Maertz stopped Labay’s vehicle because the tag for his truck had expired. Detective Maertz was part of the CCSO’s canine unit. Once the truck was stopped, Detective Maertz deployed his dog, Rex, who alerted to the presence of narcotics. Detective Maertz requested that Respondent and Ms. Meszaros exit the car, and they did so. Ms. Meszaros was found to have crack cocaine in her bra. (A female officer dealt with her at the scene.) Also discovered were trace amounts of a green leafy substance throughout the floorboard on the driver’s side of the truck. The substance was in plain view of anyone getting into the driver’s side of car. As a result of their training and experience, both Detective Maertz, who stopped the car, and Sergeant Shawn Gordon, who actually conducted the search of the truck, recognized the substance as marijuana or cannabis, also referred to as “shake.” Respondent was detained and questioned following the traffic stop. He was questioned after being given his Miranda rights. He also gave consent to a search of his residence. At the beginning of the interview, Respondent denied ever using drugs or seeing Ms. Meszaros using drugs. However, after some questioning, Respondent admitted to giving Meszaros money to buy drugs and seeing her use them. A search of his residence resulted in the discovery of a “bong,” or pipe used to smoke marijuana, in the common bathroom, and a crack pipe in the master bedroom. The marijuana pipe was in plain view in the hall bathroom. The crack pipe was in a cigarette box on the dresser in the master bedroom. Respondent told the detectives who questioned him that they would find the drug paraphernalia in his home. The home was owned by Respondent. Ms. Meszaros had recently moved in with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an Order finding that Respondent has failed to maintain good moral character as defined in rule 11B- 27.0011(4)(b) in violation of section 943.1395(7), and revoking his certification as a correctional officer. DONE AND ENTERED this 11th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 11th day of September, 2013. COPIES FURNISHED: Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Labay (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent James F. Watson holds a certificate as a correctional officer, No.05-86-502-04 issued by petitioner Criminal Justice Standards and Training Commission; and has held it at all pertinent times. In the spring of 1988, he worked for the Florida Department of Corrections at Holmes Correctional Institution, where he held the rank of Sergeant or Correctional Officer II. On May 25, 1988, Sergeant Watson came to Sergeant Pumphrey's assistance as he escorted an inmate, Samuel Collier, across a prison yard into the security complex. The inmate took a swing at Sergeant Watson, who grasped the inmate's right arm while Sergeant Pumphrey gripped his left. Seeing their difficulty, Inspector William T. Nobles brought a pair of handcuffs which Sergeant Pumphrey used to secure the inmate's hands behind his back. Inside the security complex, before they reached the hall onto which Major Faircloth's office opened, they encountered Major Faircloth and Ms. Parmer, a correctional officer who worked as an administrative lieutenant. Major Faircloth, both sergeants and the inmate started down the hall, and Lieutenant Parmer "stepped out of the way so they could go down the hallway." T.220. Although she came within three or four feet of the inmate, Lieutenant Parmer did not observe any injuries. T.220. The mail room officer, who was also within three or four feet of the inmate about this time, saw no injuries on the inmate's face either. T.233-4. Neither did Sergeant Pumphrey, at this point. T.541. Testimony that Samuel Collier's T-shirt had "a little spot of blood," id., on it when he entered the security complex has not been credited. As he walked by them, Major Faircloth turned to Sergeants Michael Sheppard and William Paul and Inspector Nobles, who were in a group talking, and told them "to wait right there, [and not to] let any inmates come down" (T.66) the hall toward Major Faircloth's office. After he had given this order, Major Faircloth followed Messrs. Collier, Watson and Pumphrey into the office and closed the door. T.43. From the hall, the inmate was heard interrupting Major Faircloth, cursing loudly "and raising sand." Id. During the three or four minutes that elapsed before Major Faircloth came back out of his office, four to six noises that "sounded like licks being passed," (T.44) were audible through the closed door at intervals of 30 seconds to a minute. "It sounded like flesh meeting flesh." T.150; T.178. The inmate yelled, "[D]on't hit me anymore." T.235. Major Faircloth emerged from his office without the inmate or Sergeants Pumphrey and Watson, reentering the hall where Sergeants Sheppard