Brandon Smith vs. Metro Nashville

Transcription

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law Brandon Smith vs. Metro Nashville Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 Mailed On: BEFORE THE CIVIL SERVICE COMMISSION METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY IN THE MATTER OF: Metropolitan Police Department of Nashville and Davidson County, Petitioner, DOCKET NO: J v. Brandon Smith, Appellant. INITIAL ORDER This matter was heard on February 19, 2013, before Ann M. Johnson, Administrative Judge, sitting for the Civil Service Commission of the Metropolitan Government of Nashville and Davidson County. The Metropolitan Government was represented by Rachelle Gallimore- Scruggs, Assistant Metropolitan Attorney. Joshua L. Brand, of the Nashville bar, represented the Appellant Brandon Smith. The issue in this case concerned the Appellant s appeal of his termination of employment with the Metropolitan Police Department. After consideration of the entire record and the arguments of the parties, it is determined that the termination should be upheld and the Appellant s appeal denied. This decision is based upon the following. SUMMARY OF THE EVIDENCE Six witnesses were called by the Petitioner: Ms. Renee Cearing, Detective Clarence Thompson, Detective Nathaniel Ellsworth, Sergeant Jeremy Moseley, Deputy Chief William

3 Todd Henry, and Chief of Police Michael Steven Anderson. In addition to the Appellant Brandon Smith, two witnesses testified on his behalf: Eric Pothoff and Thomas White. Documents admitted into evidence include the following: COLLECTIVE EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 EXHIBIT 4 EXHIBIT calls and video; Transcript of 911 calls; Photographs; Diagram of Master Bathroom; and Disciplinary Grid. FINDINGS OF FACT 1. During the relevant timeframe, the Appellant was an employee of the Metropolitan Nashville Police Department (MNPD). 2. From early 2011 through May of 2012, the Appellant had been in a stormy romantic relationship with Ms. Renee Cearing. At one point the two were engaged to be married, but they broke off the engagement after a few months. This was a cyclical up and down relationship with a history of arguments, break-ups, and subsequent reconciliation. In May of 2012, the parties occasionally dated others, but still maintained a dating and sexual relationship with each other on a regular basis. 3. Late in the evening on May 5, 2012, officers responded to 421 East Thompson Lane, the Appellant s home, after receiving a 911 call from Ms. Renee Cearing. Ms. Cearing reported during the call that the Appellant had punched her in the face and that she was frightened that he could inflict further violence upon her. 4. On that day of May 5, 2012, the Appellant and Ms. Cearing spent much of the day together, meeting at a Mexican restaurant, going to the Appellant s residence to change clothes, going together to a pub, and finally returning to the Appellant s home. 2

4 5. While at the pub, the two became involved in an argument. Ms. Cearing became upset because she believed that the Appellant had called another woman. She became angry and left the pub for the parking lot. In spite of the animosity between the two, the Appellant followed her and insisted upon taking her home; he stated that she became physically aggressive and assaulted him in the parking lot. 6. The Appellant asserted that Ms. Cearing had assaulted him in the parking lot by hitting him repeatedly; however, he did not report this incident even though a report is required by MNPD policy. 7. Ultimately, Ms. Cearing returned inside the establishment to collect her belongings; again, the Appellant followed her into the pub, where she gathered her things and left for the door. The Appellant stated that she punched him on the way out. Again, the Appellant followed her into the parking lot, where they entered the Appellant s automobile. 8. Ms. Cearing denied that she had any sort of physical contact with the Appellant, either in the parking lot or in the bar, although witnesses described some type of physical altercation in which she struck the Appellant. 9. During the ride to the Appellant s apartment, the Appellant s anger continued to escalate, especially when Ms. Cearing became quiet and refused to respond. The Appellant admitted that on two occasions, he stopped the car and instructed Ms. Cearing to get out on the side of the road, even though it was late in the evening and Ms. Cearing had no other transportation. He also admitted during a recorded interview that two times he threatened to throw Ms. Cearing from the vehicle. The Appellant explained that he was frightened of Ms. Cearing s quiet demeanor since she refused to talk to him. Ms. Cearing did not respond to the Appellant s questions, and they drove to the Appellant s residence. 3

