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In re
City of Atlantic Beach, Florida
and
Florida State Lodge
Fraternal Order of Police
121 LA (BNA)105
FMCS Case No. 04/06117
April 15, 2005
Robert B. Hoffman, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
A. Introduction
The City of Atlantic Beach, Florida (“the City”) terminated F__ (“the grievant’), a police officer with the Atlantic Beach Police Department (“Department” or “ABPD”), for two incidents occurring in December 2003 and January 2004. The City maintains it had just cause for the discharge—the grievant improperly provided information to a friend from a draft report he retrieved on his computer from the Jacksonville Police Department (“JSO”) that did not involve ABPD, and violated Fourth Amendment rights of a suspect when he and his sergeant made an unlawful entry into a residence to make an arrest without a warrant.
Florida State Lodge, Fraternal Order of Police (“the Union” or “FOP”), on behalf of the grievant, contends the City failed to prove just cause. It maintains that the grievant had proper access to the JSO program, only final or approved reports can be accessed as acknowledged by the City’s expert from JSO, such reports are not confidential in this form, and the City could cite no rule or law forbidding the dissemination of non-confidential information to the public. The grievant’s actions upon entering a home without a warrant were justified by the placement of the suspect in the doorway or threshold of the home plus exigent circumstances, as also acknowledged by another expert witness called by the City.
At issue is whether the evidence is clear and convincing to establish that the City had just cause for this termination. If not, what should be the proper remedy.
B. Facts
1. The December 22, 2003 incident
The grievant and his sergeant, Robert Bacon, received a dispatch regarding a complaint of domestic violence involving a juvenile suspect, RW, and his sister, EW. When the grievant and Bacon arrived at the scene, EW was standing in the front yard of a neighbor’s house. She told the officers her brother beat her when she observed two females in his room. RW became upset—he slapped and punched her, dragged her down stairs and threw her into a glass table that caused the glass to shatter and fall to the floor.
In the meantime, the unidentified females supposedly left with RW’s money or cocaine and he became more enraged. He came back to his sister, “beat up on [me] some more,” according to what she told the grievant, and then RW “pushed [me] out the front glass—Plexiglas screen door that they had.” He then locked her out. The grievant observed that EW had some injury marks on her body. He testified: “She had several lacerations on her legs, some on her elbows ... she complained of knots in her head....” 1
The grievant asked EW if she needed medical rescue and she refused. He asked her what she wanted to do with the situation. She was “very adamant” that she wanted RW to go to jail; he had abused her in the past. The grievant and Sergeant Bacon then approached the suspect’s house. The grievant testified: “It was very disarrayed. There were pots and plants knocked over. The Plexiglas screen door had been knocked off. The bottom half was actually knocked off and laying on the ground and the top half was in tact.” Based on their interview and the physical evidence on the outside of the house, the grievant believed there had been a violent altercation—“I was thinking aggravated assault, possibly aggravated battery,” which is a felony. He now wanted to speak with the suspect who was inside the house. They proceeded to the house.
According to the grievant, “We knocked on the door and someone grunted or made some noises inside.” Sergeant Bacon said, “We’re not leaving. Someone come answer the door. We need to talk to somebody and make sure everybody is okay.” After the lights were turned off, a man, later identified as the father, came to the door; he cussed and then slammed the door shut. The mother then came to the door; she, too uttered some obscenities and finally asked what they wanted. The grievant wanted to speak to her son. She swore some more and eventually her son, RW, “arrived at the front door.” The grievant testified:
"[RW] actually stood in the threshold of the doorway in the exterior part of this doorframe.... [I was] two and a half feet from the door... I was relatively close to this area. When RW walked to the front door I wanted him to step out so I.... actually invited him, come on outside the house. [backing up a step or two and making a hand gesture toward the outside]...." 2
The grievant explained why he did not use the term “threshold” when he was interviewed during the internal police investigation and in his Arrest Report.3
I thought the doorframe was acceptable enough. I thought that everybody understood me when I said the doorframe of the house ...the doorframe to me is the same as threshold ... doorway ... I naturally assumed that it’s the same as a threshold. I know now that it’s a technical term of a threshold, but it’s in the doorway when I was talking to the suspect ...the door was open at the time. Well, he was propping it open when he was talking ...it wasn’t all the way open ... when he retreated into the house I had to open the door.
The grievant wanted RW on the porch to prevent his retreat into the house. He had concluded there was probable cause for an arrest based on the felonious aggravated battery. Standing in the doorframe and holding the broken screen door partially open, RW demanded that the officers leave; he would not come outside. He claimed it was a “brother/sister thing. Don’t worry about it. I’ll handle it when I get back.” 4 The grievant “took this as a threat;” he was afraid the matter could escalate and someone could get hurt. Now he “instructed [RW] he was under arrest, to come here....” RW refused and he abruptly turned and ran back into the house.