and Paul and Inspector Nobles still stood. Sergeant Sheppard noticed spatters of blood on Major Faircloth's shirt, although Major Faircloth was not bleeding, as far as he could see. T.46. Ms. Hutching, the mail room officer, told Major Faircloth he needed to change shirts, "[b]ecause he had blood spattered all over his shirt." T.238. Sergeant Paul was asked "to go get three shirts . . . two white shirts and one brown shirt . . . [o]fficers' uniform shirts." T.151. Major Faircloth walked toward the control room, then stopped in front of the mail room and flexed his swollen right hand. When the mail room officer inquired, Major Faircloth responded, "I knocked that son of a bitch's tooth out." T.238. Frederick Terrell Kirkland, a classification supervisor who is not related to the assistant superintendent, saw Major Faircloth that day and noticed his hand and his blood-spattered shirt. Deposition of Kirkland. When assistant superintendent Kirkland arrived, he spoke to Major Faircloth, then accompanied him as he went back into the office where the inmate, respondent and Sergeant Pumphrey remained. At some point Lieutenant Chesnut entered Major Faircloth's office. After a few minutes, Mr. Kirkland, opening then closing the office door behind him, left to go down the hall to the bathroom. When he returned, Sergeant Sheppard opened Major Faircloth's office door to let the assistant superintendent back in. As he opened the door for Mr. Kirkland, Sergeant Sheppard "saw Major Faircloth slap the inmate in the face." T.482. Samuel Collier was seated in a chair at the time, his hands still behind him in handcuffs. Standing behind Mr. Collier, Sergeant Pumphrey rested his hands on the inmate's shoulders, facing Major Faircloth, who stood in front of inmate Collier. Sergeant Watson stood by the office door. Nothing obstructed respondent's view of Major Faircloth's striking Samuel Collier, although he turned his head and looked at Sergeant Sheppard when the door opened. T.51. "[D]id you see the son of a bitch kick me?" Major Faircloth asked the assistant superintendent. T.83. He later apologized to Mr. Kirkland for hitting the inmate in front of him. T.330, 343. After Samuel Collier had been taken away, Major Faircloth asked William Paul "to get an inmate to go clean the blood up out of his office. But then he said, no not to get the inmate, that the inmate didn't need to see that mess, for [Paul] to clean it up [him]self." T.153. In order to place Samuel Collier in solitary confinement, which was the course decided upon, he had to be sent elsewhere, because appropriate facilities were not then available at Holmes Correctional Institution. Karen Roberts, a nurse who worked at Holmes Correctional Institution, was summoned. After she drew blood, took the inmate's temperature and pulse, and made notes recording his vital signs, Mr. Collier was driven in a van to Okaloosa Correctional Institution. When Michael G. Foley, M.D., chief health officer at Okaloosa Correctional Institution, saw him shortly after lunch on May 25, 1988, Samuel Collier still had "alcohol on his breath." The parties stipulated that laboratory tests on the blood Ms. Roberts took from the inmate "revealed a .17 blood alcohol content." T.10. He had reportedly been drinking "buck," a home brew concocted from prison foodstuffs. Ms. Roberts had noticed a laceration of the upper lip which she felt "did not need suturing" (T.111) and swelling around the eyes, which she testified she attributed to the fact that Mr. Collier was crying. She "[w]anted to put ice on his eyes . . . [but] it was impossible to keep ice," (T.113) or so she testified, so she did not try it. Samuel Collier's injuries, including loose teeth Ms. Roberts overlooked, are consistent with blows received in a fight and could not have been caused by a fall against a fence post coupled with a fall out of a chair onto the floor. T.188. Samuel Collier's injuries resulted at least in part from blows Major Faircloth administered in respondent's presence. T.188, 196. When Dr. Foley examined Mr. Collier, both of the inmate's upper eyelids were swollen. An area of his scalp was swollen. There was "a massive hematoma to the upper lip, which is a massive swelling" (T.186) that made it protrude. He "had tenderness, abrasions and contusions to both cheeks. . . [and] some loose upper incisors." T.187. Dr. Foley ordered x-rays "to make sure there w[ere] no fractures." T. 184. The radiologist concluded that no bones were broken, according to Dr. Foley. Meanwhile, Major Faircloth told some correctional officers that they "were supposed to say that he had hurt his hand doing yard work." T.294. When Sergeant Sheppard asked about filing a report, Major Faircloth told him not to "worry about it, you didn't use force," (T.58) "you're not on the duty roster, they don't even know you were here" (T.94) or words