West Virginia State Police v. Walker ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2021 Term FILED
November 19, 2021
_____________________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0558
_____________________
West Virginia State Police,
Respondent Below, Petitioner
v.
Derek R. Walker,
Petitioner Below, Respondent
___________________________________________________________
Appeal from the Circuit Court of Jefferson County
Honorable David M. Hammer, Judge
Civil Action No. 19-AA-3
Reversed and Remanded with Directions
_________________________________________________________
Submitted: September 29, 2021
Filed: November 19, 2021
Patrick Morrisey, Esq. Gregory A. Bailey, Esq.
Attorney General Arnold & Bailey, PLLC
Anthony D. Eates II, Esq. Charles Town, West Virginia
Deputy Attorney General Counsel for Respondent
Charleston, West Virginia
Counsel for Petitioner
JUSTICE HUTCHISON delivered the Opinion of the Court.
CHIEF JUSTICE JENKINS and JUSTICE ARMSTEAD concur, in part, dissent, in part,
and reserve the right to file separate opinions.
SYLLABUS OF THE COURT
1. “On appeal of an administrative order from a circuit court, this Court is
bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews
questions of law presented de novo; findings of fact by the administrative officer are
accorded deference unless the reviewing court believes the findings to be clearly wrong.”
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
2. “The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review
are deferential ones which presume the agency’s actions are valid as long as the decision
is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W.
Va. 442, 473 S.E.2d 483 (1996).
3. “Grievance rulings involve a combination of both deferential and plenary
review. Since a reviewing court is obligated to give deference to factual findings rendered
by an administrative law judge, a circuit court is not permitted to substitute its judgment
for that of the hearing examiner with regard to factual determinations. Credibility
determinations made by an administrative law judge are similarly entitled to deference.
Plenary review is conducted as to the conclusions of law and application of law to the facts,
which are reviewed de novo.” Syl. Pt. 1, Cahill v. Mercer Cnty Bd. of Educ., 208 W. Va.
177, 539 S.E.2d 437 (2000).
i
4. “A reviewing court must evaluate the record of an administrative agency’s
proceeding to determine whether there is evidence on the record as a whole to support the
agency’s decision. The evaluation is conducted pursuant to the administrative body’s
findings of fact, regardless of whether the court would have reached a different conclusion
on the same set of facts.” Syl. Pt. 1, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492
S.E.2d 167 (1997).
5. “[A] reviewing court may not overturn a finding simply because it would
have decided the case differently, and it must affirm a finding if the [lower tribunal’s]
account of the evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1,
in part, In Re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
ii
HUTCHISON, Justice:
The petitioner, the West Virginia State Police, appeals the “Order Reversing
the Decision of the Hearing Examiner” entered by the Circuit Court of Jefferson County
on July 24, 2020. In that order, the circuit court reversed the September 30, 2019, decision
of a West Virginia State Police Grievance System hearing examiner and ordered the
reinstatement of the respondent, Derek R. Walker, to his employment as a state trooper.
After reviewing the parties’ written and oral arguments, the appendix record on appeal, and
the pertinent legal authorities, we conclude that the circuit court impermissibly substituted
its judgment for that of the hearing examiner, who was the factfinder in this matter.
Accordingly, we reverse the circuit court’s order and remand this case to the circuit court
for entry of an order reinstating the hearing examiner’s order and the respondent’s
termination.
I. Facts and Procedural History
On the early morning of November 19, 2018, Berkeley County Sheriff’s
Deputy Christopher Merson was driving his cruiser when he slowed to stop in the roadway.
An approaching car rear-ended the cruiser and then sped away. Deputy Merson gave chase
and was soon joined by four additional law enforcement officers from the Sheriff’s
Department and the State Police, including the respondent Trooper Walker. The driver of
1
the fleeing car, sixteen-year-old J.H., 1 led the five officers on a dangerous, high-speed car
chase that included weaving through traffic and nearly hitting another car in an intersection.
Their speed reportedly exceeded one hundred miles per hour on a winding, two-lane road.
The chase lasted less than two minutes, when J.H., traveling at a high rate of speed,
violently crashed his car into a utility pole, snapped the pole, and caused an electrical
explosion. J.H.’s car flipped and was badly damaged but came to rest on its wheels.