Before the screen door could close, the grievant grabbed it with one hand and placed his leg into the doorframe, at which point an interior solid wood door, located immediately beyond the screen door, slammed his leg catching it between the door and the frame. Apparently someone was pushing the door from the other side that kept the grievant’s leg pinned. Bacon remained right behind the grievant; he tried to push the door to free the grievant. When the grievant saw a hand wrapped around the door he used his Taser but the hand remained. He then pepper sprayed and the door came free. At that point Bacon decided that they should enter the house and pursue RW.5
The grievant and Bacon then opened the wooden door and entered the home. They found RW in his bedroom and arrested him. Once at the station RW told the grievant the glass table broke when his sister threw a clock at him and it fell and broke the table. When the grievant asked the victim about her brother’s version, she stated, “Maybe that did happen.” 6 Bacon and the grievant decided to change the arrest from a felony to a misdemeanor.
The State Attorney’s Office filed charges against RW that were ultimately dropped. The City thereafter conducted an internal investigation. Statements were taken from Bacon and the grievant and not from RW, EW, or the parents. The City sustained the allegations against the grievant that he violated RW’s rights by entering the house without a warrant.
3. The January 15, 2003 Incident
On January 15, 2004 the grievant reported for his shift. As part of his regular duties he logged into a software program maintained by JSO—COPS-MORE. He used a password issued to him. This program allowed officers to access JSO arrest dockets and finalized or approved incident reports from JSO. Sometime later, while on a break, Crystal Taylor, a friend of the grievant, contacted him about a recent violent crime involving her sister that she witnessed. She asked the grievant why the person who attacked her sister in Jacksonville was not arrested and what he would do in that situation. The grievant knew from JSO training he could access a JSO final and approved report, which meant it could be for public access, unless it was privileged information, such as juvenile reports or information disclosing a sex victim’s name and witnesses. Here, Taylor was the sister of the victim and herself a witness. In these circumstances the grievant decided he could disclose to her the contents of the narrative. Taylor gave him the case number and he pulled up the report on his screen.7
After reading it to himself he answered her questions. He told her he had no problem with the handling of the case and the suspect was not in jail because he could not be located. He then read her the narrative portion from the report. Taylor became upset with a reference to Jerry Springer and an inference of trashy. She called JSO and complained about the comment. JSO Sergeant Shinholzer, who headed the investigation, asked her where she obtained the information; she refused to tell him. Knowing that Taylor complained to JSO, the grievant then informed JSO that he provided the information from COPS-MORE. Shinholzer told him the report was only a draft. He testified:
" ... while talking to [the grievant] he still felt like he had done nothing wrong because of it being a public record and he was very apologetic, didn’t want to cause anybody any problems. So when I got off the phone with him I was pretty much happy. I was no longer angry so to speak.... "
Shinholzer still believed he “had an obligation to make his lieutenant aware of what had transpired.” Once that occurred he was ordered to write the ABPD’s Chief about what occurred. An internal investigation then took place and the charges were sustained. The grievant had divulged a draft report that had not been approved for public release.
C. Positions of the Parties
1. The City
The City had just cause to issue the letter. It properly considered the grievant’s previous 50 hours suspension; this permitted the City to discipline him more harshly than a first offender. The grievant’s disclosure violated the Florida Public Records Act and the Department’s General Orders. The information in the report had not been approved; it was only a draft. “Drafts or notes” are not intended as final evidence of the records and thus are not public records subject to disclosure.
When training at ABPD, JSO Officer Ferris told them that JSO reports should not be disclosed to any citizen. In two cited arbitration awards where grievants obtained driving record information for others, their terminations were upheld. Arbitrators found that regardless of training or no training, police officials know they are not to disseminate police information to someone outside of law enforcement, even if other employers make the information available for employment checks.
This grievant gave information to a friend unrelated to his official status with ABPD, and without regard to whether he disclosed a final JSO report. In contrast to the cited cases, he received training on the use of the program and ABPD policies regarding the use of police equipment for personal reasons. And he interfered with the investigation at JSO. His conduct led to a complaint filed against a JSO officer for statements not found on the final report.
Further, the City had just cause for his unlawful entry into a residence. Court decisions and the City’s General Orders are clear—to make a warrantless arrest, the suspect must be in a public place. For a misdemeanor arrest, the orders provide that a warrantless entry of a home can only be made upon consent of the occupant. If there is probable cause to believe a felony has been committed, a warrantless entry is allowed per the orders under certain stated circumstances. None of those were present here.
