BEFORE THE KANSAS CITY
BOARD OF POLICE COMMISSIONERS
P.O. ANTHONY MELKOWSKI,
and
JAMES CORWIN,
CHIEF OF POLICE
________________________________
)
)
)
)
)
)
)
)
BOPC Case No. 07-05
P.O. MELKOWSKI’S BRIEF
TO THE HEARING OFFICER
Prepared and submitted by:
Morgan L. Roach
McCAULEY & ROACH, LLC
8080 Ward Parkway, Suite 206
Kansas City, MO 64114
Telephone: (816) 523-1700
Facsimile: (816) 523-1708
E-mail: mroach@mrlaborlaw.com
1
BEFORE THE KANSAS CITY
BOARD OF POLICE COMMISSIONERS
P.O. ANTHONY MELKOWSKI,
and
JAMES CORWIN,
CHIEF OF POLICE
________________________________
)
)
)
)
)
)
)
)
BOPC Case No. 07-05
P.O. MELKOWSKI’S BRIEF
TO THE HEARING OFFICER
Police Officer Anthony Melkowski (Officer Melkowski) submits the
following Post-Hearing Brief to the Hearing Officer in the above-captioned matter.
INTRODUCTION
On June 26, 2007, Kansas City Police Chief James Corwin moved for the
termination of Officer Melkowski by filing Charges and Specifications with the
Kansas City Board of Police Commissioners (Board).
He alleged violations
relating to excessive force and profanity which occurred on November 2, 2006 in
connection with a pedestrian check performed by Officer Melkowski and his
partner on a high-priority suspect.
Pursuant to Board policy, Officer Melkowski elected for his termination
hearing to be held by a hearing officer, and the parties subsequently selected
Hearing Officer Robert G. Bailey.
The hearing was conducted on October, 20,
2
2010 in the chambers of the Board. At the hearing, the parties presented evidence,
cross-examined witnesses, and agreed to file post-hearing briefs with the Hearing
Officer. Now the matter is before the Hearing Officer for his recommendation to
the Board.
ISSUES
Officer Melkowski submits the following issues in this matter:
Whether the Chief satisfied his burden of establishing cause to
terminate Officer Melkowski’s employment? And, if not, what is the
appropriate remedy?
STATEMENT OF FACTS
A. Officer Melkowski
The record establishes that Officer Melkowski is an accomplished officer
who has been honored with numerous citations and accolades during his ten year
career with the Department.
According to his immediate supervisor, Officer
Melkowski is an excellent employee with a good career record and very good
scores on his evaluations. (TR. P. 45). As a result, Officer Melkowksi was
selected as an elite “proactive” officer, which means that he focused on hot spots
and persons of interest within his jurisdiction instead of standard police work. (Tr.
P. 46-47). Officer Melkowski’s specific focus as a proactive officer was drug and
gun suppression.
He was assigned to a dangerous and high-crime area of
downtown Kansas City.
As part of his proactive duties, Officer Melkowski
3
attended numerous community meetings every month at which the officers and
members of the community exchanged information relevant to policing the area,
including the whereabouts and habits of red file targets.
B. Red File Targets
“Red file targets” are career criminals that have been designated by local
prosecutors and law enforcement officials as “extreme nuisances to the
community” of Kansas City. The Department conspicuously posts each red file
target’s picture, description, modus operandi, and level of threat. (Tr. P. 197, 198).
Proactive officers are instructed to place the highest priority on these individuals
and to get them to a prosecutor with evidence of any crime. (Tr. P. 196, 231).
Since his focus was gun and drug suppression, Officer Melkowski was especially
on the look-out for the so-called J-12 red file targets, who are wanted for narcotics
related offenses. (Tr. P. 21).
C. Michael Payne
On November 2, 2006, Michael Payne, of Kansas City, Kansas, was on the
Department’s list of red file target and designated J-12. (Tr. P. 84, 198). Officer
Melkowski and his partner, Officer Rares Toma, had also previously acquired
street intelligence on Payne from community meetings which confirmed Payne’s
narcotics-related activity in the area. (Tr. P. 230). Payne was such a problem to
the community that he was placed on a special list, commonly known as the
4
“banned” list, which identifies individuals who community leaders want
prosecuted even for trespassing. (Tr. P. 230-231). Along with other general
information, Payne’s Department poster warned that he had threatened police
officers with violence. (Tr. P. 198). As a result of the substantial attention given
to Payne by the Department and by the community at-large, Officer Melkowski
appropriately considered him to be a very-high priority. (Tr. P. 233).
