COUNTY OF BRUNSWICK / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09 DOJ 4364
Daniel Brannon Gray
Petitioner
vs.
North Carolina Sheriff’s Education and Training Standards Commission
Respondent / )
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) PROPOSAL FOR DECISION
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IN ACCORDANCE with N.C.G.S. § 150B-40(e), respondent requested the designation of an Administrative Law Judge to preside at an Article 3A, N.C.G.S. § 150B, contested case hearing of this matter. Based upon the respondent’s request, Administrative Law Judge, J. Randall May, heard this contested case in Bolivia, North Carolina on January 13 and 14, 2010.
Appearances
Petitioner: Benedict J. Del Rey, Jr.
Respondent: John J. Aldridge, III, Special Deputy Attorney General
ISSUE
Is Respondent’s proposed denial of petitioner’s justice officer certification application supported by substantial evidence?
FINDINGS OF FACT
The Findings of Fact are made after careful consideration of the sworn testimony, whether visual and/or audio, of the witnesses presented at the hearing and the entire record in this proceeding. In making the Findings of Fact, the undersigned has weighed all the evidence or the lack thereof,; has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness; any interests, bias, or prejudice the witness may have; the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified; whether the testimony of the witness is reasonable; and whether the testimony is consistent with all other believable evidence in the case. From the sworn testimony and from the admitted evidence, the undersigned makes the following:
Summarized Procedural History
1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received notice of hearing, and the petitioner received the Notification of Probable Cause to Deny Justice Officer Certification letter mailed by the respondent on June 12, 2009.
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2. The North Carolina Sheriffs’ Education and Training Standards Commission has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12, N.C.A.C., Chapter 10B, to certify justice officers and to revoke, suspend, or deny such certification.
3. Petitioner was appointed as a part-time inactive deputy sheriff with the Columbus County Sheriff’s Office on December 30, 2008.
4. The petitioner was indicted for the felony offense of assault inflicting serious bodily injury, in violation of N.C.G.S. § 14-32.4, on January 22, 2008. This indictment alleged the petitioner “unlawfully, willfully, and feloniously did assault David King and inflict serious bodily injury, causing a fractured skull”, with the date of offense being November 29, 2007. It is interesting to note that the Petitioner was not charged with using a deadly weapon during the commission of this alleged felonious assault. Subsequently, at a criminal jury trial in Superior Court on this matter, the petitioner was found not guilty of this offense on December 17, 2008.
5. 12 N.C.A.C. 10B .0204(a)(1) provides that the commission shall revoke or deny the certification of a justice officer when the commission finds that the applicant for certification or the certified officer has committed or been convicted of a felony. 12 N.C.A.C. 10B .0103(16) defines “commission”, as it pertains to criminal offenses, as a finding by the North Carolina Sheriffs’ Education and Training Standards Commission or an administrative body, pursuant to the provisions of G.S. 150B, that a person performed the acts necessary to satisfy the elements of a specified criminal offense. Thus, the burden before the commission and in this proceeding at OAH is “by the greater weight” and not “beyond a reasonable doubt” as it was in the former criminal proceeding.
6. The criminal offense of assault inflicting serious bodily injury, in violation of N.C.G.S. § 14-32.4, constitutes a felony.
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7. Pursuant to 12 N.C.A.C. 10B .0204(b)(2) the commission shall revoke, deny, or suspend the certification of a justice officer when the commission finds that the applicant for certification or the certified officer fails to meet or maintain any of the minimum employment standards required by 12 N.C.A.C. 10B .0300. Pursuant to 12 N.C.A.C. 10B .0301(a)(8), every justice officer employed or certified in North Carolina shall be of good moral character.
