Ca'Mel v. Louisville Metro/Jefferson Cnty. Metro. Gov't Police Dep't, 2013-CA-001988-MR
| Decision Date | 16 January 2015 |
| Docket Number | NO. 2013-CA-001988-MR,2013-CA-001988-MR |
| Parties | QUEEN DEBORAH CA'MEL APPELLANT v. LOUISVILLE METRO/JEFFERSON COUNTY METROPOLITAN GOVERNMENT POLICE DEPARTMENT; AND LOUISVILLE METRO POLICE MERIT BOARD APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
OPINIONVACATING AND REMANDING
BEFORE: CAPERTON,1 COMBS, AND VANMETER, JUDGES.
CAPERTON, JUDGE: Queen Deborah Ca'mel appeals from the Jefferson Circuit Court's affirmation of the Louisville Metro Police Merit Board's (the "Board")decision upholding the termination of Ca'Mel's employment with the Louisville Metro Police Department ("LMPD"). Ca'Mel also appeals the circuit court's denial of her summary judgment motion for her claim against the LMPD for a violation of the Open Records Act. After a thorough review of the parties' arguments, the record, and the applicable law, we agree that the Board erred in considering Ca'Mel's Academy performance; thus, we vacate and remand this matter for the Board to only consider Ca'Mel's time as an officer; i.e., her post-Academy conduct, which necessarily includes her performance during probation.
The facts of this appeal were presented to the Board at a four-day hearing. On or about June 29, 2009, Ca'Mel was hired as a police recruit and attended the LMPD Academy. Within the first few weeks of the Academy, Ca'Mel encountered difficulties. On August 14, 2009, she failed a test related to nighttime emergency response driving. On August 25, 2009, she failed a firearms test. On August 28, 2009, she failed the firearms handgun (low light) test and on September 9, 2009, she failed the baton/OC test.2 Ca'Mel then failed a fifth test-trie expandable baton practical skills test on September 11, 2009.3 Thereafter, on September 23, 2009, Ca'Mel failed a sixth test-the basic shotgun test; according to Lt. Kevin DeSpain, the commander of the basic training unit of LMPD, out of the 500 recruits he had seen in his career, he had not seen a recruit fail six tests untilCa'Mel did so. On retest for these six tests, Ca'Mel passed. Unfortunately, Ca'Mel's performance issues did not end with the failing of training tests. On August 30, 2009, Ca'Mel arrived late for her work detail for the Ironman event held in Louisville. No other recruits were late to the detail.
Ca'Mel also did not perform well in training scenarios. On December 30, 2009, in a training scenario, Ca'Mel missed threats to herself during a domestic violence role playing scenario; in another training scenario that same day, Ca'Mel attempted to taser one subject and then to immediately taser the second, in contravention of what she had been taught. The taser could not be redeployed without removing the probes from the first individual. The Academy instructor noted that after 28 weeks in the Academy, Ca'Mel failed to show competence in the proper use of tactics or the use of her equipment.
During the scenario when her partner was being struck repeatedly by one of the role players, Ca'Mel attempted to get the "subject" off her partner by pointing her fake firearm at the subject, and telling him to stop. When he did not stop, she "fired" by saying "bang, bang." This caused one of the training officers to tell her that she murdered the subject as there was no need for the use of deadly force; that she needed to review and study all policy, procedure, law, and training materials related to the use of force and intermediate options.
Then on December 31, 2009, the training officers had to stop the training scenario due to safety violations. Ca'Mel was repeatedly told not to point the taser in the instructor's eyes. When she was reprimanded for not using themanual sites on the weapon, Ca'Mel responded that she was using the manual sites. Ca'Mel became defensive, argumentative, and did not respond to the criticism offered to help correct her deficiencies. The drill instructors felt that they could no longer get their point across, and Sgt. Kessinger had to step in and further counsel her. The trainers offered to bring in a county attorney to counsel her individually on the use of force issues, but Ca'Mel declined.