The five officers immediately arrived at the scene to arrest J.H. Deputy
Merson’s cruiser camera captured video of this arrest, including recording Deputy Merson
approaching J.H.’s car and breaking the driver’s window with his asp baton; the respondent
and Deputy Merson pulling J.H. from his car and flinging him several feet through the air;
four of the officers surrounding J.H., who was lying face-down on the ground, and
administering a total of eight kicks and eleven punches to J.H. while J.H. was being
handcuffed; the respondent attempting to lift J.H. from the ground by pulling only on the
handcuffs fastened to J.H.’s wrists behind his back; and State Trooper Michael Kennedy
flinging the handcuffed J.H. to the side of the road. 2
1
We refer to J.H. by his initials because he was a minor at the time of these events.
See, e.g., W. Va. R. App. P. 40(e); State v. Edward Charles L., 183 W. Va. 641, 645 n.1,
398 S.E.2d 123, 127 n. 1 (1990).
2
The cruiser camera recorded video but not audio.
2
Several days later, when State Police officials became aware of and viewed
the cruiser camera video, State Police Superintendent Jan Cahill placed the respondent on
unpaid administrative leave. After an internal investigation, the superintendent terminated
the respondent’s employment as a state trooper on January 17, 2019. The respondent filed
separate grievances regarding his suspension and termination, which were consolidated for
purposes of hearing and decision by a hearing examiner for the West Virginia State Police
Grievance System. 3 The hearing examiner held an evidentiary hearing on July 22, 2019,
viewed the video, and heard testimony from witnesses about the car chase, J.H.’s arrest,
and the reasons for the respondent’s termination. On September 30, 2019, the hearing
examiner entered his decision upholding the respondent’s suspension and termination.
At the evidentiary hearing, the respondent testified about how he and Deputy
Merson approached J.H.’s car and Deputy Merson instructed J.H. to exit the vehicle. 4
Deputy Merson drew a firearm and used his baton to break out the driver’s window. The
hearing examiner found that the respondent did not draw a firearm but donned black gloves
as he approached J.H.’s car. The hearing examiner found that the respondent then
“forcefully and violently pulled [J.H.] through the car window. As a result of the force used
by [the respondent] Walker, [J.H.] was propelled through the car window, into the air, and
3
The grievance and this appeal only concern the respondent and his employment,
not that of the other law enforcement officers who participated in these events.
4
Deputy Merson did not testify at this administrative hearing.
3
landed approximately a body and a half length or more from the vehicle.” The respondent
testified that he and Deputy Merson had to remove J.H. from the car in this manner for the
officers’ safety inasmuch as visibility in the car was limited due to smoke and J.H. might
have a weapon. The hearing examiner expressly found that the respondent’s testimony
about this “lacks the hallmarks of credibility.” The hearing examiner found that the
respondent’s purported concerns “are belied by the fact that he stood next to the car; did
not draw a weapon; and simply pulled [J.H.] from the vehicle when the window was
removed. In light of the fact that [J.H.] had just experienced a horrific crash and Walker’s
action did not evidence concern for a potential attack from [J.H.], it is clear that the force
used in this instance was excessive.”
After being removed from his car, J.H., who was estimated to be
approximately five feet, four inches tall and one hundred and twenty pounds, was lying
prone on the ground. The respondent began placing handcuffs on J.H.’s wrists behind
J.H.’s back, and then the respondent and the other officers delivered their blows to J.H.
During his testimony, the respondent admitted that he personally kicked J.H. two times
while J.H. was lying prone on the ground, but he asserted that the kicks were “compliance
strikes” administered in response to resistance by J.H. to the application of the handcuffs.
In his decision, the hearing examiner rejected the respondent’s testimony. The hearing
examiner found that “[a]lthough Walker testified that [J.H.] resisted by tensing up and
pulling away from Walker’s grip on his wrist area, this is not evident from the video.” The
hearing examiner explained that
4
[a]lthough [J.H.] squirmed momentarily on the ground, he was
quickly surrounded by two Sheriffs’ deputies and two State
Troopers who easily overpowered him. The officers hit and
kicked J.H. while forcing his head to the ground. . . .
The video demonstrates little to no resistance on the part of
[J.H.]. Nonetheless, the officers involved continually punched
and kicked [J.H.] while he lay face down on the ground.
Although Kennedy was clearly the most aggressive in
repeatedly striking [J.H.], Walker participated by kicking him
twice. Walker used the term “compliance strike” to justify his
actions. While this term may be a term of art in the law
enforcement community, it is simply a euphemism in this case.
