Anthony Melkowski v. The board of Police Commissioners of Kansas City, Missouri

In the
Missouri Court of Appeals
Western District
ANTHONY MELKOWSKI, )
)
Appellant, ) WD77668
)
v. ) OPINION FILED: March 10, 2015
)
THE BOARD OF POLICE )
COMMISSIONERS OF KANSAS )
CITY, MISSOURI, ET AL., )
)
Respondents. )
Appeal from the Circuit Court of Clay County, Missouri
The Honorable Janet L. Sutton, Judge
Before Division One: Cynthia L. Martin, Presiding Judge, Mark D. Pfeiffer, Judge and
Gary D. Witt, Judge
Anthony Melkowski ("Melkowski") seeks judicial review of the Kansas City
Board of Police Commissioners' ("Board") decision to terminate his employment with the
Kansas City Police Department ("Department") because he violated personnel policies
addressing the use of profanity, the use of force, and repeated discipline. Melkowski
argues that the Board erred in terminating his employment because it failed to consider a
legal bulletin describing the reasonable use of force and because it exceeded its
jurisdiction by terminating him in reliance on a personnel policy that was not identified in
his initial charge. Because the Board considered the legal bulletin and did not exceed its
jurisdiction, because the Board's decision to terminate Melkowski was not arbitrary and
capricious based on the record as a whole, and because Melkowski does not challenge on
appeal all bases for termination identified in the Board's written decision, we affirm.
Factual and Procedural History
On November 2, 2006, Melkowski and his partner Officer Rares Toma ("Toma")
saw Michael Payne ("Payne") walking on the sidewalk near some apartment buildings.
Payne was identified by the Department as a "red-file target" because of his criminal
history. Payne was suspected of narcotics activities and had been identified by several
local landlords and business owners as someone they wanted prosecuted for trespassing if
seen on their property.
Because the Department authorizes red-file targets to receive higher attention from
police officers, Melkowski and Toma began following Payne. After following Payne in
their patrol car for a while, Melkowski and Toma approached Payne on foot. The patrol
car was equipped with a video camera that recorded the 12-minute encounter between
Melkowski and Payne that followed.
As the officers approached Payne, Toma saw Payne put something in his mouth.
Once the officers reached Payne, they placed him in handcuffs in front of the patrol car.
Toma shined his flashlight in Payne's mouth and determined that Payne was attempting to
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conceal narcotics. Toma believed that Payne had approximately three crack cocaine
rocks under his tongue.1
Toma told Melkowski that Payne was trying to swallow the drugs. Melkowski
quickly grabbed Payne's Adam's apple. Melkowski later reported that he grabbed Payne's
throat to preserve the narcotics as evidence and to keep Payne from ingesting a dangerous
substance. The officers bent Payne over the hood of the patrol car. While Melkowski did
not choke Payne or impair his breathing, he did have his hand around Payne's throat and
was holding onto and pulling Payne's hair.
After a few minutes, Melkowski released his hold on Payne's throat but continued
to hold him down on top of the hood of the patrol car. While using profanity, Melkowski
threatened to call an ambulance and to have Payne's stomach pumped, to spray him with
pepper spray, and to open his mouth with an ink pen in order to get him to spit out the
drugs. The video shows Melkowski asking Toma for an ink pen. Payne did not comply
with Melkowski's efforts to remove the drugs from Payne's mouth.
Melkowski then turned Payne's face away from the camera, grabbed his night
stick, and held the night stick close to Payne's face. Payne can be heard making gagging
noises and begging Melkowski not to hurt him. Because of Payne's positioning, the
video neither confirms nor negates that Melkowski inserted the night stick into Payne's
mouth. However, after Payne is heard gagging and begging Melkowski to stop, the video
shows Melkowski wiping his night stick through Payne's hair.
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It was never determined whether Payne, in fact, had drugs in his mouth. We will refer to whatever was in
Payne's mouth as "drugs" throughout this opinion for ease of reference.