No occupant gave the grievant consent to enter. There is no evidence that destruction of evidence was imminent or that delay to obtain a warrant was a factor. The grievant did not show the arrest occurred in a public place or protection of persons was necessary or he was in hot pursuit of the suspect. Although the grievant testified RW was standing on “the threshold” when he answered the door, the Arrest and Booking Report states the suspect was standing inside the doorway. His testimony is unworthy of credence.
The City’s disciplinary action must be evaluated on what was known at the time of the termination decision. Even if RW was on the threshold, there was a Plexiglas screen door separating them. Sergeant Bacon stated that RW was standing inside the screen door and when he and the grievant moved in to arrest RW, they “stepped up to open the screen door to try and get hold of RW.” Thus, RW continued to maintain his expectation of privacy. There was no safety concern. The situation at the home was contained. Walker was at a neighbor’s house. RW gave no indication he was armed or that he was threatening officers or anyone in the house. In effect, the grievant took a contained situation and made it dangerous by his reckless conduct, notwithstanding that he still had ample time to seek a warrant.
The grievant failed to raise disparate treatment and union animus during the grievance process. The arbitrator thus has no jurisdiction for those arguments. Article 10.3 requires a step II grievance containing the CBA article and section and a full statement of the events. The grievant only alleged that there were similar cases that did not result in termination and never alleged any union animus. So, too, the record is devoid of any evidence suggesting that the grievant’s union activity as a steward caused the City to terminate him.
2. The Union
The City failed to prove just cause by clear and convincing evidence. There are a number of flaws in the City’s attempt to establish the seven tests for just cause. In the Fourth Amendment grievance, no statements were taken from any person on the night of the incident other than the grievant and Bacon; the City’s expert witness, Ms. Cory, was never provided with statements from Bacon and the grievant.
They had given sufficient facts to support that a felony had been committed, exigent circumstances existed and the suspect crossed the threshold. There was no need for a warrant. Corey testified that given these facts, which she did not have during the internal investigation by the City, there was probable cause to believe a felony had been committed.
With the arrest attempt occurring on the threshold, she added that exigent circumstances existed for Bacon and the grievant to enter the home. In Byrd v. State, 481 So.2d 468 (Fla. 1986) cited by Corey for the threshold issue, the court held that arrests in the threshold do not require warrants. Thus, when RW turned and fled from the threshold after being told of his arrest, the grievant and Bacon where in proper hot pursuit of RW. It is no different than if he had been on his porch.
Campbell never questioned Corey about these circumstances or threshold case law. Corey also testified that Campbell’s report contained details that she did not discuss with him and once she learned of them at the arbitration she concluded that the officers acted correctly.
Bacon told Campbell during the investigation that it was his decision to enter the house based on exigent circumstances. This admission is contrary to the City’s position that the grievant intentionally violated RW’s rights because he was angered. The City chose to disregard the sworn testimony of the grievant and Bacon, but did not claim they were untruthful. Thus, this case is more of a difference of opinion on the requirements of the law.
The previous search by the grievant fails to establish a pattern of abuse. There is evidence of disparate treatment—the City never investigated officers who opened an interior door behind the threshold to arrest a juvenile; supervisors received verbal reprimands and other officers no discipline for physically restraining several young men and arresting them without probable cause; Sergeant Sumrall received no discipline for failing to log in prisoners and a 50-hour suspension for concealing a fellow officer’s DUI and ordering it voided.
In the computer case, Campbell could not specify which policies the grievant violated. There is only a violation if an officer communicated information from an arrest docket that should have been confidential, or was an ongoing investigation where the information had not been approved. JSO computer officer F__ trained the Department’s employees. He admitted that the system only allows approved reports to be retrieved and not draft reports. None of the cited City rules and policies apply; this information was not confidential. The grievant had authority to access the program. There is no rule prohibiting an officer from using departmental equipment to communicate public information to members of the public.
D. Discussion and Opinion
1. Providing information from a JSO Incident Report to the Public
ABPD rightfully became concerned when it learned that the grievant disclosed information JSO considered to be unapproved and in draft form. The problem is that evidence at this hearing, from JSO’s own expert, clearly demonstrates that when an officer from an outside agency accesses JSO’s COPS-MORE program, the only information it can retrieve is that which is in final or approved form. Simply put, Officer F__ unconditionally revealed in his testimony that drafts or communications from officers to their supervisors are not accessible in this program.
Asked at the hearing if he ever tried to retrieve a draft, he answered yes, and it did not work. “No, there is no way. I’ve never seen it. I’ve never seen someone have the ability to take a report that is being sent between an officer and a supervisor and retrieve it.” Asked also how to explain that the grievant had information from JSO that was not in its approved report, F__ testified that there is no explanation; the program is set up to only release that information approved in final form.
