                                                                                FILED
                                                                        Aug 29 2017, 8:19 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Andrew R. Duncan                                           Martin R. Lucas
Ruckelshaus, Kautzman, Blackwell,                          North Judson, Indiana
Bemis & Hasbrook
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert Gray, Jr.,                                          August 29, 2017
Appellant,                                                 Court of Appeals Case No.
                                                           64A03-1703-PL-585
        v.                                                 Appeal from the Porter Superior
                                                           Court
County of Starke, Indiana,                                 The Honorable Mary Harper,
Appellee.                                                  Judge
                                                           Trial Court Cause No.
                                                           64D05-1603-PL-1980



Bailey, Judge.




Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017                           Page 1 of 14
                                           Case Summary
[1]   The Sheriff of Starke County, Indiana recommended the termination of Deputy

      Robert Gray, Jr. (“Gray”) from the Starke County Sheriff’s Department after he

      slapped a pre-trial detainee. After a public hearing, the Starke County Sheriff’s

      Merit Board (“the Merit Board”) terminated Gray’s employment. The

      termination was upheld on judicial review and Gray now appeals that order.

      We affirm.



                                                     Issues
[2]   Gray presents two issues for review:

              I.       Whether, as a matter of law, a termination decision arising
                       from an alleged violation of a law enforcement department
                       rule on use of force must be determined with reference to
                       the excessive force standard of objective reasonableness
                       enunciated in Graham v. Connor, 490 U.S. 386 (1989); and


              II.      Whether the termination is reversible because the trial
                       court erroneously found that the termination decision was
                       supported by substantial evidence by reweighing evidence,
                       assessing witness credibility, and making its own factual
                       findings.


                             Facts and Procedural History
[3]   Gray was hired in December of 2012 as a member of the Starke County

      Sheriff’s Department. On April 29, 2014, while on-duty in the Starke County

      Jail, Gray became involved in a verbal and physical incident with a pre-trial

      Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017   Page 2 of 14
      detainee, J.S. As J.S. made noises as if to spit, or as she spat, Gray slapped J.S.

      and exclaimed, “Don’t you f----g spit on people.” (Hearing Ex. D.)


[4]   Oscar Cowen, the Sheriff of Starke County, and his successor, William Dulin,

      filed written charges against Gray. As amended, the allegations concerned

      violations of four sections of the Starke County Sheriff’s Department Rules

      (“Rules”), that is: (1) Rule 4-2.2 Conduct Unbecoming to an Officer, (2) Rule 4-

      2.21 Treatment of Persons in Custody, (3) Rule 4-2.23 Use of Force, and (4)

      Rule 4-4.3 Courtesy. The Sheriff charged that Gray “slapped or struck with his

      hands a custodial prisoner … while she was seated in a restraint chair with her

      arms restrained,” “did shake his finger or hand in the face of a custodial

      prisoner in a threatening or menacing manner,” and “held his hand over the

      mouth and neck of a custodial prisoner.” (Tr. at 12.)


[5]   On October 27, 2015, the Merit Board conducted a hearing on the charges. The

      relevant facts, as found by the Merit Board, included the following:

              [J.S.] was taken to the conference room for causing disturbances
              to other inmates. Assisting Robert with restraining [J.S.] was
              Matthew Wiles, an employee of the Starke County Sheriff’s
              Department. After being escorted to the conference room, [J.S.]
              was initially left but monitored by video. On numerous
              occasions she ran into the conference room door and made loud
              screaming noises. … [J.S.] was seen punching a sleeping pad
              numerous times and taking her clothes partially off. At some
              point, Robert spoke with [J.S.] and attempted to get her to calm
              down. [J.S.] put her fingers near Robert’s face. Robert placed
              [J.S.]’s arm in a lock behind her to prevent her from swinging at
              him or causing him physical injury. Once released, [J.S.] became


      Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017   Page 3 of 14
               agitated again. At this time, Robert and Matthew Wiles decided
               to place [J.S.] in a restraint chair.