Major White accurately described the activity on the video
when he stated that the officers were “beating him up, quite
frankly.” To be clear, the facts and circumstances of the case
do not support Walker’s testimony as credible. Indeed, he
offered no plausible explanation for kicking [J.H.] at [t]his
moment.
The hearing examiner found that after the handcuffs were fastened on J.H.’s
wrists behind his back, the respondent “jerked [J.H.] up by the handcuffs from the ground
resulting in [J.H.] being momentarily dragged and turned over[.]” The hearing examiner
concluded that “there was no evidence of resistance or potential flight” at this point in time,
and “no demonstrable reason why” the respondent “chose to use this method” of pulling
J.H. to his feet. The hearing examiner also found that Trooper “Kennedy then picked [J.H.]
up in the same manner and slung [J.H.] to the side of the road.” The respondent denied
seeing Trooper Kennedy throw J.H. to the side of the road, but the hearing examiner found
that the video depicted the respondent looking in Kennedy’s direction.
5
While J.H. was being transported to the hospital, the respondent contacted
the officer in charge, State Police Sergeant Michael Cole, to report that J.H. had fled and
the officers had, to quote the respondent, “tuned him up.” At the administrative hearing,
the respondent testified that “tuned him up” is vernacular commonly used to indicate that
officers had to lay hands on a perpetrator while making an arrest. The hearing examiner
found that during this conversation with Sergeant Cole, the respondent failed “to report the
manner in which he extricated [J.H.] from the vehicle; the fact that he and other officers
kicked [J.H.] multiple times; the fact that other officers hit [J.H.] multiple times; or the fact
that Walker (and then Kennedy) jerked [J.H.] up by the handcuffs. Rather, Walker simply
stated that the officers had ‘tuned him up’ and Sgt. Cole asked no follow-up questions.”
Sergeant Cole testified at the hearing to express regret and accept responsibility for not
asking follow-up questions during this conversation with the respondent.
During the evidentiary hearing, two investigators with the State Police’s
Professional Standards section, Lieutenant Kevin Smouse and Major Joe White, testified
about their internal investigation of this matter and the factors that led to the respondent’s
discharge from employment. As part of their review, they considered whether the
respondent had committed any of five different violations of State Police legislative
regulations: failing to comply with State Police policy and procedure 5; violating any law
5
W. Va. Code R. § 81-10-11.3.2.1 (2008).
6
or engaging in criminal conduct 6; using unnecessary force during an arrest/custody
procedure 7; committing conduct unbecoming a state police trooper 8; and/or interfering
with the rights of others. 9 Lieutenant Smouse concluded that the respondent’s conduct was
unbecoming an officer which, pursuant to State Police legislative rules on employee
discipline, is “behavior of such a serious nature that a first occurrence would warrant the
Superintendent discharging an employee.” 10 Lieutenant Smouse believed that the other
charges were “not sustained.” 11
However, Major White, the Director of Professional Standards for the West
Virginia State Police with nearly twenty-four years of service with the State Police,
testified to his conclusion that four of the five allegations had been sustained. 12 He did not
believe that the respondent had committed a crime, but he concluded that the respondent’s
6
Id. § 81-10-11.3.3.19.
7
Id. § 81-10-11.3.3.28.
8
Id. § 81-10-11.3.3.33.
9
Id. § 81-10-3.3.34.
See id. § 81-10-11.3.3.33 (specifying that “committ[ing] conduct unbecoming” is
10
a Group III offense for purposes of employee discipline); Id. § 81-10-11.3.3 (stating that
“Group III Offenses . . . [are] acts and behavior of such a serious nature that a first
occurrence would warrant the Superintendent discharging an employee.”)
11
“Not sustained” means that a charge is “not established by the evidence and can
be neither proven nor disproved by the evidence available[.]” Id. § 81-10-7.8.2.
“Sustained” means that “[t]he validity of the complaint has been established and
12
proven by a preponderance of the evidence[.]” Id. § 81-10-7.8.1.
