#25812-a-JKK

2011 S.D. 41

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                  * * * *

TIMOTHY FARMER,                             Appellant,

      v.

CITY OF RAPID CITY and
RAPID CITY POLICE
DEPARTMENT,                                 Appellees.

                                  * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                  * * * *

                           HONORABLE JANINE KERN
                                   Judge

                                  * * * *

COURTNEY R. CLAYBORNE of
Clayborne, Loos & Sabers, LLP
Rapid City, South Dakota                    Attorney for appellant.

JASON E. GREEN
City Attorney
City of Rapid City
Rapid City, South Dakota                    Attorney for appellees.


                                  * * * *

                                            ARGUED ON MAY 24, 2011

                                            OPINION FILED 07/20/11
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KONENKAMP, Justice

[¶1.]        The Rapid City Police Department fired a patrol officer for excessive

use of force. On appeal, the officer contends that he never acted beyond the

Department’s use of force continuum policy. But the question comes down to

whether the officer’s own actions generated his claimed need to use force.

Considering both the subject incident along with the officer’s disciplinary record, we

conclude that there were sufficient grounds to support the officer’s discharge.

                                    Background

[¶2.]        The Rapid City Police Department hired Officer Timothy Farmer on

August 1, 2005. As a patrol officer, Farmer made routine traffic stops, patrolled

designated sectors and neighborhoods, investigated crimes, and took suspects into

custody. In early 2009, though he had prior disciplinary issues, the Department

promoted Farmer to training officer.

[¶3.]        On Sunday, March 8, 2009, Farmer was working the north central

sector of Rapid City. At 4:45 a.m. he was dispatched to investigate an aggravated

assault at the Golden Living Center, an assisted living facility on North 7th Street.

On arriving, Farmer saw a nurse standing in front of the building and a woman

lying on the ground. The woman was later identified as Wilma Leach, the victim of

the aggravated assault. In talking with Leach and the nurse, Farmer learned that

Leach was assaulted with a pipe by two males and a female. The nurse last saw the

suspects running north. Farmer called for an ambulance.

[¶4.]        Within the next five minutes, another dispatch message relayed that a

gang fight was taking place nearby on Galaxy Drive involving males and a black


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SUV. Farmer believed the newly reported incident was related to the Leach

assault. He left the Golden Living Center and Leach to respond to the gang fight.

[¶5.]        Farmer’s in-car video camera recorded much of what happened next.

When he arrived near the location of the reported gang fight, he saw a light-colored

car pull into a paved parking area. Farmer activated his lights and siren and pulled

up behind the car. Two women, Martina Martinez and Bryanna Bear, exited the

vehicle and quickly walked away, each taking a different route into a housing

complex. Farmer believed the women were involved in the assault. He exited his

vehicle and yelled at Bear and Martinez, “Get on the ground right now!” Neither

woman complied. Farmer ran toward Bear, saying again, “Get on the ground.”

Bear can be heard saying in a shrill voice, “Me? Why?” Farmer grabbed her by the

arm, using a “soft empty hand technique” in the Department’s use of force

continuum policy. When Martinez saw Farmer detain Bear, she turned back and

approached Farmer. Farmer told Martinez, “You better back up, Ma’am.” Martinez

shouted, “No, you better fucking back up, that’s my daughter.” Believing Martinez

now posed a greater threat, Farmer let go of Bear, and grabbed Martinez, still using

a “soft empty hand technique.” He took hold of her arm, forced her onto the hood of

her car, and told her to place her hands on the car. Farmer called for a backup

officer. All the while, Bear was yelling at Farmer insisting they did nothing wrong.

Martinez told Bear to run away to her uncle’s house, and Bear headed east, out of

sight of the camera.

[¶6.]        Officer Sean Doyle arrived. According to Farmer, he motioned for

Doyle to take control of Martinez so he could apprehend Bear. Farmer then let go of


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Martinez and ran after Bear. Once free of Farmer’s restraint, Martinez can be seen

getting into her car and retrieving something. Later it was learned she had

grabbed her cell phone. Then she ran in the direction of Farmer and Bear. Now,

everyone involved was out of view of Farmer’s in-vehicle camera. Nonetheless,

Martinez can be heard calling 911 for help, reporting that she and her daughter

were being assaulted by a police officer. Ultimately, Farmer apprehended Martinez

by taking her to the ground and handcuffing her, using a “hard empty hand

technique.” Martinez was arrested and charged with obstruction, but the charge

was later dropped. Bear was also restrained, but was not cited for any infraction.

As a later investigation revealed, Martinez was at the scene to pick up her son, who

had called her reporting a fight.

