STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF BRUNSWICK |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

09 DOJ 4364 | |

| |) |

|Daniel Brannon Gray |) |

|Petitioner |) |

| |) |

|vs. |) PROPOSAL FOR DECISION |

| |) |

|North Carolina Sheriff’s Education and Training Standards Commission |) |

|Respondent |) |

| |) |

| |) |

IN ACCORDANCE with N.C.G.S. § 150B-40(e), respondent requested the designation of an Administrative Law Judge to preside at an Article 3A, N.C.G.S. § 150B, contested case hearing of this matter. Based upon the respondent’s request, Administrative Law Judge, J. Randall May, heard this contested case in Bolivia, North Carolina on January 13 and 14, 2010.

Appearances

Petitioner: Benedict J. Del Rey, Jr.

Respondent: John J. Aldridge, III, Special Deputy Attorney General

ISSUE

Is Respondent’s proposed denial of petitioner’s justice officer certification application supported by substantial evidence?

FINDINGS OF FACT

The Findings of Fact are made after careful consideration of the sworn testimony, whether visual and/or audio, of the witnesses presented at the hearing and the entire record in this proceeding. In making the Findings of Fact, the undersigned has weighed all the evidence or the lack thereof,; has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness; any interests, bias, or prejudice the witness may have; the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether the testimony is consistent with all other believable evidence in the case. From the sworn testimony and from the admitted evidence, the undersigned makes the following:

Summarized Procedural History

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received notice of hearing, and the petitioner received the Notification of Probable Cause to Deny Justice Officer Certification letter mailed by the respondent on June 12, 2009.

2. The North Carolina Sheriffs’ Education and Training Standards Commission has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12, N.C.A.C., Chapter 10B, to certify justice officers and to revoke, suspend, or deny such certification.

3. Petitioner was appointed as a part-time inactive deputy sheriff with the Columbus County Sheriff’s Office on December 30, 2008.

4. The petitioner was indicted for the felony offense of assault inflicting serious bodily injury, in violation of N.C.G.S. § 14-32.4, on January 22, 2008. This indictment alleged the petitioner “unlawfully, willfully, and feloniously did assault David King and inflict serious bodily injury, causing a fractured skull”, with the date of offense being November 29, 2007. It is interesting to note that the Petitioner was not charged with using a deadly weapon during the commission of this alleged felonious assault. Subsequently, at a criminal jury trial in Superior Court on this matter, the petitioner was found not guilty of this offense on December 17, 2008.

5. 12 N.C.A.C. 10B .0204(a)(1) provides that the commission shall revoke or deny the certification of a justice officer when the commission finds that the applicant for certification or the certified officer has committed or been convicted of a felony. 12 N.C.A.C. 10B .0103(16) defines “commission”, as it pertains to criminal offenses, as a finding by the North Carolina Sheriffs’ Education and Training Standards Commission or an administrative body, pursuant to the provisions of G.S. 150B, that a person performed the acts necessary to satisfy the elements of a specified criminal offense. Thus, the burden before the commission and in this proceeding at OAH is “by the greater weight” and not “beyond a reasonable doubt” as it was in the former criminal proceeding.

6. The criminal offense of assault inflicting serious bodily injury, in violation of N.C.G.S. § 14-32.4, constitutes a felony.

7. Pursuant to 12 N.C.A.C. 10B .0204(b)(2) the commission shall revoke, deny, or suspend the certification of a justice officer when the commission finds that the applicant for certification or the certified officer fails to meet or maintain any of the minimum employment standards required by 12 N.C.A.C. 10B .0300. Pursuant to 12 N.C.A.C. 10B .0301(a)(8), every justice officer employed or certified in North Carolina shall be of good moral character.

8. Subsequent to receiving the Report of Appointment for petitioner from the Columbus County Sheriff’s Office, staff for the respondent conducted a required criminal history record check. It was at this point that the respondent learned of the petitioner’s previous felony charge and its disposition. Information concerning the facts and circumstances surrounding the charge of November 29, 2007 were gathered from the Columbus County Sheriff’s Office. This information was presented to the Probable Cause Committee of the respondent. This Committee subsequently found probable cause to believe that the petitioner committed the felony offense of assault inflicting serious bodily injury on November 29, 2007, and as a result, lacked the good moral character required of a justice officer.

9. The petitioner is currently employed as a civilian with a Department of Defense contract company (Triple Canopy) and is working out of Iraq. He is an applicant for certification as an inactive reserve deputy sheriff for the Columbus County Sheriff’s Office. He is a graduate of Basic Law Enforcement Training from Brunswick Community College. On November 29, 2007, he was employed as a police officer with the Holden Beach Police Department.

Statement of the Case Constituting Petitioner’s Factual Involvement

10. On November 29, 2007, in the early evening hours, the petitioner was notified from central communications that Holden Beach Police Corporal, Frank Dilworth, had activated his “man down” button. Eventually Dilworth responded over the radio that he was in a wooded area across from the Food Lion just outside the Holden Beach corporate limits. Petitioner was only five to seven minutes away and responded to the scene. When Petitioner arrived at the Food Lion, he observed Lt. Kenny Smith of the Holden Beach Police Department leaning against a tree. Smith was complaining of a shoulder injury. He observed Dilworth on the ground with David King. King was entangled in briars. Petitioner helped extricate King from the briars. At this time, the petitioner observed no injuries to King, except minor scratches from the briars.

11. Petitioner next turned his attention to Lt. Smith. As he was assisting Smith to an ambulance, Smith collapsed. Petitioner drove the ambulance and transported Smith to the hospital. After leaving Smith at the hospital for treatment, petitioner got a ride from Officer Bobby Britt of the Shallotte Police Department in order to drop petitioner back off at the Food Lion so he could pick up his patrol vehicle. Petitioner had been at the hospital approximately thirty minutes when Britt picked him up.