7
conduct was in violation of the other four regulations. Pursuant to these regulations, three
of the four charges that Major White concluded were sustained are subject to immediate
discharge from employment: conduct unbecoming a trooper, the use of unnecessary force,
and interfering with the rights of others. 13 Major White testified to how he reached his
conclusions, which included reviewing the witness statements and repeatedly watching the
video for any act of aggression or resistance by J.H. Major White found no evidence of
resistance that would justify the force used, and he saw no objectively reasonable
justification for the respondent’s conduct. Instead, Major White observed that both the
respondent and Deputy Merson felt safe enough to get very close to J.H.’s car and the
respondent did not feel the need to draw his weapon. The Major also saw that the
respondent kicked J.H. twice and attempted to place his knee on J.H.’s head at a time when
J.H.’s body was limp. Major White admitted that this was a “tough call[,]” and the
respondent was less culpable than Trooper Kennedy, but he nonetheless found that the
respondent’s kicking of J.H., lifting J.H. only by the handcuffs, and failing to report
Trooper Kennedy’s actions to Sergeant Cole, were in violation of the regulations and were
not objectively reasonable. After watching the video of the four officers handling a sixteen
year-old juvenile who was small in stature and weight and who had just suffered “a horrific
crash[,]” Major White determined that “instead of acting as first responders and caretakers,
[the officers] essentially beat him up[.]” Accordingly, Major White had recommended to
the superintendent that the respondent be discharged. Referencing the Major’s demeanor
13
See supra n. 10 (defining Group III offenses).
8
and the internal consistency in his testimony, the hearing examiner found that the Major’s
testimony was credible.
After reviewing the evidence, the hearing examiner concluded that the
respondent’s actions were not objectively reasonable under the circumstances; that
excessive force had been used to remove J.H. from the car just after he had experienced a
horrible car crash; that after J.H. was removed from his car and hit the ground he was not
actively resisting or attempting to evade arrest; at that point in time, J.H.’s conduct did not
pose an immediate threat to the safety of the respondent or the other officers; and that the
respondent failed to fully disclose to Sergeant Cole the extent of the force used on J.H. The
hearing examiner agreed with Major White’s and Superintendent Cahill’s assessment that
the respondent had committed conduct unbecoming of a state trooper, had used excessive
force, had failed to comply with State Police policy and procedures, and had interfered
with J.H.’s rights. The hearing examiner concluded that the preponderance of the evidence
supported the decision to terminate the respondent’s employment.
The respondent appealed the grievance decision to the circuit court, which
heard arguments of counsel and then reversed the hearing examiner’s decision by order
entered July 24, 2020. The circuit court devoted more than half of its twenty-one-page,
single-spaced order, to making findings of fact. These findings include that the respondent
and Deputy Merson pulled J.H. through the broken window to get him out of danger from
the still-smoking car and because J.H. presented a danger to the officers’ safety in that he
9
might have been in possession of a weapon. The circuit court found that the respondent
delivered his first kick to J.H. because J.H. had pulled his right arm away from the
respondent’s attempt to handcuff him. As to the second kick, the circuit court characterized
this as a “small, or half kick of no consequence to” J.H. that the court declined to second-
guess. The circuit court dismissed the respondent’s attempt to hoist J.H. to his feet by
pulling only on his handcuffs because there is no policy forbidding such hoists and because,
according to the circuit court’s findings of fact, J.H. had been resisting arrest and J.H.
engaged in braggadocio later at the hospital. Moreover, although the hearing examiner
concluded that the respondent was looking at Trooper Kennedy when Kennedy threw J.H.
to the side of the roadway, the circuit court credited the respondent’s testimony that he was
actually looking to the foreground at Deputy Merson. The circuit court also noted that
Sergeant Cole accepted equal, if not more, responsibility for failing to ask clarifying
questions of the respondent about the force the officers had used to “tune up” J.H.
Ultimately, the circuit court concluded that the hearing examiner’s decision
was clearly wrong and erroneous as a matter of law because the hearing examiner failed to
give sufficient consideration to the severity of the crime J.H. had just committed, to
whether J.H. posed an immediate threat to the officer’s safety, and to whether J.H. was
actively resisting arrest or attempting to evade arrest by flight. The circuit court answered
each of these inquiries by concluding that the respondent’s actions had been objectively
reasonable. Finally, although the respondent had not raised the issue, the circuit court found
that it was plain error for the hearing examiner to have referred to “urbandictionary.com”
10
to determine the meaning of “tune up.” The circuit court concluded that the State Police
had not established, by a preponderance of the evidence, that the respondent committed
any violations of the legislative rules. The circuit court reversed the hearing examiner’s
decision and ordered the State Police to restore the respondent to his rank and active duty
position, along with lost pay, benefits, and seniority. The court also awarded the respondent
his attorney’s fees up to a statutory limit.
