Summary
In Jarrell, the hearing examiner found that the officer's use of force was justified because the person who was being arrested was a larger man of perceived strength, the officer testified that the man pumped his fist and leaned forward, and the officer reasonably perceived a threat of personal injury to himself.
Summary of this case from W. Va. State Police v. WalkerOpinion
No. 19-0907
03-26-2021
Timothy JARRELL, Respondent Below, Petitioner v. The CITY OF NITRO, West Virginia, Petitioner Below, Respondent
Mark McMillian, Esq., Mark McMillian–Attorney at Law, L.C., Charleston, West Virginia, Counsel for Petitioner Jarrell. John R. Teare, Jr., Esq., Spilman Thomas & Battle, PLLC, Charleston, West Virginia, Counsel for Respondent City of Nitro.
Mark McMillian, Esq., Mark McMillian–Attorney at Law, L.C., Charleston, West Virginia, Counsel for Petitioner Jarrell.
John R. Teare, Jr., Esq., Spilman Thomas & Battle, PLLC, Charleston, West Virginia, Counsel for Respondent City of Nitro.
HUTCHISON, Justice: The petitioner, Timothy Jarrell, appeals the September 6, 2019, order of the Circuit Court of Kanawha County, which reversed and vacated a March 30, 2019, order of the Nitro Police Department Civil Service Commission. The commission had concluded that the petitioner was improperly terminated from his employment as a police officer with the City of Nitro Police Department, but the circuit court decided that the termination was appropriate. After reviewing the parties’ written and oral arguments, the appendix record, and the pertinent legal authorities, we conclude that the circuit court impermissibly substituted its judgment for that of the commission, which was the factfinder in this matter. Accordingly, we reverse the circuit court's order and remand this case to the circuit court for entry of an order reinstating the commission's order.
I. Facts and Procedural Background
Late on a night in May 2016, Jared Hester was a customer at the Mardi Gras Casino & Resort. After drinking several alcoholic beverages, Mr. Hester went outside of the casino building, sat on a bench, and fell asleep. Casino security employees roused him and advised that he could not sleep on the bench. Mr. Hester attempted to go to his parked car, but casino employees would not allow this because he was intoxicated and they were concerned that he would drive. According to Lisa Smith, the Mardi Gras Director of Security, Mr. Hester acted aggressively, pointed his middle finger at the security staff, used profanity, and called the staff foul names. The casino staff called police.
Officers with the City of Nitro Police, including Sergeant Timothy Jarrell (the petitioner herein), responded to the call. Mr. Hester, a North Carolina resident, had not made any arrangements for lodging that night. The officers determined that Mr. Hester was publicly intoxicated and unfit to drive, but they told him that they would not arrest him if he would check into a hotel for the night. Mr. Hester ultimately agreed to this plan and accepted a ride in the casino's courtesy van to a Comfort Inn hotel approximately one mile away in Cross Lanes. In a separate vehicle, Sergeant Jarrell followed the courtesy van to the Comfort Inn. A hotel security video recording shows the van pulling up to the Comfort Inn, Mr. Hester exiting the van and walking toward the lobby doors, and Mr. Hester stopping and standing outside of the hotel. Sergeant Jarrell arrived alone, exited his own vehicle, and stood a few feet away from Mr. Hester. Mr. Hester told Sergeant Jarrell that he was not going to check into the hotel, and that Sergeant Jarrell could not make him do so. Sergeant Jarrell responded that Mr. Hester would be arrested. The video recording lacks audio, but Mr. Hester has admitted that Sergeant Jarrell instructed him to place his hands behind his back and to stop resisting arrest. The video shows that Mr. Hester did not put his hands behind his back, and instead crossed his arms in front of himself. After their short discussion, Sergeant Jarrell approached Mr. Hester and, in the process of arresting him, performed a "lateral carotid restraint." Specifically, the sergeant placed his arm around Mr. Hester's neck, briefly disrupting blood circulation and rendering Hester partially or fully unconscious. Sergeant Jarrell lowered Mr. Hester to the ground. Mr. Hester regained consciousness a few moments later, and other officers arrived at the Comfort Inn. The officers arrested Mr. Hester and charged him with public intoxication and resisting an officer; these charges were later dismissed with prejudice.
The video is black and white, has low resolution, and lacks audio, and the camera was some distance away from Mr. Hester and Officer Jarrell. Nonetheless, the two men can be seen on the recording.
The parties and the record also refer to this maneuver as a "lateral vascular restraint" or a "choke hold."
The City of Nitro (respondent herein), along with the Kanawha County Sheriff's Department, investigated to determine whether Sergeant Jarrell had acted inappropriately and used excessive force in his arrest of Mr. Hester. Sergeant Jarrell was placed on paid administrative leave and was subsequently indicted for battery and false swearing. However, at a December 2017 trial, a magistrate court jury acquitted Sergeant Jarrell of all charges.
