02-003204 Michael E. Hughes vs. Pinellas County Status: Closed Recommended Order on Friday, February 28, 2003.

Summary: Sheriff`s Office established that deputy used force not necessary to performance of a police task; seven-day suspension was appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL E. HUGHES, )

)

Petitioner, )

)

vs. ) Case No. 02-3204

)

PINELLAS COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal administrative hearing was held

in this case on December 3, 2002, in St. Petersburg, Florida,

before Lawrence P. Stevenson, Administrative Law Judge, Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 1st Avenue North

St. Petersburg, Florida 33701

For Respondent: Keith C. Tischler, Esquire

Powers, Quaschnick, Tischler,

Evans & Dietzen

1669 Mahan Center Boulevard

Post Office Box 12186

Tallahassee, Florida 32317-2186

STATEMENT OF THE ISSUES

The issues for determination are: (1) Whether Petitioner,

Deputy Michael Hughes, violated the Pinellas County Sheriff's Office

Civil Service Act by engaging in conduct unbecoming a public servant;

and (2) Whether Petitioner violated Rules and Regulations of the

Pinellas County Sheriff’s Office, General Order 3-1.1.

PRELIMINARY STATEMENT

By inter-office memorandum dated August 3, 2002, Deputy

Michael Hughes was notified by the Pinellas County Sheriff’s

Office (the "Sheriff's Office") that the Administrative Review

Board had determined that Deputy Hughes had violated the

Pinellas County Sheriff’s Office Civil Service Act and Rules and

Regulations of the Pinellas County Sheriff’s Office. As a

result, Petitioner was notified that disciplinary action in the

form of a seven-day suspension, without pay, would be imposed.

Deputy Hughes challenged the Administrative Review Board's

determination that he had violated that portion of General Order

3-1.1 relating to the treatment of persons in custody. On

August 14, 2002, the Sheriff's Office forwarded the matter to

the Division of Administrative Hearings for assignment of an

Administrative Law Judge and the conduct of a formal evidentiary

hearing. The case was originally scheduled for hearing on

October 29-30, 2002. Petitioner's motion for continuance due to

witness unavailability was granted, and the case was rescheduled

for and held on December 3, 2002.

At the final hearing, Deputy Hughes testified on his own

behalf and presented the testimony of Sheriff's Office employees

Lieutenant John Bocchichio and Major Rodney Steckel; former

Deputy Alphonso Gwyn; and Gregory DiFranza, an expert of issues

involving use of force by law enforcement officers.

Petitioner’s Exhibits 1 through 5 and 7 Through 9 were admitted

into evidence. Respondent presented the testimony of Deputy

Hughes, and of Deputy Mark Shorter, Sergeant Timothy Pelella,

Major Clinton Vaughan, and Captain John Bolle, all employees of

the Sheriff's Office. Respondent's Exhibits 1, 2, 17, 19

through 23, and 25 Through 27 were admitted into evidence.

The Transcript of the proceeding was filed on December 11,

2002. At the hearing, the parties stipulated that their

proposed recommended orders would be filed within 30 days of the

filing of the Transcript. Both parties timely submitted

Proposed Recommended Orders.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following findings are made:

1. At all times pertinent to this case, Deputy Hughes was

employed by the Sheriff's Office as a deputy sheriff. At the

time of hearing, Deputy Hughes had over eighteen years'

experience with the Sheriff's Office.

2. On January 12, 2002, Deputy Hughes was working as a

deputy sheriff and as a Field Training Officer in the Field

Training Section of the Pinellas County Sheriff’s Office. He

was accompanied throughout his shift by a trainee, Deputy Mark

Shorter.

3. At approximately 2:55 a.m. on January 12, 2002,

Deputies Hughes and Shorter responded to 5125 Betty Street in

St. Petersburg to assist Deputies Michael Pulham and Vance

Nussbaum, who were already on the scene of a traffic stop where

the driver was suspected of having active warrants for his

arrest. Deputies Hughes and Shorter had already responded to

two calls at 5125 Betty Street, both involving complaints by

neighbors that persons in the house were causing a public

disturbance.