II. Standard of Review
This is the State Police’s appeal of the circuit court’s July 24, 2020, order
reversing the decision of the State Police grievance hearing examiner. “On appeal of an
administrative order from a circuit court, this Court is bound by the statutory standards
contained in W. Va. Code § 29A-5-4(a) and reviews questions of law presented de novo;
findings of fact by the administrative officer are accorded deference unless the reviewing
court believes the findings to be clearly wrong.” Syl. Pt. 1, Muscatell v. Cline, 196 W. Va.
588, 474 S.E.2d 518 (1996). 14 With this in mind, we turn to the parties’ arguments.
14
Pursuant to West Virginia Code § 29A-5-4(a) (2021) of the Administrative
Procedures Act, any party adversely affected by a decision in a contested case may seek
judicial review under chapter 29A. Subsection (g) of this same statute provides that
The court may affirm the order or decision of the agency or
remand the case for further proceedings. It shall reverse,
vacate, or modify the order or decision of the agency if the
substantial rights of the petitioner or petitioners have been
prejudiced because the administrative findings, inferences,
conclusions, decision, or order are:
11
III. Discussion
The State Police argues that the circuit court erroneously disregarded the
hearing examiner’s findings of fact and credibility determinations, and instead, the circuit
court substituted its own judgment for these matters. Furthermore, the State Police
contends that the circuit court improperly emphasized J.H.’s conduct before and after the
crash so it could craft a version of the facts in an effort to justify the respondent’s use of
force. According to the State Police, the circuit court improperly “re-tried this case on
appeal.” Conversely, the respondent argues that the circuit court properly disregarded the
hearing examiner’s findings of fact and credibility determinations because they were not
supported by the evidence, were plainly wrong, and were based on information outside of
the record. The respondent also contends that the circuit court correctly considered all of
J.H.’s conduct to properly perform a use of force analysis. After carefully reviewing this
matter, we conclude that the circuit court committed reversible error by substituting its
findings for those of the hearing examiner.
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the
agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
Id.
12
In instances such as this, a circuit court serves as an appellate court charged
with reviewing the decision of an administrative agency’s factfinder. As such, the circuit
court is required to accord deference to the hearing examiner’s findings of fact unless they
are “[c]learly wrong in view of the reliable, probative, and substantial evidence on the
whole record[.]” See W. Va. Code § 29A-5-4(g)(5); see also, Muscatell, 196 W. Va. at 590,
474 S.E.2d at 520, syl. pt. 1 (“findings of fact by the administrative officer are accorded
deference unless the reviewing court believes the findings to be clearly wrong”); Syl. Pt.
1, Francis O. Day Co., Inc. v. Dir. of Env’t Prot., 191 W. Va. 134, 443 S.E.2d 602 (1994)
(“Evidentiary findings made at an administrative hearing should not be reversed unless
they are clearly wrong.”); Syl., Billings v. Civil Serv. Comm’n, 154 W. Va. 688, 178 S.E.2d
801 (1971) (“A final order of the Civil Service Commission based upon findings of fact
will not be reversed by this Court upon appeal unless it is clearly wrong.”); Syl. Pt. 1, In
Re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996) (“An adjudicative decision of the
Correctional Officers’ Civil Service Commission should not be overturned by an appellate
court unless it was clearly erroneous, arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law. Review under this standard is narrow and the
reviewing court looks to the Civil Service Commission’s action to determine whether the
record reveals that a substantial and rational basis exists for its decision.”).
“The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review
are deferential ones which presume the agency’s actions are valid as long as the decision
is supported by substantial evidence or by a rational basis.” Queen, 196 W. Va. at 444, 473
13
S.E.2d at 485, syl. pt. 3. “‘A finding is clearly erroneous if there is no substantial evidence
in the record supporting it or, where there is evidence to support the finding, the circuit
court reviewing the record is left with a definite and firm conviction that a mistake has
been made.’ Bd. of Educ. of Cnty of Mercer v. Wirt, 192 W. Va. 568, 579 n. 14, 453 S.E.2d
402, 413 n. 14 (1994).” Powell v. Paine, 221 W. Va. 458, 462, 655 S.E.2d 204, 208 (2007).