Meanwhile, by letter dated October 19, 2017, Nitro Police Chief Robert Eggleston terminated Sergeant Jarrell's employment with the Nitro Police Department based upon his actions during the Hester arrest. Sergeant Jarrell demanded a review by an internal department hearing board, which found that he should not have been terminated. Chief Eggleston and the City of Nitro then appealed to the Nitro Police Department Civil Service Commission, which held a de novo evidentiary hearing in February 2019. During the commission's hearing, Sergeant Jarrell narrated the events shown on the hotel security video to explain why he used a lateral carotid restraint. He testified that after Mr. Hester changed his mind and refused to check in to the Comfort Inn, the sergeant informed him that he could not "wander the streets intoxicated at your level" and their "discussion [grew] more heated." The sergeant testified that he instructed Mr. Hester to "[t]urn around, put your hands behind your back. You're under arrest. I'm tired of fooling with you" but Hester responded that he was "not going to jail." The sergeant testified that he stepped closer to Mr. Hester, who was "clinching [sic] his fist." Based on his experience in law enforcement, Sergeant Jarrell was concerned that Mr. Hester was about to hit him:
The police civil service commission hearings process is set forth in West Virginia Code § 8-14-20 (1996), providing, in part:
(a) No member of any paid police department subject to the civil service provisions of this article may be removed, discharged, suspended or reduced in rank or pay except for just cause, which may not be religious or political, except as provided in section nineteen of this article; and no such member may be removed, discharged, suspended or reduced in rank or pay except as provided by the civil service provisions of this article, and in no event until the member has been furnished with a written statement of the reasons for the action. In every case of such removal, discharge, suspension or reduction, a copy of the statement of reasons therefor and of the written answer thereto, if the member desires to file such written answer, shall be furnished to the policemen's civil service commission and entered upon its records. If the member demands it, the commission shall grant a public hearing, which hearing shall be held within a period of ten days from the filing of the charges in writing or the written answer thereto, whichever shall last occur. At the hearing, the burden shall be upon the removing, discharging, suspending or reducing officer, hereinafter in this section referred to as "removing officer", to show just cause for his or her action, and in the event the removing officer fails to show just cause for the action before the commission, then the member shall be reinstated with full pay, forthwith and without any additional order, for the entire period during which the member may have been prevented from performing his or her usual employment, and no charges may be officially recorded against the member's record. The member, if reinstated or exonerated, shall, if represented by legal counsel, be awarded reasonable attorney fees to be determined by the commission and paid by the governing body. A written record of all testimony taken at the hearing shall be kept and preserved by the commission, which record shall be sealed and not be open to public inspection unless an appeal is taken from the action of the commission.
In my mind, he's contemplating swinging at me or hitting me in the face, so he is slightly belated [sic], and he's pumping his fist. So I'm thinking he's left-handed, he's going to swing with his—with his left arm. So that's what I need to watch for.
But at the same time, I've already told him, "You're under arrest, turn around, put your hands behind your back." I've told him this countless times. I have to get a response. We have to go somewhere from here.
So I reach out and touch his elbow, and that's all I intend to do at that second, because when he swings at me, I need to be prepared. So in my mind, I think he's going to swing. To my surprise, when I reach out and touch his elbow, he turns away from me.
So that's the next portion of what we're going to see [on the hotel security video]. So you see my left hand on his—on him. So if I can back up just slightly—I don't know where that put me. As I reach out to touch, prior to him turning—if I can correct myself, prior to him turning, I grab, go to pull, and he pulls away from me.
So at that point, that's what happens right here [referring to the video]. So when he pulls away, turns his back towards me, is what we're about to see. I step closer, you see me touch the elbow, grab him, he turns away....
So at this position, if you trust me sir, we're here. [Witness demonstrates move on another person in the commission's hearing room.] Now, this is not a choke. You can talk, you can do anything, you can eat a sandwich, whatever he'd like to do.
From here, I'm standing behind him. I'm relatively safe here. He could—he would have a hard time to, you know, to assault me easily. So from here, I'm telling him, "Stop, stop, stop, stop." That's what I said. That's exactly what I said, "Stop, stop, stop, stop."
He doesn't, and where things get much more dangerous, he's a very, very strong man. He's extremely strong. From this position, he's here. He just leans forward. Now, Mr.—there we go. So my feet, my heels start to come up off the ground.
It's not super pronounced in this video, but when I'm holding him here, just telling him to stop, there's no choking. There's no constriction of any airway, nothing. He starts to lean forward, and I think, "I'm going to get flipped right over his back. I'm going to land on my head on the concrete."
So at that point is when I used a carotid restraint....
... [When] my feet start[ed] to come up, the only way that I can change that is to get him back standing more direct and to use a carotid restraint. That's what I had to do.
The sergeant testified that he carefully lowered Mr. Hester to the ground, and Hester regained full consciousness a few seconds later. In response to further questioning, Sergeant Jarrell testified that alternative techniques, such as using other means of physical force to overtake Mr. Hester, sweeping Mr. Hester's legs, or using a taser or stun gun, might have been effective but posed a greater risk of harm to the intoxicated Mr. Hester because he would have fallen to the concrete sidewalk in an uncontrolled manner.
