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Dep’t of Correction v. Holder

OATH Index No. 2208/07 (Sept. 14, 2007)

Correction officer charged with using excessive force and making a false report. Administrative law judge found agency’s video file sufficient to sustain all of the charges and recommended termination.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against –

ANDRE HOLDER

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Correction, charged that respondent Andre Holder, a correction officer, used excessive force against an inmate, submitted a false report, and wore black gloves without authorization. A hearing on the charges was conducted before me on August 16, 2007. Petitioner presented a video showing respondent striking an inmate, respondent’s written report, and also the testimony of six Department witnesses. Respondent testified on his own behalf, contending that his use of force was proper.

For the reasons provided below, I find that the evidence was sufficient to sustain the charges and recommend that respondent be terminated.

ANALYSIS

The charged incident occurred on January 1, 2007, in a vestibule at the George R. Verro Center (“GRVC”) on Riker’s Island. It was undisputed that respondent’s interaction with inmate Christopher Simmons followed a previous force incident involving Mr. Simmons and a search team. As explained by respondent, on January 1 he was assigned to the mess hall control post for the 1:00 p.m. to 9:30 p.m. tour. Late in his tour he was ordered by a security captain to join a team conducting a special search of the inmates in housing area 4B. During this search, respondent was on the upper tier and heard a commotion below. When he ran down the stairs to investigate, he saw Mr. Simmons struggling with two officers. After about 30 seconds, the inmate stopped resisting and was handcuffed. The captain ordered respondent to escort Mr. Simmons from the cell to the vestibule leading out of the area (Tr. 95-97).

The force used by the two staff members against Mr. Simmons was investigated by Captain Rodney Chestnut. He testified that, on January 1, 2007, he began his investigation of the force incident by collecting statements and ordering a copy of the surveillance video. The video was delivered approximately a week later and, when Captain Chestnut viewed it, he saw respondent strike Mr. Simmons just after the two of them passed through the vestibule door. The impact of the blow forced Mr. Simmons to his knees. While Captain Chestnut ultimately found that the force used by the captain and the officers during the search was appropriate and necessary, he found that the force used by respondent in the vestibule was excessive and recommended that charges be filed (Tr. 12-15).

Petitioner’s primary proof consisted of a surveillance video (Pet. Ex. 6). Information systems employees Michael Moreno and Ravi Meka explained that the video surveillance system at GRVC had been installed in approximately December 2006 in response to federal litigation concerning the Department monitoring of force used against inmates. The new video system went live on January 1, 2007, the date of the incident. Mr. Moreno testified that he was contacted by e-mail sometime after January 1 by Captain Hurst, the integrity control officer at GRVC. She indicated she was investigating a force incident and provided the date, time, camera number, and duration of video which she needed. In response to this request, Mr. Moreno accessed the video surveillance system and produced the DVD which the Department offered into evidence (Tr. 35-36; Pet. Ex. 6).

Respondent insisted that he struck Mr. Simmons both because he was attempting to escape and because he was too “aggressive.” He testified that, as he began to escort Mr. Simmons, the inmate was angry. Mr. Simmons screamed and cursed, calling the correction officers “punks.” Mr. Simmons began pulling ahead of respondent, trying to “lead” him, and respondent warned him to stop: “You’re not going to lead me. I’m the escort officer.” At the door to the vestibule, Mr. Simmons bumped the door with his shoulder and opened it. As the inmate “bounded” through the doorway, respondent’s hand slipped off the inmate’s handcuffs. Respondent told Mr. Simmons, “When we get to the wall you’re going to get on your knees.” After the inmate leaned to the left, respondent struck Mr. Simmons on the right rear side of his head because the inmate was “being aggressive” and respondent could see it “escalating.” Respondent had aimed only for the inmate’s shoulder, but made contact just above the shoulder because he “miscalculated.” The inmate sank to his knees and remained there until the captain came through the door behind them (Tr. 98-101).