[¶7.]        Shortly after the incident, Martinez filed an excessive force complaint

with the Rapid City Police Department. Sergeant Cliff Peterson interviewed

Martinez. He also spoke with Farmer and Doyle. The Department then assigned

Lieutenant Tom Vlieger to conduct an investigation, and Farmer was placed on

administrative leave.

[¶8.]        As part of his investigation, Vlieger interviewed Bear and Farmer, and

reviewed the interviews conducted by Sergeant Peterson. He also watched the

video of the incident, listened to Martinez’s 911 call, and played the recorded radio

transmissions from that morning. Vlieger concluded that “[t]he allegation of

excessive force during the arrest of Martina Martinez is substantiated.” He thought

that “Farmer’s judgment [was] questionable in this incident.” Vlieger noted that

Farmer stopped a vehicle that was not fleeing, but was arriving at the alleged gang-


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fight scene, and contained female, not male, occupants. He concluded that “nothing

in the video . . . justifies [Farmer’s] immediate response with the level of force used.”

In Vlieger’s opinion, instead of ordering them to get on the ground, Farmer “could

simply have told them to stop so he could talk to them.” Vlieger believed that

Farmer looked “confused as to what he should do throughout the incident[.]” He

wrote, “It appears he cannot make a decision about which of the two individuals he

should be arresting as he goes back and forth from one to the other without ever

completing an arrest on either.” Finally, Vlieger questioned Farmer’s decision to

respond to the misdemeanor gang-fight call, considering that he was on a “felony

aggravated assault call” with the victim. Vlieger recommended that the

Department discipline Farmer by (1) removing his training officer status, (2)

requiring a fit for duty examination, (3) removing him from the night shift and

north sector, and (4) suspending him from duty without pay.

[¶9.]        Vlieger’s memo and recommendations were sent to Captain Doug

Thrash. Following his review, Thrash issued a memorandum concluding that “[t]he

Rapid City Police Department has determined that [Farmer] engaged in conduct

that was detrimental to the department on 3-8-09.” Thrash identified three specific

issues. First, he questioned Farmer’s judgment because Farmer “left a call that

involved an aggravated assault to respond to a fight call knowing there was another

officer in the area who was on a traffic stop that could have responded.” Second,

Thrash addressed Farmer’s tactics: “nothing justifies [Farmer’s] level of force used”

when yelling commands at Bear and Martinez to get on the ground. Also, by

restraining Bear, but letting her go to restrain Martinez, then letting Martinez go to


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run after Bear, Farmer allowed Martinez to get into her vehicle. And the release of

Martinez obliged Farmer to use a higher level of force to restrain her a second time,

which led Thrash to conclude that “[t]he force [Farmer] used to subdue [Martinez]

was clearly excessive.” Third, Thrash questioned Farmer’s credibility, concluding

that Farmer’s “report [of the incident] demonstrates embellishment of either [his]

perception of [Martinez’s] movements or efforts to justify the force used.”

[¶10.]       In addition to the March 8, 2009 incident, Thrash reviewed Farmer’s

personnel record. Farmer had received six formal complaints in his last three and a

half years with the Department, three with substantiated use of force issues and

one for unprofessional behavior. In one instance, Farmer received a letter of

reprimand for using “unnecessary” force two years earlier in his handling of Michael

Slow Bear, a man in custody who was being booked into jail. Regarding this

incident, in a memorandum prepared by Lieutenant Dave Stratton, Farmer was

warned: “I trust you have learned from this experience and caution you that similar

incidents in the future could result in more severe disciplinary action.” Considering

Farmer’s record, Thrash concluded that Farmer’s behaviors will likely be repeated,

as he “demonstrates resistance or inability to change.” Thus, Thrash decided that

Farmer should be discharged immediately.

[¶11.]       Under the City of Rapid City’s collective bargaining agreement with

the Fraternal Order of Police, Farmer was entitled to an informal hearing “within

seven days of [his] discharge,” at which “he may offer evidence and arguments.”

Farmer was represented by counsel for this hearing. Thereafter, Chief of Police

Steve Allender issued a letter to Farmer. Allender noted that Martinez’s vehicle did


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not match the black SUV suspected in the gang fight, Martinez and Bear were

approaching, not leaving, the gang-fight crime area, and Farmer did not have Leach

identify Martinez or Bear as possible suspects in the assault at any time after

Martinez’s arrest.