12. While in route from the hospital, petitioner received a Nextel transmission from Dilworth stating that King was getting rowdy and moving around a lot in the back of his patrol car. Dilworth stated that he was going to be at “Ludlum’s Produce” on Holden Beach Road. Dilworth stated that he was stopping to make adjustments with King. Shortly thereafter, Dilworth came back over the radio and stated that he was in a fight.

13. Britt and petitioner responded immediately to the scene of Ludlum’s Produce. They arrived at the scene within a minute or two. At this point, it was approximately 6:00 to 6:30 p.m. and dark outside. Petitioner testified that when he arrived at the scene Dilworth and King were on the ground fighting. King was still handcuffed at this time but he was handcuffed in front instead of behind him. A substance, possibly pepper spray, was present on King and Dilworth. King was spitting blood on the ground and slinging blood from his hands. Petitioner saw Dilworth straddling King as they fought. He saw Dilworth hit petitioner in the face as they were fighting. King was bleeding profusely from the mouth area.

14. Petitioner pepper sprayed King but it had no effect. At this point Dilworth told Britt to “taze his ass”. Britt employed his tazer on King at this point. The first cycle of tazing caused King to comply. However, one of the probes detached from King after this and the tazer no longer had full effect.

15. Petitioner put his left foot on King’s shoulder blade in order to restrain him. Because a tazer had been employed, emergency medical services were requested to the scene. EMS subsequently arrived, as well as Deputy Bradley Hardee from the Brunswick County Sheriffs Office. While King was on his knees, petitioner removed one handcuff in order to re-handcuff King behind his back. King was then re-handcuffed behind his back.

16. Petitioner then double-locked the handcuffs and stood King up at the trunk area of Dilworth’s patrol car. Dilworth, Jeremy Dixon of the Holden Beach Police Department, and petitioner were with King at the back of Dilworth’s car. King was attempting to clear the blood from his mouth and throat and was spitting blood on the back of Dilworth’s vehicle. Petitioner pulled King’s shirt over his head in order to keep him from spitting on the trunk of the car. King was kicking at the individuals around him at this time. At one point, King’s kicks made contact with EMS employee, Evan Strickland. Dixon pinned King’s leg to the bumper of the car to keep him from kicking.

17. King at one point faced Hardee and was still spitting. Hardee struck King with his metal flashlight in the shoulder area. Petitioner testified that Hardee struck King with the light four to five times. Petitioner denies delivering any blows to King at this time. After Strickland removed the tazer probes from King, King was cleared to be transported to jail. Since pepper spray had previously been discharged in Dilworth’s car, petitioner escorted King to Dixon’s patrol car for transport. Dixon held the right rear passenger door of his vehicle open so that petitioner could put King in the caged area of the vehicle.

18. Petitioner testified that King resisted getting into the patrol car and spit blood and saliva in petitioner’s face and mouth. Petitioner said that this incapacitated him and that he (petitioner) hit King’s head on the car roof. Petitioner stated that King was still resisting and head butted petitioner. Petitioner said he then attempted to deliver a knee strike to King’s femoral artery in order to make him compliant. Petitioner testified that King spit a second time in his face. Petitioner testified that he responded by striking King’s head on the car again. Petitioner stated that King spit in his face yet a third time. Petitioner stated that he attempted to administer a brachial plexus stun on King but because King was resisting, his punch with a closed fist hit King in the jaw. Petitioner testified that if others testified that he pushed King’s head into the light bar repeatedly, that would be a lie.

19. Petitioner testified that Hardee then assisted petitioner in putting King into the car. Petitioner testified that as they were doing this, King kicked Hardee in the face and spit on him. Petitioner stated that Hardee then pushed the left side of King’s face into the cage and Hardee delivered a blow to the right side of King’s face. Subsequently a non-rebreather mask was placed on King to prevent him from spitting.

20. Strikes to an arrestee’s head are never authorized unless deadly force would be appropriate. Similarly, strikes to an arrestee’s head while he is handcuffed are not authorized. Petitioner believed that King had attempted to grab Dilworth’s handgun before petitioner arrived at the scene of Ludlum’s Produce because Dilworth’s pistol belt was twisted around his waist. Petitioner testified that his attempted delivery of a brachial plexus strike to King was attempted using a closed fist. The Subject Control Techniques portion of Basic Law Enforcement Training (Respondent’s exhibit 16, page 24) states that a brachial plexus stun is done with either an open hand or arm. In response to Respondent’s first set of interrogatories, petitioner stated that each time he was spit on by King that he (petitioner) was temporarily blinded. This temporary blindness however was never mentioned in petitioner’s previous statements. (Respondent’s exhibits 9, 10, 11 and 19).

21. Bobby Britt is currently employed as a police officer with the Boiling Springs Police Department. On November 29, 2007, Britt was employed as a police officer with the Shallotte Police Department. On the evening of November 29, 2007, Britt received a call for assistance from officers with the Holden Beach Police Department. Britt responded to the Food Lion just outside the city limits of Holden Beach.

22. On his arrival, Britt saw Kenny Smith seated in a patrol car. At this time, it was close to dusk. Britt observed King’s face at this point and did not observe any of the injuries to his face that were present in the photographs shown as Respondent’s exhibit 20. While at the scene, he observed Hardee escort King to Dilworth’s patrol car. He heard Hardee say, “Get out of the way”, and saw Hardee run King into the door of the vehicle. The impact struck King in the chest area and not the face. King testified that, while this hurt, he did not suffer any injuries to his face as a result. After Dilworth left the scene to transport King to the jail, Britt went to the hospital to pick up petitioner. While in route with petitioner back to the Food Lion, Britt heard a radio communication from Dilworth stating that he was at Ludlum’s Produce and that there was a problem with King’s handcuffs.

23. Britt and petitioner responded to Ludlum’s Produce. Once at the scene, Britt observed Dilworth and King struggling in the parking lot. He observed Dilworth on his side but coming to a standing position and observed King on his knees handcuffed in front of him. Britt observed King hitting Dilworth and yelling obscenities. He observed Dilworth hit King with his fist to the side of King’s head.

