10-002158PL Criminal Justice Standards And Training Commission vs. Daniel W. Donovan Status: Closed Recommended Order on Thursday, July 29, 2010.

Summary: Petitioner did not demonstrate by clear and convincing evidence that Respondent knowingly failed to file a use of force report and knowingly made a false statement in an official proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) )

AND TRAINING COMMISSION, )

Petitioner, )

)

vs. DANIEL W. DONOVAN, ) Case No. 10-2158PL

)

Respondent. )

)

)

)

RECOMMENDED ORDER

On June 15, 2010, a duly-noticed hearing was held by video

teleconferencing with sites in Tallahassee and Daytona Beach,

Florida, before Lisa Shearer Nelson, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kerra A. Smith, Esquire

Joseph White, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Daniel Donovan, pro se

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent failed to

maintain good moral character as required by Section 943.1395(7),

Florida Statutes, and if so, what penalty should be used?

PRELIMINARY STATEMENT

On October 28, 2009, the Criminal Justice Standards and

Training Commission (Commission) filed an Administrative

Complaint against Respondent, Daniel Donovan, alleging that he

had violated the provisions of Section 943.1395(7), Florida

Statutes, by using excessive or unnecessary use of force with

respect to an inmate; by failing to make a report regarding use

of force as required by Section 944.35, Florida Statutes; and by

making a false statement during an interview in an official

proceeding with respect to a material matter.

Respondent filed an Election of Rights form disputing the

allegations in the Administrative Complaint and requested a

hearing pursuant to Section 120.57(1), Florida Statutes. On

April 20, 2010, the case was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

On April 28, 2010, the undersigned issued a Notice of

Hearing scheduling the final hearing for June 15, 2010, and the

case proceeded as scheduled. At hearing, Petitioner presented

the testimony of James Hines, Darlene Taman and John Joiner.

Petitioner's Exhibits 1-3 were admitted into evidence without

objection. Respondent testified on his own behalf but presented

no exhibits. Respondent stipulated to the allegation in

paragraph 1 of the Administrative Complaint, and Petitioner

voluntarily dismissed the allegation contained in paragraph 2(a).

On June 15, 2010, Petitioner also filed a Motion to Seal Video

Recording (Petitioner's Exhibit 1), because the recording

contains matters that are exempt from public inspection or

copying pursuant to Section 119.071, Florida Statutes.

Respondent did not oppose the Motion, and it is granted.

The Transcript of the proceedings was filed with the

Division on July 6, 2010, and both parties timely filed Proposed

Recommended Orders which have been carefully considered in the

preparation of this Recommended Order. All references to Florida

Statutes are to Florida Statutes (2008), unless otherwise

indicated.

FINDINGS OF FACT

1. At all times material to the allegations of the

Administrative Complaint, Respondent was certified as a

correctional officer by the Commission, having been issued

Correctional Officer Certificate number 144670.

2. On or about January 14, 2009, Respondent was employed by

Tomoka Correctional Facility (Tomoka). He had been employed by

the Department of Corrections (DOC) for approximately 15 years.

3. At some point during the day, Inmate William Cash became

disorderly and disruptive in his cell, and a psychological

emergency was called. Officer James Hinds and Respondent came to

Cash's cell to transport him to a holding cell where he could be

seen by a psychologist.

4. In preparing for the transfer, Respondent and Officer

Hinds restrained Inmate Cash using handcuffs, leg irons, a waist

chain, and a black box which secured Cash's handcuffs. After

restraints were applied, Inmate Cash was transported to a holding

cell, with Captain Darlene Taman observing the transfer.

Consistent with DOC protocols, the transfer of Inmate Cash from

his cell to a holding cell was videotaped.

5. Once they arrived at the holding cell, Respondent had

Inmate Cash sit down on a bench in the cell. Inmate Cash

attempted to twist and pull away from Respondent's grasp. In

response, Respondent reasserted his grip and raised one arm,

placing his hand against Inmate Cash's neck. The inmate

continued pulling away from Respondent until he was lying down on

his side.

6. Respondent did not report the incident to his Captain or

complete any type of incident report regarding the events

occurring in connection with the transport. Captain Taman did

not actually see the interaction between Respondent and Inmate

Cash, because she was attempting to monitor several situations

simultaneously.

7. Consistent with DOC procedure, the warden at Tomoka

reviewed the videotape of the transfer. After reviewing the

videotape, the warden filed a complaint with John Joiner, Senior

Prison Inspector with the DOC Office of Inspector General to

investigate whether there was excessive use of force with respect

to the interaction between Respondent and Inmate Cash.

8. A use of force occurs when a correctional officer

touches an inmate who is offering resistance, applying force to

overcome the inmate's resistance. Touching alone does not

constitute use of force. It is the application of force to

overcome resistance that is key to determining whether a use of

force has occurred.