4. After the traffic stop, the deputies noticed yet

another disturbance occurring in the residence at 5125 Betty

Street. The four deputies entered the residence. As the

deputies walked in, one of the occupants, later identified as

Donald Hillebrand, punched Deputy Hughes in the mouth with his

closed fist. The deputies attempted to place Mr. Hillebrand

under arrest for battery upon a law enforcement officer.

5. A melee ensued between the four deputies and several

occupants of the residence. Donald Hillebrand was subdued,

handcuffed, and arrested. Two women who participated in the

fight were also arrested.

6. Mr. Hillebrand was then escorted to Deputy Hughes’

cruiser and placed in the rear seat, without the use of a seat

belt. Two other arrestees, Lisa Ruthven and Barbara Metzler,

were placed in the rear of the Pulham/Nussbaum cruiser for

transport. Because several other people were coming out of the

residence and the situation remained volatile, the deputies

decided they would regroup at a more secure location a short

distance from the Betty Street residence to complete their

paperwork on the arrests.

7. From the time he was placed in the back of the cruiser,

Mr. Hillebrand spewed a stream of racial invective at Deputies

Hughes and Shorter in the front. Mr. Hillebrand is white.

Deputies Hughes and Shorter are black.

8. Lt. John Bocchichio, the shift commander, met the four

deputies at the secure location. He noted that Mr. Hillebrand

was screaming "nigger this and nigger that" from the rear of

Deputy Hughes' cruiser. While Deputies Hughes and Shorter

completed their paperwork at the rear of their cruiser,

Lt. Bocchichio opened the door of the cruiser, leaned into the

car, and attempted to speak to Mr. Hillebrand in an effort to

calm him. Mr. Hillebrand continued yelling and screaming, and

eventually spit at Lt. Bocchichio, who gave up and closed the

door of the cruiser. Lt. Bocchichio did not tell Deputy Hughes

that Mr. Hillebrand spit at him, but he thought Deputy Hughes

might have seen the spitting through the rear window of the

cruiser.

9. Alex Metzler, another participant in the brawl at the

Betty Street residence, rode up to the secure location on a

bicycle. He claimed he was merely riding to a store, but the

deputies believed he was there to interfere with them. The

deputies arrested him, handcuffed him, and placed him in the

rear of Deputy Hughes' cruiser along with Mr. Hillebrand.

Mr. Metzler was seated on the passenger's side, and Mr.

Hillebrand was seated on the driver's side of the back seat.

Both men were handcuffed with their hands behind their backs.

The cruiser had a plexiglass shield behind the driver's side of

the front seat, and a steel cage behind the passenger's side of

the front seat.

10. Deputies Hughes and Shorter, with Shorter driving the

cruiser, commenced their travel to the Pinellas County Jail

facility, located at 144th Avenue and 49th Street in Clearwater.

Mr. Hillebrand continued his tirade at both Deputy Hughes and

Shorter, calling them "niggers," inviting them to "suck his

dick," and offering to perform various sex acts on their

mothers.

11. While the cruiser was traveling on 49th Street

approaching 144th Avenue, Mr. Hillebrand leaned over to

Mr. Metzler’s side of the police cruiser and spit through the

steel cage into the face of Deputy Hughes.

12. Deputy Hughes instructed Deputy Shorter to stop the

vehicle. Deputy Shorter stopped the cruiser in the left-hand

turn lane at the intersection of 49th Street and 144th Avenue,

within sight of the jail.

13. After the cruiser was stopped, Deputy Hughes exited

the vehicle, walked around the rear of the vehicle and opened

the rear driver’s side door. Mr. Hillebrand was lying on the

back seat across Mr. Metzler. Deputy Hughes admitted that he

was angry at being spat upon, but maintained that his purpose in

stopping and exiting the vehicle was to prevent Mr. Hillebrand

from spitting on him a second time by securing his seatbelt.

14. Deputy Hughes reached into the back seat of the

vehicle in an attempt to make Mr. Hillebrand sit up on his side

of the seat. Mr. Hillebrand resisted. Deputy Hughes noted that

Mr. Hillebrand was on top of the seat belt buckle and decided

that he needed to remove Mr. Hillebrand from the vehicle.

