Robert Gray, Jr. v. County of Starke, Indiana ( 2017 )

FILED
Aug 29 2017, 8:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Andrew R. Duncan Martin R. Lucas
Ruckelshaus, Kautzman, Blackwell, North Judson, Indiana
Bemis & Hasbrook
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Gray, Jr., August 29, 2017
Appellant, Court of Appeals Case No.
64A03-1703-PL-585
v. Appeal from the Porter Superior
Court
County of Starke, Indiana, The Honorable Mary Harper,
Appellee. Judge
Trial Court Cause No.
64D05-1603-PL-1980
Bailey, Judge.
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Case Summary
[1] The Sheriff of Starke County, Indiana recommended the termination of Deputy
Robert Gray, Jr. (“Gray”) from the Starke County Sheriff’s Department after he
slapped a pre-trial detainee. After a public hearing, the Starke County Sheriff’s
Merit Board (“the Merit Board”) terminated Gray’s employment. The
termination was upheld on judicial review and Gray now appeals that order.
We affirm.
Issues
[2] Gray presents two issues for review:
I. Whether, as a matter of law, a termination decision arising
from an alleged violation of a law enforcement department
rule on use of force must be determined with reference to
the excessive force standard of objective reasonableness
enunciated in Graham v. Connor, 490 U.S. 386 (1989); and
II. Whether the termination is reversible because the trial
court erroneously found that the termination decision was
supported by substantial evidence by reweighing evidence,
assessing witness credibility, and making its own factual
findings.
Facts and Procedural History
[3] Gray was hired in December of 2012 as a member of the Starke County
Sheriff’s Department. On April 29, 2014, while on-duty in the Starke County
Jail, Gray became involved in a verbal and physical incident with a pre-trial
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detainee, J.S. As J.S. made noises as if to spit, or as she spat, Gray slapped J.S.
and exclaimed, “Don’t you f----g spit on people.” (Hearing Ex. D.)
[4] Oscar Cowen, the Sheriff of Starke County, and his successor, William Dulin,
filed written charges against Gray. As amended, the allegations concerned
violations of four sections of the Starke County Sheriff’s Department Rules
(“Rules”), that is: (1) Rule 4-2.2 Conduct Unbecoming to an Officer, (2) Rule 4-
2.21 Treatment of Persons in Custody, (3) Rule 4-2.23 Use of Force, and (4)
Rule 4-4.3 Courtesy. The Sheriff charged that Gray “slapped or struck with his
hands a custodial prisoner … while she was seated in a restraint chair with her
arms restrained,” “did shake his finger or hand in the face of a custodial
prisoner in a threatening or menacing manner,” and “held his hand over the
mouth and neck of a custodial prisoner.” (Tr. at 12.)
[5] On October 27, 2015, the Merit Board conducted a hearing on the charges. The
relevant facts, as found by the Merit Board, included the following:
[J.S.] was taken to the conference room for causing disturbances
to other inmates. Assisting Robert with restraining [J.S.] was
Matthew Wiles, an employee of the Starke County Sheriff’s
Department. After being escorted to the conference room, [J.S.]
was initially left but monitored by video. On numerous
occasions she ran into the conference room door and made loud
screaming noises. … [J.S.] was seen punching a sleeping pad
numerous times and taking her clothes partially off. At some
point, Robert spoke with [J.S.] and attempted to get her to calm
down. [J.S.] put her fingers near Robert’s face. Robert placed
[J.S.]’s arm in a lock behind her to prevent her from swinging at
him or causing him physical injury. Once released, [J.S.] became
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agitated again. At this time, Robert and Matthew Wiles decided
to place [J.S.] in a restraint chair.
While attempting to restrain [J.S.]’s feet in the restraint chair,
Robert forcefully and open-handedly slapped [J.S.] across the left
side of her face. … Following the slap across the face, Robert
cupped [J.S.]’s chin with his hand and pushed her head
backwards. After she was secured, Robert and Matthew exited
the conference room.
It was common knowledge that [J.S.] suffered from several
mental illnesses. … Robert testified that he knew [J.S.] was
mentally ill at the time of this incident. . . .
The evidence supports that [J.S.] was making vulgar comments
to Robert and Matthew Wiles before and during the time that
they were restraining her. … The video does not show whether
[J.S.] actually spit on Robert.
(App. at 29-31.)1
[6] The Merit Board additionally entered findings and conclusions thereon stating
in relevant part:
There is no dispute that [J.S.] was in custody at the time Robert
open-handedly slapped her across the face. The evidence
supports the conclusion that she was partially restrained in a
restrain[t] chair and did not have all her extremities.