9. When a use of force occurs, a correctional officer is

required to report the use of force to his or her commanding

officer; to complete a Use of Force report; and to complete an

incident report on the use of force. Use of Force reports are to

completed within 24 hours. Correctional officers are trained

regarding use of force and the required reporting of use of force

on an annual basis.

10. Respondent did not report the incident to his

supervisor and did not complete a use of force report. In his

view, no use of force occurred because Inmate Cash was pulling

away from him and he was not applying force to overcome Inmate

Cash's resistance. According to Respondent, he attempted to get

a better grip on Inmate Cash and then allowed him to lie down on

his side on the bench where he was sitting. He described the

event as follows:

MR. DONOVAN: . . . Use of force, because you

place your hands on an inmate, it does not

necessarily incur a use of force. It is the

resistance to that, me overcoming his

resistance is what determines if there is or

is not a use of force.

The inmate initially pulled away from me. I

reasserted my grasp and put my arm up to

defend myself. Like I indicated in my

interview, that is why my arm went up.

He sat back down on his own and he pulled

away and started leaning down on the bench to

lay down. And after he got down on the

bench, after the whole thing was over is when

I gave him more orders to stop pulling away,

because he continued to pull away from me.

I knew he was restrained -- completely

restrained, i.e., leg irons, black box, the

waist chain and the -- the handcuffs, which

is why I didn't use the force. I just wanted

to be sure that I had control of the

situation, that I had control of him, so that

I didn't get hurt or he didn't get hurt.

I have been kicked by inmates. I have been

spit on and head-butted by inmates, who were

completely restrained, such as Mr. Cash was

restrained that day.

And I know through my training, that just

because you touch an inmate, it's not use of

force; that you have to -- you have to

overcome the resistance that he's presenting

to you in order for it to be a use of force.

I did not do that. I did not force him to

sit down. As he tugged away, he sat down on

his own. And then after I reasserted my

grasp to make sure that I had ahold of him

and was in control of the situation, he laid

down on his own. I do not know why; if it

was just an attempt to continue to try to get

away from me. However, he did all of that on

his own. I did not push him down.

11. The video of the incident was observed by both Captain

Taman, Respondent's supervisor, and by Inspector Joiner. Both

believed, as did Officer Hinds, that the exchange between

Respondent and Inmate Cash involved a use of force.

12. It is found that there was a use of force, but that the

force used was not excessive.

13. Inspector Joiner interviewed Respondent as a part of

the investigation of the incident on January 19, 2010. His

response during the interview was consistent with his testimony

at hearing: that he did not file a report on use of force

because he did not believe a use of force occurred and that, in

his view, there was nothing to report. Respondent's testimony

was candid, credible and sincere. He believed what he said in

the interview and at hearing. However, his ultimate conclusion

regarding the use of force was in error.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

15. The Criminal Justice Standards and Training Commission

is responsible for the certification and regulation of law

enforcement officers, correctional officers and instructors.

§ 943.12, Fla. Stat.

16. In this case, the Commission seeks to take disciplinary

action against Respondent's certification as a correctional

officer. This disciplinary action by Petitioner is a penal

proceeding, and Petitioner bears the burden of proof to

demonstrate the allegations in the Administrative Complaint by

clear and convincing evidence. Department of Banking and Finance

v. Osborne Sterne & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

17. The burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence is a

significant burden. As reiterated by the Supreme Court of

Florida,

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such a

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

18. Section 943.13, Florida Statutes, establishes the

minimum qualifications for certification of law enforcement

officers and correctional officers in the State of Florida.

Among those qualifications is the requirement that a correctional

officer possess good moral character, as determined by a

background investigation under procedures established by the

Commission.

19. Once an officer is certified, Section 943.1395(7),

Florida Statutes, authorizes the Commission to define good moral

character by rule for the purpose of imposing discipline.

Subsection (6) outlines the procedure the Commission follows upon

receiving a complaint against a correctional officer.

Subsections 943.1395(7) and (8) provide:

(7) Upon a finding by the commission

that a certified officer has not

maintained good moral character, the

definition of which has been adopted by

rule and is established as a statewide

standard, as required by s. 943.13(7),

the commission may enter an order

imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on a probationary status

for a period not to exceed 2 years,

subject to terms and conditions imposed

by the commission. Upon the violation

of such terms and conditions, the

commission may revoke certification or

impose additional penalties as

enumerated in this subsection.

(d) Successful completion by the

officer of any basic recruit, advanced,

or career development training or such

retraining deemed appropriate by the

commission.

(e) Issuance of a reprimand.

(8)(a) The commission shall, by rule,

adopt disciplinary guidelines and

procedures to administer the penalties

provided in subsections (6) and (7).

