Opinion
NO. 2013 CA 0634
02-03-2014
F. BRET TANNEHILL v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER, E. A. CONWAY MEDICAL CENTER
Richard L. Fewell, Jr. West Monroe, Louisiana Attorney for Plaintiff/Appellant, F. Bret Tannehill William A. Norfolk Baton Rouge, Louisiana Attorney for Defendant/Appellee, Louisiana State University Health Sciences Center Adrienne Bordelon Baton Rouge, Louisiana Attorney for Defendant/Appellee, Shannon S. Templet, Director, Department of State Civil Service
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
State Civil Service Commission
No. 17434
The Honorable David Duplantier, Chairman
John McLure, Vice-Chairman
G. Lee Griffin, Kenneth Polite, D. Scott Hughes, C. Pete Fremin,
and Sidney Tobias, Members
Shannon S. Templet, Director
Department of State Civil Service
Richard L. Fewell, Jr.
West Monroe, Louisiana
Attorney for Plaintiff/Appellant,
F. Bret Tannehill
William A. Norfolk
Baton Rouge, Louisiana
Attorney for Defendant/Appellee,
Louisiana State University Health
Sciences Center
Adrienne Bordelon
Baton Rouge, Louisiana
Attorney for Defendant/Appellee,
Shannon S. Templet, Director,
Department of State Civil Service
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
DRAKE, J.
Appellant, Frank Bret Tannehill, seeks review of the State Civil Service Commission's (Commission) decision affirming a demotion and forty-hour suspension imposed on him by his employer, LSU Health Sciences Center (LSUHSC), for use of excessive force during an arrest. For the reasons stated herein, the decision of the Commission is affirmed.
FACTS AND PROCEDURAL HISTORY
Officer Tannehill was employed as a Police Sergeant-A by LSUHSC at E.A. Conway Medical Center located in Monroe, Louisiana. On March 29, 2012, Officer Tannehill received a telephone call from the emergency room staff requesting assistance with a male patient who was causing a disturbance. The patient was verbally abusive to the treating physician, Dr. Curtis Balms, and was totally out of control. The patient demanded intravenous antibiotics and pain medication for a chronic urinary tract infection. The patient requested a refill of pain medications and gave the staff an empty bottle of hydrocodone with an unreadable label. The patient also requested valium and lortab. He cursed and yelled at the staff of the hospital on numerous occasions. While in the exam room, the patient threw a stool across the room.
Officer Tannehill talked with the patient in an attempt to calm him down so that the patient could receive treatment. Officer Tannehill informed the patient that if he did not stop cursing, he would have to leave the hospital. The patient was sitting in a wheelchair with a backpack in his lap. Officer Tannehill attempted to get the patient to cease cursing, which the patient did not do. However, the patient agreed to leave the hospital.
Officer Tannehill followed the patient into the lobby area of the emergency room to make sure the patient left the hospital. Even when the patient went to the lobby, the emergency room staff could still hear him cursing and yelling. A videotape of the lobby of the emergency room clearly shows the patient as agitated and yelling at Officer Tannehill. The patient turned toward Officer Tannehill while continuing to yell and curse. Officer Tannehill pointed toward the door and told the patient he would be arrested for disturbing the peace if he did not leave. The patient refused to leave, so Officer Tannehill proceeded to attempt to handcuff the patient. Officer Tannehill grabbed the left hand of the patient in order to handcuff him, but the patient pulled his hand away. Officer Tannehill immediately struck the patient on the side of his neck twice in rapid succession with a maneuver known as a "brachial stun," which is meant to stun the person enough so that the police can handcuff someone who is resisting. Even after Officer Tannehill administered the "brachial stun," the patient continued to resist efforts to be handcuffed. Officer Tannehill then put the patient in a headlock and dragged him out of the wheelchair and to the ground.
Officer Antonio iseah, who was in another part of the hospital at the time of the incident, heard a "Code White" call, which indicated there was violence taking place in the hospital. Within twenty to thirty seconds from the "Code White" call, Officer Iseah arrived at the scene. When Officer Iseah arrived, the patient was already on the floor. A hospital staff member, who was large in size, was already assisting Officer Tannehill with handcuffing the patient. Officer Iseah also assisted in handcuffing the patient. During the entire time, even when the patient was on the floor, the patient continued to "tussle" with Officer Tannehill and struggled to avoid being handcuffed.
The transcript of the hearing and other portions of the record spell Officer Iseah's name as "Iseah." Other parts of the record spell his name "Isiah." The record does not reconcile the different spellings, but we choose to utilize the spelling contained in the hearing transcript which is also utilized more frequently in the record than "Isiah."
The Commission noted from the video evidence that less than thirty seconds elapsed from the time Officer Tannehill pointed to the door of the emergency room lobby for the patient to leave until the patient was lying on the floor after being dragged from his wheelchair. It was only after he was handcuffed that the officers learned the patient was paralyzed and unable to stand.
