Lucas v. Murray City Civil Service Com'n

• Decision Date: 28 November 1997
• Docket Number: No. 960803-CA,960803-CA
• Parties: 331 Utah Adv. Rep. 15 Edward J. LUCAS, Petitioner, v. MURRAY CITY CIVIL SERVICE COMMISSION and Murray City Corporation, Respondents.
• Court: Utah Court of Appeals

Page 746

949 P.2d 746

331 Utah Adv. Rep. 15

Edward J. LUCAS, Petitioner, v. MURRAY CITY CIVIL SERVICE COMMISSION and Murray City Corporation, Respondents.

No. 960803-CA.

Court of Appeals of Utah.

Nov. 28, 1997.

Bryon J. Benevento and D. Matthew Moscon, Salt Lake City, for Petitioner.

H. Craig Hall, Murray, and Dennis C. Ferguson, Salt Lake City, for Respondents.

Before WILKINS, Associate P.J., and DAVIS and BENCH, JJ.

OPINION

WILKINS, Associate Presiding Judge:

Petitioner Edward J. Lucas appeals the decision of the Murray City Civil Service Commission (Commission) affirming his termination as a Murray City Police Officer. We reverse the Commission's decision and reinstate Lucas with back pay.

BACKGROUND

Lucas served as a police officer for the Murray City Police Department (Department) from July 1, 1985 through August 21, 1996. During that time, Lucas was considered by his superiors to be an outstanding officer. His service record shows that he had always met or exceeded the Department's expectations and that he received all available merit raises. In addition, Lucas's exemplary service earned him the "Merit of Honor" award--the most prestigious award presented to an officer. He is the only officer in the Department to have ever received this honor. Until August 1996, Lucas had never been reprimanded, disciplined, or investigated by internal affairs.

On August 21, 1996, the Department fired Lucas for allegedly lying during an internal affairs investigation regarding an allegation that Lucas had used excessive force while searching an arrestee. The internal affairs investigation arose from the circumstances surrounding the May 27, 1996 arrest of Martin Spegar.

On the evening of May 27, Officers Snow, Johnson, and Lucas were dispatched to a Murray City car dealership to investigate a vehicle burglary in progress. Upon arriving, Officer Snow saw two males running through a parking lot adjacent to the dealership and climbing over a wall. Within moments, Officer Snow received information that three suspects had been apprehended. Officer Johnson had one suspect, Dustin Garcia, in custody, and Officer Lucas had apprehended the others, Michael Hamblin and Spegar. Because it was dark and raining, the officers performed only a basic pat down search at the scene before taking them to the Murray City Police Department. Lucas transported Spegar without incident, and was, as Spegar stated, very courteous.

At the station, Spegar and Hamblin were placed in adjoining offices. Garcia was placed in an interview room about twenty to thirty feet away from both Spegar and Hamblin. Officer Johnson searched Hamblin, Officer Snow searched Garcia, and Officer Lucas "kept an eye on Spegar." During that time, Officer Lucas performed a more thorough search and asked Spegar to empty his pockets. After Officer Snow saw Spegar emptying his pockets, he walked into the room to take Spegar's statement and Officer Lucas left. Nothing was said. Eventually, all three suspects were searched, mirandized, interviewed, and taken to jail. En route to the jail, Officer Snow noted that Spegar was not upset and was joking with his friends.

A few days later, Lieutenant Fondaco, Lucas's superior, received a letter about Lucas's alleged conduct during Spegar's search. Spegar's written statement alleged:

[Officer Lucas] told me to stand up and empty my pockets onto the table, and also to take off my hat. He then asked me to wait before I did it. He [illegible] for a minute and took out his gun from his holster and pointed it in the direction of my head. He was standing about three feet away from me. He then [said] "I dare you to pull out a gun because if you do I swear that I will [ ] kill you," and that your brains will be splattered on the wall!

I then [said] "Hey man, I might be crazy trying to break into cars, but I'm not going to pull anything on you."

[Lucas] said, "I don't care, but I am that crazy."

On June 10, 1996, Lieutenant Fondaco began an internal affairs investigation into Officer Lucas's alleged use of excessive force. During the investigation, Lucas was interviewed on two separate occasions. During the first interview, conducted by Lieutenant Fondaco, Lucas described the incident as follows. Lucas stated that he walked into the room where Spegar was being held. He unhandcuffed Spegar and told him to empty his pockets. Instead of reaching for his pocket, Spegar reached for the crotch area of his pants. Lucas testified that he believed that Spegar may have been going for a weapon because he knew, as a result of his cursory search of Spegar at the scene, that Spegar had something in his pocket. Immediately, Lucas reacted by pushing Spegar away, yelling "put your hands on the wall," and reaching for and unsnapping his weapon. He stated that he believed that he started to pull his gun out, but that it remained in the holster. At that point, Lucas searched Spegar's legs and crotch, and then asked Spegar to empty his pockets, which contained pliers, a flashlight, and other miscellaneous items.