               While attempting to restrain [J.S.]’s feet in the restraint chair,
               Robert forcefully and open-handedly slapped [J.S.] across the left
               side of her face. … Following the slap across the face, Robert
               cupped [J.S.]’s chin with his hand and pushed her head
               backwards. After she was secured, Robert and Matthew exited
               the conference room.


               It was common knowledge that [J.S.] suffered from several
               mental illnesses. … Robert testified that he knew [J.S.] was
               mentally ill at the time of this incident. . . .


               The evidence supports that [J.S.] was making vulgar comments
               to Robert and Matthew Wiles before and during the time that
               they were restraining her. … The video does not show whether
               [J.S.] actually spit on Robert.


      (App. at 29-31.)1


[6]   The Merit Board additionally entered findings and conclusions thereon stating

      in relevant part:

               There is no dispute that [J.S.] was in custody at the time Robert
               open-handedly slapped her across the face. The evidence
               supports the conclusion that she was partially restrained in a
               restrain[t] chair and did not have all her extremities.




      1
        Much of the language appearing in the Findings of Fact section is actually a recitation or summary of
      testimony presented, as opposed to findings of fact derived from that testimony.

      Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017                        Page 4 of 14
        There is no direct evidence that [J.S.] spat upon Robert. There is
        circumstantial evidence suggesting that this may have happened;
        however, the Board is unable to say with absolute certainty
        whether she spat on Robert. The Board finds that regardless of
        whether [J.S.] actually spat on Robert, its decision in this matter
        would remain the same.


        Robert used excessive force under the circumstances and in
        violation of the legal authority on excessive force. Under the
        totality of the circumstances, it was not reasonable for Robert to
        open-handedly slap [J.S.] across the face when she was partially
        restrained. There is no evidence that [J.S.] was attempting to
        strike or cause substantial injury to Robert at the time he slapped
        her across the face. Rather, at the time of the slap, [J.S.] did not
        pose an immediate threat to the safety of Robert or others.


        It appears to the Board that Robert slapped [J.S.] out of anger
        rather than out of fear of bodily injury to himself. Furthermore,
        had [J.S.] in fact spit on Robert’s face, the Board finds that
        Robert could have used alternative, reasonable techniques to
        redirect the threat without engaging in an excessive slap on her
        face.


        Robert engaged in conduct that is unbecoming to an officer in
        violation of Rule 4-2.2 when he slapped [J.S.] across the face. He
        engaged in conduct on duty that reflected unfavorably upon the
        Department and which brings the Department into disrepute.
        The Board finds that his conduct was especially shameful in light
        of the fact that Robert had knowledge about [J.S.]’s mental
        illnesses.


        Robert mistreated a person in custody in violation of Rule 4-2.21
        when he slapped [J.S.] across the face at a time when she did not
        pose an immediate threat to him or others.


Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017   Page 5 of 14
              Robert used more force than what was reasonably necessary
              under the circumstances in violation of Rule 4-2.23.


              Robert failed to use courtesy in violation of Rule 4-4.3. Robert
              failed to control his temper, and while acting in the course of his
              duties, and engaged in a violent act against an inmate.


      (App. at 33.)


[7]   The Merit Board ordered that Gray’s employment be immediately terminated.

      On January 8, 2016, Gray brought a civil action for judicial review naming

      Starke County (“the County”) as the defendant. His petition for change of

      venue from the county was granted on February 8, 2016.


[8]   On October 31, 2016, argument of counsel was heard at a hearing on the

      petition for judicial review, conducted in the Porter Superior Court. On March

      1, 2017, the trial court issued an order affirming the employment termination

      decision. This appeal ensued.



