Earl Gene Davis v. Civil Service Commission Of The Metropolitan Government Of Nashville And Davidson County

05/21/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 5, 2019 Session
EARL GENE DAVIS v. CIVIL SERVICE COMMISSION OF THE
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY ET AL.
Appeal from the Chancery Court for Davidson County
No. 17-0510-II William E. Young, Chancellor
___________________________________
No. M2018-01130-COA-R3-CV
___________________________________
This appeal arises from the Metropolitan Government of Nashville Civil Service
Commission’s decision to suspend and demote Appellant, a police officer with
Metropolitan Nashville Police Department. The department’s decision to suspend
Appellant was affirmed by the administrative law judge, but the administrative law judge
reversed the demotion. The Commission then reviewed the administrative law judge’s
order and upheld the suspension but reinstated the demotion. On appeal to the Davidson
County Chancery Court, the Commission’s decision was affirmed. Finding no error, we
affirm the decision of the Chancery Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN,
J., joined. J. STEVEN STAFFORD, P.J., W.S., filed a separate concurring opinion.
J. Alex Little, Nashville, Tennessee, for the appellant, Earl Gene Davis.
Jon Cooper, Lora Barkenbus Fox, Nashville, Tennessee, for the appellee, Civil Service
Commission of the Metropolitan Government of Nashville & Davidson County, and
Metropolitan Police Department of Nashville & Davidson County.
OPINION
I. Background
Earl Gene Davis (“Appellant”) is a Metropolitan Nashville Police Department
(“MNPD”) police officer. In 2010, Officer Davis was assigned to the Middle Tennessee
Drug Enforcement Task Force (“Task Force”), which the United States Drug
Enforcement Administration (“DEA”) runs. The DEA often contracts with state and
local law enforcement agencies for cooperative enforcement concerning drug crimes.
Relevant here, in the fall of 2013, the City of Nashville and the DEA formed a Program-
Funded State and Local Task Force Agreement (“Task Force Agreement”). Officials
from Metropolitan Government of Nashville (“Metro”) and the DEA, along with the
Metro Chief of Police, approved the Task Force Agreement. In relevant part, the Task
Force Agreement provided:
2. To accomplish the objectives of the [Task Force], the MNPD agrees to
detail one (1) experienced officer to the [Task Force] for a period of not
less than two years. During this period of assignment, the MNPD officers
will be under the direct supervision and control of DEA supervisory
personnel assigned to the Task Force.
3. The MNPD officers assigned to the Task Force shall adhere to DEA
policies and procedures. Failure to adhere to DEA policies and procedures
shall be grounds for dismissal from the Task Force.
4. The MNPD officers assigned to the Task Force shall be deputized as
Task Force Officers of DEA pursuant to 21 U.S.C. § 878.
5. To accomplish objectives of the [Task Force], DEA will assign three (3)
Special Agents to the Task Force. DEA will also, subject to the availability
of annually appropriated funds or any continuing resolution thereof,
provide necessary funds and equipment to support the activities of DEA
Special Agents and MNPD officers assigned to the Task Force. This
support will include: office space, office supplies, travel funds for the
purchase of evidence and information, investigative equipment, training,
and other support items.
6. During the period of assignment to the [Task Force], the MNPD will be
responsible for establishing the salary and benefits, including overtime, of
the officers assigned to the Task Force, and for making all payments due
them. DEA will, subject to availability of funds, reimburse the MNPD for
overtime payments made by it to the MNPD officers assigned to the [Task
Force] for overtime . . . .
While serving as a member of the “Group 1” Task Force from 2013 through 2014,
Officer Davis was involved in an investigation of a drug conspiracy in Sumner County,
Tennessee. DEA Special Agent Tanya Bilyeu was the lead case-agent for Group 1.
Agent Bilyeu made the final operational decisions for Group 1 and also served as the
supervisor when the group supervisor was out of the office. During the investigation, the
Task Force discovered that F.C. was involved in a sexual relationship with his minor
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step-daughter.1 F.C. was one of several targets in the Task Force investigation who was
suspected of distributing cocaine and marijuana in Middle Tennessee. Based on this
investigation, F.C. was arrested for sexual exploitation of a minor in April 2014. The
arrest warrant for F.C. stated, in part, that he was believed to be an illegal immigrant from
Mexico who posed a serious flight risk.
F.C. was scheduled for a bond hearing on July 3, 2014.2 F.C.’s bonding agent for
this hearing was George Espinoza. Officer Davis alleges that he believed that members
of the drug conspiracy intended to bond F.C. out at a time when law enforcement was
unaware so F.C. could flee to Mexico. Officer Davis asserts that he believed Mr.