24. Following this encounter, Britt employed his tazer on King. The first shot worked to restrain King. King went down from the first taze. Subsequently, one of the probes of the tazer disengaged from King, which nullified the effect of the taze. Later in the encounter, an officer walked over one of the wires of the tazer breaking the circuit altogether. Subsequent to this, Dilworth and petitioner handcuffed King behind his back.

25. King was escorted to the back of a Holden Beach patrol car. Petitioner, Hardee and Dixon pinned King on the back of the car. At this point King had a “busted lip” but no significant injury to his left eye. Britt observed King fighting with petitioner and saw King spit blood on petitioner. Petitioner was upset about the blood on him. In response, petitioner pushed King’s head into the top of the patrol car. Britt observed King’s head bouncing off the light bar. He saw petitioner slam King’s head on the light bar approximately four to six times. Petitioner intentionally pushed King’s head into the car. Britt hollered out to petitioner to stop. At the time that Britt observed petitioner slam King’s head into the patrol car, Britt felt that the situation was de-escalating and saw no law enforcement necessity to hit King’s head into the car. Britt felt that petitioner’s handling of King was getting out of hand. The left side of King’s head struck the vehicle. Following these strikes, Britt observed a lot of blood on King’s face. Although it is difficult to assign which of the many blows by law enforcement officers inflicted the exact injuries, the finder of fact, after weighing all the evidence, is persuaded by the greater weight of the evidence that the assaults by Petitioner were consistent with the damages to King’s face, as shown in Respondent’s exhibit 20 and as testified to by Dr. Carley.

26. At this point, Britt observed King half in and half out of the cage area of the patrol vehicle. Hardee was yelling at King. He saw Hardee hit King with his fist in the face. Britt observed Hardee hit King with his flashlight three to five times. Britt is unsure exactly where the flashlight strikes hit King. The Strikes could have been either in the chest or face area. Subsequent to the incident, Britt wrote a statement describing the events of that evening. (Respondent’s exhibit 5) In his statement, Britt stated that after he observed the petitioner slam King’s head and face into the light bar, he told petitioner to stop, and the petitioner continued to slam King’s head into the car a couple of more times. During these strikes petitioner was using profanity towards King.

27. Jeremy Dixon is employed as a police officer with the Holden Beach Police Department and has been so employed for three years. On the evening of November 29, 2007, Dixon responded to a call for assistance at the Food Lion, just outside the city limits of Holden Beach. When he arrived, he observed King being detained by Smith and Dilworth. King was handcuffed behind his back and, at this time, King had no facial injuries. King was placed in the back cage area of Dilworth’s car. Smith was transported to the hospital via ambulance and was driven by petitioner. Shortly after Dilworth left the Food Lion to transport King to the jail, Dixon heard radio transmissions from Dilworth stating that he was stopping at Ludlum’s Produce to adjust the handcuffs on King. When Dilworth first radioed that he was going to adjust King’s handcuffs at Ludlum’s, Dixon called Dilworth and Dilworth said everything was fine. Dilworth sent another radio transmission to the effect that he and King were fighting.

28. Dixon responded immediately to Ludlum’s Produce. When Dixon arrived, petitioner, Dilworth, and Britt were already on the scene. He observed King face down with tazer probes in his back. King was handcuffed in front at this time. Dixon testified that King would not listen to commands and refused to cooperate. He did not recall King spitting at this time. Petitioner and Dixon re-handcuffed King at this point with his hands behind his back. Petitioner escorted King to the back of Dilworth’s patrol car. While King was leaned over the back trunk of Dilworth’s car, he observed King kicking. Because Dilworth’s car had pepper spray in it, King was escorted to Dixon’s car for transport. Dixon and Dilworth’s patrol cars are identical and both contain identical half-cage areas in the back seat passenger side. Dixon walked to his patrol vehicle and unlocked it as petitioner escorted King to his car. Dixon opened the back passenger door and held it open for petitioner to put King in the vehicle. Hardee was next to King at this point. He observed King spitting on the ground in order to clear his airway because of the blood in his mouth. He observed King deliberately spit on petitioner. In response, he observed petitioner push King’s head into the roof area of Dixon’s patrol car. He observed several strikes like this thereafter.

29. Dixon admitted giving a statement concerning this incident to Special Agent Steve Combs of the State Bureau of Investigation. This interview took place on December 3, 2007 in the vehicle of Special Agent Combs. In this statement to Special Agent Combs, Dixon told Special Agent Combs that petitioner “lost his cool” and struck King’s head on the roof area of Dixon’s vehicle six to eight times. On direct examination, Dixon denied ever making this statement to Special Agent Combs. Special Agent Combs testified that his written summary of his interview with Dixon (found at Respondent’s exhibit 24) was accurate and reflected Dixon’s comments as written down by Combs at the time of the interview.

30. Following Dixon’s interview with Special Agent Combs on December 3, 2007, Dixon consented to have his patrol vehicle processed for evidence. Photographs of Dixon’s vehicle are contained in Respondent’s exhibit 21c and 21d. An indentation of the metal is present on the roofline of his vehicle where the roof meets the right rear passenger door. This indentation was not present in Dixon’s patrol vehicle prior to petitioner hitting King’s head into this area of Dixon’s vehicle. In addition, present in this indented area was a red substance, which unfortunately was not requested to be tested for the presence and identification of human blood by the Office of the District Attorney.

31. Subsequent to the events of November 29, 2007, petitioner, Dilworth, and Dixon prepared statements about these events. The three officers proofread each other’s statements. Dixon stated that several inaccuracies were corrected by the other officers. Dixon denied that he, petitioner, and Dilworth collaborated in writing the statements. Dixon’s statement of the events written to his agency after November 29, 2007 (Respondent’s exhibit 8) never mentioned petitioner striking King’s head against Dixon’s vehicle roof seven to eight times.

32. At the hospital the night King was admitted, Officer Justin Hewitt of the Holden Beach Police Department took photographs of King’s face on his cellular telephone. Dixon saw these photographs on Hewitt’s phone.