D. November 2, 2006
While surveilling their high-crime jurisdiction on November 2, 2006,
Officers Melkowski and Toma spotted Payne rounding the corner of Armour and
Holmes. (Tr. P. 235, 236). The officers decided to initiate a routine pedestrian
check. (Tr. P. 201, 236). As they approached, Officer Toma saw Payne move his
hand toward his mouth and appear to pop something into his mouth. (Tr. P. 201,
202). Once they reached Payne, the officers placed him in handcuffs for safety
reasons. (Tr. P. 202, 236). Officer Toma then shined his flashlight into Payne’s
mouth and confirmed that he was attempting to conceal narcotics in his mouth. He
saw approximately three crack “rocks” under Payne’s tongue. (Tr. P. 203, 204).
Officer Toma immediately told Officer Melkowski that Payne had “crack in his
mouth and he’s about to swallow it.” (Tr. P. 205, 237). Officer Melkowski quickly
grabbed Payne’s adam’s apple and prevented him from swallowing to preserve the
narcotics as evidence and to keep Payne from harming himself by swallowing a
5
dangerous substance. (Tr. P. 237). 1 Payne did not choke or lose air flow. (Tr. P.
205). The officers moved Payne to the hood of the patrol car, where the remainder
of the sequence-of-events was captured by the patrol car’s camera system.
Over the next several minutes, the officers repeatedly advised Payne that it
was unsafe for him to swallow the substance and ordered him to open his mouth
and spit out the drugs. Payne did not comply with their lawful orders. Meanwhile
Officer Melkowski continued to prevent Payne from swallowing and Officer Toma
double and triple checked Payne’s mouth and confirmed that the drugs were still
present. (Tr. P. 238, 239). The officers were briefly joined by Officer Brad Lynn
and they attempted to gain compliance by using an ammonia wipe with negative
results. (Tr. P. 115). While present, Officer Lynn did not see force being utilized
which he considered to be excessive. (Tr. P. 117). Payne continued to refuse to
cooperate.
The officers attempted several other compliance techniques.
As scare
tactics, the officers discussed using certain instruments on Payne including pepper
spray, a pen, and a PR-24. These scare tactics were ineffective. As a final scare
tactic, Officer Melkowski drew his PR-24 and showed it to Payne. (Tr. P. 207209, 239). According to the command staff’s perception of the video and the
At this moment, the “pedestrian check” converted to a seizure based upon suspicion of a drug related offense. The
Chief conceded that the officers had adequate legal justification to seize Payne (Tr. P. 32, 75), and his other
witnesses confirmed that the handcuffing was standard operating procedure under these circumstances. (Tr. P. __).
Neither of those issues are disputed in this case.
1
6
testimony of the officers, Officer Melkowski did not strike Payne with the PR-24
nor did he use it to attempt to pry the drugs out of Payne’s mouth. (Tr. P. 82, 106,
178, 207, 240, 241).
After exhausting the scare tactics, Officer Melkowski released Payne’s
Adam’s apple, discontinued physical contact, and placed Payne on the sidewalk.
Officer Toma performed a visual inspection, which indicated that the drugs were
no longer in Payne’s mouth. (Tr. P. 211, 243). At about this time, Payne said “I
swallowed it,” but the video shows what appears to be a round white object
crossing the screen at 21:56:35. (Tr. P. 243-244). The object appears consistent
with a bag of crack. (Tr. P. 245??). The officers visually inspected Payne and
confirmed that he was not injured. (Tr. P. 211-212, 247-248). Officer Melkowski
offered to get Payne medical attention, but Payne rejected the offer.2 (Tr. P. 246).
The officers released Payne after Officer Melkowski lectured him about the
dangers of swallowing drugs.
A few minutes later, Payne arrived at the police station to complain about
the incident. Sgt. Arroyo took his complaint, which was only that the officers
messed up his hair. (Tr. P. 53-54, 249). Sgt. Arroyo conducted a visual inspection
and determined that Payne did not have any injuries. (Tr. P. 53-54, 249). He did
not make any allegation about Officer Melkowski’s PR-24. (Tr. P. 55, 249-250).
2
Officer Melkowski did not hear Payne previously ask for an ambulance.
7
Sgt. Arroyo advised Payne that he was a high priority target for the Department
and that he should expect to be stopped every time he is in the jurisdiction. (Tr. P.