If JSO’s own expert has no explanation then one can only speculate about what happened here—was the report accessed by the grievant in fact approved and then later changed? If a draft, did it mistakenly slip into the program for access to the agencies? F__’s testimony is firm and unbending. He did not hesitate to testify unconditionally that drafts can only be circulated between officer and supervisor and are not placed in the program for retrieval by outside agencies.8
F__ was just as adamant about what he told ABPD officers. He instructed them that the information they accessed would only be those approved as final reports. Campbell and F__ both disclosed in their testimony that such information also becomes public—Campbell revealed that some five hours after its release the public may have access. F__ testified that as a regular practice, clerks in the JSO office will copy and print these reports, the very ones accessed by this grievant, and for a nominal fee, sell them to members of the public who make a request. And the grievant testified that all of this information is exactly what he learned from F__ during training.
F__ testified that during his training sessions at ABPD he never told officers they could not disseminate any of this information. He merely warned them that it would probably not be “a good idea,” especially considering concerns about juveniles and sexual battery victims’ identities that had to be kept confidential. He did not cite any policy of either JSO or ABPD that would prohibit the dissemination of such public information. He left that up to the individual agency. Asked at the hearing if a Department officer wanted to check on a JSO report for a friend unrelated to Atlantic Beach business, F__ answered: “I can’t directly answer that question ...You will have to refer to the sheriff’s office written directives because I don’t know exactly what it says....” He noted that the individual rules of a department provided guidelines to an officer on what can be released.
Deputy Chief Campbell could not cite any specific ABPD rule or policy that would prohibit the retrieval and dissemination of information that was not confidential or that the public did not have a right to. The only policies that prohibited reading the docket to a citizen would be those involving information that had not been finalized, or sex crimes, juvenile and domestic battery matters. So, too, releasing information from an on-going investigation matter would be improper. He defined an on-going investigation to be those cases where the report has not been approved.
It is clear that public records are open to all in Florida. This State’s Constitution makes it certain in Article I, Sec. 24(a):
"[e]very person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section specifically made confidential by this Constitution."
Fla. Stat. Sec. 119.07(1)(a) provides that custodians of public records “shall permit the
records to be inspected and examined by any person desiring to do so ...” The courts hold that “drafts or notes” are not the “final evidence of knowledge to be recorded” and as such are not public records subject to disclosure. Shevin v. Byron et. al., 379 So.2d 633 (Fla. 1980)."
The City argues that a draft is precisely what the grievant viewed and disclosed to a citizen, and he thus violated a General Order or rules of ABPD. General Order 39 sets forth the Rules of Conduct for all Department officers. In considering each of the rules cited and relied on by the City, it is readily seen that inasmuch as its own expert concluded that draft reports cannot be accessed under this program, it follows that either the grievant accessed a final report, or a draft report that should not have been placed into this program. Regardless of how he accessed the program, there can be no doubt that he rightfully understood from his JSO training that if he could retrieve an incident report from JSO, it was final and approved and could be obtained by the public from JSO.
More specifically the rules relied on by the City are inapplicable in these circumstances, as follows:
ADM-39 D(12). “[t]reat as confidential all communications and business of the department.”
This report accessed by the grievant was not a communication from ABPD. Even if it was such a report, the grievant had good reason to believe that it was not a confidential report—nowhere on the report did it say so; he had been trained that an officer from a non-JSO agency could only have access to and retrieve documents that were no longer confidential; these were documents that had received approval by JSO supervision.
ADM-39 D(23). “... utilize department equipment and property only for its intended purpose, in accordance with established departmental procedures.”
No such “procedures” are in evidence. The grievant used the software program and computer assigned to him. He entered the program from a password properly issued. And he used this equipment to access JSO documents that were approved for the public, as taught in training by JSO. This is the intended purpose of having officers log onto the program and remain on it throughout their shift. Neither F__ nor Campbell could point to any departmental procedure that prohibited an officer of ABPD from using departmental equipment to communicate public information to members of the public. The grievant thus had a reasonable expectation that the accessible information he read to her was not confidential or a draft. And no one at ABPD trained him to not give out this information or pointed him to specific rules against it.
ADM-39 E(5). “[No member of the Department shall] interfere with any cases assigned to another officer, the operation of any other division, any other Law Enforcement Agency, any court of law or division of any court, or with any lawful private enterprise.”
JSO Sergeant Shinholzer, who was in charge of the investigation, never stated that the grievant in any way interfered. He was initially upset with the grievant’s disclosure to the victim’s sister, but there is no evidence that this disclosure hurt the JSO investigation. Once the grievant told Shinholzer he believed he had a public record and had done nothing wrong, Shinholzer, obviously realizing that an outside agency could only access a public record, accepted the grievant’s apology. Not even in Shinholzer’s letter to Chief Thompson did he suggest that the grievant’s actions compromised his investigation.