5 10. At the hearing, Ms. Cearing testified that on the way to the apartment, the Appellant stopped the car along the side of the road and attempted to physically push her out of the vehicle. 11. After the two arrived at the Appellant s apartment, Ms. Cearing began to pack her belongings. The Appellant followed her from room to room as she collected her things, both parties continuing to yell and argue. As she was walking, Ms. Cearing texted her friend for a ride and then went into the bathroom to gather other articles. The Appellant again followed her, attempting to grab her phone and her bag from her. 12. When Ms. Cearing refused to surrender her belongings, the Appellant hit her on the side of her face. At that point Ms. Cearing used her telephone to call 911, and the Appellant left the apartment to wait for the police to arrive. 13. Police patrol officers responded to the call and began a preliminary investigation. When it became evident that a MNPD officer was involved in a domestic abuse incident, the Domestic Violence unit was contacted, in accordance with departmental policy. Domestic Violence Detective Nathaniel Ellsworth and Sergeant Jeremy Moseley, evening shift supervisor for the Domestic Violence Unit, arrived on the scene. 14. It was observed that Ms. Cearing had a bruise on her cheekbone with slight swelling. The Appellant denied that he struck her, maintaining to the officers that at no time during the evening events did he physically assault Ms. Cearing. After the parties were interviewed and the victim s injuries were photographed, Detective Ellsworth and Sergeant Moseley determined that the Appellant was the primary aggressor. Sergeant Moseley explained that state law requires an arrest when a perpetrator is found to be the primary aggressor, and an arrest warrant was issued against the Appellant. 4

6 15. Ms. Cearing obtained an Order of Protection against the Appellant, although it was later dropped. Ms. Cearing attempted to contact the Appellant while the Order of Protection was in force; for example, she sent a text to him that said Why? Later, after the Order of Protection was lifted, she sent texts pleading with him to talk to her and to call her. 16. This domestic violence arrest was reported in the media, so the public was aware of the incident. Ms. Cearing stated that she lost her employment as a result of press coverage. 17. Before this incident, Ms. Cearing had called the police to report abuse by her exhusband. She had also contacted police once before regarding an incident with the Appellant, although no charges were ever filed in that matter. 18. Both Detective Ellsworth and Sergeant Moseley have had extensive experience investigating domestic violence issues. Each of them explained the techniques and procedure used to determine credibility when, as here and is normally the case, the two people involved were the only witnesses to the events, and their accounts differ radically. 19. First, consistency in interviews of the two parties is very telling. Ms. Cearing repeated her explanation many times, and her account was consistent each time. She was able to describe consistently all the events of the evening and able to relate specific facts, even to small details. 20. On the other hand, there were several inconsistencies in the Appellant s multiple interviews. First, the Appellant told Detective Ellsworth that he never got hands on her, and yet he admitted that he tried to grab her telephone and her bag. 21. More significantly, the Appellant was able to provide very specific details for the events of the day, until the time the parties entered the apartment. Detective Ellsworth felt that the Appellant was evasive, since he stated that he was unable to remember what happened in the 5