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It was eventually determined that Payne had swallowed the drugs. Though
Melkowski later testified that he acted as he did out of concern for Payne's safety should
he ingest the drugs, Payne was released and allowed to walk away without receiving
medical attention.
Throughout the encounter with Payne, Melkowski used profanity frequently,
including epithets directed at Payne after he was released from custody. These included
"All we did was save your ass;" "Why the hell you treat us like we are f****** stupid;"
"Treating us like we're assholes;" "Make me sick;" and "Keep your f****** mouth shut."
Less than an hour after being released, Payne filed a complaint against Melkowski
with the Office of Community Complaints. Payne alleged that Melkowski used
excessive force by shoving a night stick into the front of his mouth and by sticking a pen
into his mouth. An Internal Affairs Unit investigation was conducted.
The Internal Affairs Unit generated a report after completing its investigation that
included all of the statements that had been taken. The report was presented to the four
officers in Melkowski's chain of command. After reviewing the report, each officer
recommended that Melkowski be terminated for violating Department policies. Kansas
City Chief of Police James Corwin ("Chief Corwin") independently reviewed the report
and recommended termination, subject to review by the Board ("Charges and
Specifications"). The Charges and Specifications charged Melkowski with violating
Department Personnel Policy 201-7 ("Policy 201-7"), specifically the Code of Ethics
provisions and Rules of Conduct paragraphs 1, 9, 12, 44, 58, 59, and 60. The Charges
and Specifications specified two counts of misconduct: count one, alleging that
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Melkowski used profanity and unnecessary force on Payne, a handcuffed subject; and
count two, alleging that Melkowski had previously received a 15-day suspension for
discourtesy and unnecessary force involving a different handcuffed subject in 2005.
Paragraph B of Policy 201-7's Code of Ethics, titled Performance of Duties of
Police Officers, states that "[a]ll citizens will be treated equally with courtesy,
consideration, and dignity. Officers will never allow personal feelings, animosities, or
friendships to influence official conduct." Paragraph D of the Code of Ethics, titled Use
of Force, provides:
Police officers will never employ unnecessary force or violence and will
use only such force in the discharge of duty as is reasonable in all
circumstances. While the use of force is occasionally unavoidable, police
officers will refrain from applying the unnecessary infliction of pain or
suffering and will never engage in cruel, degrading, or inhuman treatment
of any person.
Paragraph 1 of Policy 201-7's Rules of Conduct provides that "[m]embers will read and
maintain all current department Procedural Instructions, Personnel Policies, and other
written directives issued to them." Paragraph 9 states that "[m]embers will conduct
themselves with dignity, courtesy, and efficiency." Paragraph 12 states that "[m]embers
will not use uncivil, harsh, profane, or vulgar language, even under great provocation."
Paragraph 44 states that "[m]embers are prohibited from the use of unnecessary force or
abuse of prisoners or other persons." Paragraphs 58, 59, and 60 provide:
58. Members will maintain a satisfactory level of performance during the
term of their appointment as members of the department. Any member
whose conduct record demonstrates an inability or unwillingness to
maintain a satisfactory level of performance in the administration of his or
her office may be subject to disciplinary action for such conduct which
affects the rights and interests of the public.
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59. Members, on or off duly, shall not engage in any conduct or commit
any disorder or neglect to the prejudice of good order and discipline of the
department, or engage in any conduct of a nature to bring discredit upon the
member or the department, or engage in any conduct unbecoming a
member of the department. Conduct unbecoming a member of the
department shall include any conduct which adversely affects the morale or
efficiency of the department and any conduct which has a tendency to
adversely affect, lower, or destroy public respect and confidence in the
department or its members.
60. Members are further charged with the duty to conduct themselves at all
times in keeping with the Code of Ethics and the policy statements of the
Chief of Police; all activity contrary to this concept, whether or not
specifically mentioned or prohibited in these rules, may subject members to
disciplinary action.