Espinoza was part of the drug conspiracy and intended to accept drug funds as the source
of payment for F.C.’s bond. Allegedly fearful that F.C. would flee to Mexico, Officer
Davis claims that he and Agent Bilyeu discussed several ideas about how to keep F.C.
from fleeing the country. Officer Davis contacted Immigration and Customs
Enforcement (“ICE”) to inquire about an immigration hold on F.C. ICE informed Officer
Davis that F.C. was a legal resident alien and that ICE would not place an immigration
hold on him. Ultimately, Officer Davis claims that he and Agent Bilyeu decided that
Officer Davis should contact Mr. Espinoza, act as an ICE agent, and inform Mr. Espinoza
that there was an immigration hold on F.C., such that posting bond for F.C. to make bail
would be futile. Officer Davis made the call and represented to Mr. Espinoza that his
name was ICE Agent Byron Daniels, he was going to place a hold on F.C., and it would
be a “pretty moot point” to bond out F.C. Subsequently, the bond hearing was
rescheduled, and F.C. remained in jail until the rescheduled bond hearing on July 7, 2014
when he was released.
On July 7, 2014, Officer Davis reported to his MNPD supervisor, Sergeant Gene
Donegan, that he had been “outed” in court as a DEA agent. Officer Davis was
concerned that members of the drug conspiracy knew his real name, telephone number,
and home address. Upon hearing this information, Sergeant Donegan took immediate
steps to ensure Officer Davis’s safety. In late 2014, Officer Davis was taken off the Task
Force and subsequently promoted to Sergeant.
In November 2014, MNPD received a complaint from ICE regarding Officer
Davis’s telephone call to Mr. Espinoza. At the same time, Officer Davis reported to
Lieutenant Johnny Malzonie that he had impersonated an ICE agent without ICE’s
permission when he called Mr. Espinoza. Lieutenant Malzonie contacted Captain Jason
Reinbold about the incident. Captain Reinbold immediately decommissioned Officer
Davis from Sergeant to Police Officer II until an internal investigation could be
1
We decline to use F.C.’s real name because we are unaware of the state of the investigation and
whether F.C. was ever convicted of the crime for which he was accused.
2
The record does not explain the reason for the delay between the date of F.C.’s arrest and the
bond hearing.
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conducted. Shortly thereafter, the MNPD Office of Professional Accountability (“OPA”)
launched an investigation into the matter.
Sergeant Jeremy Moseley conducted the OPA investigation. To begin his
investigation, Sergeant Moseley reviewed evidence provided by Homeland Security.
Following that review, Sergeant Moseley determined that he needed to proceed with the
investigation. Sergeant Moseley interviewed the following people during the
investigation: Mr. Espinoza; Lieutenant Malzonie; Sergeant Donegan; Lieutenant Mitch
Fuhrer; Officer Davis; Agent Bilyeau; and Mike Stanfield. As a result of the
investigation, on July 7, 2015, Chief Steve Anderson formally charged Officer Davis
with violations of MNPD policies and procedures and with violations of the Rules of the
Metropolitan Government Civil Service Commission (“the Commission”). The charging
document provided, in relevant part:
Charge 1:
Department Manual
4.20 DEPORTMENT AND PERSONAL APPEARANCE
4.20.040 Personal Behavior: B: Adherence to Law
1. Employees are prohibited from engaging in conduct, on or off-duty,
which constitutes an offense under the laws or ordinances of the United
States or any subdivision thereof. (Category C)
to wit:
T.C.A. § 39-16-301 – Criminal Impersonation
(a) A person commits criminal impersonation who, with intent to injure or
defraud another person:
(1) Assumes a false identity;
(2) Pretends to be a representative of some person or organization;
(3) Pretends to be an officer or employee of the government; or
(4) Pretends to have a disability.
(c) (1) Criminal impersonation under subsection (a) is a Class B
misdemeanor.3
***
3
This is the version of Tennessee Code Annotated section 39-16-301 that was in effect at the
time Officer Davis was charged with this violation.
-4-
Charge 2
Department Manual
4.20 DEPORTMENT AND PERSONAL APPEARANCE
4.20.040 Personal Behavior: K: Obstruction of Rights
Employees shall not knowingly deprive any person of any right to which
they are entitled by law or the rules and regulations of the Metropolitan
Government. (Category B)
***
Charge 3
Metropolitan Civil Service Rules
SECTION 6.7 – GROUNDS FOR DISCIPLINARY ACTION
11. Violation of any written rules, policies or procedures of the department
in which the employee is employed.
***
On July 23, 2015, a MNPD advisory panel conducted a disciplinary hearing.
Officer Davis was represented by counsel at the hearing and pled not guilty to all three
charges. By letter of August 25, 2015, Officer Davis was informed that the panel found
him guilty of all three charges. He received the following sanctions: (1) a four (4) day
suspension for Charge 1; and (2) a twenty (20) day suspension and a demotion for Charge
2. He did not receive a specific sanction for Charge 3 because the violation was parallel
to the departmental charges contained in Charges 1 and 2. In total, Officer Davis was
suspended for twenty-four (24) days without pay and was demoted from Sergeant to
Police Officer II. Officer Davis appealed this decision to the Commission.