At some time during the internal affairs investigation, Officer Snow gave a written statement regarding what he observed. Officer Snow related that after searching Garcia and taking his statement in the interview room, he went down the hall toward the office in which Spegar was being held. Officer Snow paused briefly before entering the office when he noticed that Officer Lucas had his gun out of its holster and pointed at the ground, in a "low ready position." He saw Spegar standing sideways, not looking directly at Officer Lucas. He watched as Spegar took off his hat and noticed a flashlight and pliers on the table. Officer Snow stated that as he entered the room to take Spegar's statement, Officer Lucas holstered his weapon and then left. He stated he did not hear or observe anything that had happened before and stated he did not see Officer Lucas point his gun at Spegar. In addition, Officer Snow filed a police report and did not mention any of the events he observed between Officer Lucas and Spegar because, as he stated, "I hadn't even considered it a policy violation."

Garcia asserted that while in the interview room, about twenty to thirty feet away, he overheard Lucas threaten Spegar. However, Hamblin, who was in the office next to Spegar, heard nothing. Moreover, Officer Snow, who was en route from Garcia's room to Spegar's room, also heard nothing.

As a result of this information, the focus of the internal affairs investigation became whether Lucas had been dishonest during the excessive force investigation. As part of the investigation, both Lucas and Spegar agreed to take a polygraph test on July 11, 1996. During the polygraph test, Spegar initially stated that Lucas had pointed the gun at his head. Then, as the interview progressed, he stated that, looking back, the gun may have been pointed at him or elsewhere such as toward the floor. Spegar did, however, state that Lucas's gun was definitely out of its holster. During Lucas's polygraph test, Lucas stated that he still perceived that his gun was holstered, but that he had no reason to doubt Officer Snow's statement. Both interviews were transcribed. Lucas's polygraph test could not be administered because "yes" and "no" questions could not be posed; Spegar's test was inconclusive.

After reviewing this information, Lieutenant Fondaco concluded that Officer Lucas had been dishonest and, on July 26, 1996, recommended that he be discharged. On August 5, 1996, Officer Lucas received a pretermination notice listing four grounds for discharge: (1) dishonesty in denying the events which occurred concerning a service weapon; (2) excessive force; (3) improper search techniques; and (4) conduct unbecoming an officer. On August 7, 1997, Chief Killian conducted Lucas's pretermination hearing. During that hearing, Lucas tried to address each of the grounds for termination, although the record shows that even the Chief was unclear as to what evidence supported the charge of "improper search techniques." In discussing the charges, Lucas again explained:

Spegar is in my custody. I start to pat him down. He's got something protruding from his pocket. I grab it and pull on it. He starts yelling. What's wrong? He's not saying anything, just smiles. It's kind of weird. Pulled on it again, obvious discomfort. Well, it's dark here, I can't see what's going on. It's raining. It's inappropriate to do this here. I'm not going to unhandcuff him outside in the street to let him empty his pockets, and I'm not sticking my hand down in there. I don't know if it's a blade. I don't know what's going on. So, obviously it's going to be something he's gonna have to do. I'm going to do that in a well-lit situation, in the department, so I chose to transport him as such. Handcuff him in my front seat where I could keep an eye on him where if he does make any further movements, I can take appropriate action.

....

I believe he has sharp devices in his pocket which may injure myself or himself because of previous occurrences out in the field. Okay, the instructions were clearly given. The first thing he does is put both hands directly down in his crotch, the location of choice for people out in the street to carry a weapon. Now in direct correspondence with my training, I react. My hand goes up, and I keep him away from [me]. My hand goes for my weapon. I unsnap it, and it starts to come out. Now at this point, this is where we have a problem because I am leaning forward pushing against the wall telling him to get his hands against the wall, "what the hell do you think you're doing?" ... My perception when I was questioned about it, it's in the holster. Yes, it's ready to come out because I am acting accordingly, according to my training, and I'm ready to do whatever is necessary.

On August 21, 1996, Chief Killian ordered Lucas's discharge based on dishonesty, specifically the "untruthful statements" made...