Mr. Hillebrand continued to resist, lying back on the seat and

using his legs and feet to prevent his removal from the vehicle.

Deputy Hughes leaned into the vehicle in order to grasp

Mr. Hillebrand's shoulders to gain hold of him. At this point,

Mr. Hillebrand agreed to cooperate. He sat up, turned to sit

sideways in the vehicle and placed his feet on the ground

outside of the vehicle.

15. Mr. Hillebrand then stood up outside the cruiser.

Deputy Hughes testified that he thought Mr. Hillebrand was

attempting to head-butt him, though he admitted that

Mr. Hillebrand's actions were also consistent with the moves

that a handcuffed person would have to employ to exit a vehicle.

In response to the perceived head-butt, Deputy Hughes struck

Mr. Hillebrand in the chest with a forearm strike and followed

with a knee strike to the abdomen. Deputy Hughes briefly pinned

Mr. Hillebrand against the rear quarter panel of the cruiser,

then returned him to the back seat and attempted to fasten

Mr. Hillebrand with the seat belt. Deputy Hughes was unable to

fasten the seat belt because the buckle had worked its way under

the back seat. Deputy Hughes looped the shoulder harness

portion of the seat belt over Mr. Hillebrand’s chest and tucked

the end of it underneath the seat to give Mr. Hillebrand the

impression that the seat belt was properly fastened.

16. Deputy Hughes closed the rear door of the vehicle and

returned to his own seat in the cruiser. Deputy Shorter resumed

the drive to the Pinellas County Jail, which took no more than

two minutes. Mr. Hillebrand was turned over to corrections

officers without further incident and charged with two counts of

battery on a law enforcement officer (one for punching Deputy

Hughes and one for spitting on Deputy Hughes) and one count of

resisting an officer with violence.

17. Deputy Hughes admitted that he did not prepare a use

of force report as to this incident. His arrest report detailed

the brawl at the Betty Street residence, but made no mention of

the subsequent stop after Mr. Hillebrand spit on him.

18. After the incident, Mr. Hillebrand's mother filed a

complaint alleging the physical abuse of Donald Hillebrand

during the course of the arrest. The complaint triggered an

investigation by the Inspections Bureau of the Sheriff's Office

regarding the incidents leading to the arrest of Mr. Hillebrand

and the use of force by Deputy Hughes and the other deputies

involved.

19. At the conclusion of the investigation, an

Administrative Review Board reviewed the allegations and

evidence compiled by the Inspections Bureau and determined that

Deputy Hughes had violated the Pinellas County Civil Service Act

and the rules, regulations and operating procedures of the

Shriff's Office.

20. The Administrative Review Board's memorandum, dated

August 3, 2002, set forth the following specific violations:

1. Violate Rule and Regulation of the

Pinellas County Sheriff’s Office, 3-1.1

(Level Five Violation), 5.15 relating to the

Custody of Arrestees/Prisoners, to-wit:

Arrestees/Prisoners shall be kept secured

and treated humanely and shall not be

subjected to physical abuse. The use of

physical force shall be restricted to

circumstances specified by law when

necessary to accomplish a police task.

Synopsis: On January 12, 2002, you removed

a secured prisoner from the rear of your

cruiser while enroute [sic] to the jail and

subjected him to physical force, which was

not specified by law or necessary to

accomplish a police task.

2. Violate Rule and Regulation of the

Pinellas County Sheriff’s Office, 3-1.3

(Level Three Violation), 3.20, relating to

the Use of Force Reporting, to wit:

Whenever a member either on or off duty, is

required to use physical force against

another person, the member shall immediately

notify a supervisor of the action taken and

complete the necessary documentation for

review.

Synopsis: On January 12, 2002, you used

physical force against another person, but

failed to complete the necessary Use of

Force Report for review.

21. The Administrative Review Board did not conclude that

Deputy Hughes pulled Mr. Hillebrand out of the cruiser for the

purpose of abusing him, or that Deputy Hughes used such force as

would constitute a violation of state law or the United States

Constitution. The Board unanimously concluded that the force

utilized with regard to Mr. Hillebrand was unnecessary and

served no legitimate law enforcement purpose, thereby violating

General Order 3-1.1 (Level Five violation), 5.15, relating to

Custody of Arrestees/Prisoners.

