STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON
)
)SS:
)
IN CIRCUIT COURT
SEVENTH JUDICIAL CIRCUIT
FILE NO: 10-571
TIMOTHY FARMER,
Appellant,
vs.
REPLY BRIEF
CITY OF RAPID CITY and RAPID
CITY POLICE DEPARTMENT,
Appellees.
COMES NOW, Appellant, Timothy Farmer, by and through undersigned counsel, and for
his reply to Appellees' Brief submits this Reply Brief.
This Court must look no further than Appellees'own introductory fact statement to quickly
and distinctly distill this matter which is before it. That is, that "[t]he events leading to [Farmer's]
termination began on March 8,2009 ..." Appellees' Brief, p. 2 (emphasis added). Accordingly, this
should be a review of those events, the subsequent findings and evidence, if any exists, to support
those findings. Despite its statement, the City has attempted to broaden the scope of this matter in
order to take the focus away from the lack of evidence and contrary testimony to the allegation of
excessive force.
First, regarding the City's above-referenced statement and the events of March 8,2009,
Officer Farmer's actions did not rise to excessive force and the City had to admit the same after
documents produced as a result of the City's investigation did not articulate any specific violation
by Officer Farmer and, at the Department of Labor hearing, certain testimony was elicited from
them which also did not support a finding that Officer Farmer used excessive force, violated the
Use of Force Policy or any other work rule or policy nor embellished his report. The
City therefore lacked "just cause" for terminating Officer Farmer for use of excessive force. The
City's effort to manufacture "just cause" by its use of hindsight to examine these events is not
only improper but reveals anything but the suggested "thoughtful" review and decision by the
City.
Secondly, regarding its statement that the events leading to termination began on March
8, 2009, the City, nonetheless, undertook an impromptu referendum on his Officer Farmer's
"disciplinary history" to attempt to shore up its lack of "evidence" against him. These actions
violated Officer Farmer's appeal rights set forth in the Collective Bargaining Agreement. The
City goes further to swap a new finding for Officer Farmer's termination of a pattern of "poor
judgment" which, conveniently, better aligns with the "just cause" and "detrimental conduct"
language in the Collective Bargaining Agreement and moves the City away from having to stand
solely on its erroneous finding of excessive force. In so doing, the City inequitably reopens and
reassesses the Michael Slow Bear incident, which had been concluded almost two years prior and
resulted in a letter in Officer Farmer's personnel file. Absent evidence of excessive force on
March 8,2009, the City suggests the Court rely heavily upon this prior Slow Bear incident, but,
inexplicitly, asks the Court to ignore other history such as the fact that it had just promoted
Officer Fanner to a Field Training Officer position - a position reserved for officers who meet the
highest standards and makes the officers leaders by example - and that it was specifically noted
in Officer Farmer's six month evaluation, just prior to this incident, that there existed no patterns
of misconduct or corrective actions needed.
Either way, be it their hindsight standard or an unsubstantiated referendum on the
already-handled blemishes (but not achievements) in Farmer's work history, the City has failed
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to establish a violation on March 8, 2009 and therefore failed to establishjust cause for Farmer's
termination.
The standard of review is plain, if this Court finds that the Department of Labor's
findings of fact were clearly erroneous or substantial rights of the Appellant have been
prejudiced, then it may remand the case for further proceedings or reverse or modify the
decision.
The finding that Officer Farmer used excessive force in the arrest of Martinez is clearly
erroneous when examined against the City's own Use of Force Policy and Continuum and the
City's testimony specific to Officer Fanner's actions on March 8,2009. Captain Thrash testified
as follows:
Q.
A.
Exhibit M is the Use of Force Policy, is that right?
Yes.
Q.
A.
And page 2 has a section for Officers Use of Force, correct?
Yes.
Q.
A.
Q.
And the first is officer's presence, and you would agree with me that that
presence is typically brought about by the officer wearing the issued uniform
or showing some other credentials issued by the Department, being in a
marked vehicle, activating their lights and sirens?
Yes.
Then the next - if that doesn't work in getting compliance, the next would
be a verbal direction, correct? A.
Yes.
Q.
A.
Q.
A.
Q.
And that's the officer telling the person to do something or refrain from
doing something?
Yes.
And if that doesn't work, an officer can use empty hand soft techniques, is
that correct?
Yes.
And empty hand soft techniques contemplates having physical contact
with the subject?
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A.
Yes.
Q.
A.
Q.