In response to the Charges and Specifications, Melkowski requested a hearing in
front of a hearing officer. Melkowski argued that he had not violated Department
policies because his use of force complied with Legal Bulletin 99-5. Legal Bulletin 99-5
is dated July 15, 1999. It identifies its subject as: "Force Reasonable to Prevent a Suspect
From Swallowing Drugs." It was prepared by: "Dale H. Close, Legal Advisor." It shows
distribution to: "All Law Enforcement Personnel; All Civilian Personnel; and All
Department Elements," with a directive that it be posted "on all bulletin boards for two
weeks." It's stated purpose was: "to provide officers with information and guidance
concerning the force reasonable to prevent a suspect from swallowing drugs," and
mentions that "Department Procedural Instruction 96-11 briefly addresses this issue,
noting only 'exigent circumstances, such as the suspect placing illegal narcotics or
contraband into their mouth, do not require obtaining a search warrant due to the
probability of the subject swallowing the evidence requires the need for immediate
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action.'" Legal Bulletin 99-5 then summarizes cases where courts have been asked to
determine whether an officer's efforts to retrieve drugs that are being ingested constitute
an unreasonable search and seizure that violates the Fourth Amendment.
Melkowski did not testify that he had ever seen Legal Bulletin 99-5 prior to his
encounter with Payne. He nonetheless argued that Legal Bulletin 99-5 supplemented the
Department's personnel policies regarding use of force, and that his conduct conformed to
the conduct described in the cases summarized in the legal bulletin.
The hearing officer recommended that Melkowski receive probation on
January 27, 2011. On June 26, 2012, the Board reviewed the hearing officer's
recommendation and heard additional argument from counsel. The parties waived the
opportunity to present additional evidence and submitted the case to the Board on the
existing record. After reviewing testimony, argument, the videotape of the incident, and
the investigation report, the Board issued its Findings of Fact, Conclusions of Law and
Order on July 17, 2012 ("Order"), terminating Melkowski's employment.
In its Order, the Board concluded that "[s]ubstantial testimony and the videotape
in this case demonstrate that [Melkowski] used excessive force and unnecessary profanity
and engaged in cruel, degrading, or inhumane treatment during the stop of [Payne] in
violation of Department policies." The Board also concluded that Chief Corwin "met his
burden of proof by a preponderance of the evidence adduced at the hearing that
[Melkowski] violated Personnel Policy 201-07 and the subparts under which he has been
charged."
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Melkowski appealed the Order to the Circuit Court in Clay County, Missouri,
which affirmed the decision of the Board. Melkowski timely appealed to this court.
Standard of Review
"On appeal, we review the decision of the Board, not that of the circuit court."
Trusler v. Tate, 941 S.W.2d 794, 797 (Mo. App. W.D. 1997). "Our review is limited to
determining whether the Board's decision was constitutional; was within the Board's
statutory authority and jurisdiction; was supported by competent and substantial evidence
upon the whole record; was authorized by law; was made upon lawful procedure with a
fair trial; was not arbitrary, capricious or unreasonable; or was a proper exercise of
discretion." Spencer v. Zobrist, 323 S.W.3d 391, 396 (Mo. App. W.D. 2010) (citing
Lagud v. Kansas City Bd. of Police Comm'rs, 136 S.W.3d 786, 791 (Mo. banc 2004));
section 536.140.2. "This Court must look to the whole record in reviewing the board's
decision, not merely at that evidence that supports its decision." Coffer v. Wasson-Hunt,
281 S.W.3d 308, 310 (Mo. banc 2009). "If the evidence permits either of two opposing
findings, deference is afforded to the administrative decision." Id. "We, however, do not
defer to the Board's decision on questions of law." Spencer, 323 S.W.3d at 397.