1
Much of the language appearing in the Findings of Fact section is actually a recitation or summary of
testimony presented, as opposed to findings of fact derived from that testimony.
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There is no direct evidence that [J.S.] spat upon Robert. There is
circumstantial evidence suggesting that this may have happened;
however, the Board is unable to say with absolute certainty
whether she spat on Robert. The Board finds that regardless of
whether [J.S.] actually spat on Robert, its decision in this matter
would remain the same.
Robert used excessive force under the circumstances and in
violation of the legal authority on excessive force. Under the
totality of the circumstances, it was not reasonable for Robert to
open-handedly slap [J.S.] across the face when she was partially
restrained. There is no evidence that [J.S.] was attempting to
strike or cause substantial injury to Robert at the time he slapped
her across the face. Rather, at the time of the slap, [J.S.] did not
pose an immediate threat to the safety of Robert or others.
It appears to the Board that Robert slapped [J.S.] out of anger
rather than out of fear of bodily injury to himself. Furthermore,
had [J.S.] in fact spit on Robert’s face, the Board finds that
Robert could have used alternative, reasonable techniques to
redirect the threat without engaging in an excessive slap on her
face.
Robert engaged in conduct that is unbecoming to an officer in
violation of Rule 4-2.2 when he slapped [J.S.] across the face. He
engaged in conduct on duty that reflected unfavorably upon the
Department and which brings the Department into disrepute.
The Board finds that his conduct was especially shameful in light
of the fact that Robert had knowledge about [J.S.]’s mental
illnesses.
Robert mistreated a person in custody in violation of Rule 4-2.21
when he slapped [J.S.] across the face at a time when she did not
pose an immediate threat to him or others.
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Robert used more force than what was reasonably necessary
under the circumstances in violation of Rule 4-2.23.
Robert failed to use courtesy in violation of Rule 4-4.3. Robert
failed to control his temper, and while acting in the course of his
duties, and engaged in a violent act against an inmate.
(App. at 33.)
[7] The Merit Board ordered that Gray’s employment be immediately terminated.
On January 8, 2016, Gray brought a civil action for judicial review naming
Starke County (“the County”) as the defendant. His petition for change of
venue from the county was granted on February 8, 2016.
[8] On October 31, 2016, argument of counsel was heard at a hearing on the
petition for judicial review, conducted in the Porter Superior Court. On March
1, 2017, the trial court issued an order affirming the employment termination
decision. This appeal ensued.
Discussion and Decision
Standard of Review
[9] Indiana Code Section 36-8-10-11(a) provides in relevant part: “The sheriff may
dismiss, demote, or temporarily suspend a county police officer for cause after
preferring charges in writing and after a fair public hearing before the board,
which is reviewable in the circuit court.” Subsection (d) provides that the
appeal is to be taken by filing in court, within thirty days after the decision is
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rendered, a verified complaint stating in a concise manner the general nature of
the charges, the decision, and a demand for relief. The appeal shall be heard de
novo only upon any new issues related to the charges. The final judgment may
be appealed by either party. I.C. § 36-8-10-11(h). Because discipline is to be
imposed only “for cause,” the allegations must bear a reasonable relationship to
the officer’s fitness or capacity to hold his or her job. Pope v. Marion Cty. Sheriff’s
Merit Board, 157 Ind. Ct. App. 636, 301 N.E.2d 386, 391 (1973).
[10] Our review of an administrative action is very limited. Bird v. Cty. of Allen, 639
N.E.2d 320, 327 (Ind. Ct. App. 1994). We give deference to the expertise of the
administrative body, which includes a police merit commission. Id. We will
not reverse its discretionary decision without a showing that the decision was
arbitrary and capricious, an abuse of discretion, or otherwise not in accordance
with the law. Id. Our review is limited to determining whether the
administrative body adhered to proper legal procedure and made a finding
based upon substantial evidence in accordance with appropriate constitutional
and statutory provisions. Id. We do not substitute our judgment for that of the
administrative body, or modify a penalty imposed in a disciplinary action,
absent a showing that the action was arbitrary and capricious. Id. at 327-28.
[11] “An arbitrary and capricious decision, which the challenging party bears the
burden of proving, is a decision which is willful and unreasonable, made
without any consideration of the facts and in total disregard of the
circumstances, and lacks any basis which might lead a reasonable and honest
person to the same decision.” Id. at 328. Substantial evidence is such relevant
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evidence as a reasonable mind might accept as being adequate to support a
conclusion. Id. We do not reweigh the evidence upon review. Id.[12] Additionally, “[t]he discipline of police officers is within the province of the
executive branch of government, not the judicial branch. For this reason, we
will not substitute our judgment for that of the administrative body when no
compelling circumstances are present.” Winters v. City of Evansville, 29 N.E.3d
773, 781 (Ind. Ct. App. 2015) (citation omitted).
