Defending Police Misconduct at the Administrative Level

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September 24, 2018
Author: Lina Balciunas Cockrell
Organization: Carroll, Burdick & McDonough LLP

Officer B. Johnson has been a police officer for the Happytown Police Department for 12 years. The only previous discipline he has in his Official Personnel File is a letter of reprimand that was noticed and issued on March 1, 2013 for his telling an off-color joke at a colleague’s retirement party that took place on February 17, 2012. His performance reviews have been generally satisfactory to excellent.

The Incident
On February 3, 2014, Officer Johnson was patrolling his beat in Happytown when a vehicle passed him. He thought he recognized the driver as his sister’s boyfriend, with a female passenger. Officer Johnson began following the vehicle, as he called his sister to inquire about the passenger. His sister told him that she has been concerned that her boyfriend was cheating on her and may even be doing drugs, because he’s been acting strangely lately.

Officer Johnson has only met the boyfriend a couple times. As he pursued the vehicle, Officer Johnson ran its plates and found out that his sister’s boyfriend was driving with a suspended license. Officer Johnson then flipped on his lights and sirens and stopped the vehicle. The driver uncooperative and belligerent so Officer Johnson ordered the driver and passenger to get out of the vehicle.

The driver said something to the effect of, “You’d better be careful, man. I could really f*** you up” and took a step toward Officer Johnson with balled fists. Officer Johnson called for backup, then informed the driver he was under arrest and ordered him to submit to being handcuffed. The driver responded, “F*** you, man.” At that point, Officer Johnson reached for the driver’s shoulder, trying to turn him facing the vehicle so that he could handcuff the driver. The driver forcefully pushed Officer Johnson’s hand away and Officer Johnson tried to grab the driver’s shoulder again. After a brief struggle, the driver submitted to handcuffs. Backup arrived and Happytown police officers W. Smith and E. Jones tended to the driver while Officer Johnson
turned his attention to the vehicle’s passenger.

The passenger had been recording the episode on her cell phone. With the driver in restraints, Officer Johnson ordered the passenger to hand over her cell phone. The passenger refused, at which point Officer Johnson informed her that she was under arrest as well. The passenger then
put her hands on her stomach, prompting Officer Johnson to ask if she was pregnant. The passenger looked surprised and stammered that she wasn’t. Upon hearing this exchange, the driver shouted, “You’re the one who looks pregnant!” To which Officer Johnson quipped, “I am
pregnant, with a baby snuffleupagus - do you want to see its trunk?”

The passenger finally gave Officer Johnson her cell phone and submitted to being handcuffed. Officer Smith then pulled out his personal cell phone and took a photograph of  Officer Johnson mugging with the passenger. Officer Johnson searched the vehicle, finding no narcotics or any other contraband. Officer Johnson ultimately cited the driver for violation of Vehicle Code section 12500(a) (unlicensed driver) and both the driver and the passenger for violation of Penal Code section 148(a) (resisting/obstructing a peace officer). Officer Johnson then released the driver and the passenger. Before they were released, both the driver and the passenger complained to Officer Smith that Officer Johnson had struck the driver in the face prior to being handcuffed.

Following the incident, the officers headed back to the station. On the way back, Officer Smith texted the photo of Officer Johnson and the subject passenger to the cell phone of Officer Johnson’s wife (who is also a Happytown police officer) and to the personal cell phone of Officer Jones. Mrs. Officer Johnson posted the photo on her Facebook page.

At the Happytown Police Station, Officer Johnson wrote a report of the incident. He did not include in his report that he knew the subject driver to be his sister’s boyfriend. He did include in his report that the subject driver was a known narcotics user. Officer Johnson submitted his report to Sergeant Z. Thomas before he left his shift that day. When he returned home, Officer Johnson told his wife about the incident. He explained that he had run the plates on the vehicle because he thought he had recognized the driver as his sister’s boyfriend and “wanted to finally nail that thug because I know he’s cheating on my sister and doing drugs.” Officer Johnson also told his wife that he asked Officer Smith to take a photo of him and the subject passenger in order to prove to his sister that her boyfriend was cheating.

Aftermath Conversations
About a week later, Sergeant Thomas approached Officer Johnson in the hall of the station. There was no one else around. Sergeant Thomas asked Officer Johnson if he had to have a photograph taken with the subject passenger. Officer Johnson responded that he didn’t recall. Sergeant Thomas then asked Officer Johnson if he had written the report of the incident fresh or copied it from a report of a previous, somewhat similar incident and changed a couple of the key details. Officer Johnson insisted he wrote his report from scratch.