In his pre-recorded testimony, Mr. Hester acknowledged that he was intoxicated and had refused to check into the hotel. He admitted that Sergeant Jarrell instructed him to put his hands behind his back, but he could not remember whether he did so. Mr. Hester testified that he did not move during the arrest. When asked whether he had resisted arrest, Mr. Hester testified "although I don't remember a hundred percent, I don't believe that I would have[.]"
Some of the testimony at the commission's hearing was presented by live witnesses, while some was pre-recorded testimony from the magistrate court trial. The city presented Mr. Hester's testimony via prior recording.
Although the camera was positioned some distance away, the video shows that Mr. Hester did not put his hands behind his back.
The city presented testimony from its City Attorney, Johnnie Brown, who had given a training session to city police officers—including Sergeant Jarrell—just a few weeks before this arrest. Mr. Brown testified that during the training, he explained the continuum of force that police officers must follow; essentially, the more dangerous a situation is to the officer or another person, the more force that the officer may employ. The department's policy manual at the time prohibited "[a]ny use of force not reasonably necessary in light of the circumstances confronting the officer." During the training and again during the commission's hearing, Mr. Brown gave his legal opinion that the use of a lateral carotid restraint is only appropriate in situations that would justify a police officer's use of deadly force. However, Sergeant Jarrell and his witnesses opined that the technique is safe when properly applied by a person who is trained in the technique, and that it is appropriate for use in less dangerous situations. There was evidence presented during the hearing that Sergeant Jarrell had been trained in the use of this technique.
After the events herein, the Nitro Police Department's policy manual was revised to expressly limit the use of the lateral carotid restraint. In addition, in March 2016 the Legislature passed West Virginia Code § 61-2-9d (2016, amended in 2020), criminalizing the knowing and willful restriction of another person's blood flow by application of pressure on the neck or throat. However, West Virginia Code § 61-2-9d did not take effect until June 3, 2016, which is the month after Mr. Hester's arrest. Because the revised policy manual and the new statute were not in effect at the time of this arrest, they are not applicable to our decision.
In a police civil service commission proceeding, the employer has the burden of proving just cause for the discharge of an officer. After considering the evidence, the commission concluded that the City of Nitro and Chief Eggleston had not met the burden of showing just cause for terminating Sergeant Jarrell's employment. The commission found that Mr. Hester's public intoxication and disorderly conduct at the casino justified his arrest; that Sergeant Jarrell had attempted to handcuff Mr. Hester, who is "a larger man of superior size and perceived strength," but Mr. Hester resisted; that Sergeant Jarrell reasonably perceived the threat of receiving serious injury if Mr. Hester was not brought quickly under control; that Sergeant Jarrell was qualified to safely perform a lateral carotid restraint; and that the lateral carotid restraint was within the use of force continuum and was reasonable under these circumstances. Accordingly, in its March 30, 2019, "Decision Order," the commission ordered that Sergeant Jarrell be reinstated to his employment with full back pay.
See W. Va. Code § 8-14-20(a), quoted supra n.3.
Sergeant Jarrell also had an unrelated employment issue pending before the commission regarding his requested promotion to lieutenant. The commission had previously ruled that he was eligible and should have been promoted to a vacant lieutenant position, but the matter was held in abeyance pending the disposition of this discharge case. Accordingly, in addition to ordering reinstatement and back pay, the commission's March 30, 2019, order directed that Sergeant Jarrell be advanced to the rank of lieutenant nunc pro tunc.
The city appealed the commission's order to circuit court. Without holding a hearing, the circuit court reversed the commission's decision by final order entered on September 6, 2019. The focus of the circuit court's order was the court's independent review of the hotel security video. The court saw no indication from the video that Mr. Hester had "pumped his fist," leaned forward, or otherwise actively resisted arrest. At most, the court observed what it termed "passive resistance" when Mr. Hester refused to put his hands behind his back. The court concluded that Sergeant Jarrell's use of the lateral carotid restraint was excessive in light of the circumstances, and directed that the commission's order overturning the termination be vacated. Sergeant Jarrell now appeals the circuit court's order to this Court.
The circuit court also found that the commission had mischaracterized part of Mr. Hester's testimony. When asked if he had "engage[d] in any physical altercation" with the sergeant, Mr. Hester had responded "well, yes." However, the circuit court found that Mr. Hester was only referring to the physical actions taken by the officer; elsewhere in his testimony, Mr. Hester had denied resisting arrest.
II. Standard of Review
The well-settled standard of review in police civil service commission appeals requires courts to give deference to the commission's factual findings. " ‘A final order of the Civil Service Commission based upon a finding of fact will not be reversed by this Court upon appeal unless it is clearly wrong.’ Syllabus, Billings v. Civil Service Commn. , 154 W. Va. 688, 178 S.E.2d 801 (1971)." Syl. Pt. 1, Giannini v. Firemen's Civil Serv. Comm'n of Huntington , 220 W. Va. 59, 640 S.E.2d 122 (2006). Similarly, " ‘[a] final order of a police civil service commission based upon a finding of fact will not be reversed by a circuit court upon appeal unless it is clearly wrong or is based upon a mistake of law.’ Syl. Pt. 1, Appeal of Prezkop , 154 W. Va. 759, 179 S.E.2d 331 (1971)." Syl. Pt. 2, Giannini . To the extent that "the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 3, Alden v. Harpers Ferry Police Civ. Serv. Comm'n , 209 W. Va. 83, 543 S.E.2d 364 (2001) (internal quotation marks and citation omitted).