8. Subsequent to receiving the Report of Appointment for petitioner from the Columbus County Sheriff’s Office, staff for the respondent conducted a required criminal history record check. It was at this point that the respondent learned of the petitioner’s previous felony charge and its disposition. Information concerning the facts and circumstances surrounding the charge of November 29, 2007 were gathered from the Columbus County Sheriff’s Office. This information was presented to the Probable Cause Committee of the respondent. This Committee subsequently found probable cause to believe that the petitioner committed the felony offense of assault inflicting serious bodily injury on November 29, 2007, and as a result, lacked the good moral character required of a justice officer.
9. The petitioner is currently employed as a civilian with a Department of Defense contract company (Triple Canopy) and is working out of Iraq. He is an applicant for certification as an inactive reserve deputy sheriff for the Columbus County Sheriff’s Office. He is a graduate of Basic Law Enforcement Training from Brunswick Community College. On November 29, 2007, he was employed as a police officer with the Holden Beach Police Department.
Statement of the Case Constituting Petitioner’s Factual Involvement
10. On November 29, 2007, in the early evening hours, the petitioner was notified from central communications that Holden Beach Police Corporal, Frank Dilworth, had activated his “man down” button. Eventually Dilworth responded over the radio that he was in a wooded area across from the Food Lion just outside the Holden Beach corporate limits. Petitioner was only five to seven minutes away and responded to the scene. When Petitioner arrived at the Food Lion, he observed Lt. Kenny Smith of the Holden Beach Police Department leaning against a tree. Smith was complaining of a shoulder injury. He observed Dilworth on the ground with David King. King was entangled in briars. Petitioner helped extricate King from the briars. At this time, the petitioner observed no injuries to King, except minor scratches from the briars.
11. Petitioner next turned his attention to Lt. Smith. As he was assisting Smith to an ambulance, Smith collapsed. Petitioner drove the ambulance and transported Smith to the hospital. After leaving Smith at the hospital for treatment, petitioner got a ride from Officer Bobby Britt of the Shallotte Police Department in order to drop petitioner back off at the Food Lion so he could pick up his patrol vehicle. Petitioner had been at the hospital approximately thirty minutes when Britt picked him up.
12. While in route from the hospital, petitioner received a Nextel transmission from Dilworth stating that King was getting rowdy and moving around a lot in the back of his patrol car. Dilworth stated that he was going to be at “Ludlum’s Produce” on Holden Beach Road. Dilworth stated that he was stopping to make adjustments with King. Shortly thereafter, Dilworth came back over the radio and stated that he was in a fight.
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13. Britt and petitioner responded immediately to the scene of Ludlum’s Produce. They arrived at the scene within a minute or two. At this point, it was approximately 6:00 to 6:30 p.m. and dark outside. Petitioner testified that when he arrived at the scene Dilworth and King were on the ground fighting. King was still handcuffed at this time but he was handcuffed in front instead of behind him. A substance, possibly pepper spray, was present on King and Dilworth. King was spitting blood on the ground and slinging blood from his hands. Petitioner saw Dilworth straddling King as they fought. He saw Dilworth hit petitioner in the face as they were fighting. King was bleeding profusely from the mouth area.
14. Petitioner pepper sprayed King but it had no effect. At this point Dilworth told Britt to “taze his ass”. Britt employed his tazer on King at this point. The first cycle of tazing caused King to comply. However, one of the probes detached from King after this and the tazer no longer had full effect.
15. Petitioner put his left foot on King’s shoulder blade in order to restrain him. Because a tazer had been employed, emergency medical services were requested to the scene. EMS subsequently arrived, as well as Deputy Bradley Hardee from the Brunswick County Sheriffs Office. While King was on his knees, petitioner removed one handcuff in order to re-handcuff King behind his back. King was then re-handcuffed behind his back.