33. Frank Dilworth is a corporal with the Holden Beach Police Department and has been with this agency for four years. In the early evening hours of November 29, 2007, Dilworth and Smith responded to the Food Lion just outside the city limits of Holden Beach in response to a report of a shoplifting from a movie rental store. Once at the scene, Dilworth and Smith identified King as the suspect. King at this time was standing on the sidewalk and was not acting aggressively. King was asked to accompany the officers to their patrol car. King was not handcuffed at this time. King pushed away from the vehicle and ran from the officers. Dilworth and Smith pursued him. As they pursued King, Smith fell injuring his shoulder. Dilworth testified that King held his arm straight out towards Smith in a “straight arm” position to prevent Smith from tackling him. Dilworth eventually subdued King in a wooded area. Dilworth handcuffed King behind his back and King was placed in Dilworth’s vehicle. Dilworth’s vehicle is identical to Dixon’s vehicle and contains a one-half cage in the right rear passenger seat. Dilworth left the scene to take King straight to jail. While enroute, Dilworth heard King moving around in the back seat and when Dilworth turned on the interior light of the vehicle, he saw that King had his hands in front of him, still handcuffed. Dilworth testified that King reached for the door handle of the door. Dilworth stated that he was unsure if the child lock was activated on the door or not. Dilworth claims this is why he stopped at Ludlum’s Produce. When petitioner and Britt arrived at the scene of Ludlum’s Produce, Dilworth’s patrol vehicle was pointed in the opposite direction from the route that would be the shortest to the jail.

34. Once stopped at Ludlum’s Produce, King was not thrashing around in the back seat as much. Dilworth opened the door to the cage area of the vehicle. Dilworth testified that King started pushing him in order to get out of the vehicle. Dilworth stated that King made the comment, “I’ll show you what I’m made of”. Dilworth in turn emptied a pepper spray can at King but it had no effect. King made his way out of the vehicle and Dilworth testified that the two began rolling around on the ground. Dilworth testified that King was tugging at his belt, and Dilworth assumed but was not positive that King was attempting to grab his sidearm. Dilworth testified that while they were struggling on the ground, that he struck King in the head several times and King was hitting him. Dilworth stated that his strikes to King’s head could have caused the injuries shown in Respondent’s exhibit 20.

35. While Dilworth and King struggled on the ground, petitioner and Britt arrived at the scene. Britt deployed his tazer on King with limited effect. After the first taze was delivered to King, he went face first on the ground and was handcuffed. Dilworth testified that at this point his adrenalin was “running pretty good” and that his altercation with King was becoming personal. For this reason, Dilworth stated that he withdrew from the confrontation with King.

36. Dilworth recalled King was picked up from the ground by Hardee and escorted to the trunk of a patrol car by petitioner. At around this time, the owner of the produce stand (Ludlum) arrived in the parking lot. He had a conversation with Dilworth. Ludlum was complaining to Dilworth that he did not believe that King needed to be kicked. Dilworth testified that King was bleeding out of his mouth at this time as a result of Dilworth hitting him while they were struggling.

37. Dilworth testified that while attempting to put King inside Dixon’s patrol car for transport, King spit in petitioner’s face. Dilworth said that petitioner then shoved King, which resulted in King striking his head on the car. He said that this occurred at least one more time. Dilworth testified that the second time King’s head hit the car as a result of Gray pushing him was defensive in nature.

38. Dilworth testified that unless deadly force was authorized, strikes to the head were not authorized. Dilworth testified that while he believed deadly force might have been appropriate against King when he was allegedly attempting to grab Dilworth’s sidearm, at the time petitioner pushed King’s head into the patrol car, there was no necessity to use deadly force. As petitioner and Hardee were attempting to put King into the cage area of Dixon’s car, Dilworth saw Hardee bend down to put shackles on King. Dilworth said King spit on petitioner at this time, which resulted in petitioner pushing King’s head against the light bar.

39. Dilworth admitted to advising petitioner to resign his position with the Holden Beach Police Department as a result of the events of November 29, 2007. Dilworth stated that he told petitioner that would prevent the Training and Standards Commission from becoming involved. Dilworth did not testify at the criminal proceeding.

40. Terri Oxford is a reserve police officer with the Shallotte Police Department. On November 29, 2007, she was employed as a police officer with the Holden Beach Police Department. In the early evening hours of November 29, 2007, Oxford responded to the Food Lion parking lot in response to a call for assistance from Dilworth. At this scene, Oxford observed King lying face down by Dilworth’s car and handcuffed behind his back. At this time, there were no visible injuries to King’s face except for a small scratch or two from his being in the bushes and briars. Jane Todd, formerly of the Brunswick County Sheriff’s Office, offered to take King to the jail. Instead, Dilworth put King in the cage area of his vehicle in order to transport King to jail. Just before Dilworth left the scene with King in the back seat of the patrol car, Dilworth made the uncontested comment, “I have a feeling there may be an accident on the way” (emphasis added). Oxford, the senior Holden Beach officer on the scene, did not stop Dilworth or question his motivation in making that comment.

41. Shortly after Dilworth left the Food Lion parking lot with King, Oxford heard a radio communication where Dilworth was in an altercation and was asking for backup assistance. Oxford arrived at Ludlum’s Produce within two or three minutes of receiving this radio transmission. When Oxford arrived at the scene, Dilworth, Britt, petitioner, and Dixon were already there. She observed King at this time bleeding profusely from the mouth. King had not yet however sustained the damage to his left eye as shown in Respondent’s exhibit 20.

42. At the scene, Dilworth told Oxford that King had bitten him on the arm. Oxford looked at Dilworth’s arm but could not see any evidence of this bite. Nonetheless, Oxford retrieved an alcohol rub from her vehicle so that Dilworth could wipe his arm down.

43. Oxford observed King on the ground and he had been tazed. Oxford asked the officers at the scene what King had done and they stated that he had been spitting. Oxford knelt beside King and told him to spit on the ground. King told Oxford that he was spitting blood out of his mouth.