                                  Discussion and Decision
                                         Standard of Review
[9]   Indiana Code Section 36-8-10-11(a) provides in relevant part: “The sheriff may

      dismiss, demote, or temporarily suspend a county police officer for cause after

      preferring charges in writing and after a fair public hearing before the board,

      which is reviewable in the circuit court.” Subsection (d) provides that the

      appeal is to be taken by filing in court, within thirty days after the decision is


      Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017     Page 6 of 14
       rendered, a verified complaint stating in a concise manner the general nature of

       the charges, the decision, and a demand for relief. The appeal shall be heard de

       novo only upon any new issues related to the charges. The final judgment may

       be appealed by either party. I.C. § 36-8-10-11(h). Because discipline is to be

       imposed only “for cause,” the allegations must bear a reasonable relationship to

       the officer’s fitness or capacity to hold his or her job. Pope v. Marion Cty. Sheriff’s

       Merit Board, 157 Ind. Ct. App. 636, 301 N.E.2d 386, 391 (1973).


[10]   Our review of an administrative action is very limited. Bird v. Cty. of Allen, 639

       N.E.2d 320, 327 (Ind. Ct. App. 1994). We give deference to the expertise of the

       administrative body, which includes a police merit commission. Id. We will

       not reverse its discretionary decision without a showing that the decision was

       arbitrary and capricious, an abuse of discretion, or otherwise not in accordance

       with the law. Id. Our review is limited to determining whether the

       administrative body adhered to proper legal procedure and made a finding

       based upon substantial evidence in accordance with appropriate constitutional

       and statutory provisions. Id. We do not substitute our judgment for that of the

       administrative body, or modify a penalty imposed in a disciplinary action,

       absent a showing that the action was arbitrary and capricious. Id. at 327-28.


[11]   “An arbitrary and capricious decision, which the challenging party bears the

       burden of proving, is a decision which is willful and unreasonable, made

       without any consideration of the facts and in total disregard of the

       circumstances, and lacks any basis which might lead a reasonable and honest

       person to the same decision.” Id. at 328. Substantial evidence is such relevant

       Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017    Page 7 of 14
       evidence as a reasonable mind might accept as being adequate to support a

       conclusion. Id. We do not reweigh the evidence upon review. Id.


[12]   Additionally, “[t]he discipline of police officers is within the province of the

       executive branch of government, not the judicial branch. For this reason, we

       will not substitute our judgment for that of the administrative body when no

       compelling circumstances are present.” Winters v. City of Evansville, 29 N.E.3d

       773, 781 (Ind. Ct. App. 2015) (citation omitted).


                                Violation of Use of Force Rule
[13]   One of the Merit Board’s conclusions was that Gray violated Rule 4.2-23

       pertaining to use of force.2 At the review hearing, Gray argued that the “Board

       misapplied the law,” Tr. at 10, and urged that the trial court consider the

       evidence of his use of force in light of the objective reasonableness standard

       described in Graham, and applied in Prymer v. Ogden, 29 F.3d 1208 (7th Cir.

       1994). The County argued that those cases involved tort claims against a

       government unit and their objective reasonableness standard did not control

       employment disciplinary proceedings. The County further argued that it lacked

       standing to assert that Gray had committed a Constitutional tort against J.S.,

       but had merely alleged Rule violations. The trial court agreed with the Merit

       Board that Graham was instructive but not controlling.




       2
        The Rule required that “Employee shall not use more force in any situation than is reasonably necessary
       under the circumstances.” (Tr. at 19.)

       Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017                      Page 8 of 14
[14]   On appeal, Gray argues that the termination order must be reversed because he

       was entitled to – and did not receive – review of his use of force consistent with

       the guidance of Graham and Prymer although the Merit Board purportedly

       “invited [that] review.” Appellant’s Brief at 13. Acknowledging that other

       Rule violations were found, he further argues that the other charges arose from

       and were essentially part of his use of force.3 At bottom, his contention is that

       an officer who uses force cannot be dismissed for conduct that is “objectively

       reasonable” and his conduct was objectively reasonable because J.S. had

       become “an attacker.” Appellant’s Brief at 26.