to that effect. Major Faircloth's directive contravened Department of Corrections policy, which requires any correctional officer observing force being used against an inmate to prepare a "use of force report . . . and forward it to the Inspector General's office." T.59. That day, respondent Watson filed a written report, Petitioner's Exhibit No. 8, reciting that he and Sergeant Watson had used force against Samuel Collier to restrain him on the way to the security complex. Concerning events in Major Faircloth's office, the report stated: When the inmate would not sit down and after Major Faircloth had ordered him to be placed in the chair, I got him by the right arm with both my hands and we placed him in the chair, holding to him. Inmate Collier['s] resistance caused him to twist out of the chair, falling to the floor. I then grabbed for his arm once again and Sgt. Pumphrey got the other arm and we pulled him from the floor, placing him back in the chair. I used only a minimum amount of force to control the situation and prevent injuries. Petitioner's Exhibit No. 8. Respondent's report mentioned force Sergeant Pumphrey used in helping him get Samuel Collier into the chair in the major's office and recited that "Lt. Chesnut placed the rag across the inmate's mouth, to prevent him from spitting on any one else." Petitioner's Exhibit No. 8. But respondent's report omitted any mention of the force Major Faircloth had used against Samuel Collier. On June 28, 1988, while he was interrogated by Inspector G. L. McLain, respondent falsely denied under oath that he had seen Major Faircloth hit Samuel Collier and injure his hand. Petitioner's Exhibit No. 4, p.14. Inspector McLain had authority to administer the oath in the course of his official duties, and did administer an oath to respondent before interrogating him on June 28, 1988.
Recommendation It is, accordingly, RECOMMENDED: That petitioner revoke respondent's certificate as a correctional officer. DONE AND ENTERED this 8th day of April, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 8th day of April, 1993. APPENDIX TO RECOMMENDED ORDER 92-1395 Petitioner's proposed findings of fact Nos. 1, 3-15, 17, 18, 20, 21, 22, 24-31 and 32-47 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1 and 2 are immaterial as to respondent Pumphrey. With respect to petitioner's proposed finding of fact No. 16, it was not clear that a fence and gate were in place at the time. With respect to petitioner's proposed finding of fact No. 19, Major Faircloth first joined the group before they reached his office. With respect to petitioner's proposed finding of fact No. 23, the evidence did not clearly and convincingly establish the exact number of times Major Faircloth hit Collier. Sergeant Sheppard saw him slap Collier only once. But the evidence clearly and convincingly showed that Major Faircloth landed additional blow(s), causing his knuckles to swell, and that respondent saw this. Respondent's proposed findings of fact Nos. 1-7, 11, 13-17, 20-21, 28-29, 32, 40 and 43 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 8, 9 and 10, it was not clear that there was a need to pass between those two posts. That Collier hit or fell into a post was not established by the weight of the credible evidence. With respect to respondent's proposed finding of fact Nos. 45-46 and 7, the weight of the credible evidence did not establish that Collier was bleeding when he reached the security complex. With respect to respondent's proposed findings of fact Nos. 18 and 19, credible evidence did not establish that Collier leapt from the chair and fell, striking a desk and the floor. Respondent's proposed findings of fact No. 22, 24, 30, 31, 33, 38, 39, 42, 44, 47 and 48 pertain to subordination matters. Respondent's proposed findings of fact Nos. 23, 24, 25, 26, and 27 were not escorted by credible evidence. With respect to respondent's proposed finding of fact Nos. 34, 35, 36 and 37, the nurse's testimony that she thought Collier's eyes were swollen because he had been crying has not been credited. With respect to respondent's proposed finding of fact No. 41, the weight of the evidence did not establish that nobody saw Collier's injuries before he left HCI. COPIES FURNISHED TO: Joseph S. White, Esquire Gina Cassidy, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Stephen W. Foxwell Florida Police Benevolent Association 300 East Brevard Street Tallahassee, Florida 32301 James T. Moore, Commissioner Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Criminal Justice Standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact Fuller Warren Crews was employed until 1959 as a police officer in Jacksonville, Florida. In 1959, he was permitted to resign rather than face disciplinary charges. In 1959, Crews pled guilty in Jacksonville to damage to telephone equipment, a misdemeanor. Crews