Nor did the grievant at any time criticize what happened at JSO; he told Taylor he would have handled it exactly as JSO did during the investigation. The fact that somehow information found in an earlier draft was on this program cannot be the fault of the grievant. He should not have to pay these drastic consequences to his career for an apparent glitch in JSO’s software program.
ADM-39 E(6). “Use the prestige or influence of his/her position; or time, facilities, equipment, or supplies of the department for his/her advantage, or for the advantage of another.”
It is difficult to discern how either the grievant or Taylor received any advantage or benefit from this information. Taylor could have received the same information from JSO.9 She did not receive a copy from the grievant and made no request for one at JSO, which would have cost her a charge for printing each page. Even Campbell rejected this rule, testifying that he did not sustain any finding against the grievant based on a failure to require payment for a public record. Clearly, information that is already in the public domain cannot be sold back to the public, and the grievant did not do so.
ADM-39 E(43). “Engage in any conduct on or off duty which adversely effect the moral and efficiency of the department or which has a tendency to destroy public respect and confidence in the department or himself/herself.”
The language in the report that caused a citizen concern was the doing of JSO, not the grievant or ABPD. All the grievant did was read information from a report he believed was public based on training he received from JSO. And he read it to a witness and a sister of the victim. Thus, information about the victim and the witness was already within Taylor’s knowledge and as such there would be no concerns about preserving confidentiality of the victim’s name and the name of the witness. There is nothing in this record to suggest that he read this report with any intent to harm ABPD, Taylor or that it would undermine public confidence in ABPD.
There is also reference to ADM-40 I(E) that prohibits “signing on to any system other than the specific systems which have been defined as necessary to fulfill the functions ... of the job assignment.” And to ADM-40 II(D) that restricts the use of department workstations “to legitimate Police Department business....” It is undisputed that the grievant was authorized to sign on the JSO system. The JSO training officer testified that all officers log on the system as part of their regular job assignment when they start their shifts and leave it on for the entire shift. ABPD rules prohibit an officer from using a system for unauthorized purposes. But the evidence suggests that this same report could have been accessed by any other law enforcement agency. As seen, there is no evidence that this grievant somehow had the ability to and did hack into JSO’s server to obtain this report.
Clearly, the City’s own expert does not support its reliance on the document as a draft report. The document in question according to JSO Officer F__ had to be approved to be on the system. As to its release to a citizen, F__ referred to the Department’s rules, and as seen, there is no such prohibition to a record that is not confidential or that is a public record. It is thus evident that the Department’s investigation did not probe sufficiently to determine what F__ ultimately disclosed under oath at this hearing. Nor did it examine F__ closely enough to determine what he told the Department’s officers during training about providing such information to the public.10
All of these concerns are vital for just cause. The City has an obligation to conduct an investigation that meets one of the most basic principles of just cause—the need for a fair and complete investigation. As developed at this hearing, it is most evident that had the Department thoroughly investigated, it too would have determined that this grievant could have reasonably believed he complied with Florida law. If F__’s training was flawed in some way, then the grievant cannot be blamed, any more so than he should be held responsible for a draft appearing in the program.
Important, too, for just cause is the principle that an employee is appropriately forewarned of rules that may cause discipline. None of the above-cited rules would give any indication that releasing of information from this software, which was not confidential, was improper or would result in discipline.11 Just penalties only come about if there is proper notification before the conduct occurs that warns an employee. This hearing record fails to establish this vital element for just cause. In short, it is found that this grievant was not responsible for the alleged act of misconduct.
Although in his testimony Chief Thompson attempted to separate the two incidents (release of information and the warrantless entry) for purposes of his discharge decision,12 in his termination memo to the grievant, the two incidents are combined.13 As such, with the failure of this first alleged act of misconduct to be sufficient grounds under just cause, it follows that just cause is lacking for the entire decision. Nonetheless, out of caution and giving the City the benefit of the doubt that it would have used either one for termination, the second incident will be discussed.
2. The warrantless entry of December 22, 2003
The City maintains that the grievant ignored established law and Department policy by forcing his way into a house and making an arrest without a warrant. It believes that the grievant’s sergeant, who was immediately behind him, had no control over the grievant. As such, it is important to generally state the law when and if a police officer may arrest without a warrant in a residence.
The law concerning arrests and warrants stems from the Fourth and Fourteenth Amendments to the U.S. Constitution. An officer must comply with the “reasonableness” requirement of the Fourth Amendment. An arrest is considered reasonable in two different sets of circumstances—the police may have probable cause to believe the suspect committed a crime or they may have a valid warrant for a felony or a misdemeanor authorizing the arrest. United States v. Watson, 423 U.S. 411 (1976).