[15]   The primary case upon which Gray relies is Graham. In a 42 U.S.C. § 1983

       claim, Graham sought an award of damages for injuries allegedly sustained

       when police officers used physical force against him during an investigatory

       stop. Graham, 490 U.S. at 395. The district court entered a directed verdict and

       the appellate court affirmed the judgment. On certiorari, the Court was called

       upon to decide what standard should govern when a free citizen made a claim

       that a police officer used excessive force in an arrest, investigatory stop, or

       seizure. See id. The Court determined that such claims are analyzed under the




       3
        Rule 4-2.21 provided: “Employees shall not mistreat persons who are in their custody. Employees shall
       handle such persons in accordance with law and established Departmental Procedures.” (Order at 11.)
       Rule 4-4.3 stated in part: “Officers shall be tactful in the performance of their duties, shall control their
       tempers, and exercise the utmost patients [sic] and discretion, and shall not engage in argumentative
       discussion even in the face of extreme provocation; and (B) in the performance of their duties, Officers shall
       not use unreasonable coarse, violent, profane, or insolent language or gestures. …” (Order at 12.)

       Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017                          Page 9 of 14
       Fourth Amendment to the United States Constitution and its “reasonableness

       standard,” as opposed to a “substantive due process” standard. Id.


[16]   The “reasonableness” inquiry in an excessive force case is an objective one; the

       question 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. Id. at 396. The “facts and circumstances”

       include the severity of the crime at issue, whether the suspect poses an

       immediate threat to the safety of officers, and whether the suspect is actively

       resisting arrest or attempting to evade arrest by flight. See id. Gray does not

       argue that the circumstances of the instant case mirror those of Graham or that

       the types of claim are similar. Instead, he asserts that the “objective

       reasonableness” standard enunciated in Graham uniformly controls in cases

       where excessive force is alleged.


[17]   However, Gray argues that the facts of the instant case are remarkably similar

       to those in Prymer, also a § 1983 case, where an arrestee threatened to spit on an

       officer and the officer responded with force. 29 F.3d at 1208. Prymer was

       handcuffed and en route to a police vehicle when he made a gurgling noise as if

       to spit on Officer Ogden. Officer Ogden struck Prymer in the forehead with a

       straight-arm stun technique and thus re-directed Prymer’s head. See id. at 1211.

       The district court concluded that the straight arm stun technique was justified

       under the objectively reasonable standard. Id. Judgment was granted for the

       defendants on the § 1983 claim; the appellate court affirmed the judgment.



       Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017   Page 10 of 14
[18]   More recently, in Kingsley v. Hendrickson, 135 S. Ct. 2466 (June 22, 2015), the

       Court clarified that the Graham standard of objective reasonableness is not

       limited to circumstances where a free citizen is being taken into custody. “[T]o

       prove an excessive force claim, a pretrial detainee must show … that the

       officers’ use of that force was objectively unreasonable.” Id. at 2470. Objective

       reasonableness turns on the “facts and circumstances of each particular case.”

       Id. at 2473 (citing Graham, 490 U.S. at 396.)


[19]   Also, as Gray observes, the Graham “reasonableness standard” has been

       examined in Indiana in non-tort cases; that is, it has had application where a

       criminal defendant has raised as a defense that his non-compliance with an

       officer was in response to the officer acting unlawfully. Our Indiana Supreme

       Court has acknowledged that “[a]n officer is not lawfully engaged in the

       execution of his duties when he uses unconstitutionally excessive force.” Love

       v. State, 73 N.E.3d 693, 697 (Ind. 2017) (citing Shoultz v. State, 735 N.E.2d 818,

       823 (Ind. Ct. App. 2000)). Thus, the objective reasonableness standard of the

       Fourth Amendment may apply to a tort claim by a person allegedly injured

       while either being taken into custody or already in custody, or it may apply

       when a claim of unconstitutional excessive force is raised as a criminal defense.