54, 249). Payne told her that he intended to continue frequenting the area because
his “bitches and hoes” live there. (Tr. P. 54). Sgt. Arroyo ejected him from the
police station and took no action against Officer Melkowski and Officer Toma.
(Tr. P. 54-55, 249). A short time later, Payne filed a formal complaint.
Officer Melkowski was placed on paid administrative leave during most of
the resulting investigation. At the conclusion of the investigation, the Chief filed
the Charges and Specifications requesting Officer Melkowski’s termination.
Officer Melkowksi was converted to unpaid leave pending the outcome of this
proceeding.
ARGUMENT AND AUTHORITIES
For the following reasons, Chief Corwin failed to meet his burden of
establishing cause for Officer Melkowski’s termination.
A.
Officer Melkowski is Subject to Discharge Only For Cause
As a non-probationary officer, Officer Melkowski can be removed from his
employment with the Department “only for cause.” R.S.Mo. § 84.600. Under
Missouri law, termination for cause “has a recognized common law meaning”
requiring a “legal cause” that “specially relates to and affects the administration of
the office, and must be restricted to something of a substantial nature directly
8
affecting the rights and interest of the public.” Schnell v. Zobrist, et al., WD71365
at 7 (Mo. App. 2010) (internal citations omitted).
Labor arbitrators have
understood this standard to require that a violation occurred and that the chosen
amount of discipline is appropriate under all of the circumstances. E.g. Riley
Stoker Co., 7 LA 764, 767 (Platt, 1947); Grief Bros. Cooperage Corp., 42 LA 555
(Daugherty, 1964); Discipline and Discharge in Arbitration, Norman Brand, (BNA,
1998); Lodderhose v. City of Ferguson, 837 S.W.2d 361, 363 (Mo. App. 1992);
Menasha Corp. 98 LA 427 (Clark, 1987); Donaldson Mining Co., 91 LA 471, 476
(Zobak, 1988); Canteen Co., 86 LA 378, 383 (Hilger, 1986); Goodyear Tire &
Rubber Co., 98 LA 941 (Nicholas, 1992); Alpha Beta Co., 91 LA 1225 (Wilmoth,
1998); Grace Industries, Inc., 102 LA 119 (Knott, 1993); St. Clair Co., 80 LA 516
(Roumell, 1983); ITT Continental Baking Co., 79 LA 166 (Modjeska, 1982);
Ryder Truck Rental, Inc., 78 LA 554 (Allen, 1982); City of Portland Bureau of
Police, 77 LA 820 (Axon, 1981).
B.
The Chief Bears an Increased Burden in This Case
Under Missouri law, the burden of proof is on Chief Corwin to prove a for
cause termination. Schnell v. Zobrist, et al., WD71365 at 9 (Mo. App. 2010)
(internal citations omitted). Labor Arbitrators agree that an employer has the
burden in any for cause disciplinary action. E.g. Riley Stoker Co., 7 LA 764, 767
(Platt, 1947); Grief Bros. Cooperage Corp., 42 LA 555 (Daugherty, 1964);
9
Discipline and Discharge in Arbitration, Norman Brand, (BNA, 1998); Lodderhose
v. City of Ferguson, 837 S.W.2d 361, 363 (Mo. App. 1992); Menasha Corp. 98 LA
427 (Clark, 1987); Donaldson Mining Co., 91 LA 471, 476 (Zobak, 1988);
Canteen Co., 86 LA 378, 383 (Hilger, 1986); Goodyear Tire & Rubber Co., 98 LA
941 (Nicholas, 1992); Alpha Beta Co., 91 LA 1225 (Wilmoth, 1998); Grace
Industries, Inc., 102 LA 119 (Knott, 1993); St. Clair Co., 80 LA 516 (Roumell,
1983); ITT Continental Baking Co., 79 LA 166 (Modjeska, 1982); Ryder Truck
Rental, Inc., 78 LA 554 (Allen, 1982); City of Portland Bureau of Police, 77 LA
820 (Axon, 1981).
Since evidence at the hearing demonstrated that the Chief has failed to prove
cause for Officer Melkowski’s termination under any degree of proof, the Hearing
Officer should recommend to the Board that Officer Melkowski deserves no
disciplinary action irrespective of the quantum of proof applied.
