                                                                          Sep 03 2013, 5:48 am
FOR PUBLICATION




ATTORNEY FOR APPELLANTS:                           ATTORNEY FOR APPELLEE:

WILLIAM F. BERKSHIRE                               KRISTINA L. LYNN
Peru, Indiana                                      Lynn and Stein, P.C.
                                                   Wabash, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

PERU CITY POLICE DEPARTMENT and               )
CITY OF PERU,                                 )
                                              )
     Appellants-Defendants,                   )
                                              )
            vs.                               )   No. 52A02-1304-PL-350
                                              )
GREGORY MARTIN,                               )
                                              )
     Appellee-Plaintiff.                      )


                   APPEAL FROM THE MIAMI SUPERIOR COURT
                   The Honorable Richard A. Maughmer, Special Judge
                            Cause No. 52D01-1209-PL-342


                                  September 3, 2013

                           OPINION - FOR PUBLICATION

BAILEY, Judge
                                           Case Summary

        City of Peru Chief of Police Steve Hoover (“Chief Hoover”) recommended the

termination of Gregory Martin (“Martin”) from the City of Peru police force on account of

excessive force and conduct unbecoming an officer with regard to his repeated use of a Taser

upon an elderly nursing home patient. The City of Peru Board of Public Works and Safety

(“the Board”) conducted a hearing and terminated Martin’s employment. On appeal, the trial

court entered judgment reversing the termination decision, finding the Board decision to be

unsupported by substantial evidence and arbitrary and capricious. The City of Peru and the

Peru City Police Department now appeal, presenting the sole issue of whether the trial court

erroneously substituted its decision for that of the Board. We reverse the trial court.

                                  Facts and Procedural History

        On June 17, 2012, Martin was dispatched to Miller’s Merry Manor, after nurse Adam

Chambers (“Chambers”) called 9-1-1 and requested assistance to transport a combative

patient to a hospital.1 Martin was joined by Officer Jeremy Brindle (“Officer Brindle”). The

officers were admitted to the locked Alzheimer’s ward.

        After ordering the staff to stay away, the officers entered the room of James Howard

(“Howard”), a sixty-four-year-old Alzheimer’s patient. They found Howard sitting in a chair

and staring straight ahead. He was naked except for his socks. The officers commanded

Howard to get on a gurney but he did not comply. Rather, Howard began “shuffling” toward

1
 Howard had struck his roommate, a nursing assistant, and a nurse. A physician had ordered a shot of Ativan
to calm Howard after the first incident. However, Howard had a documented history of adverse reactions to
Ativan; after he was given the shot, he became more agitated. When the staff reported heightened agitation,
the physician then ordered that Howard be transported to Dukes Hospital.


                                                    2
Officer Brindle. (Tr. 217.) Howard’s fists were clenched at his sides and he had a “blank

look” as he advanced, backing Officer Brindle down a hallway to a “T” intersection. (Tr.

217.) Officer Brindle reached out and took hold of Howard’s wrists in order to handcuff

him, but lost control of one wrist.

       Martin yelled “Taser” and deployed his Taser, with the prongs contacting Howard’s

torso. (Tr. 62.) Howard fell to the floor and onto his back. He was unable or unwilling to

comply with officer commands to turn onto his stomach for handcuffing, and exhibited some

voluntary or involuntary movement when he was not immobilized by the Taser. Ultimately,

Martin used the Taser device upon Howard five times, with a total deployment of thirty-one

seconds. Three were no-prong, skin-contact deployments referred to as a drive-stun.2 The

Taser data printout revealed the following sequence:

       Initial deployment:             5 seconds
       Taser off:                      6 seconds
       Second deployment:              5 seconds
       Taser off:                     19 seconds
       Drive-Stun:                     5 seconds
       Taser off:                      2 seconds
       Drive-Stun:                     5 seconds
       Taser off:                      7 seconds
       Drive-Stun:                    11 seconds

(Tr. 586-89.) After the third Taser application, Howard was handcuffed. He was taken to

the hospital, where his injuries were documented and found to include a black eye, bruising,

marks on his side, and skin abrasions.


2
  According to Taser trainer Jon Jumper, the drive-stun technique can “greatly increase the effect … by
touching it somewhere on the body,” completing the circuit, and involving more muscles. (Tr. 291.) The
drive-stun can leave “signature marks” which are “essentially burns.” (Tr. 299.)