The video capture (Pet. Ex. 6) includes two files from two different cameras located in the vestibule area. The video from the first camera, beginning at time stamp 21:17:05:734, shows respondent and Mr. Simmons move into the bottom of the camera view with their backs to the camera. At time stamp 21:17:07:656, respondent appears to guide the inmate forward toward a wall in the middle of the view. Then, at time stamp 21:17:10:359, as Mr. Simmons leans slightly to the left, respondent raises his right arm above his shoulder and strikes Mr. Simmons in the lower right of his head with an open hand. Mr. Simmons falls to his knees and respondent stands over him for several seconds before a captain wearing a white shirt comes into the frame.

The video from the second camera, taken from a vantage point directly across from the other camera, shows Mr. Simmons and respondent enter, facing the camera, through a door at time stamp 21:17:04:812. At time stamp 21:17:10:390, both Mr. Simmons and respondent have moved to the far left of the frame, with respondent completely obscured behind a wall and only Mr. Simmons’s head visible leaning to the right of the edge of the wall. At time stamp 21:17:10:656, after respondent has apparently struck Mr. Simmons, Mr. Simmons is leaning to the left with respondent above and to the right, also leaning with his left leg extended.

It was undisputed that Mr. Simmons did not report any injuries as a result of the incident.

Respondent’s contention that Mr. Simmons pulled away from him was refuted by the video, which shows Mr. Simmons complying as respondent guides him through the door and toward a wall. The video suggests that, at most, Mr. Simmons may have delayed slightly in obeying respondent’s command that he kneel. However, the video vividly shows that there was no plausible security justification for the powerful blow delivered by respondent to the back of Mr. Simmons’s head, while Mr. Simmons was rear-handcuffed. Respondent’s reasons for hitting Mr. Simmons are unclear, but it seems likely that he was angry at Mr. Simmons about something the inmate had done or said earlier, as suggested by respondent’s accusation that Mr. Simmons called correction officers “punks.” The fact that respondent concealed the degree of force he had used by writing in his report (Pet. Ex. 1) that he merely “pushed” Mr. Simmons is a further indication that respondent knew at the time the force was unwarranted and was fearful that revealing the blow might prompt disciplinary charges. Hence, respondent’s entire explanation that he used force in reaction to evasive motions by Mr. Simmons was patently incredible.[1] The blow to Mr. Simmons was unnecessary and excessive and in clear violation of Department guidelines on use of force. See Directive No. 5006R-B, section IV (B) (June 20, 2006) (force may not be used against an inmate “to punish, discipline, assault or retaliate” or “after an inmate has ceased to offer resistance”). Specification 1 must be sustained.

Respondent admitted that, in his report (Pet. Ex. 1), he did not mention striking the inmate. Instead, he wrote as follows:

Upon entering the vestibule this writer gave inmate Simmons direct verbal commands to get on his knees and face the wall after which the hulking inmate Simmons made a motion pulling away from this writer at which time this writer pushed the aggressive inmate to his knees and told him to face the wall. Inmate then complied.

It is true that, in the analysis of false reporting allegations, some latitude must be given to the author of a report and that not all inaccuracies can be found to be intentionally false. Likewise, use of imprecise language should not be punished as a false statement if it appears the author did not intend to conceal or deceive. Dep’t of Correction v. Rodriguez, OATH Index No. 277/06, at 15-16 (Mar. 29, 2006); Dep’t of Correction v. Galarza, OATH Index Nos. 348, 433/90, at 22 (June 11, 1990) (statement not sanctionable unless it is due to "some fault, not mere inadvertence or poor drafting"). However, the video in this case shows that respondent raised his arm and hand well above his shoulder and struck Mr. Simmons hard with an open hand. Respondent’s reference to this action as a “push” was not merely inaccurate. It was clearly intended to conceal the degree of force which he had used and, as such, constituted a false statement in violation of Department rule 4.30.020 and Directive No. 2006R-B section V(E)(3). Specification 2 must be sustained.