44. Emergency Medical Services arrived shortly thereafter to remove the tazer prongs from King. While Oxford was talking with the EMS paramedic, she saw petitioner slam King on the trunk of Dilworth’s patrol car. Oxford recalled King being placed in Dilworth’s car at Ludlum’s Produce.

45. Oxford got in her patrol vehicle and was going to lead the tow truck operator back to the Food Lion in order to tow King’s vehicle. As she was pulling out of the parking lot, she observed King in the door area of the patrol vehicle and observed both petitioner and Dilworth striking King in the face with their fists. Oxford testified that she then stopped and told petitioner and Dilworth to stop hitting King and take King to jail. The hitting stopped at this time. As she again began to pull out, she observed petitioner and Dilworth striking King in the face for a second time as King was seated in the car. Oxford testified that she again stopped, and at this point, petitioner and Dilworth stopped striking King.

46. Oxford is no longer employed with the Holden Beach Police Department. She stated that she currently has litigation pending against the Holden Beach Police Department, but denies that this litigation has influenced her testimony in this matter. Oxford did not testify at the criminal trial of this matter. Oxford prepared the document at Respondent’s exhibit 7 the day after this incident occurred. This document was not prepared as part of a formal police report but rather was for her own use.

47. Evan Strickland is currently a full-time student. On November 29, 2007, he was employed as an emergency medical technician for Coastline Rescue Squad. He was dispatched in the evening hours of November 29, 2007 to remove tazer probes from an individual. Strickland responded to Ludlum’s Produce. When he arrived, King was handcuffed behind his back. The damage to King’s left eye as shown in Respondent’s exhibit 20 had not been inflicted when Strickland arrived.

48. Strickland examined King upon his arrival and determined that King was not in immediate physical distress. King was placed against the trunk of a patrol car so that Strickland could remove the tazers from his back. King appeared intoxicated and was thrashing about. King attempted to kick behind him and Strickland pressed against King’s leg to keep King from kicking him.

49. While at the back of the patrol car, King was spitting blood. Strickland does not recall King purposely spitting the blood at individuals but rather was attempting to clear his mouth.

50. Strickland stated that King would not go into the patrol car. At this point, tensions were rising and voices were being raised both by the officers and King. Strickland saw King spit on petitioner. King locked his knees in an effort to keep from going into the patrol vehicle. Strickland saw petitioner take King by the head and strike King’s head against the light bar of the patrol vehicle several times. Strickland recalled this to be at least two times.

51. Once in the patrol car, leg shackles were put on King. Strickland recalled petitioner attempting to put the shackles on. Strickland suggested putting an oxygen rebreather on King to keep him from spitting. Strickland described petitioner at this point as being frustrated and saw petitioner strike King in the face several times with his fist while King was in the car. Strickland described the situation as “people’s frustration getting the best of them” (emphasis added).

52. After this incident, Dilworth approached Strickland to “warn him” that the SBI was in town looking into the altercation with King. Dilworth wanted to know what Strickland had told the SBI. Strickland read his statement to Dilworth. Dilworth told Strickland that was not how he remembered the incident.

53. Bradley Hardee is employed as a deputy sheriff through the Brunswick County Sheriff’s Office. He has been so employed for three years. In the early afternoon hours of November 29, 2007, Hardee was dispatched to the scene of the Food Lion due to a report about a man threatening other people and waving a gun. When Hardee arrived at the scene, he encountered King. After talking with King and searching him, no weapons or contraband was found. Hardee found no reason to believe that King had committed a criminal offense and King was allowed to leave. At this time, King did not appear intoxicated nor was he acting unusually. Later that evening, Hardee heard the call about a shoplifting suspect detained at the Food Lion. When Hardee arrived on this occasion, he could smell alcohol on King. King’s face had a few scratches on it from briars.

54. Shortly thereafter, Hardee received information that Holden Beach Police officers were at Ludlum’s Produce having trouble with their prisoner. When Hardee arrived, King was on the ground but not handcuffed. King had been tazed at this point. Hardee recalled EMS arriving to remove the tazer probes from King. At this point in time, King’s injuries consisted of blood on his face coming from his mouth and nose. King did not have the substantial injury to his left eye as shown in Respondent’s exhibit 20 when EMS arrived at the scene.

55. King was placed at the trunk of a Holden Beach patrol car. King was being combative and spit at Hardee a couple of times. Hardee struck King in the shoulder area with his flashlight. Hardee denies striking King in the head with the light. Hardee identified the photographs found at Respondent’s exhibits 20d and 20e, which show bruising on the shoulder area of King, as being consistent with where he struck King with his flashlight. These photographs showing vertical bruising on the shoulder area of King are consistent with strikes from a linear object such as a flashlight.

56. King was handcuffed behind his back around this time. Petitioner was attempting to put King in the vehicle after he was handcuffed behind his back. Hardee looked up to see petitioner slamming King’s head into the car forcefully. Hardee stated that petitioner slammed King’s head into the corner of the light bar on the patrol car approximately three to four times. Hardee said this, “shocked the shit” out of him. Hardee yelled, “What the hell are you doing?” Hardee saw no justification for petitioner to slam King’s head into the vehicle. After yelling at petitioner to stop, petitioner did. Petitioner then asked for shackles to be placed on King. Hardee attempted to put shackles on King and King spit again. Hardee told King to quit spitting but he did not. Hardee then took the palm of his hand and pushed King’s head back into the cage area of the vehicle. Hardee denies striking King.

57. A couple of months afterwards, Hardee had an occasion to encounter King again when King was threatening suicide by jumping off his parents’ roof. King was apparently off his medication at the time. After talking with King for approximately forty-five minutes, King voluntarily came down from the roof. While Hardee was transporting King away from the site, King insisted on having the interior lights on the vehicle. King said that he insisted on the interior lights being on because of his last encounter with police on November 29, 2007. Hardee and King discussed at this time the events of November 29, 2007. Hardee stated that King told him that he (Hardee) was not responsible for the injuries to King’s face, but rather the “Holden Beach Boys” were. Hardee did not testify at the criminal proceeding in this matter.