Violation of Use of Force Rule
[13] One of the Merit Board’s conclusions was that Gray violated Rule 4.2-23
pertaining to use of force.2 At the review hearing, Gray argued that the “Board
misapplied the law,” Tr. at 10, and urged that the trial court consider the
evidence of his use of force in light of the objective reasonableness standard
described in Graham, and applied in Prymer v. Ogden, 29 F.3d 1208 (7th Cir.
1994). The County argued that those cases involved tort claims against a
government unit and their objective reasonableness standard did not control
employment disciplinary proceedings. The County further argued that it lacked
standing to assert that Gray had committed a Constitutional tort against J.S.,
but had merely alleged Rule violations. The trial court agreed with the Merit
Board that Graham was instructive but not controlling.
2
The Rule required that “Employee shall not use more force in any situation than is reasonably necessary
under the circumstances.” (Tr. at 19.)
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[14] On appeal, Gray argues that the termination order must be reversed because he
was entitled to – and did not receive – review of his use of force consistent with
the guidance of Graham and Prymer although the Merit Board purportedly
“invited [that] review.” Appellant’s Brief at 13. Acknowledging that other
Rule violations were found, he further argues that the other charges arose from
and were essentially part of his use of force.3 At bottom, his contention is that
an officer who uses force cannot be dismissed for conduct that is “objectively
reasonable” and his conduct was objectively reasonable because J.S. had
become “an attacker.” Appellant’s Brief at 26.
[15] The primary case upon which Gray relies is Graham. In a 42 U.S.C. § 1983claim, Graham sought an award of damages for injuries allegedly sustained
when police officers used physical force against him during an investigatory
stop. Graham, 490 U.S. at 395. The district court entered a directed verdict and
the appellate court affirmed the judgment. On certiorari, the Court was called
upon to decide what standard should govern when a free citizen made a claim
that a police officer used excessive force in an arrest, investigatory stop, or
seizure. See id. The Court determined that such claims are analyzed under the
3
Rule 4-2.21 provided: “Employees shall not mistreat persons who are in their custody. Employees shall
handle such persons in accordance with law and established Departmental Procedures.” (Order at 11.)
Rule 4-4.3 stated in part: “Officers shall be tactful in the performance of their duties, shall control their
tempers, and exercise the utmost patients [sic] and discretion, and shall not engage in argumentative
discussion even in the face of extreme provocation; and (B) in the performance of their duties, Officers shall
not use unreasonable coarse, violent, profane, or insolent language or gestures. …” (Order at 12.)
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Fourth Amendment to the United States Constitution and its “reasonableness
standard,” as opposed to a “substantive due process” standard. Id.[16] The “reasonableness” inquiry in an excessive force case is an objective one; the
question is whether the officers’ actions are “objectively reasonable” in light of
the facts and circumstances confronting them, without regard to their
underlying intent or motivation. Id. at 396. The “facts and circumstances”
include the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of officers, and whether the suspect is actively
resisting arrest or attempting to evade arrest by flight. See id. Gray does not
argue that the circumstances of the instant case mirror those of Graham or that
the types of claim are similar. Instead, he asserts that the “objective
reasonableness” standard enunciated in Graham uniformly controls in cases
where excessive force is alleged.
[17] However, Gray argues that the facts of the instant case are remarkably similar
to those in Prymer, also a § 1983 case, where an arrestee threatened to spit on an
officer and the officer responded with force. 29 F.3d at 1208. Prymer was
handcuffed and en route to a police vehicle when he made a gurgling noise as if
to spit on Officer Ogden. Officer Ogden struck Prymer in the forehead with a
straight-arm stun technique and thus re-directed Prymer’s head. See id. at 1211.
The district court concluded that the straight arm stun technique was justified
under the objectively reasonable standard. Id. Judgment was granted for the
defendants on the § 1983 claim; the appellate court affirmed the judgment.
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[18] More recently, in Kingsley v. Hendrickson, 135 S. Ct. 2466 (June 22, 2015), the
Court clarified that the Graham standard of objective reasonableness is not
limited to circumstances where a free citizen is being taken into custody. “[T]o
prove an excessive force claim, a pretrial detainee must show … that the
officers’ use of that force was objectively unreasonable.” Id. at 2470. Objective
reasonableness turns on the “facts and circumstances of each particular case.”
Id. at 2473 (citing Graham, 490 U.S. at 396.)