was sentenced to six months in the county jail. In 1960, Crews was found guilty of possession of tools used in committing crimes and pled guilty to simple larceny in Tifton County, Georgia. Be was sentenced to three to five years in prison in Georgia. Crews was fully pardoned for the offense of possession of tools used in committing crimes on October 6, 1975. Approximately eight to ten years ago, Crews became active within tie Nassau County Sheriff's posse helping to reorganize those police auxiliary groups. He was very dedicated and did a fine job, eventually becoming Captain of the posse. Crews applied for a position as Deputy Sheriff in Nassau County in 1976. He was interviewed by the Sheriff, who he advised of his criminal record. The Sheriff desired to hire Crews and contacted the Police Standards and Training Commission. In January, 1976, the Sheriff's Department provided the PSTC with various data on Crews. This data constituted the application for certification by the Commission, which does not have an application form. This application led to the processing of Crews' certification over the next two years. The procedures of the Department delegated to individual law enforcement agencies the task of conducting background investigations. Basic background data on Crews' convictions and former employment was provided the PSTC prior to Crews' certification on February 3, 1978 (Transcript, pages 178 and 179). In the course of processing his application, Crews appeared informally before the Commission concerning his certification on August 20, 1976. At that time questions were asked of Crews by the Commission regarding his dismissal from the Jacksonville Police Department. Crews responded that he had been discharged because of charges involving unlawful damage to private property (Transcript, pages 129, 165 and 166). There was no indication that Crews failed in any way to disclose his past record either in his application or in his statements to the Commission. Crews was denied certification because of the Commission's interpretation of Chapter 112.011, Florida Statutes, to Crews' pardon and the Federal Firearms Control Act, 18 U.S.C. 922(h) (Exhibit #2). Crews' fingerprints were taken by the Sheriff's Department and forwarded to the Florida Department of Law Enforcement (FDLE) but not to the PSTC. The FDLE forwarded Crews' fingerprints to the Federal Bureau of Investigation (FBI). The FBI sent one fingerprint card and Crews' RAP sheet back to the FDLE but not to the PSTC, and the FDLE sent the fingerprint card and RAP sheet to the Sheriff's Department. Under the PSTC's standard procedures, the Sheriff's Department sent this data to the Commission when Crews was hired, the day after his certification. The Sheriff's Department had knowledge of Crews criminal convictions and dismissal from the Jacksonville Police Department from the RAP sheet and Crews' statements to the Sheriff. On February 3, 1978, the Commission certified Crews. There was a discussion of Crews' background by the Commission, particularly his pardon, after which Crews was certified. His certification resulted from the Commission's interpretation of the law (Transcript, pages 166, 167, 182, 184, 105 and 186. See also attached minutes, Exhibit #4 and letter from Smith to Long). According to a member of the Commission at that time, Crews' certification was not a clerical error but resulted from the Commission staff's failure to follow up on data which it possessed (Transcript, pages 189 and 190) Many co-workers, the Sheriff by whom Crews is employed, neighbors and others testified regarding Crews' reputation in the community and their personal assessments of Crews' character. He is considered to be truthful, trustworthy, honest and hardworking. He has worked as a deputy sheriff since 1978 and has a reputation as a fine professional law enforcement officer respected by his co- workers and associates, many of whom testified in his behalf.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Police Standards and Training Commission toe no action to revoke the certification of Fuller Warren Crews because it lacks authority to consider any grounds for revocation which preexisted its initial final action of certification, and because the record reflects that Fuller Warren Crews has maintained good moral character. DONE and ORDERED this 18th day of November, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1980. COPIES FURNISHED: Arthur C. Wallberg, Esquire Department of Legal Affairs Administrative Law Section The Capitol Tallahassee, Florida 32301 James Corrigan, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. CASE NO.: 80-921 FULLER WARREN CREWS, Respondent. /
The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 7th day of June, 2012.
The Issue Whether the Respondent used excessive force to subdue a prisoner, and whether the Respondent made false official statements about the incident.