The same standards of review apply to correctional officer civil service commission appeals, which this Court explained in syllabus points one and two of In re Queen , 196 W. Va. 442, 473 S.E.2d 483 (1996), as follows:
1. An adjudicative decision of the Correctional Officers’ Civil Service Commission should not be overturned by an appellate court unless it was clearly erroneous, arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Review under this standard is narrow and the reviewing court looks to the Civil Service Commission's action to determine whether the record reveals that a substantial and rational basis exists for its decision.
2. An appellate court may reverse a decision of the Correctional Officers’ Civil Service Commission as clearly wrong or arbitrary or capricious only if the Commission used a misapplication of the law, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the Commission, or offered one that was so implausible that it could not be ascribed to a difference in view or the product of Commission expertise.
With this in mind, we turn to the parties’ arguments.
III. Discussion
Sergeant Jarrell argues that the commission's reinstatement order was based upon substantial evidence and the circuit court erred by essentially conducting a de novo review of the record and substituting its judgment for that of the commission. He argues that his use of force was objectively reasonable in light of the circumstances and potential risk of harm. The city responds that the circuit court correctly reversed the commission's order because it was objectively unreasonable for the sergeant to have used a lateral carotid restraint on a "non-combative misdemeanor suspect."
As the parties recognize, an "objectively reasonable" test applies when evaluating a claim of excessive force by a police officer:
An objective reasonableness standard is used to assess whether an officer's actions are excessive, that is, "whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."
City of Saint Albans v. Botkins , 228 W. Va. 393, 399 n. 16, 719 S.E.2d 863, 869 n. 16 (2011) (quoting Graham [v. Connor ], 490 U.S. [386], 397, 109 S.Ct. 1865 [1989] ).
The proper application of the objective reasonableness standard in an excessive force case "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham , 490 U.S. at 396, 109 S.Ct. 1865. The United States Supreme Court recently offered a more extensive list of things to consider when weighing the objective reasonableness of an officer's actions, emphasizing that the list was not exclusive:
Considerations such as the following may bear on the reasonableness or unreasonableness of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. We do not consider this list to be exclusive. We mention these factors only to illustrate the types of objective circumstances potentially relevant to a determination of excessive force.
Kingsley [v. Hendrickson , 576 U.S. 389, 397], 135 S.Ct. [2466], 2473 [(2015)] (citation omitted).
Maston v. Wagner, 236 W. Va. 488, 504, 781 S.E.2d 936, 952 (2015). The determination of the reasonableness of force " ‘is not capable of precise definition or mechanical application.’ State v. Lacy , 196 W. Va. 104, 117, 468 S.E.2d 719, 732 (1996) (quoting Graham , 490 U.S. at 396, 109 S.Ct. at 1865 )." Maston , 236 W. Va. at 504, 781 S.E.2d at 952. "There are no per se rules[,]" rather, the factfinder "must still slosh [its] way through the factbound morass of ‘reasonableness.’ " Id. (quoting Scott v. Harris , 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ).
Critically, it was the commission's job to "slosh" through the evidence in this case and to make findings of fact regarding the potential risk of harm that Sergeant Jarrell faced when arresting Mr. Hester. The commission held an evidentiary hearing and was in the best position to decide what happened, as well as to make determinations regarding witness credibility. On appeal, "a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the [lower tribunal's] account of the evidence is plausible in light of the record viewed in its entirety." Syl. Pt. 1, in part, In Re Tiffany Marie S. , 196 W. Va. 223, 470 S.E.2d 177 (1996). "[I]f the Commission's findings are based on its assessment of the credibility of witnesses and if adequately explained and supported by the record, the findings will not be overturned unless they are hopelessly incredible or they flatly contradict either the law of nature or undisputed documentary evidence." Queen , 196 W. Va. at 447, 473 S.E.2d at 488.
See , e.g. , Sims v. Miller , 227 W. Va. 395, 402, 709 S.E.2d 750, 757 (2011) ("the hearing examiner who observed the witness testimony is in the best position to make credibility judgments."); Stephen L.H. v. Sherry L.H. , 195 W. Va. 384, 395, 465 S.E.2d 841, 852 (1995) (superceded by statute on other grounds) ("There are many critical aspects of an evidentiary hearing which cannot be reduced to writing and placed in a record, e.g., the demeanor of witnesses. These factors may affect the mind of a trier of fact in forming an opinion as to the weight of the evidence and the character and credibility of the witnesses.").