[19] Also, as Gray observes, the Graham “reasonableness standard” has been
examined in Indiana in non-tort cases; that is, it has had application where a
criminal defendant has raised as a defense that his non-compliance with an
officer was in response to the officer acting unlawfully. Our Indiana Supreme
Court has acknowledged that “[a]n officer is not lawfully engaged in the
execution of his duties when he uses unconstitutionally excessive force.” Love
v. State, 73 N.E.3d 693, 697 (Ind. 2017) (citing Shoultz v. State, 735 N.E.2d 818,
823 (Ind. Ct. App. 2000)). Thus, the objective reasonableness standard of the
Fourth Amendment may apply to a tort claim by a person allegedly injured
while either being taken into custody or already in custody, or it may apply
when a claim of unconstitutional excessive force is raised as a criminal defense.
[20] Here, however, the Merit Board was not tasked with determining whether Gray
was lawfully engaged in the execution of his duties as that might bear some
relationship to a criminal defense. The Merit Board was not involved in a tort
claim or litigation involving an allegation that Gray had deprived J.S. of a
constitutional right. Rather, the matter before the Merit Board for disposition
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was whether Gray should be disciplined for violation of department rules
having a reasonable relationship to his fitness and capacity to hold the job of
Deputy Sheriff.
[21] Requiring that the Fourth Amendment analysis and standard be invoked in all
cases where police unfitness to serve is alleged would not comport with the
public policy of this State. We have said, “From the very nature of a
policeman’s duties, his conduct in the community on and off duty must be
above reproach.” Pope, 301 N.E.2d at 391. The wrongdoing need not rise to
the level of a constitutional tort to be actionable. See Chesser v. City of Hammond,
Indiana, 725 N.E.2d 926, 930 (Ind. Ct. App. 2000) (evidence supported
dismissal for conduct unbecoming an officer where officer had “used an
unreasonable and excessive amount of force against his wife” and “lack[ed]
ability to control his temper in certain situations”). Here, the Merit Board was
not required to evaluate the allegation regarding the “Use of Force” Rule, or
derivative allegations, with specific reference to the Graham “objective
reasonableness” standard.4
4
This is not to say as a corollary that safety boards and reviewing courts must ignore Graham. See, e.g., Chelf
v. Civil Serv. Comm’n of the City of Davenport, 515 N.W.2d 353, 355 (Iowa Ct. App. 1994) (in considering
whether the statutory language providing that an officer was justified in using force “reasonably believed to
be necessary to effect the arrest” embodied a subjective or objective standard, the Court determined that the
standard was objective and found “support” in Graham).
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Evidentiary Support
[22] Gray complains that the reviewing court below “reweighed” evidence, made
additional findings in support of the termination decision, and “substituted” its
decision for that of the Merit Board. Appellant’s Brief at 12. He asserts that he
is entitled to a reversal, or at minimum a remand, on this basis. As best we
understand Gray’s contentions, he urges that a decision supported by
substantial evidence may nevertheless be reversed when the reviewing court
comments upon additional evidence not included in the Merit Board’s findings
and conclusions. We acknowledge that the reviewing court commented upon
officer logs, a videotape, and Gray not making movements as if to remove
spittle; the court also referred to Gray’s use of profanity, something not
specifically addressed in the Merit Board order. However, a claim that a
dismissal order is arbitrary and capricious because there was more than enough
evidence discussed on review does not comport with our appellate standard of
review.
[23] The salient inquiry is whether the termination order is unsupported by
substantial evidence, that is, “relevant evidence which a reasonable mind might
accept as adequate to support a conclusion.” Bird, 639 N.E.2d at 328. The
Merit Board received, by testimony and videotape, evidence that J.S., whom
Gray knew to be mentally ill, was partially strapped into a restraint chair when
Gray slapped J.S. across the face with an open hand. The Merit Board did not
make conclusions that were “willful and unreasonable,” see id., in determining
that Gray mistreated a person in custody, used more force than was necessary,
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failed to maintain courtesy, and engaged in conduct unbecoming an officer.
Substantial evidence supports the Merit Board’s findings, and its decision to
terminate Gray for violating departmental rules is not arbitrary and capricious.
Conclusion
[24] The excessive force objective reasonableness standard, as contemplated in
Graham and its progeny, may be instructive but does not provide a minimum
threshold for termination of police employment when an allegation has been
made that the officer violated an internal use of force rule. Gray has not shown
that the Merit Board’s discharge decision was contrary to law on this basis.
Gray has not shown that the decision is arbitrary and capricious as unsupported
by substantial evidence.
[25] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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