And that physical contact is designed to gain control?
Yes.
And if that doesn't work, then you can use empty hand hard techniques,
again which would involve physical contact to gain control? A.
Yes.
Q.
And Officer Farmer on the evening of March 8th used all of those in that
sequence? A.
Yes.
Q.
A.
And that's what Officer Farmer is trained to do, to follow your policy?
Yes.
HT,pp. 181-183.
In addition, it is the opinion of Chief Allender that the actions of Officer Farmer on
March 8,2009 were "technically justified" insomuch as the facts fit and constituted a legitimate
charge by Officer Farmer. HT, pp. 230-231. In addition, Chief Allender notes that Officer
Farmer employed the Use of Force Continuum issued by the Rapid City Police Department in
compliance with its written objective. HT, p. 231. Chief Allender specifically testified that this
situation with Officer Farmer was similar to an office issuing a ticket to somebody traveling one
mile per hour over the speed limit.
In its brief, the City focuses on essentially one action, or rather inaction, by Officer
Farmer on March 8, 2009 to substantiate their contention that he used excessive force. While
completely failing to address the related aggravated assault call (the RCPD assigned it the same
case number) and the inevitable contribution and effect Martinez' and Bear's escalating conduct
had on Officer Farmer's conduct and judgment, e.g., fleeing, use of profanity, physical and
noncompliant gestures and encroaching upon Officer Farmer's reactionary gap, the City takes
issue with, using hindsight, Officer Farmer's "failure" to handcuff Martinez upon his first
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exchange with her indicating that this failure resulted in more force used against her in his next
exchange than what was necessary. However, after ignoring Officer Farmer's mere presence and
verbal directives, and after she becomes aggressive, and considering that Officer Farmer did not
have the benefit of hindsight at the time of the incident, Officer Farmer was authorized, according
to the City's Use of Force Continuum, to use empty hand soft techniques. HT, p. 25.
It simply cannot be overlooked by this Court that the City asks the trier of fact to ignore
other significant factors that played into Officer's Farmer decisions, judgments and actions on that
date. Based upon his experience and the evidence in this record, Officer Farmer had a belief that
the incident being reported at 1720 North 7th Street and the aggravated assault with a baseball bat
which had occurred at 1620 North 7th Street (just 150 yards away) were related and violence
could be imminent.
Simply summarized, what is without dispute is the fact that all parties agree that a crime
was being committed and that Officer Farmer implemented the specific policies of the Rapid City
Police Department and, more specifically, the Use of Force Continuum which authorized, in
sequence, every action used relative to effectuating control of Bear and Martinez. Stated
differently, the actions of Officer Farmer were done in strict compliance with written Department
policy, procedure and protocol.
The City makes mere mention of the content of the videos, without any specific citation to
it, to support its determination. It should be noted, however, that the video evidence reveals that
as soon as Officer Farmer apprehended Bear that Martinez aggressively approached him,
encroached upon the reactionary gap, and threatened Officer Farmer saying "you better back the
f*** off, that's my daughter." Moreover, when Officer Farmer attempted to apprehend Martinez,
Bear approached Farmer and failed to heed Officer Farmer's direction to stay back.
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Accordingly, it was not Officer Farmer's actions that led to him ultimately going hands on with
Bear and Martinez, but rather their failure to comply with police orders from their initial contact
with Officer Farmer which cannot be disputed in light of the video evidence.
Again, Officer Farmer's actions were "objectively reasonable" as they complied with the
Use of Force Continuum and in light of the fact that the suspects were actively resisting. The
only objective testimony from a witness at the scene cited by either party corroborates Officer
Farmer's position. The party reporting the gang fight noted that Bear and Martinez were attacking
Officer Farmer. The City, on the other hand, has failed to refute many of Officer Farmer's
arguments including his entire chronology, timeline and logic regarding his proper application of
the Use of Force Continuum which is the cornerstone of this matter. The City has not once offered
an explanation, in their investigation, hearing testimony, or in brief, as to how Officer Farmer's
actions did not track or comply with the Use of Force Continuum and it is not enough simply to
state that it did not. Further, there has also been some contention by the City, after debunking the
excessive force rationale it used in its findings, that Officer Farmer embellished his report. The
City has failed, altogether, to address this, as well, in its brief.