The disposition of this appeal turns on the facts of the case—there are no disputed issues of law or statutory interpretation—and the commission found Sergeant Jarrell's recitation of the events to be credible. He was the only police officer present at the Comfort Inn and was in the process of arresting a man who had behaved aggressively toward casino security staff just a few minutes earlier. It is undisputed that Mr. Hester was publicly intoxicated, refused to obtain lodging for the night, and refused to put his hands behind his back. Sergeant Jarrell and the other officers had already tried to mitigate the situation by allowing Mr. Hester the opportunity to "sleep it off" in a hotel, but Mr. Hester refused this opportunity. Sergeant Jarrell testified that he saw Mr. Hester clench his fist and that Mr. Hester leaned forward causing the sergeant's heels to start coming off the ground. The sergeant testified that Mr. Hester was a large, strong man, and the sergeant feared being thrown to the concrete. Given this testimony, the commission found that it was objectively reasonable for the officer to have employed a lateral carotid restraint.
Based upon its own independent review of the security video, the circuit court doubted the veracity of some of the sergeant's testimony and concluded that the threat of harm was too low to use this type of force. However, it is impossible to see on the video whether Mr. Hester did or did not clench his fingers into a fist, and it is impossible to see on the video whether or not Sergeant Jarrell's heels were lifted off of the ground. The camera was simply too far away, and the video's resolution is too low, for this to be determined. Moreover, the video lacks any audio, so the court could not have heard the discussion between the two men in order to evaluate whether it was growing more heated, as Sergeant Jarrell testified. Although Mr. Hester denied that he moved during the arrest, he was intoxicated and admits that he cannot recall everything that happened. Critically, at the time of this arrest, there was no statute or department policy that expressly prohibited the use of the lateral carotid restraint. Changes to the Nitro Police Department's policy manual and to state law went into effect after these events. Given the particular facts and circumstances of this case, we find that the commission's findings were plausible in light of the record viewed in its entirety and were therefore not clearly wrong.
See supra , n. 6.
We recognize that the circuit court's concern about the use of force during this arrest was not without basis. Indeed, had this Court been the finder of fact, we might have ruled differently than the commission. However, when acting as an appellate reviewer, neither the circuit court nor this Court can overturn findings of fact simply because we would have decided differently. See Syl. Pt. 1, Tiffany Marie S. Accordingly, we conclude that it was error for the circuit court to have reversed and vacated the commission's order. We reverse the circuit court's September 6, 2019, order and remand this case with directions for the circuit court to reinstate the commission's order.
In his second assignment of error, Sergeant Jarrell seems to be asking this Court to declare that the lateral carotid restraint technique is a safe and appropriate maneuver for police officers to use in situations requiring the use of less-than-deadly force. We decline to address this request. We merely conclude that under the particular facts of this case, and pursuant to the law and policy in effect at the time, the circuit court erred in substituting its judgment for that of the commission on the fact-based question of whether the use of force was objectively reasonable.
IV. Conclusion
For the foregoing reasons, the circuit court's September 6, 2019, final order is reversed. The case is remanded to the circuit court for entry of an order reinstating the commission's March 30, 2019, final order.
Reversed and Remanded with Directions.
JUSTICE WOOTON dissents and reserves the right to file a separate opinion.
Wooton, Justice, dissenting:
The central issue before the Court is whether Sgt. Timothy Jarrell with the Nitro Police Department was properly terminated from his employment with the respondent The City of Nitro, West Virginia, for using a lateral carotid restraint to effect the arrest of Jared Hester, an unarmed, nonthreatening individual, for public intoxication. The circuit court, in reversing and vacating the Decision Order of the Nitro Police Department Civil Service Commission ("the Commission"), found that the evidence supported the officer's termination from employment. However, the majority reverses the circuit court's order and orders the officer's reinstatement. Because I would affirm the circuit court's decision that the Commission's decision was clearly wrong and contrary to the evidence, I respectfully dissent.
As the majority states in note 2 of the opinion, "the parties and the record also refer to this maneuver as a ‘lateral vascular restraint’ or a ‘choke hold.’ "
This Court has held that " ‘[a] final order of a police civil service commission based upon a finding of fact will not be reversed by a circuit court upon appeal unless it is clearly wrong or is based upon a mistake of law.’ Point 1, Syllabus, Appeal of Prezkop , 154 W.Va. 759, 179 S.E.2d 331 (1971)." Syl. Pt. 1, City of Logan v. Dingess , 161 W. Va. 377, 242 S.E.2d 473 (1978) (emphasis added). While this Court, and the circuit court, do give deference to the factfinder in an administrative hearing, see Frymier-Halloran v. Paige , 193 W. Va. 687, 458 S.E.2d 780 (1995), we have also said that " ‘in no case will this Court [or the circuit court] act as a rubber stamp.’ " See In re Hamrick , 204 W. Va. 357, 359, 512 S.E.2d 870, 872 (1998) (quoting In re Browning , 192 W. Va. 231, 234 n.4, 452 S.E.2d 34, 37 n.4 (1994) ).
In Frymier-Halloran , the Court found that the "clearly wrong" standards of review "are deferential ones which presume the agency's actions are valid as long as the decision is supported by substantial evidence ...." 193 W. Va. at 695, 458 S.E.2d at 788 (emphasis added).