7 residence, even though the Appellant provided specific details for the day s events before that time. The Appellant maintained that nothing happened and that he didn t know how Ms. Cearing received her injury. 22. Other techniques to determine credibility include the pattern of the story, body language, and pauses. When Detective Ellsworth asked the Appellant to describe the events of the evening, the Appellant paused and then started his account at the beginning of his relationship with Ms. Cearing. In Detective Ellsworth s experience, this is a delay tactic that is often used so that the witness has time to formulate a cohesive story. 23. Sergeant Moseley noted the consistency in the victim s accounts, as well as inconsistencies in those of the Appellant, such as those explained by Detective Ellsworth. Additionally, in the Appellant s first interview, he stated that he was calm during the encounter with Ms. Cearing in the apartment. However, he later admitted he was yelling and using curse words, also stating you will make me lose my job. 24. Although these factual details are significant in the determination of credibility, Sergeant Moseley stated that the most important factor in the designation of the primary aggressor was that Ms. Cearing s account was consistent with the physical evidence, as, for example her description of the position of the parties, the method of the assault, and the resulting injury. 25. Detective Moseley also explained that the determination of the primary aggressor does not imply that the other party is totally innocent of any provocation; he noted that the Appellant made no claim of self-defense during the assault in the residence. The primary aggressor is not necessarily the first party to initiate the argument or the confrontation. 6

8 26. Clarence Thompson, Domestic Violence Detective with the MNPD, has had extensive training in the area of domestic abuse, conducts training classes in the field, and has testified as an expert witness regarding domestic violence in many criminal cases. Without objection, Detective Thompson was designed as an expert witness based on his experience and training, although his opinions were limited to documented patterns of behavior he has observed. 27. Detective Thompson described a pattern of abuse between significant others that begins with verbal and emotional abuse which may then lead to physical violence. There is often a cycle of violence, in which the tension builds with arguments and then enters into a violent stage in which the perpetrator escalates to emotional and/or physical abuse. Typically, then the batterer will apologize and the couple will enter into a honeymoon stage. Then the tension begins again and the cycle repeats. 28. In interviews with the parties in domestic violence incidents, victims are normally able to be fairly exact about events of the domestic violence and the timeline of these events. They tend to be accurate and concise about what happened. However, red flags are raised when either party is vague and evasive. In this type of scenario, the interviews need to be more extensive and in-depth; furthermore, the investigator will look at the scene to see if the explanation is consistent with the physical evidence. 29. When the two parties have conflicting stories, investigators also evaluate the credibility of each person. Factors to consider include a person s record, including whether the individual has been charged with filing a false report or giving false information to the police, as well as consistency of the accounts with the physical evidence. 30. If a person has been in an abusive relationship for some length of time, whether involving physical or emotional abuse, the victim may block out some events as a defense 7

9 mechanism. A victim may minimize the abusive experience or may exaggerate. Again, the investigator must determine the credibility of the witness. 31. A part of the pattern of abuse includes the tendency of a victim to stay in a longterm abusive relationship or may go from one abusive relationship to another, seeming to gravitate toward batterers. 32. Often a victim may call the police or obtain an Order of Protection against another person in an attempt to control the relationship. However, the victim may still experience feelings for the batterer and voluntarily resume contact. This pattern may be a part of the cycle of violence. 33. Dual investigations into this matter were conducted by both the MNPD Office of Professional Accountability (OPA) and the Domestic Violence Unit. After multiple interviews and investigations, the recommended discipline included termination, as a result of the assault, and a 13-day suspension for conduct unbecoming an employee in Metro service, stemming from the Appellant s failure to report an assault on a police officer and attempts to strand Ms. Cearing at the side of the road. After the Appellant was notified, he requested a disciplinary hearing, which was conducted by Deputy Chief William Todd Henry, who was not in the line of command over the Appellant. The MNPD Disciplinary Board unanimously agreed with the recommended discipline, which was approved by Deputy Chief Henry. 34. MNPD Chief of Police Steve Anderson concurred and imposed the recommended discipline. The Appellant appealed, resulting in the instant case. 35. In the present matter, Deputy Chief Henry testified, explaining that he was concerned that the Appellant provided very detailed explanations until he and Ms. Cearing arrived at the apartment. Then the Appellant could not remember what happened. Chief Henry 8