Findings Of Fact The Respondent, Tony V. Walker, was certified by the Criminal Justice Standards and Training Commission on July 7, 1989, and issued Corrections Certificate No. 05-89-502-01; and on October 9, 1990, was issued Law Enforcement Certificate No. 05-90-222-01. (See Petitioner's Exhibit 1.) At the time of the incident described in the Amended Administrative Complaint, the Respondent was working as a certified correctional officer at the Liberty Correctional Institution in Bristol, Florida. On or about November 12, 1990, the Respondent was working in the E and F dormitories of the Liberty Correctional Institution supervising inmates with Correctional Officer Wanda Terry/Rogers and Sgt. Smith. While Officer Terry/Rogers was on the phone with the medical department of the institution, the dining hall attempted to notify dormitories E and F to release their inmates for the noontime meal. When the dining hall was unable to contact dormitories E and F, dormitories G and H were called and told to release their inmates for the meal. When the inmates in dormitory E realized that dormitories E and F had been skipped in the feeding schedule, they became rowdy and belligerent. The inmates gathered around the dormitory control station cursing and complaining at Officers Terry/Rogers and Walker. Sgt. Smith was not present, having been requested by the lieutenant to assist him in the dining hall during the meal period. Officer Walker, the Respondent, attempted to calm the inmates by entering dormitory E and explaining the situation, emphasizing that the E and F inmates would be the next to go to lunch. This calmed some of the inmates, but Owen Dampier continued his verbal remonstrations about being skipped. After Walker returned into the dormitory's control room, Dampier approached the voice screen to the control room and became increasingly verbally abusive to both Walker and Terry/Rogers. His actions were causing the other inmates to again become rowdy and both Terry/Rogers and Walker felt that if Dampier's acting-out continued, it would foment an inmate disturbance. Walker had picked up an inmate's walking cane which was kept in the office for security reasons. Walker was preparing to issue the cane to the inmate to whom it belonged when Dampier screamed at Terry/Rogers and him. Walker slammed the cane against the plexiglass window and whistled at Dampier, who had turned and was walking towards the inmates clustered near the control room. Walker called Dampier back to the control room, and told Dampier that he was going to be placed in the laundry room in isolation. Terry/Rogers observed that Walker at this time was calm and was not upset by Dampier. Having told Dampier that he was going to be placed in isolation, Walker opened the door to the control room to let in Dampier. The control room door was hinged on the left side and opened into the control room. It was secured by a dead bolt lock located over the door handle on the right side of the door. As Dampier entered the room, Terry/Rogers left the desk and moved to the laundry room door to open it. Dampier stepped into the control room and stopped immediately inside the room. At this point, Dampier attempted to engage in a debate with Walker about the meal delay and refused to proceed into isolation. Dampier was facing Walker, and Walker, still holding onto the door, was standing partially behind the door, holding the door handle with his left hand. Walker released the door and it closed but was not locked. The statements of Walker, Terry/Roger and Dampier about what occurred next differ in their specifics. The following findings are based upon the testimony of Walker and Terry/Rogers and the written statement of Dampier which is corroborative of both of their statements. Dampier described his posture at this juncture as "being in Walker's face." Both Walker and Dampier were in close proximity with one another. Walker reached with his left hand to lock the door which had closed, but which had not been locked. As Walker started to reach for the door lock, Dampier perceived that he was grabbing for him and slapped Walker's hand away. Terry/Rogers, observing from across the room, saw Walker reaching for the door and assumed that he was reaching for Dampier who was standing in front of the door handle and lock. When Dampier slapped Walker's hand away, Walker felt threatened and pushed Dampier away from him with his right hand. Terry/Rogers, across the room, perceived Walker's action as an effort by Walker to grab Dampier. However, because of the location of the two men and the laundry room, it would have been extremely awkward for Walker to have grabbed at Dampier with his right hand in an effort to lead him to the laundry room which was to Walker's right and Dampier's left. Dampier's