Analysis
Melkowski argues that the Board erred in terminating his employment because:
(1) it arbitrarily and capriciously failed to consider Legal Bulletin 99-5; (2) it lacked
cause for termination as a matter of law because unless Legal Bulletin 99-5 is considered,
Department policies describing use of force are vague; (3) it exceeded its jurisdiction by
terminating him in reliance on a personnel policy that was not identified in the Charges
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and Specifications; and (4) substantial and competent evidence on the whole record does
not establish cause for his termination because his actions complied with Legal Bulletin
99-5. Melkowski's first, second, and fourth points on appeal each presume that the Board
failed to afford due consideration to Legal Bulletin 99-5 and are considered collectively.
Points One, Two and Four
"Section 84.600 . . . governs the discharge, removal, and discipline of police
officers in Kansas City." Schnell v. Zobrist, 323 S.W.3d 403, 410 (Mo. App. W.D.
2010). Non-probationary police officers are "subject to discharge or removal only for
cause." Section 84.600. "[T]he term 'for cause' means 'legal cause' [that] specifically
relates to and affects the administration of the office, and must be restricted to something
of a substantial nature directly affecting the rights and interests of the public." Schnell,
323 S.W.3d at 410 (quoting McCallister v. Priest, 422 S.W.2d 650, 657 (Mo. banc
1968)).
The Board terminated Melkowski for violation of Policy 201-7 and the subparts
thereof identified in the Charges and Specifications. Melkowski does not contest any of
the Board's factual findings regarding his conduct during his interactions with Payne.
Melkowski thus does not contest that Melkowski grabbed Payne's Adam's apple; that
while Payne's torso was bent over the hood of the patrol car, Melkowski had his hand
around Payne's throat and was pulling his hair; that Melkowski continued to hold Payne
down on the hood of the patrol car even after releasing his throat; that Melkowski
continued over the next several minutes to order Payne to spit the drugs out using
frequent profanity; that Melkowski turned Payne's face from the camera and deployed his
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night stick holding it close to Payne's face; that Payne can be heard gagging and begging
Melkowski not to hurt him; that Melkowski was subsequently seen wiping the night stick
off on Payne's hair; that Payne was handcuffed throughout his interactions with
Melkowski; that Toma and Melkowski released Payne after learning he swallowed the
drugs and without insisting that Payne receive medical treatment though Melkowski
claimed he had acted as he did to insure Payne's safety; that the record is "overflowing
with profanity used by [Melkowski] directed toward [Payne];" that Payne filed a
complaint less than an hour after his release; and that Melkowski had been earlier
suspended for excessive force and discourtesy in connection with a handcuffed subject.
Despite these uncontested factual findings, Melkowski argues it was error to
terminate him for cause because the Board failed to consider Legal Bulletin 99-5.
Melkowski's claims that Legal Bulletin 99-5 was a Department policy or rule, and that so
long as his conduct comported with the legal bulletin, he cannot be found to have used
excessive force.
Melkowski's assertion is without merit. His premise that the Board did not
consider whether his conduct complied with Legal Bulletin 99-5 is not borne out by the
record. The Board found:
30. [Melkowski] relies on Legal Bulletin 99-5 for the proposition that all
of the tactics he used were lawful. However, there was no testimony or
other evidence offered that Officer Melkowski had either read or relied on,
the Bulletin at the time of the encounter with Mr. Payne.
The Board then drew the following legal conclusion:
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11. Irrespective of the content or weight that should be given to Legal
Bulletin 99-5, the Board finds insufficient evidence that [Melkowski] was
aware of, or conformed his conduct to, the guidance provided in Bulletin
99-5 at the time of the incident. As such, the Board need not decide
whether and to what extent the information contained in the Bulletin
modifies or supplements departmental policy.
(Emphasis added.) Melkowski's assertion that the Board failed to consider the legal
bulletin is plainly inaccurate. Rather, the Board expressly found that Melkowski's
conduct did not comport with the legal bulletin.