10 also noted that the Appellant s versions of events seemed to change over time: in one interview he said that perhaps her injury was self-inflicted, an illogical explanation he later changed by stating that later said he did not know how it happened. 36. Also at the hearing Deputy Chief Henry noted that the 911 recording clearly shows that Ms. Cearing was frantic and genuinely afraid of the Appellant, further bolstering her credibility. 37. Deputy Chief Henry stated that termination is the correct disciplinary measure when the evidence shows that a police officer committed assault. 38. Additionally, Deputy Chief Henry explained that the police department has a policy requiring an officer to report any known crime, whether or not the officer wished to prosecute. Failure to comply with this policy constitutes conduct unbecoming an officer in the MNPD and in the service of the Metropolitan Government. 39. Deputy Chief Henry also expressed concern that the Appellant was prepared to leave a person, who was obviously in distress, on the side of the road at night without transportation. The duty of a police officer is to offer assistance, to serve and protect, not to jeopardize someone who could become a victim. This conduct constitutes conduct unbecoming an officer of the MNPD. 40. Throughout the course of the events, the Appellant had to opportunity to remove himself from a difficult situation; instead, he exacerbated the problem by repeatedly engaging Ms. Cearing, following her multiple times during the evening, even when he knew that matters were clearly escalating. 41. Police officers are held to a higher standard of conduct than that required of an ordinary citizen, and must uphold the reputation of the MNPD to protect and serve. 9

11 42. Under the leadership of Chief Steven Anderson, the MNPD has a zero tolerance policy for domestic abuse: domestic violence is a disqualification for employment with the MNPD. 43. Should the Appellant receive a criminal conviction for domestic violence, he would be prohibited under federal law from carrying a firearm, which is required for officers with the NYPD. 44. As is the case with any crime, the police department encourages victims to report incidences of domestic violence, even though a significant percentage of domestic violence assaults are never reported: according to a study in 2013, up to 46% of these cases are not reported and therefore never investigated or prosecuted. Public knowledge that a police officer has been charged with domestic violence could lessen public confidence in the police and prevent victims from reporting this crime. APPLICABLE LAW 1. MNPD General Order 09-03, Deportment and Personal Appearance; Section VII, Personal Behavior, B. Adherence to Law: 1. Employees are prohibited from violating any law or ordinance. Specifically, the Appellant was charged with violation of T.C.A , Assault. 2. MNPD General Order 09-03, Deportment and Personal Appearance; Section VII, Personal Behavior, C. Conduct Unbecoming an Employee of the Department. 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. 10

12 4. Metropolitan Civil Service Rules, Section 6.7 Grounds for Disciplinary Action; 33. Conduct unbecoming an employee of the Metropolitan Government. ANALYSIS and CONCLUSIONS OF LAW In order to prevail in this matter, the Metropolitan Government must prove by a preponderance of the evidence that the Appellant committed three factual acts that constitute violations of law and policy: (1) an assault against Ms. Cearing; (2) failure to report an alleged assault by Ms. Cearing against the Appellant; and (3) the attempt to leave Ms. Cearing at the side of the road, late at night without transportation. For the assault, the Metropolitan Government terminated the Appellant s employment; for allegations number (2) and (3), the Metropolitan Government considered the actions to be conduct unbecoming an employee and assessed a 13- day suspension. Regarding the incident of domestic violence, the preponderance of the evidence shows that the Appellant punched the victim in the side of the face. Although there were no witnesses to this encounter except for the two parties involved, the proof showed that it is more likely than not that the Appellant committed this assault. As noted by counsel for the Appellant, this determination requires a credibility determination of the two main parties. Experienced domestic violence investigators explained the factors they use to assess credibility where there are differing accounts. First is an evaluation of the physical evidence. Here the bruises on the side of the victim s face, and the pictures evidencing them, are consistent with her explanation of the events she described. On the other hand, the Appellant stated that he did not know how the injury occurred, even suggesting at one point that it may have happened earlier in the evening or that it may have been self-inflicted. Both of these possible explanations are illogical. Additionally, the Appellant was able to describe in specific detail the earlier events 11