                                                   3
          After Howard’s wife complained about the treatment her husband had received, an

internal investigation was launched and Martin was placed on administrative leave. Chief

Hoover recommended Martin’s dismissal due to his opinion that Martin had used excessive

force and due to alleged inconsistencies between Martin’s initial report and his statements

during the internal investigation.3

          On July 30 and August 10, 2012, the Board conducted a hearing at which several

police officers and medical providers testified. Generally, the nursing home staff described

Howard as combative before the 9-1-1 call, although he was more subdued and sitting in a

chair when the officers arrived. The nursing home staff uniformly opined that Howard could

have been controlled without Taser deployment. By contrast, each of the officers involved,

Dukes Hospital EMT Marcus Corn, and paramedic Nikki Shambarger4 opined that Martin did

not use excessive force. However, Officer Brindle conceded that he and Martin could likely

have gained control over Howard had each grabbed a wrist.

          The Board found that Martin had used excessive force and engaged in conduct

unbecoming an officer. Martin was discharged from his employment and he sought review

in the trial court pursuant to Indiana Code section 36-8-3-4.

          On December 14, 2012, the trial court conducted a hearing at which counsel for the

parties represented that there was no new evidence to submit. However, the trial court

ordered the parties to submit proposed findings of fact and conclusions of law. According to

3
 A report, in handwriting that Chief Hoover believed to be Martin’s, stated that zero “touch stuns” were
implemented. (Tr. 334.)
4
    Shambarger is Martin’s fiancée.

                                                   4
the trial court’s March 18, 2013 order, the trial court “reviewed the statute, court filings, and

read in its entirety the record of the Board of Public Works and Safety of the City of Peru

related to this action.” (App. 7.) The trial court then entered more than one hundred

“reasons that the decision should not be affirmed.”5 (App. 7.) This appeal ensued.

                                          Discussion and Decision

                                            I. Standard of Review

           This Court reviews a decision of a municipal safety board as it does that of one by an

administrative agency. Ind. Code § 36-8-3-4. Our review of an administrative decision is

limited to whether the agency decision rests upon substantial evidence, whether the decision

was arbitrary and capricious, and whether it was contrary to any constitutional, statutory, or

legal principle. Fornelli v. City of Knox, 902 N.E.2d 889, 892 (Ind. Ct. App. 2009), trans.

denied. We do not conduct a de novo trial, but defer to the fact-finding of the agency, so

long as the findings are supported by substantial evidence. Id. Neither the trial court nor this

court is permitted to reweigh the evidence or reassess witness credibility. Id.

           Indiana Code section 36-8-3-4(h) provides that “[a] decision of the safety board is

considered prima facie correct, and the burden of proof is on the party appealing.” Thus, an

aggrieved party who is attacking the evidentiary support for the agency’s findings bears the

burden of demonstrating that the agency’s conclusions are clearly erroneous. Davis v. City

of Kokomo, 919 N.E.2d 1213, 1222 (Ind. Ct. App. 2010). Substantial evidence “means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”


5
    Indiana Code section 36-8-3-4(i) requires that the trial court enter specific findings.

                                                         5
Id. (citing Civil Rights Comm’n v. Marion Cnty. Sheriff’s Dep’t, 644 N.E.2d 913, 915 (Ind.

Ct. App. 1994), trans. denied). An arbitrary and capricious decision is one which is “patently

unreasonable” and made without consideration of the facts and in total disregard of the

circumstances and lacks any basis which might lead a reasonable person to the same

conclusion. City of Indpls. v. Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998), trans.

denied.

          In addition, “the discipline of police officers is within the province of the

government’s executive, rather than judicial, branch.” Sullivan v. City of Evansville, 728

N.E.2d 182, 187 (Ind. Ct. App. 2000) (citing McDaniel v. City of Evansville, 604 N.E.2d

1223, 1225 (Ind. Ct. App. 1992), trans. denied). “For this reason, we will not substitute our

judgment for that of the administrative body when no compelling circumstances are present.”

    Id.

                                               II. Analysis

          The following testimony and documentary evidence supports the Board’s

determination that Martin used excessive force and engaged in conduct unbecoming an

officer. Martin was dispatched to transport an elderly nursing home patient to a hospital. He

was admitted into a locked ward and was able to make certain observations upon his arrival

at Howard’s room: Howard was unclothed except for socks, he was seated and staring

straight ahead, and he was verbally uncommunicative. Although Martin may not have been

privy to a specific Alzheimer’s diagnosis,6 he was in a position to ascertain that the individual


6
    No witness testified to having specifically told Martin of Howard’s Alzheimer’s diagnosis. However, one

                                                      6
to be transported was an elderly and infirm person. Lieutenant Matthew Feller (“Lieutenant

Feller”) testified that, when he arrived at the hospital to photograph Howard’s injuries, he

was able to determine, “within the first minute of meeting him,” that there were “apparent …

medical issues to the point that he could not even have a discussion … or respond to any

question.” (Tr. 38.)