If there is no warrant and the suspect to be arrested is inside a residence, probable cause alone is not enough, unless there is an exception. In Payton v. New York, 445 U.S. 573 (1980), the Supreme Court explained: “The Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not be crossed without a warrant.” Assistant State Attorney Corey, the City’s expert witness, who is also an Adjunct law professor and instructor at various criminal justice training institutions, aptly described four exceptional circumstances.
First, there are the exigent circumstances referred to in Payton, with no limitation as to felony or misdemeanor. Secondly, the type of “protective sweep” used by SWAT teams to secure a residence before officers enter with warrants. Thirdly, consent by a party with equal access to the residence. Fourthly, the principle of “hot pursuit,” where police have reasonable cause to believe a felony has been committed and the suspect runs into the home; then the officers can then follow in hot pursuit.
In Byrd v. State of Florida, 481 So.2d 468 (1986), the Florida Supreme Court noted, “a significant question arises, however, when a warrantless arrest occurs at, or just within the threshold of a residence.” An arresting officer may have the consent to enter the threshold and then make an arrest at that point; even without consent “... an arrest at the threshold of a residence does not involve an entry....”
In crossing a threshold for exigent circumstances, there does not have to be “hot pursuit” of a fleeing criminal. The factors include gravity or violent nature of the offense; reasonable belief that the suspect is armed; probable cause to believe the suspect committed the crime; strong reason to believe the suspect is in the premises; likelihood that delay could cause the escape of the suspect or jeopardize the safety of officers or the public. U.S. v. Strandridge, 810 F.2d 1034 (11th Cir.), cited in Wike v. State 596 So.2d 1020 (1992) by the Florida Supreme Court.14
With all this in mind, did the grievant’s actions on December 22, 2003 justify the City finding that he violated RW’s constitutional rights and therefore that just cause existed for his termination? Much like the above discussion concerning the release of information, it is found that the Department did not have just cause.
More specifically, it did not account for the circumstances that caused the grievant to enter the house, and it neglected for some reason to provide its expert access to statements from the grievant and his sergeant. By so doing, this expert, as she admitted at the hearing, formed an uneven and incomplete view of the circumstances. It led to an opinion that simply lacked the full detail. And with this added knowledge, she conceded that her opinion would have been much different.
Deputy Chief Campbell concluded that they had no reasonable cause to believe a felony had been committed or was being committed to justify this warrantless arrest. He decided there were no exigent circumstances allowing a warrantless entry into this home. On the other hand, the evidence from both the investigation and at this arbitration, shows that there was reasonable cause to believe a felony had been committed at the point when the grievant and his sergeant decided to enter the house, that exigent circumstances existed, and the suspect crossed the threshold to eliminate a need for a warrant.
The evidence is unrefutable that the victim described to both the grievant and sergeant Bacon a beating by her brother inside the house, including being dragged from room to room and hit, dragged down stairs, thrown into a glass table and breaking glass, and then through a Plexiglas screen door.15
They saw marks on her body to confirm that she had been battered, as well as physical evidence on the outside porch—the broken door and displaced items. Assistant State Attorney Corey had not known of these crucial details when she gave an opinion to the Department. When told of the complete facts at the hearing, based on statements made during the investigation by the grievant and Bacon, she changed the opinion she had previously given to Campbell.
She now concluded that probable cause existed to believe a felony occurred. Being thrown into the glass table alone, in her opinion, was an aggravated battery, a felony. She added that with the arrest attempt at the threshold, there were exigent circumstances when they entered the home.
Campbell never consulted Corey about these vital facts. He never gave her the transcripts of the interviews, the written statements, nor at any time asked her to review the case files from her office. Instead he concluded that with no deadly weapon and no serious injuries, no felony had been committed.
The fact that the arrest was subsequently made on misdemeanor charges supported his conclusion, he found. But at the time they entered the house the officers did not know that the victim would recant the part of her story involving the table. Corey agreed that the felony would be what the officers believed to be the circumstances at the time they entered the home.16
When Corey was shown at the hearing Deputy Chief Campbell’s report that he discussed the facts with her and she agreed with his conclusions, she differed. She only had “misdemeanor domestic violence” type of facts from Campbell. She testified: “[W]hat’s not there is the actual set of facts...His report goes into all kinds of detail that we did not discuss.”
Moreover, it is unclear why Campbell did not delve into the threshold issue. The grievant told Campbell that RW “was standing in the doorframe ... inside the screen door.” 17 If RW was within the frame of the door, he had to be straddling the sill or threshold.
