Civil Service Commission of Cedar Rapids, Iowa,
No. 5-093 / 04-0143
2005 Iowa App. Lexis 257
March 31, 2005, Filed
No decision has been made on publication of this opinion.
Sackett, C.J., and Huitink and Eisenhauer, JJ.
Respondent-appellant, the Civil Service Commission of Cedar Rapids (Commission), appeals from the district court’s reversal of the Commission’s affirmance of the termination of the petitioner-appellee, Jered Peterson, from the Cedar Rapids Police Department. The Commission contends Peterson used excessive force, which constituted misconduct detrimental to the public service, justifying his termination. On de novo review, we reverse the decision of the district court.
Background facts and proceedings.
In late April 2002 Officer Peterson observed a car on I-380 in Cedar Rapids traveling faster than the speed limit. After the car exited I-380, Peterson activated his patrol car’s top lights and briefly activated his siren to stop the car. The driver ignored the officer and drove to his home, parking in the driveway. Peterson activated the video camera in the patrol car as he got out. In violation of Peterson’s commands, the driver left the car, moved away from the car, and returned to the car. Peterson shoved the driver away from the car. The driver continued to disobey Peterson’s commands. Peterson then told the driver he was under arrest, but he refused to be handcuffed. Peterson and three other officers forced the driver to the ground, pinned him down, and handcuffed him.
When the supervising sergeant arrived, two of the responding officers told the sergeant that Peterson had used what they considered excessive or unnecessary force in subduing the driver. They said Peterson struck the driver once or twice in the head with his knee while pinning him to the ground. The next day Peterson spoke with his lieutenant, who had viewed the videotape of the arrest. Peterson claimed he was only using his knee on the driver’s shoulder to subdue him pursuant to an authorized procedure Peterson was trained to do. The lieutenant told him he had “major concerns about his actions” and felt discipline was warranted for “misuse of force, lack of self control,” and an errant narrative report of the incident.
The police chief ordered an investigation by internal affairs. After the investigation and an administrative hearing, the police chief terminated Peterson’s employment as a police officer for excessive use of force during the incident. The chief thought the Peterson’s initial push was unwarranted and his use of his knee was misconduct. See Iowa Code § 400.19 (2001). Peterson appealed his termination to the Commission, which upheld the termination.
Peterson appealed the Commission’s decision to the district court, which conducted a trial de novo. See Iowa Code § 400.27. After a review of the videotape, the court found the tape did not support the city’s claim Peterson used excessive force during the incident. The court found any contact between Peterson’s knee and the driver’s head was inadvertent and not excessive. The court concluded the city failed to establish Peterson used excessive force and committed misconduct. The district court reversed the termination and ordered Peterson’s reinstatement as a police officer. The Commission appealed.
Scope of review.
Our review of the district court’s ruling is de novo although we do give weight to the trial court’s findings because of its opportunity to have personally observed the witnesses. Dolan v. Civil Serv. Comm’n, 634 N.W.2d 657, 662 (Iowa 2001). Our review is confined to the record made in the district court. Id. We do not receive new evidence, and we limit our review to the same issues raised in the district court. Id. We “independently construe the factual record as a whole to determine if the officer’s discipline was warranted.” City of Des Moines v. Civil Serv. Comm’n, 513 N.W.2d 746, 748 (Iowa 1994). For us to uphold the termination of a civil service employee, the city must prove misconduct which is detrimental to the public service. See Iowa Code § 400.19; City of Des Moines, 513 N.W.2d at 748; City of Fort Dodge v. Civil Serv. Comm’n , 562 N.W.2d 438, 440 (Iowa Ct. App. 1997). We do not consider other instances of discipline or misconduct except to determine whether the cumulative effect warrants the level of discipline imposed. See Mahaffey v. Civil Serv. Comm’n, 350 N.W.2d 184, 187 (Iowa 1984); City of Fort Dodge, 562 N.W.2d at 440.
