Johnson v. Department of PoliceJohnson v. Department of Police
liMax C. Johnson, a permanent classified employee of the City of New Orleans, through the New Orleans Police Department (NOPD), appeals the ruling of the City Civil Service Commission for the City of New Orleans (the Commission) affirming his suspension and termination from his position as a Police Officer I. On March 26, 2007, NOPD Superintendent Warren J. Riley addressed a letter to Officer Johnson advising him of an administrative investigative report alleging violations of NOPD Rules and/or Procedures, specifically violation of La. R.S. 14:35 relative to Simple Battery, and Neglect of Duty. According to Superintendent Riley’s letter, NOPD Sergeant Daniel Wharton of the Public Integrity Bureau (PIB) conducted the investigation, and determined that on or about February 12, 2005, Officer Johnson was identified by Tyler Evans as the officer who punched him while he was in the custody of two other NOPD officers. According to the Superintendent’s letter, Officer Johnson gave an administrative statement to Sergeant Wharton in which Officer Johnson admitted that he arrived on the scene of the incident but did not advise the NOPD dispatcher 12of the dispo
Officer Johnson timely appealed his termination to the Commission, and the Commission’s hearing officer tried the case on August 15, 2007, pursuant to Article X, § 12 of the Louisiana Constitution of 1974. The hearing officer submitted his opinion to the Commission, which rendered and signed a judgment based on that opinion, denying the appeal, on February 21, 2008 1 . This appeal followed. For the reasons that follow, we affirm the decision of the Commission.
Sergeant Wharton testified at the hearing that he was assigned to the NOPD’s PIB. He was first advised of a brutality complaint on February 12, 2005 at about two o’clock in the morning. The incident occurred at six o’clock the prior |sday. He interviewed Mr. Evans, a medical student living out of the country but attending school in the area. Sergeant Wharton observed that Mr. Evans appeared to have been drinking overnight and had dried blood on his face. On cross-examination, Sergeant Wharton testified that he interrogated Mr. Evans from eight o’clock on Saturday morning, when they met, until about eight that evening. He knew Mr. Evans was leaving town to travel abroad and tried to learn as much as he could from him prior to his departure. Sergeant Wharton testified on cross-examination that, based on his nineteen years as an NOPD officer, the issue of whether to trust the testimony of an intoxicated person is a judgment call, and about half the time such a person could be trusted. He admitted that some of the things Mr. Evans told him were not consistent with the way the incident happened. Specifically, Mr. Evans told him that he was walking in front of the streetcar to protest the fact that the streetcar driver would not let two young people on the streetcar. Later, Sergeant Wharton learned that the driver would not allow Mr. Evans himself to board the streetcar because his pass had expired.
He learned from his interview that Mr. Evans was attempting to get on a streetcar when the attendant refused to admit him. Two female NOPD officers put him in a police car and drove him to a remote location where they met a male police officer who punched Mr. Evans in the mouth twice and forced him to wipe his blood off the police car with his jacket. The officer released him in an unfamiliar area. He happened upon the Juvenile Bureau and advised the officer at the bureau that he had been beaten by the police. The officer called his command 14desk who advised the PIB of the complaint. Mr. Evans advised Sergeant Wharton of his determination to
Sergeant Wharton obtained the names of the officers from NOPD Lieutenant Stevenson, examined the patrol car and observed blood on the hood. Sergeant Wharton testified that he pulled six photographs of police officers who had similar facial characteristics, all of whom were wearing light blue shirts, including a photograph of Officer Johnson. The NOPD computer then randomly arranged the six photographs in two rows of three photographs each. On cross-examination, Sergeant Wharton admitted that Officer Johnson was the only person whose photograph in the array showed him smiling. Using electronic communication, Sergeant Wharton provided Mr. Evans with the photographic line-up, from which Mr. Evans identified Officer Johnson as the person who had punched him. A copy of the electronic communication was introduced at the hearing in connection with Sergeant Wharton’s testimony.
Sergeant Wharton submitted his report sustaining the allegations, on the basis of Mr. Evans’s identification. The administrative procedure went forward, but was interrupted by Hurricane Katrina.