Campbell did not question him about the placement of the two doors (the exterior screen door that was partially destroyed and a solid wood door with glass directly behind the screen door). He did not ask him to explain the difference, if any between the doorframe and the doorway. He simply seemed to construe all of this to mean that RW was in some sort of passageway. There is nothing in the grievant’s statements indicating that the suspect was inside the house or in a passageway.18
RW had the screen door partially opened. To do this, as shown at the hearing, RW had to be in the sill or threshold area. And this position gave RW no reasonable expectation of any Fourth Amendment protection. It was there that the grievant informed him he was under arrest. At this point RW retreated from the doorframe into the house. All of these facts are unrefuted.
During its investigation the City never interviewed any of the occupants of the house or any other witnesses except the grievant and Bacon. Thus, to ignore this unrefutable evidence—what they knew from the victim, the physical evidence they observed when standing at the entrance, the confrontation with the suspect and his location in the threshold—makes the just cause element of a fair and complete investigation even more troubling. And presenting only piecemeal facts to its expert for her opinion raises too many other concerns about the fairness of this investigation. As such the City’s evidence fails to rise to the level of clarity and is unconvincing.
Why would the Department want to pursue an internal investigation when the SAO “quite often,” according to Campbell drops cases involving arrests? Chief Thompson believed the grievant had some sort of malicious intent; it was an “emotional decision” based on either the suspect or the others, or both, using profanity with him. City Manager Hanson’s take was that the grievant did not care.
These two opinions are just that—mere speculation without any support in the record. If this was the case then the only other witness who could have supported these conclusions was Sergeant Bacon, who was right behind the grievant. He was not called as a witness. It simply cannot be ignored that it was Bacon, his supervisor, who made the decision to go in the house based on exigent circumstances and arrest RW. It hardly follows that there was something wrong with the grievant’s judgment to enter the house, the very act the City deplores, where his supervisor unrefutably called this shot.
And it does not follow that the grievant should suffer for a reasonable decision made by his superior. Certainly, if the decision was wrong, the grievant could have disobeyed. That does not appear to be the case here, and in any event the City chose to inexplicably ignore Bacon’s admission and blame the grievant.19
Chief Thompson dismissed any likelihood that such circumstances existed. Ms. Corey referred to Wike v. State, supra in her testimony. There the Florida Supreme Court found exigent circumstances similar to those here—a suspect in a house with family members and physical evidence outside seen by officers.
Officers in both cases were investigating a felony and made contact with the suspect; they both had reasonable fears about persons in the house, possible escape by the suspect, destruction of evidence and the suspect arming himself. In the face of all these facts it is simply not unreasonable for this grievant to have attempted an arrest at the threshold and then, with urging by his supervisor right behind him, to have entered the house and made the arrest.20
For all of these reasons it is found that this second incident, as with the first one, lacks essential elements needed to show just cause. Most significant, are the concerns about the completeness of the investigation and the omission of certain facts to the Department’s outside expert about the warrantless entry issue. In light of this conclusion, it is unnecessary to discuss issues raised concerning disparity and other procedural concerns.
Award
Based on the above and the entire record, the City has not shown by clear and convincing evidence that sufficient just cause existed to support the termination of the grievant. Accordingly, the grievant shall be reinstated to his former position forthwith and shall be made whole. The arbitrator shall retain jurisdiction for a period of 60 days if the parties are unable to resolve any remedy issues.
Notes
1 According to the internal investigation interviews of the grievant and Bacon, and in the Arrest and Booking Report, Bacon related that RW was “... dragging her through the house. She said she ran upstairs to try and get to her parents, and about at which time he came up there and dragged her back down the stairs, threw her over a glass coffee table and dragged her out of the house and basically locked her out ...” The grievant stated in his interview to Deputy Chief Campbell, “He charged at her out of his bedroom and began hitting her, attempted to flee, but he caught her and dragged her around the house. At one point he dragged her upstairs and threw her down, causing her to land on a glass end table.”
2 The grievant gave a demonstration at the hearing, using one of the doorways to show how both of RW’s feet were square on the threshold.
3 Deputy Chief Campbell’s interview with grievant 1/5/04: “... he was standing in the door frame right up against the window—or the screen door ... he was inside the screen door. Campbell’s interview with Bacon: “... RW came to the front door, with the front door open, was standing behind the screen door, which was already half destroyed from the earlier confrontation ... standing just inside the door ... this screen door. Arrest and Booking Report 12/22/03 for RW: “He came to the door and stood inside the doorway....
4 The grievant did not have the “I’ll handle it” comment in the Arrest and Booking report or did he mention it in his sworn interview. He did refer to the “brother/sister thing” and “don’t worry about it” in his interview with Campbell.