58. David Harrison King testified in this matter. King is currently unemployed. King did not testify in the criminal proceedings in this matter. King admitted that he had consumed a large bottle of wine on November 29, 2007, and also admitted to shoplifting a DVD. King denied consuming a controlled substance on this date. King admits to bringing his handcuffed hands from behind his back to in front of him while seated in the cage area of Dilworth’s patrol car. King denied spitting on other officers or striking at them. King also denied grabbing for Dilworth’s sidearm.

59. David Harrison King was admitted to Brunswick Community Hospital on November 29, 2007 with facial lacerations and injuries. He was initially treated by Dr. Richard Carley. X-rays of King indicated that, in addition to numerous lacerations, he suffered a fractured left orbital socket, otherwise known as a “blow out” fracture. Dr. Carley treated King by providing stitches to his face over and under his right eye, left eye, and inside King’s lip. Blood screens taken from King at the time of his admission, revealed the presence of cocaine (approximately 300 ng/ml, and alcohol (approximately 193 ng/ml). X-rays further revealed the displacement of orbital fragments to the sinus of King.

60. The treatment for an orbital “blowout” varies depending on the extent to which the orbital socket is broken. Some blowout fractures may require a surgical repair. In Dr. Carley’s opinion, the fractured orbital bone of King was most likely caused by blunt force trauma. Such an injury could be caused in theory from falling on pavement, a fist from a trained individual, or trauma caused by an impact with an object. Dr. Carley would expect to find evidence of “road rash” had Mr. King’s face impacted a paved surface. Such “road rash” was not present. Upon discharge, the medical records of Mr. King indicated that his pain level was 8 out of 10. Under this 10-point scale, a pain level of 1 is insignificant and a pain level of 10 is, “the worse pain you have ever experienced”. (Respondent’s exhibit 13, pages AA et. seq.). Dr. Carley also gave King an injection to prevent infection as a result of the blowout fracture. Dr. Carley referred Mr. King for his injuries to another physician.

61. As to his injuries from November 29, 2007, King stated that he was in substantial pain from his left eye and nose for approximately two months after the incident. King stated that he bled out of his left eye as a result of the injuries. On the Monday following the altercation, King was taken from jail back to the hospital in Wilmington, North Carolina. King stated that he had pain in his wrist and face. King testified that the attending physician who saw him on the week following the assault told him that he had a narrow window of time in which to have the orbital socket of his left eye surgically repaired. King stated that it was his understanding that if he did not have this reconstructive surgery that it was possible for his left eye to fall down into the eye socket. King testified that he did have reconstructive surgery on his left eye socket.

Commission of a Felony and/or Lack of Good Moral Conduct?

62. It is readily apparent King sustained injuries to his face as a result of his altercation with law enforcement officers the night of November 29, 2007. The issue however is can it be determined who inflicted what injury to King, when these injuries were inflicted, and were these injuries necessary in the course of restraining King.

63. The first physical altercation between King and law enforcement officials took place when Dilworth and Smith attempted to apprehend King in the parking lot of the Food Lion after King shoplifted a DVD. King ran from Dilworth and Smith but was apprehended in nearby bushes. It is the consistent testimony of all officers on the scene that the only injuries sustained by King during this encounter were minor scratches from the bushes and briars. The undersigned does not find any impropriety or wrongdoing on the part of officers at this point in the encounter. Of note however, when King was being placed in Dilworth’s patrol car at the Food Lion parking lot, Hardee ran King into the side of Dilworth’s car while King was handcuffed behind him. The question is begged, “Did this appear to be an intentional act?” This strike however did not hit King in the face. King stated that the impact hurt his chest but did not impact his face. Although collateral to this proceeding, the actions of Hardee however should be further inquired into by the Respondent.

64. The second physical altercation between King and law enforcement officials took place in the parking lot of Ludlum’s Produce. Dilworth testified that he pulled over at this location in order to re-secure King’s handcuffs as he had pulled them from behind his back to in front of him. King admits to doing this act. If this were the true purpose that Dilworth stopped his patrol car, while ill advised and imprudent, this act in and of itself does not rise to the level of misconduct. (Facts however are present to indicate that this may not be the true purpose for which Dilworth stopped his transport of King. These facts will be discussed further on.)

65. After releasing King from the confinement of the half cage in the back seat of his patrol car, a physical struggle took place between Dilworth and King. King remained handcuffed, albeit in front of him. Dilworth called for assistance as a result of this struggle. Britt, petitioner, Dixon, and Hardee all responded to the scene. t appears from the testimony that King was actively spitting and striking at Dilworth during this encounter. Similarly, Dilworth was striking at King. Dilworth himself admits that his emotions were getting the best of him and he attempted to withdraw from his conflict with King when other officers arrived. After Dilworth withdrew from his struggle with King, Britt tazed King. While several of the tazing attempts were unsuccessful, the first attempt to taze King was successful and apparently resulted in King falling to the ground face first. Whether King’s injuries to his tooth and lip at this juncture resulted from strikes by Dilworth or falling to the ground after being tazed, it is apparent that the substantial facial injuries to King’s left eye did not occur at this time. As abhorrent and disgusting as the actions of King were, the totality of the evidence shows that the Commission should further consider the actions of this seasoned officer who should have demonstrated the demeanor under stress that good law enforcement training teaches. When the “adrenalin” of a confrontation is full blown, it is the more senior officers that younger officers should be able to look up to for guidance -- this was missing and was even obvious to the public as was remarked by Mr. Ludlum at the scene.

66. The prevalent testimony is that at this juncture, King had suffered a broken tooth and bloody lip, which resulted in King spitting blood throughout the rest of his encounter with law enforcement. This finding is supported by the testimony of EMT Strickland who conducted an examination of King during his work to remove the tazer probes from King’s back. Strickland is the most impartial of all of the witnesses who were present at the scene.