Sergeant Wharton interviewed Officer Johnson, who claimed that two female NOPD officers telephoned him and asked him to meet them at the corner of Canal and Broad Street. Sergeant Wharton learned that, at the time Officer Johnson received the call, he was working on the recovery of a stolen vehicle. [BWhen Sergeant Wharton checked that item number and disposition, he learned that Officer Johnson had never advised his dispatcher that he had completed the stolen vehicle recovery.
Sergeant Wharton admitted on cross-examination that Officer Shadrel Joseph, one of the female officers, was released from the scene and, through two interviews, did not say that Officer Johnson struck Mr. Evans. Furthermore, Sergeant Wharton did not receive anything from the crime lab identifying the blood on Mr. Evans’s jacket and shirt or on police car as Mr. Evans’s blood; the crime lab report merely indicated that the substance was human blood.
On cross-examination, Sergeant Wharton identified the statement of RTA Street Car Driver, Kevin Johnson, which the driver gave to the sergeant on February 12, 2005. The driver said that Mr. Evans, a Caucasian with sandy blonde hair and beard, wearing a black leather jacket, blue shirt and black jeans, and apparently heavily intoxicated, got on the driver’s streetcar at Carondelet and Canal Streets and presented an invalid one-day pass. The driver told him he could not ride on the invalid pass, and, when advised that Mr. Evans had no money, told him he would have to get off the streetcar. Mr. Evans then walked in front of the street car from Bourbon Street to Tonti Street. The driver repeatedly rang his bell, in an attempt to cause Mr. Evans to remove himself from the streetcar’s path, to no avail. The driver then called the RTA dispatcher, Charles LaFrance. Mr. LaF-rance drove his RTA jeep onto the streetcar track, and Mr. Evans got behind the jeep, doing everything in his power to stay on the tracks. An NOPD car with two female | ^officers pulled up at the intersection of Tonti and Canal Streets. One of the officers told Mr. Evans to stop, but he kept on walking. She told him to get on the police car and, when he refused, she pushed him onto the car and handcuffed him. According to the streetcar driver, the officer did not tackle Mr. Evans, who was struggling with the officers and resisting being placed in the police car, kicking at the officers. The officers did not punch
Sergeant Wharton testified on cross-examination that both of the female NOPD officers denied having had a struggle with Mr. Evans. This was confirmed by the RTA videotape of the incident that Sergeant Wharton viewed. He also testified that the female officers would not assist in his investigation, leading him to assume that they would not give testimony that would be damaging to a fellow police officer.
At the conclusion of his investigation, Sergeant Wharton submitted the case to the District Attorney to determine whether or not there would be criminal charges. The District Attorney did not respond for a year and a half, whereupon Sergeant Wharton abandoned the criminal aspect of the case because of lack of cooperation from the office of the District Attorney.
|7Wdien questioned by the hearing officer concerning his credibility assessments of Officer Johnson and of Mr. Evans, Sergeant Wharton testified that Mr. Evans had nothing at stake, and was not under arrest, so there was no reason for him to lie. Furthermore, the RTA driver testified that he did not observe any blood on Mr. Evans’s face or clothing at the time he was placed in the police car. Sergeant Wharton testified that he believed Mr. Evans’s claim that Officer Johnson beat him because he had called the two female officers “bitches and whores.”
Officer Johnson testified at the hearing that he was not present when the female officers arrested Mr. Evans, but arrived on the scene later near the intersection Canal and Broad Streets, in response to a cell phone call from the officers. The streetcar was not present at that time. He was present for only a minute or two, and did not speak to Mr. Evans. The officers told him he was not needed, and he left the scene. Officer Johnson admitted that it was possible that Mr. Evans had the opportunity to see his face, because he stopped and saw Mr. Evans outside the police car. He denied that Mr. Evans was bleeding when he saw him, but admitted that he was not so close that he necessarily would have observed bleeding. Officer Johnson denied having lied to Sergeant Wharton or having struck Mr. Evans. He testified that he was never in a position where it would have been appropriate to use force against Mr. Evans, and denied having witnessed anyone use force against him.
Tracey Fulton, an NOPD Police Officer 4, testified at the hearing that she had worked with Officer Johnson and known him for four and a half years. She | Rworked as his partner in the first district, off and on for about a year, and on Bourbon Street Promenade in the eighth district for almost a year and a half. During that time, she never had to punch drunken people in the mouth. She observed Officer Johnson to be a happy-go-lucky person who liked his job. She testified that Officer Johnson “very often” followed NOPD’s rules. She said it was very hard to make him angry, and could not recall any case when “the average drunk” person angered him 2 .