5 Bacon, who did not testify, told Deputy Chief Campbell during the internal investigation, “I made the decision to go into the house and that’s it.” He believed that exigent circumstances warranted the entry.
6 A crime scene photograph of the table shows all of the glass (about a two foot square section) missing from the wood frame with many glass pieces on the floor.
7 At the hearing the City called as an expert witness for this program, JSO officer Ferris, who also trained ABPD officers on the program. He testified, “...the way the system is set up that you cannot retrieve a draft report, you can only retrieve an approved report.”
8 Curiously enough, Chief Thompson revealed that confidential information could be obtained from the program. Even though JSO told him it could not provide it, a lieutenant from his own Department, according to the Chief, “was able to download that.” The Chief’s revelation suggests that either by hacking or other means, access to unapproved or confidential information is obtainable. However, there is no evidence that this grievant either had such expertise to hack into the system or that he was aware of a loophole. The fact that the Chief had such knowledge about the frailty of this program and used it, but then did not take it into account when deciding to use this incident against the grievant, further weakens the City’s position on just cause.
9 As seen, Deputy Chief Campbell testified that it became public after five hours from issuance. There is no evidence as to when it was issued or when the grievant accessed the report.
10 The City even attempted to discredit its expert, with Chief Thompson testifying that F__ did not properly describe the process.
11 Significantly, the Department recognizes that there may be flaws in either the system or the training or both. Campbell testified that the system is “in the process of changing so we do not—prevent anything like this from happening.” The grievant, too, while noting that all he did was follow his training, acknowledges that it is something he would not do again. Clearly there are processes that need to be fixed.
12 “...I think either one by itself would have been sufficient for termination.“
13 March 8, 2004 Memo: “After reviewing Internal Investigations I/A 03-06 and I/A 04-02, I find that you have violated Atlantic Beach Police Department Policies and Procedures, and you have violated provisions of Article 9.2 of the Collective Bargaining Agreement under grounds for discipline up to and including discharge. Based on these findings, and considering your past deficiencies in judgment, I am revoking your police powers, and I am recommending the termination of your employment with the Atlantic Beach Police Department.” Moreover, the City Manager’s letter confirming the termination and denying grievances, does not single out each incident as being sufficient for termination. Referring to some past discipline and the two incidents being grieved, he concluded that he relied on “all of the incidences [incidents]” in “approving your termination of employment....”
14 The City’s General Orders follow these decisions regarding warrants. For a misdemeanor arrest, a warrantless entry of a home can only be made upon consent of the occupant. If there is probable cause to believe a felony has been committed, a warrantless entry is allowed per the orders for the exigent circumstances cited in Wike.
15 There are crime scene photographs of the broken door and inside the house of scattered pieces of glass near the coffee table with the missing center glass section.
16 As with the expert in the information release case, Chief Thompson also tried to discredit Corey as an expert. He disagreed with Corey’s conclusion that throwing someone into a glass coffee table would not be an aggravated battery or a felony.
17 Dictionary definitions of threshold are helpful in understanding why the grievant would refer to the spot as he did during the investigation and then at the hearing use the legally correct term of “threshold.” Webster’s Third International Dictionary (2002) defines threshold as “the plank, stone, or piece of timber or metal that lies under a door ...a sill, gate, door ... the place or point of entering or beginning.” The Random House College Dictionary (1975) simply defines it as “the sill of a doorway.”
18 Bacon’s investigatory statement that they stepped up to open the door is not much different from the grievant’s statement that the suspect was in the doorframe.
19 Bacon stated to Campbell: “... I don’t think there was any violation of policy, that there was anything done wrong. I think based on the situation we had, I made a decision to go into the house and that’s it.... I was basing it on exigent circumstances, ... “Bacon mentioned the screaming and yelling, demeanor, problems with safety of the parents inside, officer safety, not wanting the suspect in the house to arm himself “or try and escape and cause any harm to anybody inside the house.” He stated that they were looking at felony charges....
20 The support of a supervisor must be considered in whether just cause is proven. In City of Florida City, Florida and Dade County Police Benevolent Assoc., 96-2 ARB 6231 (Hoffman 1996). A sergeant followed and encouraged his officer in pursuit of a reckless car that was intending to collide with ongoing traffic and was running cars off the road. The grievant was disciplined for not terminating the pursuit under department guidelines. Having the support of his supervisor was a factor in showing that the grievant’s actions under the circumstances were reasonable. So, too, the internal investigation failed to consider relevant facts that prompted this pursuit, including dispatch tapes that presented real time descriptions of the driver’s attacks on drivers, which after the grievant was forced to finally abandon his pursuit, resulted in the collision of vehicles and multiple deaths.