Despite this Court's clear admonition that it will not act as a "rubber stamp" of an administrative body's determination, that is exactly what occurred in this case. There are two predominate fallacies in the majority's decision. The first fallacy arises from the majority's attempt to portray Sgt. Jarrell as being weaker than Mr. Hester and in fear of receiving serious injury. Apparently, the majority finds these characterizations necessary as a means of rationalizing why the officer was justified in using a lateral carotid restraint in effecting Mr. Hester's arrest on a petty offense. The majority states: "Sergeant Jarrell had attempted to handcuff Mr. Hester, who is ‘a larger man of superior size and perceived strength,’ but Mr. Hester resisted; ... Sergeant Jarrell reasonably perceived the threat of receiving serious injury if Mr. Hester was not brought quickly under control." Let there be no mistake, it was Sgt. Jarrell who had the upper hand in this case. According to Nitro Police Department Arrest Report of Jared Devone Hester, which was admitted into evidence below, he was twenty-nine years old, was 6’4’’, and weighed 235 pounds. Sgt. Jarrell testified that he weighed the same as Mr. Hester and was just over 6’1’’. The video evidence obtained from a hotel security camera ("the security video") of the encounter confirms that the two men were roughly the same build, a fact admitted by Sgt. Jarrell during cross-examination. The majority, however, glosses over the fact that Sgt. Jarrell is a well-trained police officer and holds a second-degree black belt in judo, a second-degree black belt in jiu-jitsu, a second-degree black belt in taekwondo, a second-degree black belt in karate, and a third-degree black belt in taiho-jutsu. Sgt. Jarrell testified that he was certified as an instructor in those disciplines of martial arts and is "recognized as a martial arts – or a defensive tactics instructor through[out] the State, as well as a use of force instructor through[out] the State[.]" Conversely, Mr. Hester was an intoxicated, nonthreatening, unarmed man. The security video evidence plainly shows that he "made no threatening movements or gestures before being placed in a choke hold[.]" As a matter of fact, the security video evinces little, if any, movement by Mr. Hester at the time the officer rendered him unconscious.
The majority adopts the Commission's position that the security video "is black and white, [and] has low resolution," and also finds that the camera was positioned "some distance away from Mr. Hester and Officer Jarrell." While the security video is without audio and is not high quality, the camera was not positioned so far away that its video did not clearly capture the encounter between Sgt. Jarrell and Mr. Hester which results in Mr. Hester being rendered unconscious.
Sgt. Jarrell testified that he had training in "defense tactics and use of force."
The second fallacy stems from the majority's mischaracterization of the review undertaken by the circuit court, all in order to support its decision to reverse and remand this case so that the officer is reinstated to his employment. In this regard, the majority focuses upon the circuit court's review of the Commission's decision as one in which the circuit court merely "overturn[ed] findings of fact simply because [it] would have decided [them] differently." Syl. Pt. 1, in part, In re Tiffany Marie S. , 196 W. Va. 223, 470 S.E.2d 177 (1996) ("[A] reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the [lower tribunal's] account of the evidence is plausible in light of the record viewed in its entirety."). That is simply not what occurred in this this case; the record demonstrates that the circuit court undertook a thorough review of all the evidence supporting the Commission's decision, focusing upon the critical evidence surrounding Mr. Hester's arrest, to wit: the testimony of Mr. Hester, the testimony of Sgt. Jarrell and the security video. The appropriate standard of review is set forth in syllabus point one of In re Tiffany Marie S .: "[F]indings [of fact] shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. " Id ., Syl. Pt. 1, in part (emphasis added).
There is ample evidence in the record to support the circuit court's judgment in this case. First, Mr. Hester testified that Sgt. Jarrell approached him while he was standing in front of the hotel and instructed him to "[p]ut your hands behind your back." Mr. Jarrell stated that he "just stood there, and when he kind of came up behind me, he kind of took my – I believe it would've been my right arm and put it behind my back." Mr. Hester further testified as follows:
Q: Did you – when he did that, did you resist him in any way?
A: No.
Q: Did you engage in any physical altercation with him there at that Comfort Inn that night?
A: Well, yes.
Q: Did you attack him?
A: No.
Q: What was the physical altercation that you had with him?
A: Well, at the point that he came around behind me and took my hand, he quickly said "Stop resisting," and put his right arm around my neck, and that was about it I remember waking up on – from being unconscious.
Q: Were you – were you resisting him?
A: No.
Q: Okay. And you were – you were actually rendered unconscious?
A: Yes.
Next, Sgt. Jarrell testified that when he told Mr. Hester that he was under arrest, Mr. Hester had his arms crossed. According to Sgt. Jarrell, Mr. Hester was "clinching [sic] his fist" and "[i]n my mind, he's contemplating swinging at me or hitting me in the face, so he is slightly belated, and he's pumping his fist. So[,] I'm thinking he's left-handed, he's going to swing with his – with his left arm." Sgt. Jarrell also testified that Mr. Hester pulled away from him and "turns his back towards" him. At this point, Sgt. Jarrell stated that he placed his arms at the sides of his neck and instructed him to stop resisting, repeating, "Stop, stop, stop, stop." Sgt. Jarrell testified that even though his arms were around the side of Mr. Hester's neck, he did not perform any lateral carotid restraint even though Mr. Hester did not comply with his command. According to Sgt. Jarrell,
where things get much more dangerous, he's [referring to Mr. Hester] a very, very strong man. He's extremely strong. From this position ... [h]e just leans forward.... So my feet, my heels start to come up off the round.