statement confirms that when Walker pushed him, Dampier pushed Walker back. Walker described Dampier's pushing him, and stated that, at this point, he struck Dampier on the chin with his closed right fist and then wrestled Dampier to the floor. Both the testimony of Terry/Rogers and the statement of Dampier confirm this. After both men fell to the floor, Terry/Rogers first locked the door to the control room, and then called the main control room for assistance. Two correctional officers supervising the yard immediately outside the dormitory responded in seconds. With their assistance, the tussle between Dampier and Walker was stopped. The Superintendent of Liberty Correctional Institution appointed an investigating officer, Inspector Stone, who interviewed Terry/Rogers, Walker and Dampier on the afternoon of November 12, 1992. Walker denied grabbing Dampier. Walker stated that he struck Dampier after Dampier pushed him. Dampier stated that Walker had grabbed him (page 4 of Dampier's statement), and also that Walker grabbed at him (page 6 of Dampier's statement). Walker admitted physical contact with Dampier and admitted striking Dampier; however, Walker stated consistently that he no recollection of grabbing Dampier by the arm. Both Walker and Dampier describe the same occurrences. Dampier's statement reports "he (Walker) grabbed at me (when) I was in his face." (Emphasis supplied.) "Then he told me to come. . . (page 6) "I pulled back like this, here, I was going to walk a little bit." (page 4, paragraph 5) "When I snatched my arm back, that's when he came up to me and pushed me." (page 4, paragraph 6) "I thought maybe he was going to swing, so I kinda like shoved him back, and he came up to be mad and he swung . . . he hit me." (page 4, paragraph 13) Walker states, "I asked him to step to me (inside the officer's station), and when he did he, uh, bowed up and he walked over to me and I opened up the door[.] I asked him to step on back to the laundry room[.] [W]hen he did, he slapped my hand back, and pushed me back and things went from there. . ." (page 3). "I hit the glass to get his attention[.] [T]hen I came down and I asked him to step inside the officer station[.] I told him to step on back to the laundry room[,] and that is when he slapped my hand and pushed me back, and started swinging[.]" Page 4. "I had my hand out to open the door, and as he stepped in[,] I let it,. . . the door[,] go back in behind me, . . . I took my hand [and] put it by my side like this, and he slapped my hand back, and pushed me back. . . I have [sic] not touched him then, until, up until then, 'til the actual squabble itself. . . . No, sir, I didn't grab him by the arm." (page 5 and 6) "He pushed me backwards, . . . finally I pushed him back and he reared back and I hit. It happened mighty fast." (Walker, page 6). In summary, both men testified to the same events, in the same order. Just after Dampier entered the room, Walker made some motion with his hand, and Dampier slapped it away. Walker pushed Dampier away from himself after Dampier slapped his hand, and a scuffle ensued in which Walker struck Dampier. What Terry/Rogers observed from across the room was not Walker grabbing Dampier with his right hand, but Walker pushing Dampier away. The slapping of Walker's left hand by Dampier with his right hand, which occurred first, was not observed by Terry/Rogers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the charges against the Respondent, Tony V. Walker, be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of February, 1993. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1993. APPENDIX TO RECOMMENDED ORDER The Respondent did not file proposed findings. The proposed findings filed by the Petitioner were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings Recommended Order Paragraphs 1-9 Paragraphs 1-9 Paragraphs 10,11 Walker advised Dampier he was going to be isolated before letting Dampier into the Control Room, and it was only after Dampier entered the Control Room that they had an argument. Paragraph 12 The testimony that Walker grabbed Dampier is rejected as being contrary to that of Walker's testimony which is corroborated by Dampier's statement. Paragraphs 13-15 Paragraph 17,18 Paragraphs 16 See Comments to Paragraph 12, above. Paragraphs 17,18 Irrelevant. Paragraphs 19-21 Paragraphs 19 and 23. Paragraph 22 The testimony of Stone, as quoted in the proposed finding, makes it appear that Walker changed his story. This is incorrect. Walker never denied striking Dampier, although, he denied having grabbed Dampier by the arm at the commencement of the altercation. Paragraph 23 Irrelevant. COPIES FURNISHED: Dawn Pompey Whitehurst, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Tony V. Walker 7002 Lois Street, Apt. B Callaway, FL 32404 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