[¶12.]       Allender thought that Farmer “used poor judgment in deciding to stop

a vehicle based on the possible involvement with the gang fight.” In Allender's

judgment, Farmer “acted unreasonably in his attempt to detain [Martinez and

Bear,] and made unreasonable demands of them.” Allender wrote that “the

detention and arrest of Martinez” appeared “technically justified,” but “it is more

appropriately considered to be unnecessary and unfortunate.” In regard to

Farmer’s personnel record, Allender observed that in Farmer’s last thirty-six

months of service he had been the subject of six formal complaints for excessive

force and three informal complaints, one for excessive force, one for failing to take a

report, and one for improper stop of a vehicle. Allender noted that “the total

number of complaints against Farmer is unprecedented[.]” Allender also considered

Farmer’s recent promotion to police training officer, commenting that

“[m]anagement had reason to believe his behavior had changed[.]” However, the

most recent incident led Allender to conclude that “the department’s efforts to

change Farmer’s behavior have been ineffective, since the pattern has been

repeated.” This incident, Allender wrote, marks “the third time in three years

[Farmer] will be disciplined for unprofessional conduct[.]” Allender continued: “It

is also apparent he believes he did nothing improper in this case so certainly we

should expect this type of behavior in the future.” He concluded, “Farmer poses a


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risk to the integrity of the department, its relationship with the community as a

whole and to the next individual person he may subject to the use of force because of

a misperceived threat.” Thus, “[b]ased on his actions in this incident, coupled with

his disciplinary history,” Farmer’s employment was terminated on May 6, 2009. An

appeal to the Mayor of Rapid City was unsuccessful.

[¶13.]       Farmer then appealed to the Department of Labor. Following a

hearing, the Department of Labor issued findings of fact and conclusions of law and

an order upholding the Police Department’s decision. It ruled that Farmer

“employed unnecessary force and excessive force when dealing with Martinez” in

violation of the Police Department’s use of force rules and code of ethics. Taking

into account Farmer’s history, specifically the Slow Bear incident, which resulted in

a letter of reprimand in Farmer’s personnel file, the Department of Labor held that

Farmer brought discredit upon the Police Department, and thus sufficient cause

existed to end his employment.

[¶14.]       In circuit court, Farmer’s appeal was affirmed. The court found “ample

evidence” to support the discharge. According to the court, the video evidence

substantiated the claim that Farmer used excessive force. The court ruled that

Farmer technically complied with the use of force policy, but noted that “it was his

actions, not those of Martinez and Bear that escalated the situation. But for

[Farmer’s] decision to immediately yell at the women to ‘Get on the ground,’ and his

subsequent wrangling with them, the level of force used would have been much

lower.”




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                               Analysis and Decision

[¶15.]       On appeal before this Court, Farmer argues that there was no “just

cause,” as required in the collective bargaining agreement, to support his discharge

because no witness could “articulate any specific violation” he committed. In his

view, the evidence fails to establish that he used excessive force on March 8, 2009.

Rather, he asserts that the Police Department discharged him using hindsight to

measure excessive force. He further claims that the Department “undertook an

impromptu referendum on his police career” and “re-categorized their cause for the

termination” to be his bad judgment, instead of proving a violation of the use of

force policy. In sum, Farmer contends that he “appropriately followed the use of

force continuum, thus making it impossible for the City to substantiate the

excessive force allegation.”

[¶16.]       The collective bargaining agreement provides that the “City has the

right to impose discipline upon employees for violations of the City’s work rules or

for conduct that is detrimental to the Department or the City.” Under the

agreement, “[d]iscipline may include discharge of an employee.” But the “City shall

only impose discipline for cause.” “Cause” is not specifically defined in the

bargaining agreement. Farmer seeks to apply outside authorities to interpret

whether there was cause in this case. This we need not do because, based on the

words of the collective bargaining agreement, cause for discipline exists if there is

sufficient evidence that Farmer violated the City’s work rules or acted

detrimentally to the Department.




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[¶17.]        Here, the Police Department, through Captain Thrash, notified

Farmer that his job was being terminated because he “engaged in conduct that was

detrimental to the department on 3-8-09.” Police Chief Allender reached the same

conclusion. Farmer dismisses this reason and asks this Court to focus on whether

the Department established that he violated the use of force policy, because

Martinez complained that Farmer used excessive force. But nothing in the

collective bargaining agreement limits the Police Department’s review of a

disciplinary incident to solely how the incident was characterized by a citizen

complainant. Appropriately, the Department examined the episode as a whole,

assessing Farmer’s judgment, tactics, credibility, and personnel history.

Accordingly, we examine whether, under the totality of circumstances, there was

sufficient evidence to support Farmer’s discharge for conduct detrimental to the

Department.