The City relies upon the Hollander v. Douglas County. 2000 SD 159, 620 N. W.2d 181
case contending that a law enforcement officer need only be rude and fail to follow an instruction
to constitute "just cause" for termination. However, what is reasonable under the circumstances
by which Officer Farmer's was operating, that is, investigating an aggravated assault call at 4:45
a.m. with clearly aggressive and resisting felony suspects in a notoriously dangerous sector of
town, cannot be compared to the reasonableness expected of the disposition or demeanor of an
officer during an office telephone call with a victim a week following the crime. The United
States Supreme Court, through the Fourth Amendment, protects the reasonable discretion of an
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officer in circumstances such as those being dealt with by Officer Farmer on March 8,2009.
The right to make an arrest or investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it. Graham v. Connor, 490 U.S. 386, 395,
104 L.Ed.2d 443, 109 S.Ct. 1865 (1989). "The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second judgments — in
circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is
necessary in a particular situation." Id.
Finally, the City makes only general objections to the seven inquiries required by the
Daugherty Test. Officer Farmer has addressed, in detail, the appropriate answer to each of these
inquires in his first brief and therefore, for purposes of this reply, would simply encourage the
Court to look at Question 7, in particular, for an absence of good cause in the City's
determination regarding Officer Farmer's termination. The City's rebuttal to this inquiry is
simply a single sentence stating "[tjhe answer to the seventh Daugherty criteria, like the first six,
is 'yes'." The City's burden of proof must be higher than this blanket statement.
Question No. 7 - Was the degree of discipline administered by the company in a
particular case reasonably related to (a) the seriousness of the employee's proven
offense and (b) the record of the employee in his service with the company? No.
Examined more closely, and as to the excessive force offense, Officer Farmer was found
to have complied with the Use of Force Policy of the Police Department and therefore
compliance with the written rules and procedures was present. Only subsequent to this proof
was Officer Farmer then noted to have been disciplined for issues concerning poor judgment
which, when looked at as a whole, consisted of comparing Officer Farmer's reaction on the night
of the incident to what other officers believe their reactions would have been, all having the
benefit of hindsight. Officer Farmer outlined his actions and his reasoning for each action to
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meet his burden in proving he did not exercise excessive force in great detail in Appellant's Brief.
Rather than setting forth and relying upon evidence or testimony in the record to support a finding
of excessive force to refute Offer Farmer's arguments, the City asserts that because Lt. Vlieger,
Cpt. Thrash, Chief Allender, Mayor Hanks and the South Dakota Department of Labor all came to
the same conclusion then, in fact, Officer Farmer used excessive force. Appellant asks this Court
to hold the City to a higher burden of proof than that offered by it.
As it pertains to his service record, it is not disputed that Officer Farmer, like many
seasoned and decorated officers currently employed with the RCPD, has had previous
unsubstantiated and substantiated complaints filed against him. The two substantiated complaints
were investigated, handled and closed. However, the City itself put those complaints to rest when
it later promoted Officer Farmer to Field Training Officer just shortly before this incident (a
position which had been sought after by several qualified employees) based upon what they cited
as Officer Farmer's experience, judgment, demeanor and other intangible qualities. Moreover,
Officer Farmer earned satisfactory or better than average scores on all performance evaluations
and two years had passed without incident since the Michael Slow Bear complaint. The City
should not now be able to rely on cured and corrected performance (as evidenced by Officer
Farmer's promotion and evaluations) from an incident that occurred almost two before to
substantiate termination for an incident for which they have failed to prove a violation by Officer
Farmer.
Officer Farmer offers, in light of his service record, that the reasonable and appropriate
discipline, if any should have been levied at all, was an alternative remedy short of discharge.
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CONCLUSION
For the foregoing reasons, Officer Farmer respectfully prays that this Court overturn the
determination the South Dakota Department of Labor regarding the termination of Officer
Farmer and reinstate him pursuant the Agreement reached between the Fraternal Order of Police
and the City of Rapid City.
Dated this^/pday of July, 2010.
CLA1
JOS & SABERS, LLP
^_
-ourtney R. CiaVborne Attorneys
for Petitioner/Appellant 2834
Jackson Blvd., §2ite 201 PO Box
Rapid City, S.D. 57709-9129
(605)721-1517
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served true and correct copies of the foregoing
REPLY BRIEF upon the persons herein next named, on the date shown below, by hand
delivery to:
Jason Green
City Attorney for City of Rapid City
300 Sixth Street
Rapid City, SD 57701
and that such address is the last address
of the addressees known to the
subscriber. Dated this 26th day
of July, 2010/