Hammond v. Curry , 153 Fla. 245 ( 1943 )

L.G. Hammond, ousted police officer of the City of Miami, filed a petition for writ of mandamus against the city, and A.B. Curry in his capacities as city manager and as director of public safety. Attached to the pleading were copies of the letter of suspension executed by the chief of police, the order of dismissal entered by the director of public safety and the record of the testimony introduced before the latter. An alternative writ issued commanding the cancellation of the order of discharge and reinstatement of the petitioner. Then, on motion to quash, judgment was entered for the respondents.

The circuit judge found from the exhibits accompanying the petition that no irregularity occurred in the preferment of charges by the chief of police, the opportunity afforded the petitioner to refute them, or the hearing conducted by the director of public safety. He observed "that jurisdictional facts existed as a basis of the suspension and removal . . . that the Director of Public Safety acquired jurisdiction . . .and under such facts and circumstances the Circuit Court shouldnot substitute its judgment for that of the Director of PublicSafety as provided under the Charter of the City of Miami." (Italics supplied by us). This statement was preceded by the quotation of Section 25, of the city charter (Chapter 10847, Laws of Florida, Special Acts of 1925, as amended). The portion of that section pertinent to a decision in this case follows: "The Chief of Police . . . shall have . . . power to suspend any of the officers . . . under [his] management and control for incompetence, neglect of duty, immorality, drunkenness, failure to obey orders . . . or for any other just and reasonable cause. If an officer . . . be suspended . . . the chief . . . shall forthwith . . . certify the fact together with the cause for suspension, to the Director of Public Safety, who shall, after hearing, render judgment thereon, which judgment, if the charges be sustained, may be a reprimand, fine, suspension, reduction in rank or dismissal,and in every case shall be final." (In the opinion the judge underscored the last clause.)

As authority for his views the judge cited our decision in Bryand v. Landis, 106 Fla. 19, 142 So. 650, 653. It was held there that if a suspension and removal of the Chief of Police of the City of Miami were made in compliance with provisions of the city charter by the city manager and city commission their action was not subject to review but that the court would examine the "jurisdictional facts" forming the "basis for exercising the power of suspension and removal." The decision was based on the ruling in State ex rel. Hatton v. Joughin,103 Fla. 877, 138 So. 392, where the suspension of an officer by the Governor was under consideration.

In a recent case, Nelson v. Lindsey, Fla., 10 So. 2d 131, 135, decided within the year, this Court held that a member of the police force in Miami was entitled to mandamus to determine whether he had been properly disciplined and, in arriving at the conclusion that he had not, examined fully the entire record in the cause, including the evidence relevant to the charges. The judgment reversed the circuit court which had decided that the charges had been sustained by the evidence and, incidentally, that it could not "substitute [its] judgment for that of those vested with the administrative powers by the City Charter."

We are not unaware of the rule found in some of the earlier cases, notably, State ex. rel. Lamar v. Johnson, 30 Fla. 433, 11 So. 845, restricting the power of the court in its examination into proceedings for the removal of officials, however, the rule has been relaxed to the extent that the courts will explore the record to determine whether there is any evidence to substantiate the charges. We do not have the idea, suggested by the judge's observation, that because the order of the director is, according to the phraseology of the charter provision, final, there can be no judicial review of the sufficiency of evidence to support it. We may determine whether there has been "a legal and reasonable exercise of administrative judgment predicated upon required procedure and appropriate evidence as shown by the record as made," or whether there has been an "abuse of delegated authority or arbitrary or unreasonable action." Nelson v. Lindsey, supra.

There is no need for us to discuss the procedure from the time the charges were lodged by the chief of police until the judge entered judgment in the case in mandamus, but we will examine the testimony forming the foundation of those charges in order that it may be determined whether there was any evidence justifying the removal of the police officer. Although we will not attempt to reconcile the conflicting testimony or choose that which we think more worthy of belief we will not be precluded from deciding whether the relator has been deprived of a valuable right simply because the charges on their face state cause for removal and the chief of police and director of public safety tracked the law in presenting and disposing of them. It seems to us that any other course would be improper. A contrary view would make possible a suspension or removal, and the consequent loss of a valuable right, without judicial interference upon charges apparently regular, even though the evidence contained nothing to substantiate misconduct.

We will proceed to an exploration of the evidence in a light unfavorable to the suspended officer and decide in that manner whether his dismissal was justified.

He was a member of the vice squad and worked in civilian clothes. Miami had become an important area for the training of men in the armed services. The commander of the naval district, in which the city was situated, insisted that the region be rid of prostitutes, whereupon, the vice squad was given orders "to run [them] out of town." The sergeant' in charge of this group received a report that a woman was soliciting on a certain street corner and he, on two occasions, made an effort to locate her from a description which had been given him. The informant told him that the woman was suffering from a venereal disease. The sergeant communicated the complaint and the description to the relator and ordered the latter to watch for the suspect. While obeying these instructions he observed a woman fitting the description walking along a prominent street, in the late evening. There followed an experience which was unquestionably humiliating to her and, in its later development, injurious to him.