        Martin deployed the Taser and Howard hit the floor with a “slapping type thud.” (Tr.

189.) The impact was so forceful that several of the nursing home staff were concerned that

Howard had broken a hip or shoulder. According to Chambers, Howard “kind of flail[ed]

around on the floor” as Martin repeatedly deployed the Taser. (Tr. 189.) Howard tried to sit

up, but was unsuccessful. The multiple electrical charges put Howard into a “zonked out”

state that Chambers described as “very lethargic, if not moving at all.” (Tr. 190.) Chambers

opined that the use of the Taser was unnecessary to induce compliance, as did nursing

assistants U.L. Jones (“Jones”), Crystal Dunham, and Jodi Worden. Jones testified that he

had personally been able to hold Howard at bay earlier in the day by placing his hand on

Howard’s chest.

        Martin had, in April of 2012, been recertified on the use of a Taser, missing only one

question on his written examination. His trainer, Jon Jumper (“Jumper”) testified that Martin

had specifically been instructed – in the recertification presentation – on the increased risk of

death or serious injury for exposure over 15 seconds, whether due to multiple applications or

continuous cycling. Martin had been instructed to avoid using a Taser on an “elevated-risk

employee reported during the internal investigation that he had told Martin he “was in the Alzheimer’s unit.”
(Tr. 166.)

                                                     7
population” unless necessary and justifiable and was also instructed to attempt to verify “the

person who is being Tased is capable of complying.” (Tr. 87.) However, during the

investigation as to use of force, Martin stated to Lieutenant Feller: “I have no idea if

[Howard] could understand commands or not, he never spoke to us the entire time.” (Tr. 85.)

       The printed training materials (which had been displayed on a computer screen during

training) advised: “Officer should consider that ECD exposure for longer than 15 seconds

(whether due to multiple applications or continuous cycling) may increase the risk of death or

serious injury,” (Ex. 5, pg. 4); “Any subsequent ECD exposure (beyond 15 seconds of

multiple applications or continuous cycling) should be independently justifiable, and the risks

should be weighed against other force options,” (Ex. 5, pg. 5); “[Officer] must give adequate

time for volitional compliance: time ‘to recover from extreme pain’ experienced, opportunity

to ‘gather herself,’ opportunity to ‘consider her refusal to comply’ with officer’s

commands/directives before next force application,” (Ex. 5, pg. 13); “Person must be given a

reasonable opportunity to comply with officer’s directives prior to each ECD drive-stun

application,” (Ex. 5, pg. 14); “Any decision to apply multiple ECD [5 second] applications

must take into consideration whether a suspect is capable of complying with officers’

commands,” (Ex. 5, pg. 24); “ECD use on these individuals [including the infirm and the

elderly] could increase the risk of death or serious injury.” (Ex. 5, pg. 48.)

       Although greater duration than 15 seconds is not absolutely prohibited, the training

materials repeatedly reference 15 seconds as an important benchmark. The majority of

testing has been done for up to 15 seconds. Continued application is considered riskier and


                                              8
greater justification is required. Also, it is made plain that risks are heightened in vulnerable

populations.

        Finally, the officer is mandated to allow time for compliance. According to Jumper,

the police personnel appearing for recertification training had been informed of a

determination, in one particular case that had been litigated, that 36 seconds between Taser

applications was insufficient to facilitate compliance. Here, the benchmark time was more

than doubled – in five applications inflicted upon an elderly naked man in a nursing home,

imminently destined for a hospital. Intervals to achieve compliance were very short, with

only a two-second interval between the third and fourth deployments. Moreover, it is

noteworthy that Howard was handcuffed after the third Taser application.

        In sum, there is substantial evidence supporting the Board’s decision. It is not

“patently unreasonable.” Woods, 703 N.E.2d at 1091. The trial court disregarded evidence

favorable to that decision, credited the testimony of witnesses that the trial court did not

personally hear, and misstated evidence regarding the scope of Martin’s training.7 In short,

the trial court reweighed the evidence and reassessed the credibility of witnesses.

        Substantial evidence supports the Board’s findings, and its decision to terminate

Martin for use of excessive force and conduct unbecoming an officer was not arbitrary and

capricious.

        Reversed.


7
 Jumper specified that Exhibit 5 (consisting of Version 18 materials, supplemented with Version 17 materials)
were the recertification training materials taught to Martin via a slide presentation. Martin testified that he had
seen the slides.

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MAY, J., and BRADFORD, J., concur.




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