However,
according to basic principles of for cause discipline, varying burdens of proof are
utilized depending upon the type of allegations made against the employee. Unlike
cases which involve everyday issues, in “cases involving … stigmatizing behavior,
many arbitrators apply a higher burden of proof, typically a ‘clear and convincing
evidence’ standard, with some arbitrators imposing the ‘beyond a reasonable
doubt’ standard.” How Arbitration Works, Elkouri and Elkouri, 6th Edition at 949953; Discipline and Discharge in Arbitration, Brand, 2nd Edition at 325-326.
10
There are a number of cases involving degree of proof in the narrow context
of a law enforcement officer accused of excessive force, which apply to this case
with significant force because they are factually similar. In many of those cases,
the fact-finder has increased the employer’s burden of proof because of the
stigmatizing effects of police brutality.
See e.g., City of Coachella, 89-1 Arb. P
8267 (Goulet, 1988) (imposing the clear and convincing evidence standard because
“a peace officer charged with police brutality is branded for life…”); Redford
Township and Poam, AAA, Case No. 54 39 0853 85 (Roumell, 1986) (applying
heightened burden of proof because “the charge of police brutality, of course,
reflects on the moral character of the officer involved…police brutality carries an
even higher degree of social stigma, and a greater impact on society at large”).
Similarly, this Hearing Officer has applied an increased burden of proof in such
matters. Fraternal Order of Police, Lodge No. 40 and Unified Government of
Wyandotte County and Kansas City, Kansas, FMCS Case No. 080909-59266-8
(September 1, 2009) (involving a sheriff’s deputy accused of starting a fight
between detention center inmates and using excessive force in the aftermath).
These authorities show that an increased burden of proof is appropriate in
this case because Officer Melkowski is accused of a stigmatizing offense which
would follow him around for the rest of his career.
11
C.
The Termination Lacks Cause Because the Department Failed to
Adequately Notify Officers of the Appropriate Amount of Force to Be
Utilized and Because the Termination is Arbitrary
To establish cause for termination, Missouri law requires an employer to
prove that the employee received proper notice of its expectations. Schnell v.
Zobrist, et al., WD71365 at 11-16 (Mo. App. 2010) (analyzing whether the officer
had received proper notice); Fritzshall v.Board of Police Commissioners, 886
S.W.2d 20, 28-29 (Mo. App. 1994) (Kansas City police officers are entitled to “fair
warning” of policy requirements); Discipline and Discharge in Arbitration,
Norman Brand, (BNA, 1998); Labor and Employement Arbitration, 19-8
(Bornstein & Gosline, eds.); see also Delta Air Lines, 89 LA 408 (Kahn, 1987).
In this case, it is apparent that the Department has failed to adequately notify
its officers of the proper amount of force to be utilized to prevent a suspect from
swallowing drugs. As Officer Melkowski testified, without contradiction by the
Chief, officers are trained only on the mere basics in use of force. (Tr. P. 226).
The Department’s Use of Force policy is of limited value because in this case
because it is too general and was also specifically criticized by the Department’s
own expert witness. (Tr. P. 161-163). Legal Bulletin 99-5, while taking priority
as the more specific policy, fails to create any semblance of a bright line rule (Tr.
P. 52, 109) and instead supplies an officer with a disorganized collection of cases
12
setting forth varying, and contradictory, holdings.3 Moreover, the Department’s
expert witness could not make heads or tails of the document and even disagreed
with some of its propositions. (Tr. P. 151-153). Under these circumstances, a
street officer such as Officer Melkowski cannot be expected to discern anything
from the Legal Bulletin that provides clear guidance. Because of these failures,
Officer Melkowksi lacked adequate notice on November 2, 2010. For this reason
alone, the termination lacks cause.
Additionally, the termination is arbitrary because the chain of command,
including the Chief, did not review or consider the Legal Bulletin in connection
with this case.4 (Tr. P. 19, 82, 104-105, 186). It seems beyond belief that these
commanders could move to terminate the employment of a ten year veteran under
the facts of this case without so much as looking at a Department-issued document
which is entitled “Force Reasonable to Prevent a Suspect From Swallowing
Drugs.”
Their testimony at the hearing, of course, suggested that their
recommendation would have been the same even if they had reviewed the Legal
Bulletin, but we will never know that for sure. Even a cursory reading of the Legal
Bulletin indicates that it supports Officer Melkowski’s position. It is possible that
the outcome of this case would have been different if the chain of command would
have read the Legal Bulletin. Their failure to properly consider such an important
3
4
The cases are inconsistent on whether choking is permitted.