On July 14, 2016, Administrative Law Judge (“ALJ”) Leonard Pogue held a one-
day hearing on this matter. Officer Davis was represented by counsel and given the
opportunity to present witnesses and exhibits and to cross-examine Metro’s four
witnesses, namely: (1) Sergeant Donegan; (2) Captain Reinbold; (3) Sergeant Moseley;
and (4) Deputy Chief Brian Johnson. Metro also introduced a set of stipulations and
eleven exhibits. Officer Davis neither presented witnesses nor testified on his own
behalf. On December 30, 2016, the ALJ upheld Officer Davis’s suspension but reversed
the demotion. The ALJ concluded that Officer Davis violated F.C.’s right to bail, but did
not violate Mr. Espinoza’s rights. The ALJ also found that Agent Bilyeu directed Officer
Davis to make the phone call and that, because of this, “it [did] not seem unreasonable for
someone in [Officer] Davis’[s] situation . . . not to immediately try to decide whether the
action [was] violative of any MNPD policies.” Further, the ALJ found that the Task
Force Agreement did “not provide guidance for situations where the two agencies’ orders
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or policies may conflict.” Finally, the ALJ found that there was no evidence that Officer
Davis had any prior disciplinary or conduct issues that would call into question his good
judgment. Therefore, the ALJ determined that the demotion was unwarranted.
On March 14, 2017, the Commission reviewed Judge Pogue’s order and heard
argument of counsel. By order of March 22, 2017, the Commission reinstated Officer
Davis’s initial discipline of a twenty-four (24) day suspension and a demotion finding
that it was both reasonable and warranted based on the facts of the case. The
Commission also adopted Metro’s proposed findings of facts and conclusions of law.
Officer Davis timely appealed the Commission’s order to the Chancery Court of
Davidson County (“trial court”). By order of May 17, 2018, the trial court found
substantial and material evidence to uphold the Commission’s decision to affirm Officer
Davis’s suspension and reinstate his demotion to Officer II. Officer Davis appeals.
II. Issues
On appeal, Officer Davis ostensibly raises several issues. However, we conclude
that he is merely raising different arguments in support of one issue. The dispositive
issue is whether the trial court erred when it affirmed the Commission’s: (1) ruling that
Officer Davis violated MNPD Policy § 4.20.040(B) and MNPD Policy § 4.20.040(K);4
and (2) decision to suspend and demote him.
III. Standard of Review
Judicial review of the Commission’s decision is governed by the Uniform
Administrative Procedures Act (“UAPA”). Tenn. Code Ann. § 27-9-114(b)(1); City of
Memphis v. Civil Serv. Comm’n of Memphis, 238 S.W.3d 238, 242 (Tenn. Ct. App.
2007). The UAPA provides, in pertinent part:
(a)(1) A person who is aggrieved by a final decision in a contested case is
entitled to judicial review under this chapter, which shall be the only
available method of judicial review. . . .
***
(h) The court may affirm the decision of the agency or remand the case for
further proceedings. The court may reverse or modify the decision if the
rights of the petitioner have been prejudiced because the administrative
4
We note that Officer Davis does not address on appeal the Commission’s ruling that he violated
Metropolitan Civil Service Rule 6.7(11), presumably because the violation paralleled the MNPD Policy §
4.20.040(B) and (K) violations.
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findings, inferences, conclusions, or decisions are:
(1) In violation of the of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion; or
(5)(A) Unsupported by evidence that is both substantial and
material in the light of the entire record.
(B) In determining the substantiality of
evidence, the court shall take into account
whatever in the record fairly detracts from its
weight, but the court shall not substitute its
judgment for that of the agency as to the weight
of the evidence on questions of fact.
(i) No agency decision pursuant to a hearing in a contested case shall be
reversed, remanded or modified by the reviewing court unless for errors
that affect the merits of such decision.
Tenn. Code Ann. § 4-5-322. This Court explained the standard set forth in Tennessee
Code Annotated section 4-5-322 in City of Memphis, to-wit:
Upon confirming that an agency has employed the proper legal
principles in the case under review, this Court must then consider the
disputed factual findings and address whether the agency had a reasonably
sound basis for making those findings. See McEwen v. Tenn. Dept. of
Safety, 173 S.W.3d 815, 820 (Tenn. Ct. App. 2005). Like the trial court,
this Court applies the substantial and material evidence standard in
reviewing the agency’s findings of fact. Bobbitt v. Shell, 115 S.W.3d 506,
509-10 (Tenn. Ct. App. 2003). Substantial and material evidence is “such
relevant evidence as a reasonable mind might accept to support a rational
conclusion” and to furnish a reasonably sound basis for the decision under
consideration. City of Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311,
316 (Tenn. 2007) (quoting Jackson Mobilphone Co. v. Tenn. Pub. Serv.
Comm’n, 876 S.W.2d 106, 110-11 (Tenn. Ct. App. 1993)); Dickson v. City
of Memphis Civil Serv. Comm’n, 194 S.W.3d 457, 464 (Tenn. Ct. App.
