Lowery v. City of Mobile Police Dept.

• Decision Date: 28 March 1984
• Citation: 448 So.2d 388
• Parties: Franklin D. LOWERY v. CITY OF MOBILE POLICE DEPARTMENT and the Mobile County Personnel Board. Civ. 4211.
• Court: Alabama Court of Civil Appeals

Page 388

448 So.2d 388

Franklin D. LOWERY v. CITY OF MOBILE POLICE DEPARTMENT and the Mobile County Personnel Board.

Civ. 4211.

Court of Civil Appeals of Alabama.

March 28, 1984.

Gregory B. Breedlove of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.

Mylan R. Engel, Mobile, for appellee Mobile County Personnel Bd.

William R. Lauten, Mobile, for appellee City of Mobile.

WRIGHT, Presiding Judge.

This is an appeal of a termination of employment.

At approximately 2:00 A.M. on September 20, 1982, Mark D. Brown, a nineteen-year-old student at the University of South Alabama, was returning home from a fraternity meeting when he was stopped by a Mobile police officer. Brown had been observed driving in an erratic manner and when stopped appeared to be intoxicated. ¹ Because Brown was acting arrogant and uncooperative, the officer called for assistance. He also contacted Brown's parents, intending to let them take the young man home rather than booking him for driving under the influence. Upon his parents' arrival at the scene, Brown, who at that time was in the back seat of the police car, became very unruly and began cursing and striking the doors and windows of the car. He was then arrested for disorderly conduct and taken to the police station for booking.

Upon arrival at the station, Brown was taken to the docket room where his personal property was to be taken from him and where he was to be booked. Franklin D. Lowery, a police officer of five years, six feet, six inches tall, weighing 300 pounds, who was on duty in the docket room, instructed Brown to place his hands atop the docket room counter. Lowery then began taking Brown's personal property and searching him for weapons. Brown, by all eyewitness accounts, continued to be argumentative and somewhat disorderly. Consequently, Sergeant William Lundy, who was in charge of the docket room that evening, ordered Lowery to take Brown directly to jail without completion of the usual booking process. Lowery told Brown to go down the hall toward the jail, at which time Brown again became argumentative, grabbing the metal screen of the booking room area and demanding that the money taken from him be counted in his presence. At this point, it is alleged that Lowery struck Brown, an incident which is the subject of this appeal. After the alleged blow, Lowery led Brown away to jail. Thereafter, Lundy reprimanded Lowery, informing him that, should he again strike a prisoner, he would be suspended without pay. That same night, Lundy filed an incident report recommending that an oral reprimand stand as the proper discipline for Lowery's actions.

Subsequently, Brown, believing that a portion of his money had been stolen from him when he was booked, filed a complaint with the police department. Whereupon, personnel from the internal affairs division along with Lowery's supervisor, Sergeant Lundy, reviewed a videotape of the incident in question in order to determine if a theft of Brown's property had occurred. ² No misappropriation of Brown's property was revealed. However, upon reviewing the videotape, Lundy determined that Lowery's conduct had been much worse than he originally realized and changed his incident report to state that Lowery had assaulted Brown. The later report also recommended Lowery's dismissal. Upon viewing the tape, Lundy's superiors in the police department agreed with his recommendation. Lowery was given notice of the recommendation and a pre-termination hearing. The hearing concluded with Lowery's dismissal. Lowery appealed to the Mobile County Personnel Board. The board, after taking testimony and viewing the videotape of the incident entered a written order...