Sgt. Arroyo is apparently the only exception.
13
and exculpatory document demonstrates that the termination is arbitrary and,
therefore, that it lacks cause.
The termination also seems arbitrary because the Department is now
willfully blind to the fact that it is responsible for designating Payne as a red-file
target and Officer Melkowksi as a pro-active officer, directing him to be as
aggressive as possible with red-file targets, and praising him for his aggressive
work. The Chief admitted that he was unaware of the status of both Payne and
Officer Melkowksi at the time he made his recommendation. (Tr. P. 21, 23).
Although Officer Melkowski did not acquire immunity because of these
designations, they certainly factored into what occurred on November 2, 2006.
The Chief’s recommendation is arbitrary since he failed to consider these
important facts.
D.
The Termination Lacks Cause Because Officer Melkowski Did Not
Violate the Relevant Department Use of Force Policies
Although the Department’s use of force policy is so general that it does not
expressly cover the specific issue in this case (Tr. P. 50), it does provide some very
limited guidance. The thrust of the policy is that an officer “will use that force that
is reasonably necessary to effectively bring an incident under control…” (Ex. 11
at 2). It provides no instruction on what degree of force is reasonable when a
suspect attempts to swallow drugs. However, the policy does set forth generic
14
“situational force options” which permit certain actions in response to various
forms of suspect resistance. In response to a suspect’s “active resistance,” which
occurs when a suspect “actively resists arrest in a defensive manner by taking a
defensive posture and/or indicating by their non-compliant words or actions that
they will resist or are resisting arrest,” the policy directs an officer to use empty
hand restraint tactics, nerve receptor manipulation, PR-24 baton draws (which is
the showing or presentment of the weapon (Tr. P. 160-161)), PR-24 baton armlock
restraint tactics, pepper spray, lateral vascular neck restraint, and/or the CED
(Taser).5 (Ex. 13 at 5-6).
The Legal Bulletin provides “information and guidance” to officers on its
subject matter of “Force Reasonable to Prevent a Suspect From Swallowing
Drugs.”
As admitted by the Department’s expert witness, the Legal Bulletin
provides an interpretation for officers on what is “reasonable” under the very
particular circumstances of the Payne incident. (Tr. P. 146-147). Therefore, as
admitted, it is the closest thing to a controlling document in this case. (Tr. P. 51,
187). The Legal Bulletin was distributed to all law enforcement personnel and was
also posted on all Department bulletin boards. (Tr. P. 18). The officers are
expected to read the Legal Bulletins and are accountable for the content. (Tr. P.
65).
Even if Payne only reached the level of “non-compliant,” which Officer Melkowski denies, most of these options
are still permitted by the policy.
5
15
The policy opens by stating that that “exigent circumstances, such as the
suspect placing illegal narcotics or contraband into their mouth, do not require
obtaining a search warrant due to the probability of the subject swallowing the
evidence requires the need for immediate action.”6 It then provides the holdings of
several cases from around the country to “guide” the officers on the amount of
force which is reasonable under the circumstances. The cited cases held all of the
following to be reasonable:
1. Grabbing the suspect’s throat to hold Adam’s apple and prevent swallowing
without choking. State v. Williams, 560 P.2d 1160 (Wash. App. 1977).
2. Reasonable force to prevent swallowing, but not beating or choking. State v.
Desmond, 593 So.2d 965 (La. App. 1992).
3. Forcible choking where suspect’s life is jeopardized by swallowing drugs.
Locke v. State, 588 So.2d 1082 (Fla. App. 1991).
4. Heimlich maneuver, emetic solution, pepper spray, and Capstun. Singleton
v. City of Newburgh, 1 F.Supp.2d 306 (S.D.N.Y. 1998); U.S. v. Holloway,
906 F.Supp. 1437 (D. Kan. 1995).
5. The application of a kubaton under a suspect’s nose while a second officer
applied finger pressure to the suspect’s head, causing slight swelling of
suspect’s jaw and other minor but perceptible injuries. Taylor v. McDuffie,
155 F.3d 479 (4th Cir. 1998).
6. The Lateral Vascular Neck Restraint, a “choking maneuver,” which resulted
in rendering the suspect unconscious for ten seconds in one case, State v.
Thompson, 505 N.W.2d 673 (Neb. 1993), and minor injuries in another.