Their versions of the affair differ sharply but we will give her's briefly as she narrated it in the hearing. She had left the theatre in the evening and proceeded to Biscayne Boulevard on her way to a restaurant managed by one of her acquaintances. Upon reaching Biscayne Boulevard she discovered that a man was following her and later he engaged her in conversation, remarking that he had been looking for a girl, but had found none. He said, "You know . . . all the houses are closed." He offered to buy her food and drink which she refused and the conversation continued until she was in front of the cafe which was her original destination. She said she looked in the window and saw that her friend was busy, whereupon, they turned and walked down the street. Eventually she and the man entered a place where fruit juices were served and he then showed her his badge of authority. It appears from her evidence that she was annoyed while this desultory conversation was taking place, but became really aroused when she learned that her unwelcome companion was an officer of the law. A considerable period of time elapsed from their first meeting until he revealed his identity; meanwhile, they had traveled together a distance of ten or eleven city blocks. Admittedly she was unafraid. There were crowds of people upon the sidewalks. She made no outcry and called no uniformed officer or other person to relieve her of the annoyance. She had worked two years at the traffic court, a branch of the police department in the city of Detroit, hence was probably not unfamiliar with police customs. During her residence in Miami she had served as a waitress at four restaurants.

When the officer informed her that it would be necessary for her to go to the police station she became infuriated and repeatedly refused to give her identity. The degree of her anger may be measured by her act in striking the officer at the police station and by the epithets she applied to him there and later at the hearing before the director of public safety. At the hearing she referred to him as a "rattlesnake," and, by her own admission, she termed him a "rat" and a "louse" the night of the arrest.

It is significant that the remark about his looking for a girl and about the houses being closed, relied upon as constituting an indecent proposal apropos the charges which we will eventually analyze, was said by her to have been made when their stroll along Biscayne Boulevard had just commenced.

On these facts the chief of police preferred charges against relator for (1) conducting himself in a manner unbecoming an officer by making "indecent and lewd proposals" to a woman; (2) exceeding authority by placing her under arrest; (3) grossly neglecting duty because after the arrest and the discovery that she was not a prostitute he "failed to bring about her release;" and (4) conducting himself in a manner unbecoming an officer because after receiving information that she "was a young woman of good character and reputation and could not have been a prostitute" he charged her, in a written statement, with being one and stated if she would be willing to leave the city she would be released from custody. She may have been annoyed by his presence but she did not, as we have already pointed out, become really offended at anything he said or did until a considerable time had passed and he had revealed that he was a member of the police force. Opportunities were offered her to escape or report the annoyance because they passed police officers in uniform and there were numerous passersby. At the restaurant where her friend was employed it would have been possible for her to have found refuge or to have telephoned the incident to police headquarters. She evidently made no complaint and sought no aid until she learned that her companion was, himself, an officer of the law.

It is equally difficult to construe her description of the affair to support the charge that he exceeded his authority. In view of the insistance of the naval commander that questionable women be eliminated from the area where the men were being trained and the explicit instructions of the officer's superior to be on the alert for a person whose description she answered we think he was amply warranted in questioning her. She could have readily obviated any humiliation or embarrassment if she had cooperated to the extent of establishing her identity. She chose to resist any effort on the part of the officers to learn her name and her residence until long after she had been taken to the police station and, in the interim, gave vent to her temper by slapping the officer and applying to him opprobrious epithets.

It was next charged, discussing the formal accusations in order, that he neglected his duty when he didn't bring about her release from custody after he learned finally her name and address and interrogated her landlady. This accusation was totally unsupported by the evidence. After she was placed under arrest and transported to the police station her behavior in striking the officer and using the epithets we have quoted justified the charge of disorderly conduct, upon which she was eventually tried in police court, irrespective of any information that the relator may have gained about her character.

The remaining charge which the city undertook to prove was his misconduct in accusing her of being a prostitute and proposing that if she would be "willing to leave the City of Miami, she should be released from custody." Gravamen of this charge was classifying the woman as a prostitute and asking her to leave town after relator discovered that her reputation was good and that she could not have been one.

We shall pause here to say that it was the City's burden to prove this charge, as well as the others, by a preponderance of the evidence. The document on which the city relied to substantiate the last accusation was a report addressed to the police department giving details of the arrest and containing the statement "Check her through the Clinic and if she is clean and not diseased and is willing to leave town we will not prosecute." It was titled "Investigation Arrest Report," was prepared by a brother officer, and bore his name and relator's. No where in it do we find the direct charge that the woman was a prostitute although the paper does contain the statement with reference to leaving the City. We are not advised, however, that when this paper was actually prepared it had been established that she did not and could not fall in that category. It is important to recall, in this connection, the instructions given by the sergeant and the vice squad to the relator that the woman whose description coincided with hers should be apprehended because diseased. Taking into account this order from a superior officer and the purpose intended by its execution we cannot conceive how a report by the relator to the department to which he owed allegiance, indicating obedience to that order, could form just cause for discharge.

Without doubt the young woman who was arrested suffered great humiliation. We have studiously avoided using her name in this opinion because we do not wish to add to her embarrassment. Unquestionably a mistake was made, however, we do not find that there was any intent on the part of the officer to accost the young woman except in his efforts to obey the instructions given him. There is nothing to establish that he was a rake or roué.

Our conviction from a perusal of the record is that, irrespective of any liability on the part of the City to the young woman who was falsely accused, there has been a failure to establish the patrolman's guilt of any greater wrong than an error in judgment and that he should not have suffered the ignominy of dismissal from the police force.

The judgment is reversed with instructions to enter the peremptory writ unless the appellees apply within fifteen days for, and are granted, leave to file an answer presenting a defense not concluded by this appeal.

TERRELL, CHAPMAN and ADAMS, JJ., concur.

BUFORD, C. J., BROWN and SEBRING, J., dissent.