About a week after that conversation, Sergeant Thomas called Officer Johnson into his officer and ordered him to give Sergeant Thomas the photograph with the subject passenger. Officer Johnson responded that he no longer had the photograph on his phone. He called his wife, who sent him her copy of the photograph, which he handed over to Sergeant Thomas.

The Investigation
About a month later, Officer Johnson received notice that he was the subject of an internal affairs investigation. Officer Johnson was interviewed by two internal affairs investigators, with Lieutenant D. Colston also sitting in the room. During the interview, Officer Johnson denied that he had originally run the vehicle’s plates on account of his sister. He also refused to tell the investigators the source of his information that the subject driver was a known narcotics user. He said that he did not strike the subject driver, but was reaching for his shoulder. When asked whose idea it was to take the photograph, Officer Johnson said he didn’t really remember, but he thought that all three officers had decided together that the photograph should be taken. He insisted that he had written his report from scratch and did not copy another report of a prior incident, despite the investigators pointing out several of the same typos in both reports.

Officer Smith was interviewed by the two internal affairs investigators. She said that she did not know anything about why Officer Johnson originally stopped the vehicle. She said that she did not see Officer Johnson strike the subject driver or reach for his shoulder. Finally, she did not know whose idea it was to take the photograph of Officer Johnson with the subject passenger, but that the three officers decided “together” to do it. Officer Smith said that she did not report the taking of the photograph to anyone in the Happytown Police Department.

Officer Jones was interviewed by the two internal affairs investigators. He said that he did not know anything about why Officer Johnson originally stopped the vehicle. He said he heard Officer Johnson order the subject driver to submit to being handcuffed and the driver refused. He then saw Officer Johnson step forward and strike the driver with an open hand. Finally, Officer Jones said that he heard Officer Johnson ask Officer Smith to take the photograph. Officer Jones said that he thought the photograph was a bad idea but that he did not report the taking of the photograph to anyone in the Happytown Police Department.

Officer Mrs. Johnson was interviewed by the two internal affairs investigators. Claiming marital privilege, she refused to answer any questions about the incident. The subject driver and passenger were both interviewed by the two internal affairs investigators. The driver said that
Officer Johnson had slapped him and the passenger said that she saw Officer Johnson slap the driver.

The internal affairs investigators requested to interview Officer Johnson a second time. During this interview, Officer Johnson admitted that he initially thought he recognized the driver of the vehicle as his sister’s boyfriend and believed, based on information he’d received from his sister, that the driver might have narcotics in the vehicle.

Officer Johnson said, however, that had his computer search not turned up the suspended license, he would not have stopped the vehicle. He acknowledged that he acted inappropriately in his “snuffleupagus” comment but had asked the subject passenger if she was pregnant because he was legitimately concerned about her safety/the safety of the baby if she were to be taken into custody. Officer Johnson insisted that he did not intentionally strike the subject driver but was simply reaching for his shoulder to secure him, after the driver refused to submit to handcuffs and that this was a maneuver Officer Johnson had used several times.

However, Officer Johnson agreed that it was possible that in reaching for the driver’s shoulder, he could have unintentionally made contact with the face, but really did not believe this is what happened. Finally, Officer Johnson maintained that he still didn’t really remember whose idea it
was to take the photograph but that he could have been the one who asked for the photograph to be taken. He agreed that the photograph was in poor taste. Finally, Officer  Johnson continued to insist that he had written his report from scratch and did not copy another report from a previous incident.

The Adverse Action
On or about December 31, 2014, Officer Johnson was served with a Notice of Adverse Action charging him with:
(a) Incompetency
(b) Inefficiency
(c) Inexcusable neglect of duty
(d) Dishonesty
(e) Discourteous treatment of the public or other employees
(f) Willful disobedience
(g) Sexual harassment under the Department’s “no tolerance” policy
(h) Improper use of computer criminal justice information
(h) Other failure of good behavior

The Notice proposed termination, largely based on progressive discipline regarding the sexual harassment charge and dishonesty regarding whether Officer Johnson struck the subject driver. The Happytown Police Department Disciplinary Review Board was split on the discipline, with two members voting for a maximum suspension under the terms of the MOU and three members voting for termination. Happytown Police Chief C.R. Marion signed off on termination.

On or about January 21, 2015, Officer Johnson participated in a Skelly hearing before Chief Marion. Officer Johnson acknowledged his wrongdoing but insisted that he had never been dishonest. He requested a suspension or even a demotion.

On or about January 24, 2015, Chief Marion upheld Officer Johnson’s termination. Officer Johnson has appealed his discipline to the Happytown Personnel Board under the terms of the MOU  and the Happytown Personnel Code.

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