State v. Lomack, 545 N.W.2d 455 (Neb. 1996).
After these case summaries, the Legal Bulletin ends by instructing the
Department’s officers that “the majority of courts hold that officers may not beat,
choke, or impair breathing” while trying to prevent a suspect from swallowing
The Chief’s witnesses gave an impression at the hearing that a suspect’s swallowing drugs was not that big of a
deal. This self-serving attitude is specifically contradicted by the Department’s own written policy stating that it
creates an exigent circumstance requiring immediate action.
6
16
drugs.
The Legal Bulletin makes it apparent that preventing a suspect from
swallowing drugs is important and is justification for a substantial amount of force.
To the extent these policies provide guidance, Officer Melkowski’s actions
on November 2, 2010 did not violate it. Payne’s failure to obey lawful orders,
refusal to open his mouth, and clinching up in a defensive manner constituted
“active resistance” under the Department use of force policy.
Consequently,
Officer Melkowski’s actions of placing his empty hands on Payne’s Adam’s apple
to restrain him from swallowing and drawing of his PR-24 were consistent with the
Department use of force policy.7
It is also evident that Officer Melkowski did not do anything during the
Payne stop that violated the cluttered guidance set forth in the Legal Bulletin, as
conceded by the Chief’s witnesses. (Tr. P. 52). After being advised by Officer
Toma that Payne was attempting to swallow drugs, Officer Melkowski held
Payne’s Adam’s apple without beating or choking him. Upon Payne’s continued
resistance, Officer Melkowski used scare tactics in an attempt to gain compliance.
Although he drew his PR-24 during these efforts, he did not apply it against Payne
in any way. Once these techniques failed, Officer Melkowski released Payne’s
Adam’s apple. He never choked or beat Payne, who was not injured in the
slightest way during the encounter. Accordingly, Officer Melkowski’s actions
7
Although Department policy does not say one way or the other, the record demonstrates that scare tactics are
permitted unless independently unreasonable. (Tr. P. 106, 187).
17
were analogous to the cases cited with approval by the Department in the Legal
Bulletin. Indeed, his actions were modest compare to some of the cases. In
particular, the Taylor case specifically determined that the physical application of
an instrument similar to a PR-24 was reasonable even though the suspect incurred
injuries.
It follows that the mere displaying of a PR-24 without physical
application, and without injury resulting is within the hazy boundaries set by the
Legal Bulletin.8
Randall Murphy, an expert witness on the issue of police use of force,
testified that Officer Melkowski’s actions during the Payne stop were reasonable
under the circumstances. (Tr. P. 271-273). So did Officer Toma. (Tr. P. 209).
The testimony of the Chief’s expert, Sgt. Charles Huth, on the other hand, is
entitled to no consideration. He admitted that his opinion was not based upon
Department policy (Tr. P. 127),9 and it was evident that his opinion was more
academic than practical. Moreover, he based his determination in significant part
on his flawed conclusion that the officers did not have the appropriate degree of
suspicion to seize Payne in the first place (Tr. P. 159) – a matter which was clearly
conceded by the Chief in favor of the officers and which the Hearing Officer
8
The record does not support a finding that Officer Melkowksi applied the PR-24 against Payne. The video does
not provide evidence of that (Tr. P. 82, 106, 178). Payne’s statement to the contrary is clearly inadmissible hearsay
and Officer Melkowski did not have opportunity to confront his accuser as provided by RSMO 84.600. Moreover, if
admitted for whatever it is worth, Payne’s statement is not worth much. Payne, who did not testify, made several
patently false accusations in his statement, and he did not even mention the PR-24 to Sgt. Arroyo immediately after
the incident. Finally, Payne’s lack of injury further discredits his accusation. The Chief cannot meet his burden on
this issue.
9
The analysis described by Sgt. Huth also does not appear anywhere in Department policy.
18
agreed was outside the scope of this proceeding. (Tr. P. 32, 75, 138).10 Sgt. Huth
clung so desperately to this belief that he argued with the Chief’s attorney (Tr. P.
138) and stated that “it all begins [with the stop] …if my initial intrusion – or
initial detention isn’t reasonable, everything that follows it must be unreasonable.
It’s just a logical conclusion that you come to there.” (Tr. P. 139-140). His
conclusion is therefore tainted by his flawed determination on the initial seizure.
His opinion was based upon the assumption that the seizure was unreasonable (Tr.