2005); Pruitt v. City of Memphis, No. W2004-01771-COA-R3-CV, 2005
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WL 2043542, at *7 (Tenn. Ct. App. Aug. 24, 2005); Bobbitt, 115 S.W.3d at
510.
As directed by the statute, we take into account whatever in the
record fairly detracts from the weight of the evidence, but we may not
substitute our own judgment on questions of fact by re-weighing the
evidence. See Tenn. Code Ann. § 4-5-322(h)(5)(B). When the agency
conducts a hearing and can evaluate the witnesses as they testify, this Court
gives the tribunal’s credibility determinations great weight. Pruitt, 2005
WL 2043542, at *7. Moreover, the substantial and material evidence
standard does not justify reversal of an administrative decision only
because the evidence could also support another result. Martin v.
Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct. App. 2001). Rather, we may
reject an administrative determination only if a reasonable person would
necessarily arrive at a different conclusion based on the evidence. Id.
Likewise, Tennessee Code Annotated Section 4-5-322(h)(4) permits
a reviewing court to modify or reverse an administrative decision if it is
“[a]rbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.” Tenn. Code Ann. § 4-5-322(h)(4). A
decision unsupported by substantial and material evidence is arbitrary and
capricious. City of Memphis, 216 S.W.3d at 315. Yet, a clear error of
judgment can also render a decision arbitrary and capricious
notwithstanding adequate evidentiary support. Id. at 316. A decision is
arbitrary or capricious if it “is not based on any course of reasoning or
exercise of judgment, or . . . disregards the facts or circumstances of the
case without some basis that would lead a reasonable person to reach the
same conclusion.” Id. (quoting Jackson Mobilphone, 876 S.W.2d at 110-
11).
City of Memphis, 238 S.W.3d at 243.
IV. Analysis
Officer Davis argues that the Commission’s conclusion that he violated MNPD
Policy § 4.20.040(B) and MNPD Policy § 4.20.040(K) is arbitrary, capricious, and
unsupported by material evidence because: (1) Officer Davis did not violate MNPD
policy; (2) assuming, arguendo, that he violated MNPD policy, it was at the direction of
his DEA supervisor; and (3) the discipline imposed by the Commission is grossly
excessive compared to the alleged MNPD policy violations. We will address each of
Officer Davis’s arguments in turn. However, we note at the outset that, although he was
given the opportunity, Officer Davis chose not to testify before the ALJ hearing. When
asked at oral argument before this Court if there is anything in the record for this Court to
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review that would provide Officer Davis’s substantive statements, Officer Davis’s
counsel indicated that there was a lengthy substantive statement from Officer Davis that
was taken in the course of the OPA investigation, which should be in the record before
this Court. In reviewing the record before the ALJ, it appears that counsel may have been
referring to Exhibit 7, a recording of Sergeant Moseley’s interview with Officer Davis in
the course of the OPA investigation. Exhibit 7 was marked for identification purposes
only and was never admitted into evidence at the ALJ hearing. Therefore, we do not
have this recording in our record. Another document in the ALJ record that could match
counsel’s statements is Exhibit 11, the letter from Chief Anderson to Officer Davis
detailing the findings of the investigation and the charges against Officer Davis.
However, when Metro attempted to admit this exhibit into evidence, Officer Davis
objected to its introduction for substantive purposes. The objection was sustained by the
ALJ, and the document was admitted into evidence purely for procedural purposes.
Specifically, Metro stipulated that it was not introducing the document for the truth of the
matters asserted in the document. Therefore, this Court cannot consider Officer Davis’s
statements in Exhibit 11. Finally, the only other document that was in the record before
the ALJ that also contains Officer Davis’s substantive statements is Exhibit 5, an email
attachment from Officer Davis to Sergeant Donegan, in which Officer Davis partially
described the incidents on July 3, 2014 and July 7, 2014. Consequently, the only real
substantive evidence in the record of Officer Davis’s account comes from the testimony
of MNPD officers at the ALJ hearing. We now turn to address Officer Davis’s specific
arguments.
A. Violation of MNPD Policies.
1. MNPD Policy § 4.20.040(B): Adherence to Law
As discussed above, MNPD Policy § 4.20.040(B) provides:
4.20.040 Personal Behavior: B: Adherence to Law
1. Employees are prohibited from engaging in conduct, on or off-duty,
which constitutes an offense under the laws or ordinances of the United
States or any subdivision thereof. (Category C)
to wit:
T.C.A. § 39-16-301 – Criminal Impersonation
(a) A person commits criminal impersonation who, with intent to injure or
defraud another person:
(1) Assumes a false identity;
-9-
(2) Pretends to be a representative of some person or organization;
(3) Pretends to be an officer or employee of the government; or
(4) Pretends to have a disability.