It's not super pronounced in this video, but when I'm holding him ... just telling him to stop, there's no choking. There's no constriction of any airway, nothing. He starts to lean forward, and I think, "I'm going to get flipped right over his back. I'm going to land on my head on the concrete."
So at that point is when I used a carotid restraint.
Finally, the security video clearly shows the two men conversing from a few feet apart before Sgt. Jarrell moves closer to Mr. Hester. Mr. Hester makes little, if any, movement, threatening or otherwise, toward Sgt. Jarrell before the officer moves behind Mr. Hester and applies a lateral carotid restraint, causing him to lose consciousness. The entire encounter – from Sgt. Jarrell's arrival at the hotel to his use of a lateral carotid restraint on Mr. Hester – occurs within a time frame of less than sixty seconds.
The Commission made factual findings regarding the security video based not on what the tape clearly shows but rather on an unconvincing effort to "interpret" these recorded events in order to make them more consistent with Sgt. Jarrell's testimony. In so doing, the Commission found that it
observe[d] from the security video from the Comfort Inn, which was admitted into evidence, Sgt. Jarrell arrive[s] and find[s] Mr. Hester remaining outside of the motel. Sgt. Jarrell engaged him in nearly one-half minute [thirty seconds] of dialogue, at which Mr. Hester crosses his arms in the apparent defiance as conceded in his testimony.
9. At 2 minutes 31 seconds into the video, Sgt. Jarrell first reaches to touch Mr. Hester's arm, having repeatedly told him to place his hands behind his back. (Hester testimony ...; Sgt. Jarrell, Tr. P. 250).
10. During the next 3-4 seconds, Sgt. Jarrell testified that, having seen Mr. Hester "pumping his fist" is thereby alerted under the circumstances of the danger of being punched. Sgt. Jarrell was aware that he perceived Mr. Hester was very strong, which is supported by Resp. Exhibit 9, Nitro Police Department Arrest Report of Jared Devone Hester , which lists him as 6ft-4in. tall, weighing 235 pounds at 29 years of age.
11. However, Mr. Hester pulled away and turned his back to him, whereupon Sgt. Jarrell placed his arms at the sides of his neck and instructed him to stop resisting, repeating "Stop, stop, stop, stop" as he felt Hester began to lean forward, positioning Jarrell to be thrown over Hester's back. (Tr. 251-252).
12. Because Mr. Hester did not cease the resistance, Sgt. Jarrell increased the pressure so as to engage the lateral vascular restraint, which was successful in rendering Hester momentarily unconscious, during which time he was lowered slowly to a seated position without injury.... It is only at that point that Sgt. Jarrell was able to place handcuffs on Mr. Hester and gain control of him.
(Footnote omitted).
The Commission then found that Mr. Hester's "conduct clearly placed upon Sgt. Jarrell the right to arrest him[;]" that Mr. Hester "verbally and physically resisted arrest, passively and actively[;]" that "Sgt. Jarrell announced to Mr. Hester that he was under arrest and proceeded to attempt to handcuff him, a larger man of superior size and perceived strength[;]" that "Sgt. Jarrell reasonably perceived the threat of receiving serious injuries if Hester were not brought quickly under control and used a lateral vascular restraint to do so, an approved measure that he was more than adequately qualified to safely perform[;]" and that "[t]he lateral vascular restraint was within the use of force continuum of the department and reasonable as applied to those circumstances." Based on the foregoing, the Commission found that the respondent had failed to meet its burden of showing just cause for Sgt. Jarrell's termination and ordered that he be reinstated with full pay and that he be advanced to the rank of lieutenant. The respondent appealed the decision to the circuit court.
As previously mentioned, in its review of the Commission's decision, the circuit court properly examined the evidence in the case in order in order to ascertain whether the findings of fact made by the Commission were supported by the evidence or "clearly wrong." See Dingess , 161 W. Va. at 377, 242 S.E.2d at 474, Syl. Pt. 1. The circuit court found that Sgt. Jarrell's argument that the use of a lateral carotid restraint was appropriate because Mr. Hester " ‘offered resistance’ " and "admitted during his testimony at the hearing below that he was engaged in a physical altercation" with the officer to be a "severe mischaracterization of Mr. Hester's testimony." Instead, the circuit court, after reviewing the security video, found that Mr. Hester's "only resistance, if any, was in the form of failing to put his hands behind his back within a few seconds of being ordered to do so by ... [Sgt.] Jarrell." Further, the circuit court found that Mr. Hester "repeatedly testified that he did not resist" Sgt. Jarrell during the arrest. The circuit court found that Mr. Hester testified that he only engaged in a " ‘physical altercation’ " with the officer when Sgt. Jarrell applied the lateral carotid restraint. "Mr. Hester precisely stated that he did not resist" Sgt. Jarrell.