Melkowski asserts in his fourth point relied on that substantial and competent
evidence supported a contrary conclusion. He argues that his conduct did comport with
Legal Bulletin 99-5. In making this argument, however, Melkowski observes only the
following:
[T]he Board correctly found that [Melkowski] did not choke or beat Payne,
which according to Legal Bulletin 99-5, . . . seems to be the only action
which is "clearly unreasonable."
Melkowski is correct in noting that the Board found that Melkowski did not "appear to
choke Payne or impair his breathing." [Order, Findings of Fact, paragraph 12]. And
Melkowski is correct that the cases summarized in Legal Bulletin 99-5 suggest that
avoiding behavior that involves choking or beating a suspect enhances the likelihood that
force used will be deemed reasonable under the Fourth Amendment. Those observations
do not equate, however, to a required conclusion that Melkowski's conduct comported
with Legal Bulletin 99-5. The totality of Melkowski's 12-minute encounter with Payne,
all of which was caught on videotape, substantially and competently supports the Board's
conclusion that Melkowski did not comport with Legal Bulletin 99-5. Melkowski's
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argument to the contrary ignores the cumulative effect of all of his conduct and elects to
spotlight attention on the fact that one aspect of his conduct--his Adam's apple maneuver-
-has been found to be reasonable in Fourth Amendment cases. Melkowski's myopic view
of his conduct is inconsistent with our standard of review, which requires us to examine
the whole record. Coffer, 281 S.W.3d at 310. We cannot conclude on this record that the
Board arbitrarily and capriciously determined that the totality of Melkowski's treatment
of Payne failed to comport with both Legal Bulletin 99-5 and the Department's use of
force policies identified in the Charges and Specifications.
To this point, it is noteworthy that Melkowski hones in on the Board's finding that
he did not choke or impair Payne's breathing but ignores (and does not challenge) the
Board's remaining use of force findings regarding Melkowski's treatment of Payne
(summarized, supra). Nor does Melkowski contest that he violated paragraph 12 of
Policy 201-7, which prohibits the "use of uncivil, harsh, profane, or vulgar language,
even under great provocation." And Melkowski does not challenge the Board's
determination that Melkowski violated paragraph 58 of Policy 201-7 which requires
members to "maintain a satisfactory level of performance during the term of
appointment," and notes that "[a]ny member whose conduct record demonstrates an
inability or unwillingness to maintain a satisfactory level of performance in the
administration of his or her office may be subject to disciplinary action. . . ."
"[W]e presume that the agency's decision is correct, and the burden to show
otherwise is placed on the party challenging the decision." Ringer v. Missouri Dept. of
Health & Senior Services, 306 S.W.3d 113, 114 (Mo. App. W.D. 2010). To sustain this
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burden, Melkowski must successfully challenge each basis for his termination found by
the Board. See Indep. Living Ctr. of Mid MO, Inc. v. Dep't of Soc. Services, MO
HealthNet Div., 391 S.W.3d 52, 58 (Mo. App. W.D. 2013) (appellant's failure to
challenge the alternative violations found by the agency is fatal to its appeal); City of
Peculiar v. Hunt Martin Materials, LLC, 274 S.W.3d 588, 590–91 (Mo. App. W.D.
2009) (holding that to establish grounds for reversal, an appellant must challenge all
grounds on which the trial court ruled against it); Houston v. Roadway Express, Inc., 133
S.W.3d 173, 178 (Mo. App. S.D. 2004) (express and implicit findings left unchallenged
on appeal resulted in waiver of claim of non-liability).
Because the Board did consider Legal Bulletin 99-5 and found that Melkowski's
conduct did not comport with the bulletin, because the record viewed in its totality
demonstrates that the Board's finding that Melkowski violated the Department's use of
force policies is not arbitrary and capricious, and because Melkowski fails to challenge
each basis for termination found by the Board, points relied on one, two, and four are
denied.