(c) (1) Criminal impersonation under subsection (a) is a Class B
misdemeanor.5
With regard to MNPD Policy § 4.20.040(B), the Commission concluded, in pertinent
part:
7. [Officer] Davis placed the phone call to Mr. Espinoza on July 3, 2014.
The recording of the phone call . . . reveals [Officer] Davis claiming to be
an ICE agent and lying about placing an immigration hold on Mr. Cas[as].
8. This is clearly a violation of MNPD’s Rules and Regulations. [Officer]
Davis impersonated a different law enforcement agent for the purpose of
defrauding Mr. Cas[a]s and Mr. Espinoza, which is conduct[] prohibited by
T.C.A. § 39-16-301.
Officer Davis argues that the Commission’s conclusion that he violated MNPD
Policy § 4.20.040(B) is a clear error of law because he was immune from criminal
liability under the “public authority defense.” The trial court concluded that although
Officer Davis may have been immune from criminal liability under the “public authority
defense” it did not follow that Officer Davis was immune from punishment under MNPD
Policy § 4.20.040(B).6 As the trial court identified, MNPD’s policy prohibits employees
“from engaging in conduct . . . which constitutes an offense under the laws . . . of the
United States or any subdivision thereof.” Therefore, simply engaging in the prohibited
conduct, regardless of whether the person is charged with or convicted of violating the
underlying statute, is a violation of MNPD Policy § 4.20.040(B). Officer Davis
stipulated to the fact that he called Mr. Espinoza and identified himself as an ICE agent.
He also stipulated to the audio recording of the telephone call between Mr. Espinoza and
Officer Davis wherein Officer Davis represented to Mr. Espinoza that he was an ICE
agent, who was about to place an immigration hold on F.C. Officer Davis was never an
ICE agent, so, by impersonating one, he clearly intended to “defraud” Mr. Espinoza.
Tracking the language of Tennessee Code Annotated section 39-16-301(a), supra, Officer
Davis “assume[d] a false identity” or “pretend[ed] to be a representative of” ICE with the
“intent to injure or defraud” Mr. Espinoza. Tenn. Code Ann. § 39-16-301(a). There is no
indication in MNPD Policy § 4.20.040(B), supra, that the person must be criminally
liable for violation of Tennessee Code Annotated section 39-16-301, only that he or she
5
This is the version of Tennessee Code Annotated section 39-16-301 that was in effect at the
time Officer Davis was charged with this violation.
6
We reach no conclusion regarding Officer Davis’s actual immunity under the “public authority
defense.”
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engages in conduct “which constitutes an offense under the laws or ordinances of the
United States or any subdivision thereof.” Therefore, we agree with the trial court that
there is substantial and material evidence to support the Commission’s decision that
Officer Davis did just that, i.e. engaged in conduct which constituted an offense under
Tennessee law and therefore violated MNPD Policy § 4.20.040(B).
Nonetheless, Officer Davis argues that MNPD officers “regularly deceive
individuals in the course of investigations” without fear of criminal investigation because
they are acting “under the color of law,” i.e., on the basis of public authority. He argues
that he was acting under the “color of law” when he made the ruse call to Mr. Espinoza.
As the trial court recognized, there is a distinction between an officer acting “under the
color of law” and Officer Davis’s actions. At the ALJ hearing, Sergeant Donegan,
Officer Davis’s MNPD supervisor while Officer Davis was on the Task Force, testified
that the “color of law” exception applies when an officer lies to a “suspect” during the
course of an undercover investigation:
Q. With regard to the criminal impersonation, what does “under the color
of law” mean when you said that earlier?
A. Basically, you’re allowed to violate it while in the -- while in execution
of your job and your duties, basically. You know, it’s kind of like going
ten mile an hour over the speed limit if you’re running in emergency traffic.
That’s under – you’re allowed to do that.
Same way with, you know, impersonating a person. If you’re talking to a
suspect and in order to do -- during an undercover operation while you’re
talking to that suspect, you’re obviously authorized to use false statements.
***
Q. So, typically, with an undercover investigation, who is the officer
deceiving?
A. The suspect.
Q. Is the officer deceiving court officials?
A. No.
Q. Are they deceiving people making representations to Court?
A. No.
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Similar testimony was elicited from Brian Johnson, Deputy Chief of Police over the Field
Operations Bureau:
Q. So, specifically with regard to the criminal impersonation charge, why
did you feel like that charge was merited?
A. My belief was based upon the fact that it is common knowledge that
police officers can lie in the course of an investigation. It’s known that
officers working in undercover capacities have alternate IDs issued to them
by the State of Tennessee, and those are used for a number of different
reasons. One, if an officer is conducting a drug deal and tells the person
that he’s trying to buy the drugs from that his name is Tom, and the guy
says, well, then prove it, let me see your license. Well, if he pulls out a
license that says Steve, then, obviously, that would be problematic. So they
use those identities for that. . . .
