Sanders v. City of Columbia

• Decision Date: 09 February 2016
• Docket Number: WD 78460
• Citation: 481 S.W.3d 136
• Parties: Rob Sanders, Respondent, v. City of Columbia, Missouri, Appellant.
• Court: Missouri Court of Appeals

481 S.W.3d 136

Rob Sanders, Respondent,

v.City of Columbia, Missouri, Appellant.

WD 78460

Missouri Court of Appeals, Western District.

OPINION FILED: February 9, 2016

Scott T. Jansen, Jefferson City, MO, Attorney for Respondent.

John D. Landwehr and Shelly A. Kintzel, Jefferson City, MO, Attorneys for Appellant.

Before Division II: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and James Edward Welsh, Judges

Mark D. Pfeiffer

, Presiding Judge

The City Manager of the City of Columbia, Missouri ("City"), made a final determination that Rob Sanders ("Sanders") should be terminated from his employment as a police officer. Sanders petitioned the Circuit Court of Cole County, Missouri ("circuit court"), to review the City's decision. The circuit court reversed the City's decision and ordered Sanders's reinstatement. The City appeals.¹ Because the circuit court did not have statutory authority to consider review of this case as a contested case, we reverse the circuit court's judgment and remand the case for judicial review of the matter as a noncontested case pursuant to section 536.150.²

Factual and Procedural Background

Sanders was hired by the Columbia Police Department in 1993. In 2011, he was a K–9 officer assigned to the Patrol division. He was also a firearms and pursuit driving instructor for the Department. He had received in-service training in defensive tactics.

On August 15, 2011, Columbia Police Officers Kasper and Sedgwick were dispatched to 211 Sanford Avenue to arrest Kenneth Baker on two outstanding felony warrants. Baker, who was intoxicated, resisted and violently fought with the officers for about two minutes. Both officers delivered numerous closed fist strikes to Baker with little effect. Officer Kasper called for emergency assistance. In an effort to subdue Baker, Officer Sedgwick pepper sprayed Baker in the face, but it seemed to have very little effect. The officers were eventually able to pull Baker face down onto the floor and handcuff him. Some of this incident was broadcast over the open microphone of one of the officers. Sanders heard the struggle over the open microphone and responded to the call for emergency assistance.

Officer Crites was the first officer to arrive at the scene to assist the arresting officers. Sanders arrived shortly thereafter. Officer Crites took custody of Baker and escorted him to the patrol car. Baker was yelling and pulling away from Officer Crites. Before transporting Baker to the police station, Officer Crites attempted to search him. Baker resisted the search, and Officer Crites had to use force, including a wrist lock, to hold him down on the rear of the patrol car so the search could be completed.

Officer Crites transported a belligerent Baker to the police station, followed by Sanders. At the station, Sanders offered to speak to Baker to try to establish rapport. Sanders offered to help Baker wash the pepper spray from his face if he would behave and cooperate. Baker agreed, and Sanders spent over four minutes washing Baker's eyes and helping him blow his nose until Baker told him that he was ready to go on with the booking procedure.

Because the arresting officers had not yet returned to the police station to start the booking process, Sanders and Officer Crites took Baker to a holding cell. Sanders gave Baker a paper towel so he could fan his face to dissipate the pepper spray. In the booking area, Sanders and Officer Crites looked for decontamination wipes to give to Baker to alleviate the effects of the pepper spray, but they could not find any.

Baker tried the sink in the holding cell, but the sink was not working and had not worked for many years. Baker banged on the cell door, demanding that the officers turn on the water. Sanders returned to the cell and instructed Baker that people were not allowed to beat on the holding cell doors. Baker asked questions about the water, and Sanders told him that the water did not work and that no water was accessible; Baker needed time and air and should fan himself to reduce the effects of the pepper spray. Sanders advised him, "Sir, I'm sorry, there's no water in the holding cell." Baker again demanded water. Sanders told him, "The only water in the holding cell is that in the toilet." Baker said he was not using that, and Sanders responded, "I don't blame you, I wouldn't do it either." Sanders warned Baker, "You cannot beat on the holding cell door or you'll be placed on the ring behind you on the floor; it's very uncomfortable."

