Dep t of Correction v. White OATH Index No. 1461/09 (Apr. 27, 2009)

Dep t of Correction v. White OATH Index No. 1461/09 (Apr. 27, 2009) Correction officer charged with false report of force incident. Administrative law judge found proof, which consisted of video surveillance images, sufficient to sustain the charge and recommended that the officer be suspended for 15 days. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF CORRECTION Petitioner - against MICHAEL WHITE Respondent REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Correction, charged that respondent Michael White, a correction officer, made false statements about a force incident. A hearing on the charge was conducted before me on February 24, 2009. Petitioner presented a video surveillance recording and the testimony of two investigators and a correction officer. Respondent testified on his own behalf, insisting that his statements regarding the inmate kicking the officer were accurate. The record was left open until March 19, 2009, for submission of the photographs of the surveillance evidence. For the reasons provided below, I find that the evidence was sufficient to sustain the charge and recommend that respondent be suspended for 15 days ANALYSIS This case concerns an incident which occurred at around 6:00 a.m. on October 30, 2007, in the punitive segregation area of the Otis Bantum Correctional Center on Riker s Island. This housing area is for inmates found guilty of institutional infractions. The charge alleges that, after helping another officer control an inmate who pushed his way out of a cell, respondent falsely

-2- stated that the inmate kicked the other officer in the leg and tried to kick him in the torso. The critical issue at the hearing concerned whether the evidence supported a finding that either of these statements was false. At the time of the incident, respondent was assigned as the B officer, working an 11:00 p.m. to 7:30 a.m. tour. Officer Middleton, assigned as the escort officer for the 4:00 a.m. to 12:30 p.m. tour, was escorting an inmate named Truman down to the intake area to await transportation to court that day (Tr. 48-49). Respondent noticed that Mr. Truman did not cooperate with the escort and engaged in a struggle at the top of the stairs with Officer Middleton. As the two entered the intake area, respondent followed behind to offer backup if necessary (Tr. 50). Officer Middleton escorted Mr. Truman, still rear handcuffed, into the holding pen, closed the gate, and placed a key in the lock. At the same time, the phone rang and respondent walked back to a desk to answer it. Just as respondent got off the telephone with the A officer, Mr. Truman spun around and spat in Officer Middleton s face from behind the pen gate. Officer Middleton brought his hands to his face, trying to wipe himself clean (Tr. 54-55). Mr. Truman then shoved open the gate and exited into the office where Officer Middleton and respondent were (Tr. 58). According to respondent s testimony at the hearing, Mr. Truman assumed a fighting stance and kicked Officer Middleton in the lower right leg. Mr. Truman then attempted to kick Officer Middleton in the torso two or more times, but never connected (Tr. 58). Officer Middleton sprayed Mr. Truman with chemical spray two or three times and Mr. Truman retreated back behind the cell gate (Tr. 61). While respondent activated his body alarm, he also rushed forward, closed the gate, and secured it with a key (Tr. 62). The probe team arrived a few minutes later and removed Mr. Truman to the clinic. Respondent wrote up an infraction for the inmate (Tr. 63). In reports filed immediately after the incident, both respondent and Officer Middleton wrote that Mr. Truman repeatedly kicked Officer Middleton. In respondent s report (Pet. Ex. 2), he wrote that Mr. Truman spat twice in Officer Middleton s face and came through the gate. With his right leg, he then kicked Officer Middleton s left leg and made several attempts to kick towards his torso. In his report (Pet. Ex. 3), Officer Middleton wrote that the inmate spun around and spat at me. He then came through the gate and attempted to assault me by kicking me several times directed at my upper torso area.