So in this case . . . it was looked at that [Officer Davis] didn’t lie to [F.C.]
about [] ICE. He lied to the bondsman. The bondsman was essentially a
neutral third party. He was not related to the charges. He had not been
charged himself with anything. He was not a defendant in any of the case.
He’s just simply a business owner that was trying to make his bond and was
impacted as a result of that lie.
We agree with the trial court that Officer Davis was not acting “under the color of
law,” as that term is defined in the record, when he called Mr. Espinoza and impersonated
an ICE agent, which is not the same as giving a fictitious name. Therefore, Officer Davis
is not immune from departmental discipline for his actions. Thus, the Commission’s
conclusion that Officer Davis violated MNPD Policy § 4.20.040(B) was not arbitrary or
capricious and it was supported by substantial and material evidence in the record.
2. MNPD Policy § 4.20.040(K): Obstruction of Rights
Officer Davis was also found to have violated MNPD Policy § 4.20.040(K), which
provides:
4.20.040 Personal Behavior: K: Obstruction of Rights
Employees shall not knowingly deprive any person of any right to which
they are entitled by law or the rules and regulations of the Metropolitan
Government. (Category B)
With regard to MNPD Policy § 4.20.040(K), the Commission concluded, in pertinent part
that
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. . . [Officer] Davis set out to keep [F.C.] in jail longer than the normal
court proceedings would have allowed and accomplished that goal. This
violated [F.C.]’s right to bail and Mr. Espinoza’s right to conduct lawful
business without improper interference from the police.
Officer Davis argues that the Commission’s conclusion that he deprived F.C. of his right
to bail, and deprived Mr. Espinoza of his right to earn a living as a bondsman, is
arbitrary, capricious, as it was unsupported by substantial and material evidence.
In Tennessee, defendants in non-capital cases have a right to reasonable bail.
TENN. CONST. art. I, § 15; Tenn. Code Ann. § 40-11-102. Officer Davis argues that he
did not deprive F.C. of his right to bail for two reasons. First, he asserts that the
telephone call did not deprive F.C. of his right to bail. Essentially, Officer Davis argues
that Mr. Espinoza could have attempted to bond out F.C. despite Mr. Espinoza believing
that ICE would place a hold on F.C. In his appellate brief, Officer Davis argues that
“[t]he weight of the MNPD’s argument . . . rests on whether ‘in essence’ the ruse call to
Mr. Espinoza revoked the defendant’s ability to make bond.” Officer Davis uses this
quote from Sergeant Moseley’s testimony at the ALJ hearing to support his argument:
According to TCA, an individual is allowed to make bail and have the
ability to get out, unless it’s a capital offense or something that is deemed
by the courts that they’re not allowed to. In this particular manner, [F.C.]
was a bailable defendant based upon the nature of the charge in which he
was charged. But by making the phone call, in essence, Sergeant Davis
revoked his ability to make bond on that given day because no bondsman is
going to continue to try to make a bond if they know ICE is going to put a
hold on their client. That means they’ll lose whatever money they’ve put
up.
As Sergeant Moseley testified, the telephone call had the effect of preventing F.C. from
making bail, which was Officer Davis’s entire intention in placing the call. Indeed, after
Officer Davis called Mr. Espinoza, the July 3, 2014 bond hearing was rescheduled to July
7, 2014. Nonetheless, Officer Davis argues that his actions did not deprive F.C. of his
ability to make bond in spite of the fact that that was exactly Officer Davis’s intention.
Despite arguing that the telephone call did not prevent F.C. from being bonded out by
Mr. Espinoza, Officer Davis concedes in his appellate brief: “Although it is reasonable to
conclude that the call stopped F.C. from making bail by using Mr. Espinoza as a
bondsman on July 3, the MNPD did not suggest . . . that a detained criminal defendant
has a right to use a particular bonding company to pay his or her bond.” (Emphasis in
original). Officer Davis proceeds to argue that he was not only concerned with F.C.’s
criminal activity but Mr. Espinoza’s as well. He claims that he and the DEA were
concerned that Mr. Espinoza was part of the drug conspiracy and that Mr. Espinoza was
- 13 -
going to use drug money to bond out F.C. There was no evidence introduced at the ALJ
hearing to support these statements. Conversely, Sergeant Moseley testified that Mr.
Espinoza was neither charged with a crime nor identified as part of the drug conspiracy.
Further, Officer Davis did not introduce any evidence to refute Sergeant Moseley’s
testimony. Officer Davis argues that “[t]hese motivations are important because the
MNPD did not introduce any evidence to suggest that Mr. Davis would have blocked
F.C. from obtaining bail through legitimate means or by using a legitimate bonding
company not associated with the criminal conspiracy under investigation.” This
argument completely contradicts Officer Davis’s previous argument that he needed to
keep F.C. in jail because he was concerned F.C. would flee to Mexico. Further, MNPD
was not required to introduce any evidence to demonstrate that Officer Davis’s actions
would have blocked F.C. from obtaining bond by using a different bondsman because
that was irrelevant to the facts of this case.