It was undisputed that, at the time of the incident, respondent was wearing black leather gloves. Respondent testified that he wore the gloves in order to better protect his hands, since razor blades or sharp objects might penetrate latex gloves (Tr. 102). There was some disagreement as to whether wearing the black leather gloves violated Department rules. Captain Chestnut was unaware of the prohibition against wearing leather gloves inside the facility (Tr. 29-30). Captain Danny Lomas was also unaware of the rule prohibiting the gloves worn by respondent and conceded that staff sometimes used them. He stated that the uniform directive “doesn’t specifically prohibit” but “tells you what you can have.” Since black leather gloves are not part of the approved Department uniform, the captain believed they were prohibited (Tr. 66-67).

However, Assistant Chief Frank Squillanti, who was assigned to GRVC during the last six months of 2006, stated that black gloves were not permitted to be used because “hard objects” might be concealed inside them. To his knowledge, only latex gloves were permitted for institutional searches, such as that to which respondent was assigned (Tr. 88). Most importantly, according to Directive No. 2270, leather gloves are permitted but “shall only be worn on outside assignments.” Directive No. 2270 VII(E) (Sept. 23, 1996). It seemed notable that, in his testimony, respondent never stated that he was unaware of the rule against wearing leather gloves or that he had observed other officers wearing black leather gloves.

Based upon the language of the rule, I found that respondent’s wearing black leather gloves constituted a uniform violation and specification 3 must also be sustained.

FINDINGS AND CONCLUSIONS

1. Specification 1 of DR 37/07 should be sustained in that, on January 1, 2007, respondent struck inmate Christopher Simmons without justification, in violation of Directive No. 5006R-B, section IV (B) (June 20, 2006).

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2. Specification 2 of DR 37/07 should be sustained in that, on January 1, 2007, respondent submitted a false report stating that he pushed inmate Christopher Simmons, in violation of Department rule 4.30.020 and Directive No. 2006R-B, section V(E)(3).

3. Specification 3 of DR 37/07 should be sustained in that, on January 1, 2007, respondent wore black gloves inside a housing area, in violation of Directive No. 2270, section VII(E) (Sept. 23, 1996).

RECOMMENDATION

Upon making the above findings, I requested and received a summary of respondent’s personnel record in order to make an appropriate penalty recommendation. Respondent was appointed as a correction officer in 2000. He has been disciplined twice. In 2004, he forfeited five vacation days for making a false report. More importantly, in 2005, he was suspended for 30 days, lost 15 vacation days, and was placed on limited probation for a year for a violation of the force directive. This severe penalty for using excessive force must significantly increase the penalty to be invoked here.

There can be little question that respondent must be terminated for the misconduct found to have occurred here. The hard blow delivered by respondent to a rear-handcuffed inmate was egregious misconduct, violating the most fundamental rules by which correction officers are prohibited from striking inmates out of anger. His effort to conceal his use of illegal force showed him to be dishonest as well as intemperate and entirely unfit to be a correction officer. The fact that respondent has already been disciplined for both excessive force and making false reports confirms that termination is the only possible outcome in this case. See Dep't of Correction v. Winslow, OATH Index No. 615/91 (June 12, 1991) (gratuitous use of force punishable by termination where respondent had significant disciplinary history).

Accordingly, I recommend that respondent be terminated for the misconduct which occurred here.

John B. Spooner

Administrative Law Judge

September 14, 2007

SUBMITTED TO:

MARTIN F. HORN

Commissioner

APPEARANCES:

DAVID K. KLOPMAN, ESQ.

Attorney for Petitioner

KOEHLER & ISAACS, LLP

Attorneys for Respondent

BY: PETER C. TROXLER, ESQ.

[1] Respondent’s credibility was further undermined by the fact that, in July 2005, he pled guilty to making a false statement regarding a prior force incident. He accepted a penalty of 12 months’ probation and loss of 15 vacation days.