22. The Board found that Deputy Hughes' actions toward

Mr. Hillebrand were inappropriate, given that his reason for

stopping the car and commencing the chain of events that led to

his use of force was to prevent Mr. Hillebrand from spitting on

him again. The Board found that Deputy Hughes could have

avoided being spit on without pulling Mr. Hillebrand out of the

vehicle, and thus that there was no legitimate law enforcement

purpose served by his use of force.

23. The Board noted several factors to support its

finding. Deputy Hughes stopped the cruiser less than two

minutes from the jail, where corrections officers could have

taken Mr. Hillebrand out of the cruiser without the use of

force. Deputy Hughes could have found something in the cruiser,

such as a rain slicker, to place over the cage behind him and

block any further spit from the rear of the vehicle. Once the

prisoner was secure and in custody, Deputy Hughes' primary duty

was to transport him safely to jail without exposing the

prisoner, the law enforcement officers, or the public to the

risk of further injury. By stopping the vehicle and opening the

rear of the caged and locked police cruiser, Deputy Hughes

exposed himself, his partner, both prisoners, and possibly the

general public to an unnecessary risk of injury. Deputy Hughes'

actions created the situation that resulted in the need to use

force on Mr. Hillebrand, and those actions were not necessary to

accomplish the primary police task of transporting

Mr. Hillebrand safely to the jail without further incident or

injury. In short, the Board found that Deputy Hughes used

appropriate force for the situation, but found that he violated

regulations by allowing the situation to develop in the first

place.

24. Sheriff's Office General Order 10-2 provides

guidelines for imposition of discipline by an Administrative

Review Board, including a point system based on the number and

severity of violations. The violations found against Deputy

Hughes resulted in a cumulative point total of 65 points: 50

points for the violation of General Order 3-1.1 (Level Five

violation), 5.15, relating to Custody of Arrestees/Prisoners and

15 points for the violation of General Order 3-1.3 (Level Three

violation), 3.20, relating to use of force reporting.

25. Sheriff's Office General Order 10-2 provides that the

point total accumulated by Deputy Hughes allows for discipline

ranging from a seven-day suspension to termination of

employment. Deputy Hughes received the minimum seven-day

suspension.

26. Deputy Hughes appealed only the finding with regard to

the violation of General Order 3-1.1 (Level Five violation),

5.15, relating to Custody of Arrestees/Prisoners. Deputy Hughes

did not contest the finding that he violated General Order 3-1.3

(Level Three violation), 3.20, relating to use of force

reporting.

27. Deputy Hughes contended that he acted in self-defense

to prevent Mr. Hillebrand from continuing to spit on him. This

contention was illogical. By opening the rear of the vehicle

and manhandling his prisoner, Deputy Hughes made it easier for

Mr. Hillebrand to spit on him again. Further, the self-defense

contention was beside the point, as the Sheriff's Office did not

allege that Deputy Hughes had no right to protect himself.

Rather, the Administrative Review Board found that Deputy Hughes

chose the worst of several possible methods to prevent

Mr. Hillebrand from spitting on him. The essential finding was

that Deputy Hughes used poor judgment, not that he used

excessive force.

28. Deputy Hughes also contended that the Sheriff's Office

was at fault for not equipping his cruiser with restraints

designed to prevent prisoners from spitting. Whatever the value

of such restraints, their absence did not prevent Deputy Hughes

from improvising a protective device from the materials

available in his cruiser.

29. Finally, Deputy Hughes pointed to the fact that the

Sheriff's office has no rule or regulation prohibiting a deputy

from attempting to seat belt a prisoner in the rear of the

vehicle to prevent him from spitting through the open portion of

the cage. It defies reason to contend that the Sheriff's Office

must develop a rule or regulation for every possible condition

that may occur in the field, or that an experienced deputy may

abandon common sense in the absence of a rule or regulation

covering a situation in which he finds himself.

30. The evidence presented at the hearing fully supported

the findings of the Administrative Review Board and the penalty

imposed upon Deputy Hughes for the violation of General Order 3-

1.1 (Level Five violation), 5.15, relating to Custody of

Arrestees/Prisoners.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Sections 120.569 and 120.57, Florida Statutes.