Second, Officer Davis argues that F.C. waived his right to release on bond because
“the dates in the record demonstrate that he did.” As support for this position, Officer
Davis cites the ALJ hearing transcript, wherein Officer Davis’s counsel cross-examined
Sergeant Moseley and counsel stated that, while F.C. was arrested on April 5, 2014, the
bond hearing did not proceed until July 2014. Officer Davis provides no law to support
his argument that F.C. waived his right to bond because the bond hearing did not proceed
until three months later. Therefore, this argument is without merit.
Officer Davis also argues that his telephone call was “analogous to when
detectives mislead a defendant in custody about the weight of the evidence . . . or a
similar fact in hopes that he waives his Miranda rights and chooses to confess.” We do
not see the analogy to the circumstances before us. Further, Officer Davis does not
provide authority for such position or cite any case where facts analogous to the instant
case supported such conclusion. Here, Officer Davis did not mislead the defendant, F.C.;
as discussed, supra, he misled the bondsman, Mr. Espinoza. Therefore, this analogy and
argument is misplaced.
Rather, we agree with the trial court’s conclusion that
[Officer] Davis admitted he made a ruse phone call to Mr. Espinoza, posing
as an ICE officer, in order to prevent [F.C.] from being released from jail.
His ploy was successful and [F.C.] remained in jail for an additional four
days. [Officer] Davis may not now argue that his actions were of no
consequence in bringing about his desired result – keeping [F.C.] in jail.
The evidence in the record demonstrates that Officer Davis’s ruse telephone call to Mr.
Espinoza effectively prevented F.C. from being bonded out on the initial bond hearing
date. It was also Officer Davis’s intention to deprive F.C. of his right to bail. This was
the sole purpose of the ruse.
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Officer Davis also argues that he did not deprive Mr. Espinoza of his right to do
business. While the ALJ concluded that MNPD “[did] not prove[] what right to which
Mr. Espinoza [wa]s ‘entitled by law’ that was violated,” the Commission concluded that
Officer Davis violated “Mr. Espinoza’s right to conduct lawful business without improper
interference from the police.” At the ALJ hearing, Chief Johnson testified that
[a]s far as Mr. Espinoza goes, again, it goes back to the fact that Mr.
Espinoza is a licensed and bonded businessman in the State of Tennessee.
At the time this was occurring, there had been no charges brought against
him, he was doing business as a licensed person in the state of Tennessee,
legitimate business owner, nothing that showed us that he wasn’t
legitimate, and yet the result of the phone call influenced him to not make
this bond, which caused him not to make money that day.
We conclude that there is substantial and material evidence in the record to support the
Commission’s conclusion that Officer Davis knowingly deprived Mr. Espinoza of his
right to conduct lawful business without improper interference from the police. There is
also substantial and material evidence in the record that demonstrates that Officer Davis’s
telephone call to Mr. Espinoza caused Mr. Espinoza to not bond out F.C., resulting in a
loss of business to Mr. Espinoza. Accordingly, we affirm the trial court’s ruling that the
Commission’s conclusion that Officer Davis violated MNPD Policy § 4.20.040(K) was
not arbitrary or capricious and was supported by substantial and material evidence.
B. MNPD Policy v. Actions While Working Under DEA Task Force
Officer Davis argues that, assuming arguendo that he violated MNPD policies,
pursuant to the Task Force Agreement, he was under the “direct supervision and control
of” the DEA and its supervisors. As such, any actions he took during this time were at
the direction of his DEA supervisors. Therefore, when he called Mr. Espinoza, he did so
at the direction of his DEA supervisor and should not be punished for obeying the
commands of his DEA supervisor. While it is unclear from the record whether Officer
Davis made the telephone call at the direction of his DEA supervisor, resolution of that
question is not dispositive of our analysis.
The ALJ, the Commission, and the trial court all concluded that Officer Davis was
still subject to the rules and regulations of MNPD while he was on the Task Force.
Although the Task Force Agreement stated that Officer Davis would be under the
supervision and control of the DEA, nothing in the Task Force Agreement exempted
Officer Davis from continued compliance with MNPD rules and regulations. Indeed,
Officer Davis stipulated that he remained an MNPD police officer while he was on the
Task Force. Further, testimony from Deputy Chief Johnson demonstrated that, even
though he was operating under the Task Force Agreement, Officer Davis knew he was
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still subject to MNPD’s rules and regulations:
Well, in the hearing, you know, I asked Mr. Davis at one point with regard
to the [Task Force Agreement], I asked him if he traveled outside the
Davidson county limits, what would he do, and he admitted that he knew,
per our policy, that he had to notify his supervisor. So, to me, that’s an
indication that he’s still bound by the rules of the Metropolitan Police
Department and not simply by the rules of the DEA.