The circuit court also found:
Here, Mr. Hester was ultimately charged with public intoxication, which is not a severe crime. He showed no indication that he was a threat to officers, himself, or others; the Arrest Report notes he was unarmed. Respondent Jarrell's argument that Hester admitted he resisted is entirely unfounded, and the record demonstrates that Hester was passively resisting at most; if at all. The need for force was low and the amount of force used, a choke hold, was relatively high, as it caused Hester to lose consciousness, despite him being relatively unscathed afterward. Respondent Jarrell did not make many efforts to limit the amount of force used, as the entire interaction at the hotel took place in roughly one minute and escalated from a conversation to a choke hold in that time. The "security problem at issue" was low, as Hester had not performed any violent or threatening actions, and his alleged crime was public intoxication. Finally, the threat perceived by the officer could not have been high enough to justify the choke hold, as Hester had done nothing to come into or threaten physical contact with either an officer or bystander and was being charged with a non-violent crime.
Finally, the circuit court found:
Respondent Jarrell was trained fewer than two weeks before this arrest, it is clear that Jarrell used more force than necessary in response to anything he could have perceived.... Here, the evidence relied upon by the Commission was that Jarrell saw Mr. Hester "pumping his fist," observed Mr. Hester to be "very strong," and finally that Mr. Hester "pulled away and turned his back to [Jarrell]" at which point Jarrell "felt Hester [begin] to lean forward, positioning Jarrell to be thrown over Hester's back." While the video contradicts much of Jarrell's characterization of the arrest, even if his statements are accepted as true, Jarrell's act of placing Mr. Hester in a choke hold and causing him to lose consciousness is excessive in light of what Jarrell perceived. The Commission's Decision Order states that "Mr. Hester clearly at first at a minimum passively resisted arrest as confirmed by his own testimony. His resistance then clearly became active, and was cautioned to ‘Stop resisting.’ " While this Court agrees that Mr. Hester failing to place his hands behind his back would constitute passive resistance, the Court cannot find any evidence of Hester actively resisting, and the Commission offers no such evidence despite its finding that "[h]is resistance then clearly became active."
Instead, the video clearly shows the two men speaking to one another for roughly 30 seconds before Jarrell moves toward Hester. They speak for another few seconds before Jarrell places his hands on Hester. Hester does not move much, if at all, for a few more seconds before Jarrell places Hester in a choke hold until Hester's body goes limp. Mr. Hester is standing up straight while being choked, never leaning forward or showing any sign of either positioning himself to toss Respondent Jarrell or any other method of resistance. Simply put, the Court FINDS that Respondent Jarrell's use of a choke hold upon Mr. Hester was excessive in light of the circumstances. Even if the Court accepts as true Jarrell's characterization of the events, it is clear that Mr. Hester's actions did not constitute a situation in which a choke hold would be proper. Respondent Jarrell had been recently trained to limit his use of choke holds to more serious situations wherein the suspect exhibits aggressive, physical behavior. Mr. Hester did not do so, and yet Jarrell responded with an incapacitating use of force.
(Some emphasis added and footnote omitted).
Based upon the all the factual discrepancies set forth by the circuit court that existed between Sgt. Jarrell's testimony, Mr. Hester's testimony, and the security video, the circuit court determined
that the Nitro Police Department Civil Service Commission committed clear error in its role as factfinder by making findings of fact that were clearly wrong and largely contradictory to both the testimony during the hearing below and the evidence presented in the record. Likewise, the Court FINDS that the Commission's conclusions of law were clearly wrong in light of the incorrect findings of fact and the application of those facts to the law.
Contrary to the majority's opinion, this determination made by the circuit court was neither a reassessment of the Commission's credibility determinations regarding the witnesses who testified nor a substitution of the Commission's judgment by the circuit court. Instead, the circuit court's decision was based upon its determination that factual findings made by the Commission were "clearly wrong," because the findings were in clear contradiction of the evidence submitted. See Dingess , 161 W. Va. 377, 242 S.E.2d 473.
The evidence in this case unequivocally supports the circuit court's decision. The events surrounding Sgt. Jarrell's arrest of Mr. Hester for public intoxication show, at best, only passive resistance which does not warrant any use of force. The facts are so clear in this case that there is no need to engage in any further analysis regarding the degree of force used by Sgt. Jarrell because no force was warranted. The circuit court found that the Nitro Police Department's "Use of Force Policy" in effect at the time of Mr. Hester's arrest, prohibited "[a]ny use of force not reasonably necessary in light of the circumstances confronting the officer." Because the record is devoid of any evidence that Mr. Hester was a threat to Sgt. Jarrell, himself, or others, which might have warranted a use of force, Sgt. Jarrell's conduct under the circumstances of this case, which undeniably violated the Nitro Police Department's policy, warranted termination.
Based upon the foregoing, I respectfully dissent.