Further elaborating on this deferential standard, this Court has held that
[g]rievance rulings involve a combination of both
deferential and plenary review. Since a reviewing court is
obligated to give deference to factual findings rendered by an
administrative law judge, a circuit court is not permitted to
substitute its judgment for that of the hearing examiner with
regard to factual determinations. Credibility determinations
made by an administrative law judge are similarly entitled to
deference. Plenary review is conducted as to the conclusions
of law and application of law to the facts, which are reviewed
de novo.
Syl. Pt. 1, Cahill v. Mercer Cnty Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000).
Similarly,
[a] reviewing court must evaluate the record of an
administrative agency’s proceeding to determine whether there
is evidence on the record as a whole to support the agency’s
decision. The evaluation is conducted pursuant to the
administrative body’s findings of fact, regardless of whether
the court would have reached a different conclusion on the
same set of facts.
Syl. Pt. 1, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997). “[A]
reviewing court may not overturn a finding simply because it would have decided the case
differently, and it must affirm a finding if the [lower tribunal’s] account of the evidence is
14
plausible in light of the record viewed in its entirety.” Syl. Pt. 1, in part, In Re Tiffany Marie
S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
Just recently, this Court once again reiterated the importance of according
deference to an administrative hearing examiner’s findings of fact and determinations of
witness credibility:
Critically, it was the commission’s job to “slosh”
through the evidence in this case and to make findings of fact
regarding the potential risk of harm that Sergeant Jarrell faced
when arresting Mr. Hester. The commission held an
evidentiary hearing and was in the best position to decide what
happened, as well as to make determinations regarding witness
credibility. On appeal, “a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the [lower tribunal’s]
account of the evidence is plausible in light of the record
viewed in its entirety.” Syl. Pt. 1, in part, In Re Tiffany Marie
S., 196 W. Va. 223, 470 S.E.2d 177 (1996). “[I]f the
Commission’s findings are based on its assessment of the
credibility of witnesses and if adequately explained and
supported by the record, the findings will not be overturned
unless they are hopelessly incredible or they flatly contradict
either the law of nature or undisputed documentary evidence.”
Queen, 196 W. Va. at 447, 473 S.E.2d at 488.
Jarrell v. City of Nitro, 244 W. Va. 666, 673, 856 S.E.2d 625, 632 (2021) (footnote
omitted).
The rationale behind the deference that is afforded to a hearing examiner’s
findings of fact and credibility determinations is that the hearing examiner personally heard
the testimony and observed the witnesses’ demeanor. See, e.g., Sims v. Miller, 227 W. Va.
15395, 402, 709 S.E.2d 750, 757 (2011) (“the hearing examiner who observed the witness
testimony is in the best position to make credibility judgments.”). “There are many critical
aspects of an evidentiary hearing which cannot be reduced to writing and placed in a record,
e.g., the demeanor of witnesses. These factors may affect the mind of a trier of fact in
forming an opinion as to the weight of the evidence and the character and credibility of the
witnesses.” Stephen L.H. v. Sherry L.H., 195 W. Va. 384, 395, 465 S.E.2d 841, 852 (1995)
(superceded by statute on other grounds). In this case, the State Police hearing examiner
not only watched the video of J.H.’s arrest, but he also listened to the respondent provide
a running commentary describing the events in the video as the video was played; he
observed the respondent giving his testimony; and he had the opportunity to ask clarifying
questions. The hearing examiner was similarly able to observe the testimony and demeanor
of all of the other witnesses and to ask questions. The circuit court, acting in its appellate
role, did not have these advantages.
In this case, the hearing examiner made findings of fact and credibility
determinations that he plausibly explained by citing supporting evidence from the record.
The video shows the respondent forcefully pulling J.H. through the window of the crashed
car and flinging J.H. several feet through the air onto the ground. The respondent testified
that this was done to protect the officers’ safety because there was a possibility that J.H.
may have had a weapon. The hearing examiner rejected this explanation as lacking
credibility because the respondent had not demonstrated any sign of being concerned for
safety; from a review of the video, the hearing examiner found that the respondent had
16
simply stood next to the car and had not drawn his weapon. The hearing examiner found
that “[i]n light of the fact that [J.H.] had just experienced a horrific crash and Walker’s
action did not evidence concern for a potential attack from [J.H.], it is clear that the force
used in this instance was excessive.”