67. The third physical altercation (and the one that apparently resulted in the injuries to the left side of King’s face) occurred after Strickland removed the tazer probes from King’s back. After Strickland removed the probes from King’s back and King was re-handcuffed behind his back, petitioner attempted to put King in the half-cage of Dixon’s patrol car. It is apparent King spit blood and saliva in the petitioner’s face at this time. This made petitioner angry and triggered some of the further outrageous assaultive behavior against King.

68. The majority of witnesses testified that the petitioner was cursing at King and punched in the face (according to Oxford and Strickland) and careened King’s face into the roof area of Dixon’s patrol car just below the light bar. The petitioner slammed King’s face into the roof of this car at least four to six times. King’s head was slammed into the roof of the car with enough force apparently to have caused a crease in the metal corner of the roof. Dr. Carley testified that King’s injuries to his left eye resulted from blunt force trauma. As no “road rash” was present in the left side of King’s face, and the majority of witnesses testified that they observed petitioner slam King’s face into the metal roof of Dixon’s patrol car, it is apparent that the blunt force trauma causing King’s injuries resulted from petitioner’s use of force in slamming King’s face into the car which at this point could have been considered a deadly weapon.

Was Petitioner Confronted with the Use of Deadly Force by King?

69. Was petitioner justified in using this degree of force to prevent King from spitting? He was not. All law enforcement witnesses agreed, as well as the petitioner, that strikes to the head area of an arrestee (especially one handcuffed behind his back) were never justified unless deadly force was authorized. The act of spitting (while disgusting and vile) does not, in and of itself, rise to the level of deadly force. Consequently, petitioner was not authorized to administer strikes to King’s head using the roof of the patrol car.

70. Some actions were appropriate to prevent King from spitting. The actions of King could have been moderated however by the use of a mask, pulling King’s shirt up over his head (as was done previously at the trunk of the car) or by simply turning King’s head away from them. The degree of force utilized by an officer against an arrestee who is resisting has to be proportionate to that level of resistance. (Respondent’s exhibits 15 and 16) Slamming King’s face into a hard metal object repeatedly in an effort to keep him from spitting was grossly disproportionate to King’s level of resistance.

71. While Hardee struck King with his flashlight at the rear of Dilworth’s car in the parking lot of Ludlum’s Produce, the undersigned does not find that these strikes were the ones, which resulted in the damage to King’s left eye. The photographs taken of King’s back, found at Respondent’s exhibits 20c and 20d, are consistent with strikes by a flashlight.

72. Inconsistencies certainly exist between the testimonies of the officers at the scene. For example, Strickland testified that he saw petitioner attempt to shackle King and Hardee testified that he was the one who attempted to shackle King. Oxford testified that King was transported from Ludlum’s Produce in the back of Dilworth’s car and the other witnesses testified that King was transported in Dixon’s vehicle. These inconsistencies however do not negate the fact that the predominant testimony has the petitioner slamming King’s face into the roof of a Holden Beach patrol car after King spit on petitioner. These inconsistencies are most readily explained by considering that these witnesses were not there to observe specifically the interaction between King and petitioner. Rather they were there performing their own individual functions and saw their individual portions of the altercation between petitioner and King.

Considerations

73. Overall, the encounter between King and the officers on the evening of November 29, 2007, needs to be further examined. The actions of petitioner were but a part of the totality of problems, which were manifested by some law enforcement officers on this occasion. For this reason, as well as for other reasons, common ground is found with the recommendations of counsel for the respondent when he states, “that the actions of a number of the involved officers may be injudicious at best and criminal at worst”. Specifically, the undersigned echoes the following observations of the assistant attorney general.

74. A preponderance of the evidence indicates that after being subdued in the parking lot of the Food Lion for shoplifting a DVD, King was intentionally run into the side of Dilworth’s patrol car by Hardee. Moreover, at Ludlum’s Produce, while King was handcuffed, but still spitting, Hardee administered several blows with his flashlight to King’s back. Although Hardee’s testimony was helpful and seemed credible, the respondent may wish to examine and further inquire into the actions of Hardee for purposes of his deputy sheriff certification.

75. Also troubling (even more so to the undersigned) were the actions and statements of Officer Dilworth from Holden Beach. Prior to departing the Food Lion with King in custody, Dilworth made a comment to the effect that maybe King would have an accident on the way to the jail. It is more than ironic that only a few miles down the road, Dilworth and King are fighting in Ludlum’s Produce parking lot. This altercation, and Dilworth’s actions, are further suspect because he apparently did not take the most expeditious route to the jail after leaving the Food Lion parking lot. Also of systemic concern are the actions of the senior Holden Beach Police officer on the scene, Terry Oxford. Despite hearing the comment from Dilworth about King having an accident on the way to the jail, and seeing Dilworth and petitioner administer strikes to King’s face with their fists while King was handcuffed behind his back, she took no action against these officers except to call out to them in an effort to make them stop. It is recommended that this record and Proposal for Decision be forwarded to the North Carolina Criminal Justice Education and Training Standards Commission for further inquiry and review to determine if any of these actions are sanctionable. Although there were many “good acts” by law enforcement officers on the scene, there was also much that simply defies the essence of good law enforcement training. This was not an isolated officer acting alone but it was a number of officers, without leadership, who lost control.

76. Examining petitioner’s statements concerning the events of November 29, 2007, as compared to the eyewitness testimony of the officers at the scene, leads the undersigned to find that the petitioner downplayed his reactions to King’s combative behavior and exaggerated King’s actions. For example, at this hearing, the petitioner testified that he momentarily lost his vision when King spit into his face. This is a significant event. However, petitioner never mentioned a temporary vision loss in his previous statements. The undersigned specifically finds that the petitioner intentionally caused the blunt force trauma to King’s face, which resulted in the injuries to his left eye. These strikes were not authorized or legally appropriate. These strikes did rise to the level of a felony assault. For the reasons explained in the following conclusions of law, the undersigned also finds that these injuries rise to the level of serious bodily injury.

CONCLUSIONS OF LAW

The North Carolina Office of Administrative Hearings has jurisdiction over the parties and subject matter of this contested case pursuant to N.C. Gen. Stat. §150B-23 et seq. All necessary parties have been joined. The parties received proper notice of the hearing in this matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to given labels.