-3- Petitioner contended that Mr. Truman did not kick Officer Middleton and that respondent s statements to this effect were false. Petitioner s primary evidence in support of this theory consisted of images collected from a surveillance camera trained on the area. These digital images, taken either two or three seconds apart, were rendered both in videotape (Pet. Ex. 6) and also, after the hearing, in printed photo (Pet. Ex. 7) formats. The printed images consist of 14 low-resolution photographs, beginning when Mr. Truman is inside the cell, with Officer Middleton standing in front of the gate, and ending after Mr. Truman is back inside the pen and Officer Middleton and respondent are both in front of the gate. The incident begins with the eighth image, taken at 6:22:39 a.m., which shows Mr. Truman pushing open the gate. In this image, Officer Middleton is just to the right of the gate facing the camera, with his right leg close to the right edge of the gate. The ninth image, taken two seconds later at 6:22:41 a.m., shows Mr. Truman outside the gate, with his hands behind his back and his legs spread apart. Officer Middleton has moved further to the right, but appears to be running back to the gate. Respondent has his right elbow bent, as if pulling something from his pants pocket. In the tenth image at 6:22:43 a.m., Mr. Truman has moved back toward the gate, his right knee is bent, and he is sideways to Officer Middleton. Officer Middleton has moved approximately one step closer and has his right elbow bent. In the eleventh image at 6:22:45 a.m., Mr. Truman is closer to the gate. Officer Middleton is standing in front of the gate and respondent is behind and to the left of Officer Middleton. In the twelfth image at 6:22:48 a.m., the gate is open and Mr. Truman is now inside, with Officer Middleton in the doorway and respondent just behind him and to the left. In the thirteenth image at 6:22:50 a.m., Mr. Truman is behind the partially open gate, Officer Middleton is on the outside pushing the gate closed, and respondent is crouched just to the right of the gate with his left arm extended. In the last image at 6:22:52 a.m., the gate is closed and Officer Middleton and respondent appear to be locking it. The surveillance images show no kicks by Mr. Truman. However, in the 6:22:39 a.m. image, as Mr. Truman is coming through the gate, he is very close to Officer Middleton and appears to be moving his body with some force. Given the inmate s aggressiveness, it is plausible that one of his feet either came in contact with Officer Middleton s leg or appeared to do so, as described by respondent. Although it was not clear that such a kick occurred, I found the evidence insufficient to support a finding that Mr. Truman s foot did not make contact with Officer Middleton s leg in a motion that could be interpreted as a kick.

-4- However, a close examination of the images suggests that Mr. Truman did not make any motion which could be reasonably interpreted as an attempt to kick Officer Middleton in the torso. Such a kick would have had to have occurred after Mr. Truman emerged from the gate and before he retreated towards the gate as Officer Middleton approached. Thus, the torso-high kick would have had to have occurred during one of the two-second intervals between the 6:22:39 a.m., 6:22:41 a.m., 6:22:43 a.m., or 6:22:45 a.m. images. The four images show no hint of any aggressive attack by Mr. Truman toward Officer Middleton or any reaction by Officer Middleton. After Mr. Truman shoves his way through the gate, he plants his feet with an open stance in the middle of the area, with Officer Middleton shifting out of his way. During the next two seconds, Mr. Truman then moves away from Officer Middleton and turns slightly away from him, while Officer Middleton appears to be reaching toward the chemical agent with his right hand. Two seconds later, Officer Middleton is in the middle of the pen door just in front of Mr. Truman. Because Mr. Truman was rearhandcuffed at the time, a waist-high kick would also have required a considerable amount of control and balance. It would also have logically caused some kind of reaction from Officer Middleton. It therefore seemed highly improbable that Mr. Truman would have been able to execute a waist-high kick during one of the two-second intervals between the four surveillance images. There was some motive for the officers to have exaggerated the aggression of Mr. Truman. According to the investigation report (Pet. Ex. 1), at the time of the incident, Officer Middleton was on probation as a result of a previous violation of the force directive. Officer Middleton may have wanted to justify his use of the chemical agent, particularly in light of his prior disciplinary history. Even though there was no evidence of a friendship between Officer Middleton and respondent, it seemed plausible that, upon being told by Officer Middleton that he was asserting that Mr. Truman tried to kick him in the torso, respondent may have incorporated this fact into his report to support his fellow officer. I thus find that the preponderance of the evidence supports a finding that Mr. Truman did not move his leg in a way that could reasonably be interpreted as an attempt to kick Officer Middleton in the torso. According to the relevant rules, officers who witness a use of force on an