After having reported on the foregoing testimony, the hearing officer noted that
The Commission accepted the hearing officer’s factual findings and found that the NOPD had sustained its burden of proof. Therefore, it denied Officer Johnson’s appeal.
19An employer cannot subject an employee who has gained permanent status in the classified city civil service to disciplinary action, including termination, except for cause expressed in writing. La. Const., Art. X, § 8(A);
Walters v. Department of Police of City of New Orleans,
In civil service disciplinary cases, an appellate court is presented with a multifaceted review function. Deference will be given to the factual conclusions of the Commission. Thus, in evaluating the Commission’s factual findings, a |inreviewing court should apply the manifest error standard prescribed generally for appellate review.
Taylor v. New Orleans Police Dept.,
00-1992, p. 3 (La.App. 4 Cir. 12/12/01),
It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Appellate courts must constantly have in mind that their initial review function is not to decide factual issues
de novo.
When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact-
Furthermore, in evaluating the Commission’s decision as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion. La. R.S. 49:964;
Taylor v. New Orleans Police Department, supra,
at p. 3,
Officer Johnson claims that the Commission’s ruling is capricious and unsupported by substantial or competent evidence. He contends that the Commission relied on incompetent hearsay evidence. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. La.Code Evid. Art. 801(C). It is well accepted that hearsay evidence may be admissible in administrative hearings.
Driscoll v. Stucker,
04-0589, p. 24 (La.1/19/05),
In the instant case, as in
Taylor,
the officer was summoned in a timely manner to interview the victim, whose face still bore the dried blood evidence of his injury. The investigating officer had the opportunity to speak with and observe the victim, and his injuries, and these observations corroborated Mr. Evans’s allegations that he had been punched in the face.
See, Taylor v. New Orleans Police Department, supra,
at p. 7,
The victim’s allegations are also supported by the streetcar driver’s testimony. This independent witness testified that he saw Evans before, during and after he was arrested by the two female officers, and testified that there was no blood on the victim at those times.
Thus, the victim’s hearsay evidence is supported by Officer Johnson’s admission that he was at the scene of the incident in response to a cell phone call from one of the female officers, the evidence of blood on the victim’s clothing and on the police car, and the photographic lineup identification.
Officer Johnson claims that the Commission relied upon an “incompetent” and unreliable photographic lineup. Counsel argued before the Hearing Officer that the lineup was unconstitutionally suggestive because Officer Johnson’s 114photograph was the only one of the six in which the person photographed was smiling. In criminal cases, reliability, as shown by the totality of the circumstances is the linchpin when deciding admissibility of identification testimony.
Manson v. Brathwaite,
Officer Johnson claims that the NOPD failed to prove its case by a preponderance of the evidence. He also claims that the Commission relied on incompetent evidence that did not overcome his sworn testimony and that of his former partner, Officer Fulton.
The appointing authority in this case, the NOPD, found that Officer Johnson violated department rules requiring employees to adhere to the law, by having violated the statutory prohibition against simple battery. The applicable rule provides that NOPD employees shall act in accordance
The final determination to be made is whether the Commission was arbitrary and capricious in finding that Officer Johnson’s actions impaired the efficient operation of the NOPD and justified his termination. As this Court held in
Tucker v. New Orleans Police Department, supra
at p. 11,
The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Indeed, the Commission should lifigive heightened regard to the appointing authorities that serve as special guardians of the public’s safety and operate as quasi-military institutions where strict discipline is imperative. The appointing authority has discretion to discipline an employee for cause when an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.
Based on our review of the record in its entirety, we find the Commission’s conclusion that Officer Johnson violated the NOPD’s rule requiring adherence to the law when he committed a simple battery on Mr. Evans to have been reasonable. It is clear that, in light of the special relationship between the members of the NOPD and the public, conduct such as Officer Johnson’s clearly interferes with the efficient operation of the NOPD, violates the trust the public must have in the police force, and justifies his termination. For the foregoing reasons, we affirm the decision of the Commission.
AFFIRMED.