Baker again pounded on the cell door. Sanders, and Officers Crites and Hibler returned to the cell; after a few seconds, Sanders opened the door and asked Baker to have a seat at the back of the holding cell so that he could be placed on the ring. Baker's response was, "Fuck you." Sanders responded, "Sir, is there anything that I can say or do to make you peacefully have a seat at the back of the holding cell without using physical force against you?" Baker responded with the same curse.

Sanders observed Baker coming forward in the cell. Because the cell door is not wide enough to fit more than one officer through at a time, Sanders entered the cell first. Although Sanders normally would use a leg sweep to take someone down in that situation, he determined that he did not have enough room to use that technique. Sanders's second option was to push Baker over on his buttocks or back and then take him over to the holding cell ring and cuff him to it. When Sanders pushed Baker, rather than stumbling backwards or going down on his buttocks, Baker went several feet back into the rear wall of the cell and struck his head. The other two officers entered the cell with Sanders, and the three of them cuffed Baker to the ring at the back of the cell.

When the officers withdrew to the outside of the holding cell, Sanders noticed blood on his arm. When the officers determined that it was Baker's blood, they went back to the holding cell to check on Baker. They found a one-inch cut on the back of Baker's head and a drop of blood on the holding cell floor. Baker never lost consciousness and threatened to kill Sanders. When the officers exited the cell, they requested medical assistance for Baker. After about twelve minutes, the paramedic arrived and determined that Baker should go to the hospital. Baker was transported to the hospital by officers.

In response to seeing the video of this incident in the holding cell, Police Chief Burton's initial reaction was to fire Sanders, but Captain Bernhard counseled him to let the internal affairs investigation run its course. Chief Burton relented and requested that the Internal Affairs Unit commence an investigation to ascertain the facts and circumstances that culminated in Sanders's use of force against Baker. In the Columbia Police Department, any use of force resulting in a serious physical injury or an injury for which a person is transported to a hospital must be investigated by the Internal Affairs Unit.³ On August 23, 2011, Sanders was notified that the Internal Affairs Unit would conduct a mandatory review of the force used against Baker and that Sanders was the subject of the internal investigation. The following day, Sanders was notified that Chief Burton requested that an amended notification of investigation be issued to Sanders that contained an internal complaint/allegation of violating General Order 103.01, Code of Conduct, Section 32, Duty to Use Reasonable Force. On August 26, 2011, the Internal Affairs Unit issued a second amended notification of investigation to Sanders, advising him that City of Columbia Chapter 19 (Personnel Policies, Procedures, Rules and Regulations), Section 225, Guidelines for Corrective Action would be considered during the course of the investigation. On August 31, 2011, the Internal Affairs Unit issued a third amended notification of investigation to Sanders, informing him that Internal Affairs was directed by Chief Burton to include an additional allegation of violating department policy regarding not providing appropriate medical aid to the injured prisoner.

The Internal Affairs Unit interviewed Officers Kasper, Sedgwick, Crites, Hibler, and Sanders; Sanders's direct supervisor, Sgt. Houston; the Department's use of force instructor; the paramedic who treated Baker; all police reports regarding contact with Baker; Sanders's training records; and videos from the police station holding cell and booking room and from officers' patrol cars. Baker refused to be interviewed. The thirty-nine-page Internal Affairs Unit's Report concluded with recommendations that the violations of the Department's Code of Conduct policy, Duty to Use Reasonable Force; the Department's Use of Force Policy, Medical Attention; and the City of Columbia's Guidelines for Corrective Action be considered "Unfounded." By this finding, the Internal Affairs Unit explained that "the allegation of misconduct did not occur even though the underlying events did." The Internal Affairs Unit's report was circulated to Sanders's chain of command so they could review the report and indicate whether they concurred with the recommendations. The Chief of Police is not bound by the Internal Affairs Unit's disciplinary recommendations. Indeed, Chief Burton ignored the findings and recommendations of the Internal Affairs Unit and terminated Sanders's employment effective September 21, 2011.⁴

Sanders appealed the Chief's decision by initiating a grievance on September 30, 2011. On October 14, 2011, Chief Burton denied Sanders's grievance. Sanders appealed to the City's Director of Human Resources, which upheld the Chief's decision. Upon completion of the administrative appeal process mandated by section 19–238 of the Columbia, Missouri, Code of Ordinances ("Code"), Sanders requested a hearing before the City's Personnel Advisory Board ("PAB").

The PAB held an evidentiary hearing on November 15, 2013. The PAB recommended by a four-to-two decision that Sanders should...