16. Petitioner then double-locked the handcuffs and stood King up at the trunk area of Dilworth’s patrol car. Dilworth, Jeremy Dixon of the Holden Beach Police Department, and petitioner were with King at the back of Dilworth’s car. King was attempting to clear the blood from his mouth and throat and was spitting blood on the back of Dilworth’s vehicle. Petitioner pulled King’s shirt over his head in order to keep him from spitting on the trunk of the car. King was kicking at the individuals around him at this time. At one point, King’s kicks made contact with EMS employee, Evan Strickland. Dixon pinned King’s leg to the bumper of the car to keep him from kicking.
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17. King at one point faced Hardee and was still spitting. Hardee struck King with his metal flashlight in the shoulder area. Petitioner testified that Hardee struck King with the light four to five times. Petitioner denies delivering any blows to King at this time. After Strickland removed the tazer probes from King, King was cleared to be transported to jail. Since pepper spray had previously been discharged in Dilworth’s car, petitioner escorted King to Dixon’s patrol car for transport. Dixon held the right rear passenger door of his vehicle open so that petitioner could put King in the caged area of the vehicle.
18. Petitioner testified that King resisted getting into the patrol car and spit blood and saliva in petitioner’s face and mouth. Petitioner said that this incapacitated him and that he (petitioner) hit King’s head on the car roof. Petitioner stated that King was still resisting and head butted petitioner. Petitioner said he then attempted to deliver a knee strike to King’s femoral artery in order to make him compliant. Petitioner testified that King spit a second time in his face. Petitioner testified that he responded by striking King’s head on the car again. Petitioner stated that King spit in his face yet a third time. Petitioner stated that he attempted to administer a brachial plexus stun on King but because King was resisting, his punch with a closed fist hit King in the jaw. Petitioner testified that if others testified that he pushed King’s head into the light bar repeatedly, that would be a lie.
19. Petitioner testified that Hardee then assisted petitioner in putting King into the car. Petitioner testified that as they were doing this, King kicked Hardee in the face and spit on him. Petitioner stated that Hardee then pushed the left side of King’s face into the cage and Hardee delivered a blow to the right side of King’s face. Subsequently a non-rebreather mask was placed on King to prevent him from spitting.
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20. Strikes to an arrestee’s head are never authorized unless deadly force would be appropriate. Similarly, strikes to an arrestee’s head while he is handcuffed are not authorized. Petitioner believed that King had attempted to grab Dilworth’s handgun before petitioner arrived at the scene of Ludlum’s Produce because Dilworth’s pistol belt was twisted around his waist. Petitioner testified that his attempted delivery of a brachial plexus strike to King was attempted using a closed fist. The Subject Control Techniques portion of Basic Law Enforcement Training (Respondent’s exhibit 16, page 24) states that a brachial plexus stun is done with either an open hand or arm. In response to Respondent’s first set of interrogatories, petitioner stated that each time he was spit on by King that he (petitioner) was temporarily blinded. This temporary blindness however was never mentioned in petitioner’s previous statements. (Respondent’s exhibits 9, 10, 11 and 19).
21. Bobby Britt is currently employed as a police officer with the Boiling Springs Police Department. On November 29, 2007, Britt was employed as a police officer with the Shallotte Police Department. On the evening of November 29, 2007, Britt received a call for assistance from officers with the Holden Beach Police Department. Britt responded to the Food Lion just outside the city limits of Holden Beach.
22. On his arrival, Britt saw Kenny Smith seated in a patrol car. At this time, it was close to dusk. Britt observed King’s face at this point and did not observe any of the injuries to his face that were present in the photographs shown as Respondent’s exhibit 20. While at the scene, he observed Hardee escort King to Dilworth’s patrol car. He heard Hardee say, “Get out of the way”, and saw Hardee run King into the door of the vehicle. The impact struck King in the chest area and not the face. King testified that, while this hurt, he did not suffer any injuries to his face as a result. After Dilworth left the scene to transport King to the jail, Britt went to the hospital to pick up petitioner. While in route with petitioner back to the Food Lion, Britt heard a radio communication from Dilworth stating that he was at Ludlum’s Produce and that there was a problem with King’s handcuffs.