1. The North Carolina Sheriffs’ Education and Training Standards Commission has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke or suspend such certification.

2. Pursuant to 12 NCAC 10B .0204(a)(1), the Commission shall revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed a felony. The offense of assault inflicting serious bodily injury, in violation of N.C.G.S. § 14-32.4, is a felony.

3. A preponderance of the evidence exists to support the conclusion that on November 29, 2007, the petitioner committed the offense of assault inflicting serious bodily injury when he, without justification, slammed David King’s face into the metal roof of a Holden Beach patrol car, resulting in a fracture of the orbital bone of his left eye, which gives further rise to the question of whether Petitioner committed the felonious assault with the use of a deadly weapon, inflicting serious injury. In his testimony, Dr, Charley stated that in his opinion King’s injury was caused by blunt force injury. Our courts have consistently accepted the proposition that this type of injury could either be caused by an object striking an individual’s head or by the individual’s head striking the object. See, State v. Smith, 146 N.C. App. 1, 11, 551 SE2d 889, 895 (2001).

In State v. Lane, the court reasoned that a deadly weapon could be any object, which was used to inflict a serious bodily injury. The court further stated:

‘In order to be a deadly weapon it is not required that the instrument be a deadly weapon per se, but it is sufficient if, under the circumstances of its use, it is an instrument which is likely to produce death or great bodily harm, having regard for the size and condition (emphasis added) of the parties and the manner in which the weapon is used.’ 1 Strong, N. C. Index 2d, Assault and Battery, § 5, p. 298.’ See State v. Lane, 1 N.C. App. 539,541, 162 SE2d 149, 151 (1968).

Although petitioner was never charged with the felony of assault with a deadly weapon inflicting serious injury, the undersigned must consider the handcuffed condition of King when petitioner repeatedly and forcefully slammed King’s face into the roof area of the vehicle’s light bar when considering the question of good moral character, et seq. In so doing, there can be no question but that Petitioner committed a felonious assault by using excessive blunt force to seriously injure King.

The respondent may properly deny petitioner’s application for certification pursuant to 12 NCAC 10B .0204(a)(1).

4. An officer who utilizes an excessive amount of force on an arrestee that is not justified under the circumstances commits an assault. State v. Mensch, 34 N.C. App. 572, 239 S. E. 2d 297 (1977). The North Carolina Court of Appeals has addressed a number of factual situations in which it was determined that injuries rose to the level of serious bodily injury for purposes of N.C.G.S. § 14-32.4. Strikes to the buttocks of an 8-year-old which caused a large bruise that was crusted around the outside, had a spot near the middle that was open and oozing, and was painful to the touch, formed a sufficient basis to constitute serious bodily injury. State v. Williams, 154 N.C. App. 176, 571 S.E.2d 619 (2002). A victim’s testimony that his facial injuries were “very painful” and that he suffered pain for about a month, and a doctor testified that the injuries suffered by the victim were the type that caused severe and extreme pain was sufficient to support a conviction for assault inflicting serious bodily injury. State v. Brown, 177 N.C. App. 177, 628 S.E.2d 787 (2006). A victim’s injuries, which included facial swelling, a scalp abrasion, a fractured nose, eye swelling, and avulsed tooth, were sufficient to support a finding of serious bodily injury. State v. Downs, 179 N.C. App. 860, 635 S.E.2d 518 (2006). In the case sub judice, the petitioner suffered a fracture to his left orbital bone, which involved the migration of bone fragment to his nasal cavity. He suffered significant pain for a period of two months following these injuries. King had to undergo surgery to his left eye to prevent a deterioration of his condition that could potentially result in a sagging or drooping of the left eye. These factors, taken as a whole, support the conclusion that the injury inflicted on King by petitioner constituted serious bodily injury.

5. Additionally, the petitioner’s acts of assaulting King and inflicting serious bodily injury are inconsistent with the good moral character of a justice officer in North Carolina. It is found by a preponderance of the evidence that the petitioner’s actions rise to the level of a lack of good moral character and support a denial of his certification based on such facts pursuant to 12 N.C.A.C. 10B.0301(a)(8) and 12 N.C.A.C. 10B.0204(b)(2). Good moral character has been defined as “honesty, fairness, and respect for the rights of others and for the laws of state and nation”. In re Willis, 299 N.C. 1, 10, 215 S.E.2d 771, 776 (1975). Generally, isolated instances of conduct are insufficient to properly conclude that someone lacks good moral character. However, if especially egregious, even a single incident could suffice to find that an individual lacks good moral character in places of clear and especially severe misconduct. See, In re: Rogers, 297 N.C. 48, 59 (1979). The incident alleged in this matter, under the particular facts of this case, is of that magnitude. Petitioner’s conduct was a gross deviation from the standards expected of law enforcement officers in North Carolina. The level of force used by the petitioner against King by slamming King’s head into the roof area of a patrol vehicle grossly exceeded that level of force reasonably necessary to bring King into compliance. Moreover, it is apparent that petitioner’s motivation in striking King’s head against the vehicle was more out of anger at King for spitting on him than out of a desire to bring King into compliance.

PROPOSAL FOR DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned affirms the Respondent’s denial of the petitioner’s justice officer certification application indefinitely for a lack of good moral character and permanently based upon his commission of the felony offense of assault inflicting serious bodily injury and. It is further recommended that this Proposal for Decision, as well as the accompanying record, shall be forwarded to the North Carolina Criminal Justice Education and Training Standards Commission for its review and appropriate action, if any.

NOTICE AND ORDER

The North Carolina Criminal Justice Education and Training Standards Commission is the agency that will make the Final Decision in this contested case. As the final decision-maker, that agency is required to give each party an opportunity to file exceptions to this Proposal for Decision, to submit proposed findings of fact, and to present oral and written arguments to the agency pursuant to N.C. Gen. Stat. § 150B-40(e).

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

This the 15th day of March, 2010.

J. Randall May

Administrative Law Judge

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download