Furthermore, the respondent testified that the two times he kicked J.H. were
“compliance strikes” administered in response to J.H.’s resistance to the application of the
handcuffs. The hearing examiner rejected this explanation, observing no evidence of
resistance at that time. The hearing examiner explained that although J.H. “had squirmed
momentarily on the ground, he was quickly surrounded by two Sheriff’s deputies and two
State Troopers who easily overpowered him.” It was after the four officers had already
overpowered J.H., who was lying face down on the ground, that the respondent kicked the
juvenile twice and the other officers administered their kicks and punches.
The hearing examiner also found that the respondent failed to report to
Sergeant Cole the degree to which the officers had “tuned [J.H.] up”—especially Trooper
Kennedy, who had tossed the handcuffed juvenile to the side of the road. The hearing
examiner found that the respondent “provided some indication to Sgt. Cole that some
physical altercation had occurred, [but] it hardly caputure[d] the very recent and
extraordinary events at issue. Remarkably, Walker fail[ed] to mention Kennedy’s actions,
which, by any estimation, would warrant a report.” Although the respondent claims that he
17
did not see Trooper Kennedy throwing the juvenile, the hearing examiner found that the
video depicts the respondent looking in that very direction. 15
None of these findings of fact and credibility determinations were “clearly
wrong” or “hopelessly incredible,” and they did not “flatly contradict either the law of
nature or undisputed documentary evidence.” See, Tiffany Marie S., 196 W. Va. at 226,
470 S.E.2d at 180, syl. pt. 1; Muscatell, 196 W. Va. at 590, 474 S.E.2d at 520, syl. pt. 1;
Queen, 196 W. Va. at 447, 473 S.E.2d at 488. The hearing examiner explained his
reasoning and cited to specific evidence in the record in support of the findings. Although
another hearing examiner or judge might have decided differently, these findings of fact
and credibility determinations are nonetheless “plausible in light of the record viewed in
its entirety” and should have been affirmed. See Tiffany Marie S., 196 W. Va. at 226, 470
S.E.2d at 180, syl. pt. 1. Instead, the circuit court conducted an independent review of the
video and made its own findings of fact and credibility determinations that were exactly
the opposite of what the hearing examiner had found. The circuit court found the
15
The circuit court’s order also found plain error because the hearing examiner had,
in a footnote in the decision, referred to an internet urban dictionary to determine the
meaning of the phrase “tuned up.” This issue is a red herring. The point is that the
respondent failed to fully inform Sergeant Cole of the amount of force used. In the
respondent’s own testimony, he defined “tuned him up” as vernacular used to indicate that
officers had to lay hands on a perpetrator. However, simply laying hands on a perpetrator
does not adequately convey that the officers had administered eight kicks and eleven
punches to a juvenile who had just suffered a terrible car crash, and then one of the officers
threw the handcuffed juvenile to the side of the road. We are not convinced that it was error
for the hearing examiner to have referred to the urban dictionary, but even assuming,
arguendo, that it was error, it was harmless.
18
respondent’s explanations to be entirely credible, while dismissing Major White’s reasons
for recommending termination.
Our recent opinion in Jarrell v. City of Nitro is remarkably similar to the
current appeal, including that an alleged act of police excessive force was captured on a
video recording and the officer was terminated from his employment for using that force.
Jarrell, 244 W. Va. 666, 856 S.E.2d 625. In Jarrell, the hearing examiner found that the
officer’s use of force was justified because the person who was being arrested was a larger
man of perceived strength, the officer testified that the man pumped his fist and leaned
forward, and the officer reasonably perceived a threat of personal injury to himself. Id. at
671, 856 S.E.2d at 630. On appeal, the circuit court independently reviewed the video of
the arrest, concluded that the force was excessive, and reversed. Id. at 671-72, 856 S.E.2d
at 630-31. The circuit court saw no indication from the video that the man had pumped his
fist, leaned forward, or did anything to resist arrest. Id. We acknowledged that the circuit
court’s concern about the use of force was not without basis, and that if this Court had been
the finder of fact, we might have ruled differently than the hearing examiner. Id. at 674,
856 S.E.2d at 633. Nonetheless, we held that because the hearing examiner’s findings of
fact and credibility determinations were plausible, those findings had to be given deference.
Id. Accordingly, we reversed the circuit court and ordered that the administrative order be
reinstated. Id.