-5- inmate must provide in their use-of-force report a precise description of the incident based on the writer s own observations. Directive No. 5006R-B(V)(E) (3)(b) (effective June 20, 2006). 1 I therefore find that respondent s statement in his report was false and in violation of rule 4.30.020, requiring truthful reporting, and Directive No. 5006R-B (E). FINDING AND CONCLUSION Specification 1 of DR No. B0442/08 against respondent should be sustained in that, on October 30, 2007, respondent submitted a use of force report falsely indicating that an inmate kicked another officer in the torso, in violation of Department rule 4.30.020 and Directive No. 5006R-B(V)(E)(3)(b). RECOMMENDATION Upon making the above findings, I requested and received summaries of the respondent s personnel history in order to make an appropriate penalty recommendation. He was appointed in 2006 and has no prior disciplinary history. In this case, respondent inaccurately stated that an inmate tried to kick another officer above the waist when, in fact, he had not. Because respondent himself used no force, he apparently exaggerated the force used by the inmate in order to protect his fellow officer from discipline. On the one hand, such misrepresentations are serious since they undermine the Department s ability to enforce its use of force rules. On the other hand, respondent s impulse to assist a fellow officer with no apparent benefit to himself is understandable and, given the rapidity with which the incident occurred, it seemed plausible that respondent may have been uncertain himself whether such a kick occurred, accepting the word of his fellow officer and confirming something he had not actually seen himself. Past cases suggest that, where there were few or no inmate injuries and officers had good records, penalties range from 10 to 30 days suspension. Dep t of Correction v. Johnson, OATH Index No. 1639/05 (Aug. 18, 2005), modified, Comm r Dec. (Oct. 27, 2005), modified, NYC Civ. Serv. Comm n Item No. CD07-29-M (Mar. 14, 2007) (15-day penalty where officer, with no prior record, pushed an inmate s head into a cell door and submitted a misleading report); Dep t of Correction v. Fernandez, OATH Index No. 1356/06 (Sept. 21, 2006), modified, 1 The incident in this case occurred prior to the effective date of the latest force directive, Directive No. 5006R-C, which did not become effective until January 31, 2008.

-6- Comm r Decision (Feb. 22, 2007), modified, NYC Civ. Serv. Comm n Item No. CD08-12-SA (Feb. 20, 2008) (10-day suspension where officer, without adequate warning, used spray on an inmate and submitted a misleading report); Dep t of Correction v. Hills, OATH Index No. 632/04 (Apr. 26, 2004), modified, Comm r Dec. (Oct. 28, 2004) (30-day suspension for impermissible use of force and failure to report, noting respondent s 20-year tenure and lack of prior discipline); Dep't of Correction v. Fulton, OATH Index No. 513/02 (Mar. 13, 2002), aff'd, NYC Civ. Serv. Comm'n Item No. CD03-92-SA (Sept. 18, 2003) (20-day suspension for officer who falsely denied using force against unruly inmate). Counsel for petitioner requested that respondent be suspended for 30 days should the false statement charge be sustained. This penalty seems inappropriately severe for a number of reasons. The force used against Mr. Truman was employed by another officer, not by respondent. It was conceded that the force used was justified under the Department rules. Furthermore, I found the proof insufficient to prove that the inmate did not kick Officer Middleton at all such that respondent concocted a false claim that the inmate used force when he had not. Instead, the evidence supported a finding as to the inaccuracy of exaggerating the height of the kicks observed. Accordingly, for the misconduct which was found to have occurred here, I recommend that respondent be suspended for 15 days. April 27, 2009 John B. Spooner Administrative Law Judge SUBMITTED TO: MARTIN F. HORN Commissioner APPEARANCES: ELVIN WILLIAMS, ESQ. Attorney for Petitioner KOEHLER & ISAACS, LLP Attorneys for Respondent BY: BRANDI HAWKINS, ESQ.