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Ex parte Key

Alabama Court of Civil Appeals

July 14, 2017

Ex parte Michael Key
City of Irondale and Jefferson County Personnel Board In re: Michael Key

         Jefferson Circuit Court, CV-15-375


          PER CURIAM

         Michael Key petitions this court for a common-law writ of certiorari, seeking review of the decision of the Jefferson Circuit Court ("the circuit court") affirming an order of the Jefferson County Personnel Board ("the Personnel Board"). The Personnel Board's order suspended Key for 30 days without pay from his position as a police officer for the City of Irondale. Key's suspension was based on an allegation that Key had used excessive force against an inmate ("the inmate") in the Irondale City Jail. The Personnel Board, however, made an express factual finding in its order that Key's actions were "necessary to further restrain the [inmate], who subsequent to being restrained, continued to engage in conduct that could be deemed disruptive and could have potentially endangered the officers present." Key's suspension is inconsistent with this express factual finding and, therefore, lacks reasonable justification. Therefore, we grant the petition and reverse the circuit court's decision.

         Facts and Procedural History

         As previously indicated, Key is a law-enforcement officer with the City of Irondale ("Irondale"). On April 9, 2015, Irondale police officers, including Key, acted to restrain and control the inmate in the Irondale City Jail. The incident was recorded with the video cameras in the jail. On May 6, 2015, Lt. Jason Wiggins, the interim chief of police of Irondale, sent a notice to Key that he was being placed on administrative leave. The notice stated the following factual basis for the disciplinary action:

"It has come to my attention that on or about Thursday, April 9, 2015, you were recorded physically assaulting a prisoner in the Irondale jail. Specifically, you were recorded striking said prisoner repeatedly in the face. It is my understanding that at the time this incident took place, the prisoner was restrained and posed no threat of physical harm to you, other officers, or civilians, it is also my understanding that as a result of your actions the prisoner suffered a broken jaw.
"You were also recorded using a taser on a restrained subject."

         On May 22, 2015, Wiggins sent Key notice of his decision to suspend him for 60 days without pay. As grounds for the suspension, Wiggins found that Key's actions violated the Irondale Use of Force Policy regarding the use of excessive force, the use of a Taser weapon against a restrained subject, and the use of a Taser weapon by an uncertified user. Wiggins also found that Key had demonstrated the following causes for disciplinary action under Jefferson County Personnel Board Rule 12.2: conduct unbecoming of a classified employee (Rule 12.2(c)); incompetence and inefficiency (Rule 12.2(g)); neglect of duty (Rule 12.2(j)); and any other legitimate and nondiscriminatory reason that constitutes good cause for disciplinary action ... (Rule 12.2(p)).

         The Irondale Use of Force Policy provides the guidelines and procedures restricting the use of excessive force. Under the policy, police officers are authorized to use force "[t]o protect themselves and/or from physical attack" or "[t]o maintain order in the jail." The policy further provides:

"The officer's use of force must be reasonable and appropriate to the situation. An officer will only use the amount of force that is necessary to bring a situation under control. An officer must exercise their discretion and judgment when using force. Officers will only use weapons ... that the officer has been qualified in and are departmentally approved.
"An officer should always attempt to resolve any situation with the least amount of force necessary to effectively bring the situation under control. An officer should always exercise restraint, discretion, and good judgment. However, it is primarily the action(s) of the subject(s) and/or the totality of the circumstances that determine what level of force is to be used. ..."

The policy authorizes the use of a Taser weapon for the following purposes:

"1. To repel human and/or animal attacks
"2. To temporarily incapacitate violently resisting subjects
"3. To defend other officers and/or citizens
"4. To maintain order in the jail or to subdue a violent inmate or arrestee when lesser means of control have failed. The Taser is not to be used on an inmate/arrestee who is only being loud, boisterous, etc."

         The policy specifies that "[o]fficers will not use the taser on subjects who are under physical restraint unless the subject(s) are still violently resisting and lesser means of controlling the subject(s) [have] failed."