[¶18.]        The Department of Labor found that Officer Farmer “employed

unnecessary and excessive force” against Martinez in violation of the Police

Department rules on use of force, and that “his actions in this matter and in the

previous instances where discipline has been imposed [brought] discredit upon” the

Police Department. We review the Department of Labor’s findings of fact for clear

error, and conclusions of law de novo. Green v. City of Sioux Falls, 2000 S.D. 33, ¶

11, 607 N.W.2d 43, 46 (citations omitted). Whether cause existed for termination is

a legal question, and therefore, fully reviewable. Id. ¶ 21 (citing City of Sioux Falls

v. Miller, 1996 S.D. 132, ¶ 12, 555 N.W.2d 368, 371). From our review of the record,

we have no reason to declare those factual findings clearly erroneous. In the video,


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Farmer can be seen pulling into the parking area behind Bear and Martinez,

rushing out of his vehicle, immediately yelling at them to, “Get on the ground right

now,” and then seizing each woman in turn. There was no indication that Bear or

Martinez were involved in any criminal wrongdoing before Farmer encountered

them. Nothing in Farmer’s explanation or in the record warranted such aggression.

Worse, by first controlling Martinez with soft empty hand techniques and then

letting her go, he was required to use a greater degree of force to gain control of her

the second time.

[¶19.]       Farmer’s decision to leave the victim of the aggravated assault to

pursue the gang fight also impugns his judgment. While he claims his reasoning

was justified, as he thought the call was related to the assault, the record supports

the finding that Farmer exercised poor judgment when pursuing the gang-fight call

instead of staying with Leach. The dispatch call on the gang fight detailed a

situation involving males and a black SUV. The assault against Leach was by two

men and one woman, who left the scene on foot. When he encountered Bear and

Martinez, they were not on foot, were clearly female, and were in a light-colored

vehicle. Logically, when police officers fail to use good judgment, they bring

discredit upon law enforcement.

[¶20.]       Also damaging to his position was Farmer’s record of disciplinary

incidents. As Chief of Police Allender explained: “The most recent complaint makes

the third complaint resulting in disciplinary action against Farmer in as many

years.” The complaints against Farmer were, in Allender’s words, “unprecedented.”

Thus, the Department was faced with the question whether Farmer’s past conduct


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forecast his likely future conduct as a police officer. In regard to the Slow Bear

incident, the Department of Labor found that “without any physical provocation by

Slow Bear, [Farmer grabbed] Slow Bear and [pulled] him off the chair, driving Slow

Bear’s head into the wall opposite the chair.” Farmer argues that it “was unfair for

the Department to reopen the Slow Bear incident to justify" his discharge by

“retrospectively creat[ing] ‘just cause.’” But the Police Department would have been

remiss in not considering Farmer’s disciplinary record when assessing whether it

should continue his employment. Indeed, Farmer had been warned after the Slow

Bear incident that “similar incidents in the future could result in more severe

disciplinary action.”

[¶21.]       Since the Department of Labor and circuit court findings are supported

by the record, our remaining task is to determine whether those findings establish

cause to discharge Farmer. See Green, 2000 S.D. 33, ¶ 21, 607 N.W.2d at 48. The

question is whether Farmer’s conduct was detrimental to the Police Department or

violated departmental work rules as stated in the collective bargaining agreement.

Effective police work often demands immediate action, and in hindsight that action

may later be called into question unfairly. A single error of overreaction, depending

on the gravity of that error, may not justify discharging a police officer. But this is

not a case of a single mistake. The events of March 8 were a series of errors.

Leaving the victim of a felony assault, pursuing a gang fight another officer could

have covered, rushing after Martinez and Bear, yelling for them to get on the

ground, subduing and then releasing each woman to pursue the other — Officer

Farmer overreacted at every turn.


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[¶22.]       Yet even if we were to conclude that the events of March 8 amounted

to nothing more than one cumulative error, a misjudgment compounded, we must

still reckon with Officer Farmer’s disciplinary history. Police officers “are expected

to uphold the highest standards of conduct.” Id. ¶ 22. To be effective, they must

use good judgment, employ restraint, and necessary compassion. See Eilers v. Civil

Serv. Comm’n of City of Burlington, 544 N.W.2d 463, 466 (Iowa Ct. App. 1995).

Officer Farmer had an “unprecedented” record of complaints, with three

disciplinary actions for unprofessional conduct in three years. Taken together, his

actions on March 8 and his disciplinary history established, as Allender opined, that

“Farmer pose[d] a risk to the integrity of the Department, its relationship with the

community as a whole and to the next individual person he may subject to the use

of force because of a misperceived threat.” Sufficient cause existed to discharge

Officer Farmer.

[¶23.]       Affirmed.

[¶24.]       GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

and MEIERHENRY, Retired Justice, concur.




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