The commission may, by rule, prescribe

penalties for certain offenses. The

commission shall, by rule, set forth

aggravating and mitigating circumstances

to be considered when imposing the

penalties provided in subsection (7).

(b)1. The disciplinary guidelines and

prescribed penalties must be based upon

the severity of specific offenses. The

guidelines must provide reasonable and

meaningful notice to officers and to the

public of penalties that may be imposed

for prohibited conduct. The penalties

must be consistently applied by the

commission.

20. Pursuant to the mandate in Section 943.13(7), the

Commission has defined good moral character for the purposes of

discipline. Florida Administrative Code Rule 11B-27.0011(4)

provides in pertinent part:

(4) For the purposes of the Criminal Justice

Standards and Training Commission’s

implementation of any of the penalties

specified in Section 943.1395(6) or (7),

F.S., a certified officer’s failure to

maintain good moral character required by

Section 943.13(7), F.S., is defined as:

(a) The perpetration by an officer of an act

that would constitute any felony offense,

whether criminally prosecuted or not.

(b) Except as otherwise provided in Section

943.13(4), F.S., . . . the perpetration by an

officer of an act that would constitute any

of the following misdemeanor or criminal

offenses whether criminally prosecuted or

not:

1. Sections . . . 944.35. . . , F.S.

* * *

(c) The perpetration by an officer of acts

or conduct that constitute the following

offenses:

1. Excessive use of force, defined as a use

of force on a person by any officer that is

not justified under Section 776.05 or 776.07,

F.S., or a use of force on an inmate or

prisoner by any correctional officer that

would not be authorized under Section

944.35(1)(a), F.S. . . .

21. Paragraph (2)(b) of the Administrative Complaint

alleges that Respondent "did unlawfully and knowingly and

willfully fail to make a report or prevented another from making

a report required by section 944.35, F.S." Section 944.35,

Florida Statutes, provides in pertinent part:

(4)(a) Any employee required to report

pursuant to this section who knowingly or

willfully fails to do so, or who knowingly or

willfully prevents another person from doing

so, commits a misdemeanor of the first

degree. . . .

22. There is no question that Respondent did not file a Use

of Force Report. The question, however, is whether he "knowingly

and willfully" failed to do so. In order to make a finding that

he knowingly and willfully failed to file a Use of Force Report,

it must be found that Respondent believed that a use of force had

occurred, knew that a report was required and failed to complete

one.

23. Issues regarding state of mind are factual issues for

the trier of fact to resolve. See State v. Franchi , 746 So. 2d

1126 (Fla. 4th DCA 1999). Determination of the facts, and

inferences to be drawn from those facts, is necessarily left to

the trier of fact. Forbes v. State . 933 So. 2d 706 (Fla. 4th DCA

2006).

24. The determination of whether Respondent knowingly or

willfully failed to file a use of force report is a question of

intent. Respondent knew that a report was required if and when

use of force was employed. However, he did not believe that use

of force occurred in this instance, and therefore did not believe

a report was required. Under these circumstances, it cannot be

said that he knowingly or willfully failed to file the Use of

Force Report, and the allegations in paragraph 2(b) in the

Administrative Complaint were not proven by clear and convincing

evidence.

25. Similarly, paragraph 2(c) charges Respondent with

making a false statement, "which he . . . did not believe to be

true " in an official proceeding. Based upon this factual

allegation, Petitioner contends that Respondent violated Section

837.02, Florida Statutes, which makes it a felony whenever

someone:

makes a false statement, which he or she does

not believe to be true, under oath in an

official proceeding in regard to any material

matter . . . .

26. Respondent clearly indicated, both in his statement

during the investigation and in his testimony at hearing, that,

in his view, no use of force occurred. This statement is not

correct. However, Petitioner did not demonstrate by clear and

convincing evidence that Respondent made this statement believing

that it was false. His assessment of what happened differed from

that of others who watched a videotape, which does not give a

clear view of what happened. It also differed from that of

another officer present at the scene. By all accounts, however,

there is no indication that Inmate Cash was injured in any way.

Given the short duration of the encounter, the limited view

available and the inability of anyone other than Cash (who did

not testify) and Respondent to state whether any resistance to

force was offered, it is reasonable that people could differ in

their interpretations of the events that took place.

27. The fact that Respondent disagreed with the ultimate

conclusion regarding whether use of force occurred, does not

transform his statement regarding his genuinely held belief into

a false statement that he did not believe to be true. The

allegations in paragraph 2(c) were not demonstrated by clear and

convincing evidence.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Criminal Justice Standards and Training Commission

enter a Final Order dismissing the Administrative Complaint.

DONE AND ENTERED this 29th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 2010.

COPIES FURNISHED:

Daniel W. Donovan

Kerra A. Smith, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

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.