The district court relied heavily on the videotape of the incident in finding there was no misconduct. Having reviewed the video several times at various speeds and considered the testimony of the witnesses as the videotape was reviewed at trial, we find the video does not unambiguously indicate knee strikes against the driver’s head. In the Commission’s favor are Peterson’s own statements and the fact two of the other officers involved in the incident were concerned enough about Peterson’s actions to report them to the supervising sergeant when he arrived at the scene, not a frequent occurrence among fellow police officers. We find the initial shove of the driver was unnecessary and provocative. We also find Peterson made at least one knee strike against the driver’s head during the incident.
The Cedar Rapids Police Department’s training provides for a continuum of types of force which may be used depending on the circumstances. The use of a knee strike falls in the “active countermeasures” section of the “intermediate level compliance” in types of force. The head and neck are included in “no strike zones,” reserved for higher levels of force because of the danger of severe injury or death. Iowa Code section 804.8 allows an officer to use “any force which the peace officer reasonably believes to be necessary to effect the arrest or to defend any person from bodily harm while making the arrest.” This is an objective standard. Chelf v. Civil Serv. Comm’n, 515 N.W.2d 353, 356 (Iowa Ct. App. 1994). We conclude the force used by Peterson in the incident was excessive and constituted misconduct. In arriving at this conclusion, we have given more weight to the testimony of the two officers at the scene than to Peterson’s changing accounts of the incident.
A police chief has authority to “peremptorily suspend, demote or discharge a subordinate . . . “ for “misconduct.” Iowa Code § 400.19. The term “misconduct” has no fixed meaning, but is broad enough to include relatively minor or innocuous behavior as well as flagrant and injurious breaches of decorum. Sieg v. Civil Serv. Comm’n, 342 N.W.2d 824, 829 (Iowa 1983). To support suspension or dismissal, the misconduct must be “detrimental to the public interest.” City of Des Moines, 513 N.W.2d at 748. The image presented by police personnel to the general public is vitally important to the police mission. Millsap v. Cedar Rapids Civil Serv. Comm’n, 249 N.W.2d 679, 686 (Iowa 1977). It also “permeates other aspects of the criminal justice system and impacts its overall success.” City of Fort Dodge, 562 N.W.2d at 440. Peterson’s use of excessive force in this incident calls into question his ability to perform his job as a police officer. See Chelf, 515 N.W.2d at 355. We conclude his misconduct was detrimental to the public interest.
In considering the severity of the sanction imposed, we also have considered the incident in the Wal-Mart parking lot for which Peterson received a suspension. “Prior violations of rules may be considered in determining whether the cumulative effect of an officer’s misconduct is sufficient to warrant discharge.” City of Fort Dodge, 562 N.W.2d at 440. Like the incident under review, it involved a low-speed chase, where the driver refused to stop when Peterson signaled him to do so. In the Wal-Mart parking lot the driver got out of the truck and refused to obey Peterson’s commands to lay face down on the ground. Peterson, standing at the door of his patrol car drew his gun and again ordered the driver to lay face down on the ground. The driver eventually complied. Then, instead of Peterson holstering his gun and handcuffing the driver, a verbal interchange took place in which Peterson taunted the driver to get up and try to run. We note the Wal-Mart incident occurred about eight months before the incident before us. Both incidents show Peterson reacts inappropriately in situations where his commands are not obeyed and his authority is challenged. Fortunately, no one was hurt in either incident. We conclude, however, that termination of his employment as a police officer was the reasonable next step in progressive discipline. “The discharge is not for the purpose of punishing the officer, . . . but for the protection of the public. . . . to the end that the public safety may not be imperiled.” Johnson v. Civil Serv. Comm’n, 352 N.W.2d 252, 258 (Iowa 1984) (quoting Anderson v. Civil Serv. Comm’n, 227 Iowa 1164, 1168, 290 N.W. 493, 495 (1940)).
On de novo review, we find Officer Peterson used excessive force in the incident under review. His actions constituted misconduct detrimental to the public interest. Considering his suspension for a similar prior incident, we conclude termination to be an appropriate sanction in this case. We therefore reverse the decision of the district court and uphold the Commission’s decision.