Indeed, MNPD officers testified at the ALJ hearing that, even when an officer is assigned
to a task force, he or she is still a MNPD officer and is still subject to MNPD rules and
regulations. Sergeant Moseley testified that he believed that Officer Davis understood
that he still had to comply with MNPD rules while on the task force, to-wit:
Q. D[id] Officer Davis still have to comply with the rules when he’s
assigned to the task force?
A. Yes, he did.
Q. Based on what?
A. He’s still a Metro Nashville Police Department employee. Based on my
conversation with him, he indicated up front that he understood that, yes,
I’m a Metro police officer, yes, the policies and provisions apply to me, but
he also said he was held to the DEA as well. So he understood he had two
sets of policy. But even with that, he doesn’t give -- there is nothing that
takes it to where ours don’t apply to him. Even during the course of the
interview when speaking with supervisors, they agreed that he understood
because he came in and signed for orders and stuff that he knew was
departmental regulations. And I even had some individuals reach out to
past task force officers, point blank, did you know that you were still a
Metro officer having to obey Metro policies. And the ones that were
reached out to said, yeah, we knew that.
While there was no language in the Task Force Agreement or in MNPD’s rules and
regulations concerning resolution of conflicts between a command from a Task Force
supervisor and a conflict with MNPD rules, several MNPD officers testified, at the ALJ
hearing, that they would have called their MNPD supervisor if there was a possible
conflict to get instructions before moving forward under the direction of the Task Force
supervisor. These officers opined that Officer Davis should have followed this
procedure. Officer Davis presented no evidence to rebut this testimony. Accordingly, we
agree with the trial court’s conclusion that “Officer Davis’s status as a Task Force Officer
[did] not shield him from charges that he violated MNPD policy.” From our review, the
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record contains substantial and material evidence to support the Commission’s decision
that Officer Davis could be held responsible for violating MNPD policy while serving on
the Task Force.
C. Discipline Imposed
Finally, Officer Davis argues that MNPD failed to follow its policies by not
mitigating Officer Davis’s punishment. Officer Davis asserts that because he followed
the orders of his DEA direct supervisor and because he made the telephone call “without
any improper motives,” the punishment is excessive. According to the record, Officer
Davis was demoted from sergeant because sergeants must be trusted to make appropriate
judgment calls. Sergeant Donegan testified that sergeants often have to exercise
judgment when advising the police officers he supervises. Exhibit 2 from the ALJ
hearing is the job description of a Police Sergeant with Metro. Some of the “major job
responsibilities” include: (1) counsels with and corrects officers as needed; (2) resolves
conflicts between officers and the public; (3) interprets legal issues for officers; (4)
investigates officers’ actions or activities; (5) analyzes policy or procedure violations; (6)
investigates complaints made concerning officers; and (7) explains policies, procedures,
or laws to officers or the public. Captain Reinbold testified regarding why he
immediately decommissioned Officer Davis when he learned that Officer Davis
impersonated an ICE agent after being informed that ICE would not place an immigration
hold on F.C.:
A. . . . [A]dditionally concerning was the fact that he was in a supervisory
role, and I could not afford somebody that is making decisions that are so
negatively impacting to continue those in that capacity where it could
impact the officers he is supervising.
Q. So expand on that for me, if you would. What negative decisions are
you talking about? What specifically was wrong with his actions on that?
A. Well, the lack of communication on making that decision to act as an
ICE agent and with – without the permission of ICE to act as an agent was
ultimately concerning. And with the -- in addition to it, the results of that
decision, knowing that the intent was to retain him unlawful - to retain the
defendant unlawfully in jail was very concerning.
Sergeant Donegan also testified regarding the decision-making skills a sergeant must
exhibit:
Q. Are there any limits in your mind on what is done in the course of your
investigation?
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A. Sure. I mean, that’s -- as a supervisor, that’s one of the things I think of
all the time. At what point in time -- at what point in time can we call it
off, basically.
Finally, Deputy Chief Johnson testified that he recommended the demotion because he
. . . felt very strongly, and the panel did as well, that . . . the role of a
[S]ergeant in the police department, it’s a very vital role. They’re the first-
line supervisor to all the officers on the street. Officers call the [S]ergeants
and ask advice. They ask, can we do this, should we do this, how do we do
this . . . those type of things.
So the role is vitally important that the people in the role of a [S]ergeant
understand the law, understand the rules, and understand how to properly
apply those rules. In fact, it’s in the [S]ergeant job description -- there is
some terminology to that effect -- that a [S]ergeant is expected to know the
laws and the rules better than an officer and is expected to give guidance in
that.
The evidence demonstrates that Officer Davis was demoted from sergeant because his
superiors could no longer trust his decision-making capabilities or his ability to properly
advise the officers under his supervision. Based on substantial and material evidence in
the record, and in view of the “job responsibilities” of a MNPD sergeant, we agree with
the trial court that the Commission’s decision to adopt MNPD’s initial discipline of
demotion and to uphold Officer Davis’s suspension was neither arbitrary nor capricious.
V. Conclusion
For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against Appellant, Earl Gene Davis, for all of which
execution may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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