P. 159), and – in his own words – one such “variable can make the difference
between reasonable and unreasonable” if changed. (Tr. P. 158). Thus, Sgt. Huth’s
testimony should be disregarded.
Some members of the chain of command speculated at the hearing that
Officer Melkowski did not care about Payne’s health during the stop because he
failed to call an ambulance afterward.
Although the point of this testimony
appeared to be that Officer Melkowski’s only interest during the Payne stop was to
preserve evidence, the significance of this guess-work was not apparent. All of
those same witnesses admitted that officers have a duty to preserve evidence,
which by itself is a legitimate and appropriate goal. (Tr. P. 19, 49, 85, 105, 189).
Moreover, this allegation ignores the fact that the video plainly shows Officer
Melkowski and Officer Toma repeatedly voicing their concern over Payne’s health
10
Sgt. Huth appeared to fail to recognize that reasonable suspicion and probable cause do not require 100% certainty
that a crime is being committed. (Tr. P. 143-144) (suggesting that the officers conducted an unlawful stop because
they could not have “known” drugs were present without conducting a “presumptive field test.”)
19
as the events unfolded. Finally, at the conclusion of the incident, Officer
Melkowski lectured Payne about the dangers of swallowing drugs while clearly
still in the heat of the moment. (Tr. P. 191-192). The best evidence is the video
which shows Officer Melkowski’s contemporaneous statements. Obviously, the
chain of command’s speculation on this subject lacks probative value and should
be disregarded.
The Chief and his witnesses also vaguely referenced a prior disciplinary
action on Officer Melkowski’s record involving a use of force issue. The Chief did
not establish even the most basic facts of the discipline nor provide an explanation
as to what occurred. Moreover, the Chief and his witnesses admitted that they did
not even know those facts. (Tr. P. 26-27, 89). Since the record does not contain
any explanation of what happened, the Hearing Officer has no way of determining
whether the prior discipline is relevant in this matter or, if so, how much weight it
carries. The Chief bears the burden. It is his obligation to demonstrate the facts,
relevance, and applicability of prior disciplines. He failed to do so, meaning that
the vague references to Officer Melkowski’s prior discipline should be entitled to
little, if any, consideration.
It would offend the principles of for cause
employment, and Officer Melkowski’s due process rights, to blindly credit this
kind of secretive evidence.
D.
Profanity is Not Cause for Discharge
20
During the course of events, Officer Melkowski used profanity while issuing
verbal commands to Payne and while lecturing him at the conclusion of the stop.
As confirmed by the chain of command, profanity alone is not cause for
termination. (Tr. P. 24, 52, 87, 109-110, 189-190). In fact, it is not unusual for
officers to use street language when communicating with suspects. (Tr. P. 87, 245246). Consequently, the Hearing Officer should not recommend termination based
upon the profanity.
E.
Recommendations of No Disciplinary Action and a Make Whole
Remedy Are Appropriate
Officer Melkowski has demonstrated that there is not cause for his
termination, so he is entitled to a make-whole remedy. Discipline and Discharge
in Arbitration, (Brand, 2nd ed., pg. 462) (citing International Harvester Co., 15 LA
1 (Steward, 1950); City of Raymond, 121 LA 1168 (Romeo, 2005); Wayne County
Cmty. Coll., 119 LA 1303 (VanDagens, 2004); Transit Auth of River City, 118 LA
939 (Goggin, 2003)).
Therefore, it is appropriate for the Hearing Officer to
recommend to the Board that Officer Melkowski receive no disciplinary action and
a make-whole remedy, which would include reinstatement and back-pay for the
unpaid suspension he served pending the outcome of this proceeding.
CONCLUSION
21
For all of the foregoing reasons, Officer Melkowski respectfully requests the
Hearing Officer to recommend no disciplinary action and the make-whole remedy
identified above.
Respectfully Submitted,
McCAULEY & ROACH, LLC
By:___________________________
Morgan L. Roach
8080 Ward Parkway, Suite 206
Kansas City, MO 64114
Telephone: (816) 523-1700
Facsimile: (816) 523-1708
E-mail: mroach@mrlaborlaw.com
CERTIFICATE
I hereby certify that on the __ day of December, 2010 the foregoing was sent
via United States Mail and E-mail to:
James F. Ralls, Jr.
1201 W. College, Suite 200
Liberty, MO 64068
jralls@krsr.net
Chief’s Attorney
______________________________
22