19
Seeking to justify its ruling in this case, the circuit court found that the
hearing examiner failed to adequately consider the “objective reasonableness” standard for
the use of police force that is discussed in Graham v. Connor, 490 U.S. 386 (1989), and
other cases. The United States Supreme Court explained in Graham that the objectively
reasonable standard “requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. at 396 (citations omitted). The circuit
court believed that the hearing examiner failed to account for the severity of J.H.’s pre-
crash conduct—rear-ending the deputy’s cruiser and then leading the officers on the
extremely dangerous car chase—which the circuit court speculated amounted to criminal
malicious or unlawful assault and reckless fleeing from police. 16 And, as set forth above,
and contrary to the hearing examiner’s findings of fact, the circuit court found that J.H. did
present a potential danger to the officers’ safety and did resist arrest.
After reviewing the record on appeal, we conclude that the hearing examiner
did consider and correctly apply the objective reasonableness standard. First, the record
contains extensive evidence about J.H.’s pre-crash conduct, including the video recording
of the car chase and the respondent’s testimony describing the car chase. Moreover, Major
16
There is no indication in the appellate record that J.H. was ever charged with a
crime.
20
White testified about the State Police’s policy on the use of force, and this policy essentially
mirrors the quote from Graham, above. In his decision, the hearing examiner analyzed this
issue as follows:
[I]t is beyond cavil that [J.H.]’s actions placed Walker, his
colleagues and the public at risk. [J.H.]’s conduct up to and
including the crash appears to be without defense.
However, when [J.H.]’s vehicle came to a stop after the
horrific crash that occurred and it became apparent that [J.H.]
was not a threat to flee or harm the officers on the scene, it was
incumbent upon Walker and his colleagues to be in control of
their actions and act as first responders. This is particularly true
given the absence of any meaningful resistance by the 120 lb
[J.H.]; the fact that he had just experienced a horrific car crash;
and the presence of four law enforcement officers to handle the
five foot four inch sixteen year old. Yet, this never occurred.
Essentially, the hearing examiner determined that at the time the force was applied, there
was no need for this level of force. The hearing examiner’s analysis is consistent with a
later Supreme Court discussion that offered a more extensive, non-exhaustive list of things
that may be considered when weighing the objective reasonableness of a police officer’s
actions:
“Considerations such as the following may bear on the
reasonableness or unreasonableness of the force used: the
relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any
effort made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting. [] We do not consider this list to be
exclusive. We mention these factors only to illustrate the types
of objective circumstances potentially relevant to a
determination of excessive force. Kingsley [v. Hendrickson,
576 U.S. 389, 397], 135 S.Ct. [2466], 2473[, 192 L.Ed.2d 416]
21
[(2015)] (citation omitted).” Maston v. Wagner, 236 W. Va.
488, 504, 781 S.E.2d 936, 952 (2015).
Jarrell, 244 W. Va. at 673, 856 S.E.2d at 632. 17 Thus, while the circuit court disagreed
with the hearing examiner’s factual findings on the lack of a need for this level of force,
those findings were not clearly wrong or arbitrary and capricious. 18
Having reviewed the record and the parties’ arguments, we conclude that the
circuit court impermissibly substituted its judgment for that of the hearing examiner, who
was the factfinder in this manner. Even though the circuit court or this Court may have
decided the case differently, the circuit court should have affirmed the decision because
the hearing examiner’s account of the evidence is plausible in light of the record viewed in
its entirety. Accordingly, we must reverse.
17
The United States Supreme Court in Kingsley considered “whether, to prove an
excessive force claim, a pretrial detainee must show that the officers were subjectively
aware that their use of force was unreasonable, or only that the officers’ use of that force
was objectively unreasonable.” 576 U.S. at 391. The Court held that it was an objective
test. Id.
18
Additionally, when finding that the use of force was justified, the circuit court
discussed a statement that J.H. gave to a different law enforcement officer later that night
while at the hospital. In a braggadocio manner, the teenager said something like, “it was a
good thing there were a bunch of cops because if it was just one on one he [J.H.] could’ve
taken them.” The circuit court also noted that marijuana was later found in J.H.’s car and
it was suspected that J.H. was using and possibly selling marijuana. However, these things
were not known at the time the force was used and have no bearing on whether the force
was reasonable.
22
IV. Conclusion
For the foregoing reasons, the circuit court’s July 24, 2020, order is reversed.
We remand this case to the circuit court for the entry of an order reinstating the September
30, 2019, decision of the West Virginia State Police Grievance System hearing examiner.
Reversed and Remanded.
23