13 of the day, but he could not remember what occurred when the couple arrived at his apartment later in the evening. According to witnesses experienced with the investigation of domestic violence, this pattern may indicate a lack of credibility on the part of the Appellant. The weight of the evidence shows that the Appellant assaulted the victim, resulting in her injury. The Appellant attacked the credibility of the victim, pointing out that she acted like a woman scorned and had a motive to interfere with the Appellant s career. Previously she had called the police to complain against the Appellant, as well as her former husband. At one point she stated that the Appellant had attempted to physically remove her from his vehicle, an allegation that is most likely an exaggeration since it is more likely than not that the Appellant stopped the car twice and only threatened to remove her. It is also clear that Ms. Cearing tried to re-establish the relationship with the Appellant after she had obtained an Order of Protection against him. Finally, the Appellant also attempted to show that Ms. Cearing initiated the conflict by attacking him at the pub. However, these arguments are not persuasive. According to the expert witness in domestic abuse, victims who have separated from their abusers frequently attempt to re-establish contact; this pattern is referenced as the cycle of violence. Furthermore, victims often gravitate toward abusers and may remain in the relationship in spite of repeated physical or emotional abuse. It is certainly possible that this cycle could explain the previous reporting incidents. Additionally, Ms. Cearing s explanations remained consistent throughout multiple interviews, and she was able to focus on the relevant events and to explain details of the incident. On the contrary, the Appellant was very specific about events earlier in the day, but then he offered inconsistent and vague statements regarding the incident in the apartment, finally stating 12

14 that he did not know and did not remember. Finally, the demeanor and tone of the 911 tape clearly shows that Ms. Cearing was frantic and terrified for her safety. It is determined that Ms. Cearing is a more credible witness than is the Appellant, for all of the reasons explained earlier. The weight of the evidence, both direct and circumstantial, indicates that the Appellant struck the victim in the face. The Appellant also tried to place blame on Ms. Cearing by presenting evidence of her antagonism toward the Appellant earlier in the day, implicitly arguing that her alleged assault on the Appellant hours earlier provided justification for the Appellant to strike Ms. Cearing in the face later in the evening. This argument is simply a smoke screen, designed to obscure the fact that the Appellant used physical violence against Ms. Cearing without any justification. Harsh words and arguments do not provide license to resort to physical violence, particularly in the absence of any claim of self-defense. In addition to the assault, the Appellant was charged with conduct unbecoming an employee in the service of the MNPD and the Metropolitan Government. These charges stemmed from his threats to leave Ms. Cearing alone at the side of the road, unprotected at night, and his failure to report what he alleged to be an assault upon him by Ms. Cearing, a violation of MNPD policy. The Appellant s own testimony shows that he is guilty of both of these offenses: he admitted that he attempted to leave Ms. Cearing by the side of the road. Furthermore, he stated that Ms. Cearing assaulted him in the parking lot of the pub, but he failed to report this action. According to this analysis, the following is determined. IT IS CONCLUDED that the Appellant received all due process protections to which he was entitled. 13

15 IT IS CONCLUDED, by a preponderance of the evidence, that the Appellant assaulted Ms. Cearing by punching her in the face. For this violation, termination is the appropriate sanction. IT IS CONCLUDED that the Appellant displayed conduct unbecoming an employee with the MNPD and in the service of the Metropolitan Government by attempting to strand a woman at the side of the road and by failing to report an alleged assault. For this conduct, the Appellant should receive a 13-day suspension. Finally, IT IS CONCLUDED that the discipline for all these offenses is appropriate according to the MNPD Disciplinary Grid and according to the severity of the offenses. It is so ORDERED. This INITIAL ORDER entered and effective this the day of, ANN M. JOHNSON ADMINISTRATIVE JUDGE ADMINISTRATIVE PROCEDURES DIVISION OFFICE OF THE SECRETARY OF STATE Filed in the Administrative Procedures Division, Office of the Secretary of State, this day of J. Richard Collier, Director Administrative Procedures Division 14