Ca'Mel also had a verbal altercation with another recruit while at the Academy. On November 18, 2009, one of the drill instructors, Officer Turner, observed Ca'Mel yelling at her squad leader. Recruits were told to treat their fake weapons as if they were a loaded, live weapon. During the training exercise, Ca'Mel pointed her fake weapon at another recruit and the recruit attempted to correct her. Ca'Mel then began yelling at the recruit. The squad leader separated the two and told them to stop arguing. About ten minutes later Ca'Mel was outside and still yelling about the incident to another recruit. The squad leader went over to her and told her she needed to drop it. Instead, she started screaming that she didn't care what anybody said; she was going to do what she wanted to do. Officer Turner observed Ca'Mel yelling at her squad leader in a public place in view of a parking lot used by University of Louisville students and local citizens. When Officer Turner asked her about it, she started yelling at him. Following this incident, Ca'Mel was required to write a memorandum of apology to her class coordinator.
Despite these issues, Ca'Mel graduated from the Academy and was sworn in as a probationary officer. An LMPD's officer probationary period lasts one year. Directly out of the Academy, a probationary officer enters LMPD's police training officer ("PTO") program which lasts twenty weeks and has four phases. The first week is where the probationary officer ("PO") goes to a division and receives orientation. The second week begins the phases.
First, there is a four-week phase in non-emergency response, followed by a four-week phase in emergency response. These phases occur in the PO's first assigned division with the PO's first assigned police training officer. At the end of the eight weeks is a one-week evaluation period known as the midterm evaluation where the PO is evaluated by a police training evaluator ("PTE") who is a different officer than the PTO.
After the midterm evaluation, the PO is transferred to a second division with a different PTO. The PO spends four weeks emphasizing patrol activities, followed by four weeks emphasizing criminal investigation, then a final evaluation and a one-week exit week. The goal of the PO program is not to teach the PO how to be a police officer but instead how to be lifelong, career-long learners.
Ca'Mel's PTO during her first eight weeks was Officer Schmuckie. The PTO testified that Ca'Mel did not accept criticism well, that she became defensive when she was critiqued, and she had difficulty with officer safety, self-awareness, and report writing in her first phase. Specifically, on February 25,2010, Ca'Mel had a suspect against a van; the suspect pushed off the van and made his way behind her. Another officer had to subdue the suspect as Ca'Mel made no attempt to regain control of him. She then began searching him and found a large sum of money in his pocket. Instead of removing herself from close proximity to the subject, Ca'Mel elected to count the money crouched down next to the subject within easy reach of his elbow. The PTO attempted to counsel Ca'Mel about these issues; Ca'Mel repeatedly stated that the suspect never got behind her.
At the conclusion of the eight weeks, Sgt. Mason performed Ca'Mel's midterm evaluation in April 2010. She failed. Sgt. Mason did not find one specific instance that mandated that Ca'Mel failed but instead stated that the failure was the culmination of her issues. She did not pass four of the fifteen core competencies, specifically: radio communication, report writing, officer safety, and self-awareness.
In regard to radio communication, Ca'Mel had several missed radio transmissions, including one causing dispatch to hit the emergency alert, which Sgt. Chambers testified was a serious matter. In regard to report writing, Ca'Mel was unable to complete reports without assistance; for example, she could not determine the correct criminal charge. In regard to officer safety, there were several issues documented where Ca'Mel took poor positions, including one in which she allowed a civilian to hold her flashlight in a position that would have allowed them to use it as a weapon against her. She also stopped someone, was running his ID for warrants, stood very close to him, and did not shield her weaponfrom him. In regard to self-awareness, there were repeated citations of her not accepting constructive criticism and being argumentative when her deficiencies were drawn to her attention.
Following her failure of the midterm, Ca'Mel repeated the first two phases with a new PTO, Eddie Asbury. Thereafter, she passed her midterm and moved onto the last two phases in the Seventh Division with PTO Tim Stokes and her final evaluation was completed by Stuart Owen. Owen passed Ca'Mel. Ca'Mel began her solo assignment within the Seventh Division but then was transferred to the First Division shortly thereafter.
In late 2010, while riding solo in the First Division, Ca'Mel radioed for her backup to "step it up." All officers who were questioned indicated that this meant they should go "Code 3"-where they would try to drive safely but would travel with lights and sirens on, faster than the speed limit, and disobey traffic signals if possible. Once backup arrived, it became apparent that there was no need for them to "step it up."
On December 20, 2010, Ca'Mel was leaving the FOP parking lot following her shift when she struck a pole. Standard Operating Procedure ("SOP") 4.18.2 provides that a police officer should contact his or her immediate supervisor any time he or she is involved in an accident. Ca'Mel informed Sgt. Mann with the Professional Standards Unit that the accident occurred around 7:40 a.m. Instead of...
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