Point Three
In his third point on appeal, Melkowski argues that the Board exceeded its
jurisdiction because it relied on Personnel Policy 07-4 as a basis for its decision to
terminate him even though that policy was not cited in the Charges and Specifications.
"An administrative agency enjoys no more authority than that granted by statute."
Termini v. Missouri Gaming Comm'n, 921 S.W.2d 159, 161 (Mo. App. W.D. 1996). As
stated above, "[s]ection 84.600 . . . governs the discharge, removal, and discipline of
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police officers in Kansas City." Schnell, 323 S.W.3d at 410. Section 84.600 provides in
pertinent part:
[Officers shall] be subject to discharge or removal only for cause and upon
complaint being made or charges being preferred against them, . . .
which complaint or charges setting forth the ground thereof . . . and the
[B]oard after hearing the charges shall take a vote of yeas and nays to be
entered upon the records whether or not the charges have been sustained
and what punishment, if any, shall be imposed. If the charges are found by
the [B]oard to be sustained by the evidence, the [B]oard may remove such
policemen or police officers, or the [B]oard may, instead of removal,
suspend, reprimand or impose a fine upon the policemen or police officers.
...
Melkowski argues that the "charges" referred to in section 84.600 are limited to
the charges levied in the Charges and Specifications. Melkowski argues that the Board
referred to, and thus relied on, Personnel Policy 07-4 in its Order even though the
Charges and Specifications make no reference to Personnel Policy 07-4.
It is true that the Board's Order refers to Personnel Policy 07-4. In its findings of
fact, the Board finds:
25. The Charge [sic] and Specifications filed on June 26, 2007, alleged
that [Melkowski] violated department policies. Personnel Policy 201-7,
Code of Ethics and Rule of Conduct, Section III, paragraphs 1, 9, 12, 44,
58, 59, and 60 and Personnel Policy 07-4, "Use of Force."
....
29. Personnel Policy 07-4, Use of Force, Paragraph III states: "Members
shall not engage in cruel, degrading, or inhuman treatment of any person."
It is also true that the Charges and Specifications do not mention Personnel Policy 07-4 in
the section entitled "Charges" where the policies alleged to have been violated are
itemized.
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Though we agree with Melkowski that the Board's Order mistakenly finds that the
Charges and Specifications included reference to Personnel Policy 07-4, we do not agree
that the Board terminated Melkowski based on a finding that his conducted violated
Personal Policy 07-4. The Board's Order concludes, as a matter of law, that "the Chief
has met his burden of proof by a preponderance of the evidence adduced at the hearing
that [Melkowski] violated Personnel Policy 201-7 and the subparts under which he has
been charged." [Order, Conclusions of Law, paragraph 9]. Thus, though the Board's
discussion of Personnel Policy 07-4 in the Order's factual findings creates unnecessary
confusion, the Board's legal determination to terminate Melkowski was plainly based on
only those charges identified in the Charges and Specifications.
It is also relevant to note that the Board's reference to Personnel Policy 07-4 in its
factual findings cites to the policy's directive that officers shall not "engage in cruel,
degrading, or inhuman treatment of any person." [Order, Findings of Fact, paragraph
29]. This same language is duplicated in the Code of Ethics for Policy 201-7, violation of
which was expressly referenced in the Charges and Specifications. Subsection D of the
Code of Ethics addresses the use of force and provides, in pertinent part, that officers
"will never engage in cruel, degrading, or inhuman treatment of any person." Thus, even
were we to conclude (which we do not) that the Board improvidently terminated
Melkowski for violation of Personnel Policy 07-4, the Board's determination that
Melkowski also violated the Code of Ethics for Personnel Policy 201-7 would render the
Board's error harmless.
Point relied on three is denied.
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Conclusion
The Board's Order is affirmed.
__________________________________
Cynthia L. Martin, Judge
All concur
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