[20]   Here, however, the Merit Board was not tasked with determining whether Gray

       was lawfully engaged in the execution of his duties as that might bear some

       relationship to a criminal defense. The Merit Board was not involved in a tort

       claim or litigation involving an allegation that Gray had deprived J.S. of a

       constitutional right. Rather, the matter before the Merit Board for disposition

       Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017   Page 11 of 14
       was whether Gray should be disciplined for violation of department rules

       having a reasonable relationship to his fitness and capacity to hold the job of

       Deputy Sheriff.


[21]   Requiring that the Fourth Amendment analysis and standard be invoked in all

       cases where police unfitness to serve is alleged would not comport with the

       public policy of this State. We have said, “From the very nature of a

       policeman’s duties, his conduct in the community on and off duty must be

       above reproach.” Pope, 301 N.E.2d at 391. The wrongdoing need not rise to

       the level of a constitutional tort to be actionable. See Chesser v. City of Hammond,

       Indiana, 725 N.E.2d 926, 930 (Ind. Ct. App. 2000) (evidence supported

       dismissal for conduct unbecoming an officer where officer had “used an

       unreasonable and excessive amount of force against his wife” and “lack[ed]

       ability to control his temper in certain situations”). Here, the Merit Board was

       not required to evaluate the allegation regarding the “Use of Force” Rule, or

       derivative allegations, with specific reference to the Graham “objective

       reasonableness” standard.4




       4
         This is not to say as a corollary that safety boards and reviewing courts must ignore Graham. See, e.g., Chelf
       v. Civil Serv. Comm’n of the City of Davenport, 515 N.W.2d 353, 355 (Iowa Ct. App. 1994) (in considering
       whether the statutory language providing that an officer was justified in using force “reasonably believed to
       be necessary to effect the arrest” embodied a subjective or objective standard, the Court determined that the
       standard was objective and found “support” in Graham).

       Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017                          Page 12 of 14
                                         Evidentiary Support
[22]   Gray complains that the reviewing court below “reweighed” evidence, made

       additional findings in support of the termination decision, and “substituted” its

       decision for that of the Merit Board. Appellant’s Brief at 12. He asserts that he

       is entitled to a reversal, or at minimum a remand, on this basis. As best we

       understand Gray’s contentions, he urges that a decision supported by

       substantial evidence may nevertheless be reversed when the reviewing court

       comments upon additional evidence not included in the Merit Board’s findings

       and conclusions. We acknowledge that the reviewing court commented upon

       officer logs, a videotape, and Gray not making movements as if to remove

       spittle; the court also referred to Gray’s use of profanity, something not

       specifically addressed in the Merit Board order. However, a claim that a

       dismissal order is arbitrary and capricious because there was more than enough

       evidence discussed on review does not comport with our appellate standard of

       review.


[23]   The salient inquiry is whether the termination order is unsupported by

       substantial evidence, that is, “relevant evidence which a reasonable mind might

       accept as adequate to support a conclusion.” Bird, 639 N.E.2d at 328. The

       Merit Board received, by testimony and videotape, evidence that J.S., whom

       Gray knew to be mentally ill, was partially strapped into a restraint chair when

       Gray slapped J.S. across the face with an open hand. The Merit Board did not

       make conclusions that were “willful and unreasonable,” see id., in determining

       that Gray mistreated a person in custody, used more force than was necessary,

       Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017   Page 13 of 14
       failed to maintain courtesy, and engaged in conduct unbecoming an officer.

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

       terminate Gray for violating departmental rules is not arbitrary and capricious.



                                                 Conclusion
[24]   The excessive force objective reasonableness standard, as contemplated in

       Graham and its progeny, may be instructive but does not provide a minimum

       threshold for termination of police employment when an allegation has been

       made that the officer violated an internal use of force rule. Gray has not shown

       that the Merit Board’s discharge decision was contrary to law on this basis.

       Gray has not shown that the decision is arbitrary and capricious as unsupported

       by substantial evidence.


[25]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 64A03-1703-PL-585 | August 29, 2017   Page 14 of 14