32. The burden is on the party asserting the affirmative

of an issue in an administrative proceeding. Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977). The Sheriff's

Office is required to prove the allegations against Deputy

Hughes by a preponderance of the evidence.

33. Chapter 89-404, Section 6, Laws of Florida, authorizes

the Sheriff to suspend, dismiss, or demote classified employees

for certain offenses and provides:

(4) Cause for suspension, dismissal, or

demotion, shall include, but not be limited

to: negligence, inefficiency, or inadequate

job performance; inability to perform

assigned duties, incompetence, dishonesty,

insubordination, violation of the provisions

of law or the rules, regulations, and

operating procedures of the Office of the

Sheriff, conduct unbecoming a public

servant, misconduct, or proof and/or

admission of the use of illegal drugs. . . .

(5) The listing of causes for suspension,

demotion, or dismissal in this section is

not intended to be exclusive. The Sheriff

may, by departmental rule, add to the

listing of causes for suspension, dismissal,

or demotion.

34. Chapter 89-404, Section 2, Laws of Florida, authorizes

the Sheriff to adopt rules and regulations as are necessary to

implement and administer this section. Pursuant to this

authority, the Pinellas County Sheriff has adopted rules and

regulations and policies that establish the standard of conduct,

which must be followed by all employees of the Sheriff's Office.

These rules are contained in General Order 3-1.

35. General Order 3-1.1 (Level Five violation), 5.15

provides: "Arrestees/prisoners shall be kept secured and

treated humanely and shall not be subjected to physical abuse.

The use of physical force shall be restricted to circumstances

specified by law when necessary to accomplish a police task."

36. The Sheriff's Office has alleged that Deputy Hughes

violated General Order 3-1.1 (Level Five violation), 5.15. The

Sheriff's Office has established by a preponderance of the

evidence that Deputy Hughes failed to keep Mr. Hillebrand

secured and used physical force beyond that necessary to

accomplish a police task. The proximity to the jail, the

availability of other means to avoid a second spitting incident,

the fact that Mr. Hillebrand was securely handcuffed in the rear

seat of a caged and locked vehicle, and the risk created to

Deputies Hughes and Shorter, to both prisoners, and to the

general public as a result of the actions of Deputy Hughes, all

lead to the conclusion that Deputy Hughes acted inappropriately.

Deputy Hughes' actions created a situation that resulted in a

use of force that was not necessary to accomplish the police

task of transporting Mr. Hillebrand safely to the jail without

further incident or injury.

37. The progressive discipline section of General Order

10-2 deals with the use of retaining points toward future

disciplinary actions. No previous discipline points were added

to the total points assigned by the Administrative Review Board.

The Board utilized the Progressive Discipline Worksheet as

required by Section 10-2.6F of the Pinellas County Sheriff's

Office Disciplinary Procedures. The discipline range for 65

points is from a seven-day suspension to termination. Given

that Deputy Hughes had no record of prior discipline and that

his actions were found not to constitute physical abuse or

inhumane treatment, it was proper that he received the minimum

discipline prescribed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Civil Service Board of Pinellas

County Sheriff's Office enter a Final Order finding Michael E.

Hughes guilty of violating the Rules and Regulations of the

Pinellas County Sheriff's Office as set forth in the August 3,

2002, inter-office memorandum and upholding the suspension of

Michael E. Hughes from his employment as a deputy sheriff with

the Pinellas County Sheriff's Office for a period of seven days.

DONE AND ENTERED this 28th day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of February, 2003.

COPIES FURNISHED :

Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 1 Avenue North

St. Petersburg, Florida 33701

B. Norris Rickey, Esquire

Pinellas County Attorney's Office

315 Court Street

Clearwater, Florida 34756

Jean H. Kwall, General Counsel

Pinellas County Sheriff's Office

Post Office Drawer 2500

Largo, Florida 33779-2500

Keith C. Tischler, Esquire

Powers, Quaschnick, et al .

1669 Mahan Center Boulevard

Post Office Box 12186

Tallahassee, Florida 32317-2186

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.