         It is undisputed that Key's employment was subject to the Jefferson County Personnel Board Rules and Regulations. On May 26, 2015, Key appealed his suspension to the Personnel Board. The Personnel Board appointed a hearing officer who conducted a hearing on August 27, 2015.[1] On September 22, 2015, the hearing officer submitted a report and recommendation to the Personnel Board, which contained findings of fact and conclusions of law and recommended that the Personnel Board uphold the 60-day suspension without pay. The hearing officer provided the following summary of the testimony:

"1. Lieutenant Jason Wiggins: A report had been received by Lt. Wiggins about a disruptive and unruly inmate at the [Irondale] City Jail, who had been taken into custody after causing a disturbance in the municipal court. Lt. Wiggins explained that when he visited the jail on that occasion, he found that particular inmate in the holding area. Several other officers and a senior lead magistrate were also present at that time. The inmate expressed displeasure about, among other things, not being transported to the County Jail for processing.
"Shortly thereafter, Lt. Wiggins, who was also serving as the Interim Chief of Police at that time, left the [Irondale] City Jail to attend an employee appreciation banquet. He later received a call, as well as possibly a text message, from [Key] that the inmate was combative and needed to be placed in a restraint chair. Based on what he was aware of at the time, Lt. Wiggins had no problem with how the inmate had been treated, but he later learned that the inmate was taken to a hospital after having been tased earlier that evening by someone.
"Whenever a use of force occurs at the jail, a review is routinely undertaken relative to how such force was exercised. So he proceeded to locate the video recording of what had occurred. When he succeeded in doing so, after initially encountering some difficulty, what he saw concerned him because it appeared that an excessive amount of force had been used against the inmate. After discussing what had occurred, an incident report was prepared that led to a recommendation that [Key] be placed on administrative leave with pay.
"What seemed to bother Lt. Wiggins, after he had viewed the video recording of the incident, was that even though a de-escalation of the situation was underway, a taser had been used on the inmate while he had been restrained in the chair.
"The police department's Use of Force Review Committee later reviewed the video recording, and determined that a 60-day suspension for Officer Key was appropriate disciplinary action for the excessive use of force that had been exercised by him against the inmate.
"During cross-examination, it was admitted by Lt. Wiggins that the inmate had also kicked a door open at the jail that struck another officer who was involved. Moreover, the inmate had spat at officers that night, as well as causing human waste to spill onto the floor of his jail cell. At that time, he further acknowledged, spit masks were not available to the officers who had been assigned to the jail.
"Nonetheless, Lt. Wiggins maintained that Officer Key had been suspended simply because he exercised an excessive level of force against the inmate that was in violation of the department's policy guidelines.
"In any event, Lt. Wiggins never denied that he had initially expressed his approval of how the inmate had been treated by [Key] and his fellow officers. It was only after he had the opportunity to view the video recording that he changed his mind about what had occurred. Because of that, he reached the conclusion that the tasing of the inmate had not been necessary.
"2. Lieutenant Paul Kellogg: Lt. Kellogg was primarily responsible for the operation of the [Irondale] City Jail at that time. As such, he learned after the fact that one of the prisoners had suffered a physical injury. While initially everything seemed routine to him about how the matter was handled, after Lt. Wiggins shared a video recording of what had occurred at the jail when the prisoner was injured, an investigation was initiated soon after the recording had been reviewed by the two (2) of them. An Abuse of Force Review Committee was then organized for the purpose of more closely examining what had occurred. That committee assessed the response of [Key] to [the inmate] because of his unruly and disruptive, and even hostile, behavior.
"According to Lt. Kellogg, circumstances typically dictate how much physical force an officer should utilize in any specific situation with attention to whether there is an escalation or de-escalation of relevant conditions. Sometimes the use of a taser could be appropriate, even when a subject has been restrained, if a properly trained officer is on the scene. Moreover, even a mere verbal threat, when accompanied by the ability to violently resist on the part of a subject, can warrant a response that entails the use of physical force. Ultimately, the Use of Force Review Committee determined that ...

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