                                                                                          05/21/2019
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                       March 5, 2019 Session

    EARL GENE DAVIS v. CIVIL SERVICE COMMISSION OF THE
  METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
                       COUNTY ET AL.

                   Appeal from the Chancery Court for Davidson County
                     No. 17-0510-II    William E. Young, Chancellor
                         ___________________________________

                                No. M2018-01130-COA-R3-CV
                            ___________________________________


J. STEVEN STAFFORD, P.J., W.S., concurring in part.

        The majority opinion concludes that the Commission’s finding that Officer Davis
violated both MNPD Policy § 4.20.040(B) and MNPD Policy § 4.20.040(K) was neither
arbitrary nor capricious and was supported by substantial and material evidence. In
reaching its decision concerning MNPD Policy § 4.20.040(B), the majority essentially
concludes that consideration of the public authority defense is irrelevant because the only
question involved is whether Officer Davis committed the acts that constitute the offense
outlined by Tennessee Code Annotated section 39-16-301(a), not whether Officer Davis
would be able to assert any defense to criminal prosecution of that crime.
       Respectfully, I am not convinced. Officer Davis’s argument, as I perceive it, is not
simply that Officer Davis was never convicted of the offense, but that no offense was in
fact committed due to the application of the affirmative defense. Where a criminal act is
excused by the public authority defense, it follows that disciplinary action based solely on
the fact that an officer engaged in conduct that constitutes a criminal act should also be
excused. To hold otherwise would be to subject all officers committing crimes under the
authority of an authorized undercover police operation to disciplinary action under
MNPD Policy § 4.20.040(B). For example, when an officer possesses drugs with the
intent to sell those drugs as part of an operation to ensnare criminal wrongdoers, that
officer commits the acts that constitute an offense under Tennessee Code Annotated
section 39-17-417(a);1 under the majority’s interpretation of MNPD Policy §

       1
           Section 39-17-417 provides, in relevant part:

                 (a) It is an offense for a defendant to knowingly:
                 (1) Manufacture a controlled substance;
4.20.040(B), even where the officer was diligently following the orders of his superiors in
engaging in this conduct, he or she could be subject to disciplinary action under MNPD
Policy § 4.20.040(B).2
        The discipline at issue in this case was not, however, based solely on Officer
Davis’s alleged violation of MNPD Policy § 4.20.040(B). Instead, the Commission also
found that Officer Davis violated MNPD Policy § 4.20.040(K), regarding obstruction of
rights. I concur in the majority’s conclusion that substantial and material evidence
supported the Commission’s finding with regard to the violation of MNPD Policy §
4.20.040(K). Moreover, I concur in the majority’s conclusion that the disciplinary action
ordered was appropriate under the circumstances. As such, it is unnecessary to consider
the intricacies of the public authority defense as applicable in civil disciplinary actions or
whether Officer Davis met his burden so that his conduct was excused by the public
authority defense in this particular case. Instead, I continue pondering this question and
await an appropriate case where this issue may be squarely addressed. As such, despite
lingering questions on this issue, I concur in the majority’s result.




                                                        _________________________________
                                                        J. STEVEN STAFFORD, JUDGE




                 (2) Deliver a controlled substance;
                 (3) Sell a controlled substance; or
                 (4) Possess a controlled substance with intent to manufacture, deliver or sell the
                 controlled substance.
         2
           While it may be argued that such result would not follow because no disciplinary charges would
be filed against such officer based on the MNPD’s discretion, this action could further subject MNPD to
charges that it was arbitrarily enforcing MNPD Policy § 4.20.040(B).
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