LSUHSC let Officer Tannehill know that it was considering disciplinary action and allowed him time to respond, which he did. On May 15, 2012, LSUHSC sent Officer Tannehill written notification that his response was considered in making its determination. LSUHSC decided, as discipline, to demote Officer Tannehill from a Police Sergeant-A to a Police Officer 2-A, which resulted in a reduction in pay of fourteen percent. LSUHSC also issued a forty-hour suspension without pay. LSUHSC determined that Officer Tannehill had used poor judgment and excessive force while attempting to arrest the patient.
On June 5, 2012, Officer Tannehill appealed LSUHSC's decision to the Commission, pursuant to Civil Service Rule 13.1. The Louisiana Constitution gives the Commission exclusive power to hear and decide all disciplinary cases of employees who have gained permanent status in the classified state civil service. La. Const. art. X §§8, 12. A hearing was held by the appeal referee on October 23, 2012. The appeal referee rendered her decision on December 21, 2012, and denied the appeal, finding that the cause for discipline and the penalty imposed were appropriate, given the offense. It is from the decision of the Commission that Officer Tannehill appeals, pursuant to La. Const, art. X, § 12(A).
DISCUSSION
Employees with permanent status in the classified civil service may be disciplined only for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission. La. Const. Art. X, §8(A). The decisions of the Commission are subject to review of any question of law or fact. La. Const. Art. X, § 12(A). The standard of review for decisions on appeal from the Commission is the same standard used in reviewing judgments of district courts. The factual determinations of the Commission will not be set aside unless they are found to be manifestly erroneous. Department of Corrections, Louisiana State Penitentiary v. Barrere, 431 So. 2d 782, 783-84 (La. App. 1 Cir.), writ denied, 435 So. 2d 431 (La. 1983). Great weight is given to the factual conclusions of the administrative fact finder. Johnson v. Department of Health and Hospitals, 00-0071 (La. App. 1 Cir. 2/16/01), 808 So. 2d 436, 438.
Generally, a police officer, in carrying out his authority to enforce laws, has the duty to act reasonably to protect life and limb, to refrain from causing injury or harm, and to exercise respect and concern for the well being of those he is employed to protect. Lavine v. Jackson, 97-2804 (La. App. 1 Cir. 12/28/98), 730 So. 2d 958, 961-62, writ denied, 99-0898 (La. 5/28/99), 743 So. 2d 677, cert, denied, 528 U.S. 973, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999). Moreover, in effectuating an arrest, police officers have the duty to act reasonably, and the force used must be limited to that required under the totality of the circumstances; the reasonableness of an officer's actions depends upon the totality of the facts and circumstances of each case. Lavine, 730 So. 2d at 962 (citing Mathieu v. Imperial Toy Corporation, 94-0952 (La. 11/30/94), 646 So. 2d 318, 322). Finally, an officer's actions need not be the "best" method of approach; instead, the standard of care requires choosing a course of action which is reasonable under the circumstances. See Mathieu, 646 So. 2d at 325.
The "Security Policy and Procedure—2 Use of Force, Arrest, and Detention" used by LSUHSC states the policy that applied to the conduct of Officer Tannehill as follows:
[I]t is the policy of this department that police officers shall use only that force or response that is reasonably necessary, given the totality of facts and circumstances of the incident to affect [sic] arrest or to protect themselves or others.
* * *
The decision to use or escalate an officer's response to resistance force is contingent upon but not limited to several factors including:
A. The type of arrest being made (misdemeanor or felony)
B. The degree of resistance encountered
C. What weapons are involved, or accessible
D. Officer/subject size and/or gender
E. The number of persons involved in the incident
F. The availability of backup officers
G. Officer injury or exhaustion
H. Special knowledge pertaining to arrestee
I. Influence of alcohol or drugs
J. Other existing circumstances
Officer Tannehill assigns five different assignments of error, all of which can be summarized into whether he used excessive force in arresting the patient. His assignments specifically claim the Commission erred in finding the following:
(1) That he skipped a lesser level of force and proceeded directly to a greater level;
(2) That he used force immediately despite the amount of time he attempted to calm the patient;
(3) That it was unnecessary for Officer Tannehill to put the patient in a headlock even though the patient had a backpack on his lap which potentially could have had a weapon;
(4) That his failure to search the backpack compromised the safety and security of the hospital; and
(5) That he should have called for back-up even though the patient did not resist until Officer Tannehill attempted to arrest him.
All of the errors assigned by Officer Tannehill are factual findings of the Commission, which will not be set aside absent manifest error. See Barrere, 431 So. 2d at 783-84. This court does not find any manifest error on the part of the Commission.
The Commission found Officer Tannehill skipped a level of force, identified as a soft empty-handed control, by immediately using the brachial stuns and putting the patient in a headlock, despite the testimony of Captain Ron Lara that Officer Tannehill did not violate the Use of Force Continuum (Continuum) referred to in the Policies and Procedures of LSUHSC. Offered into evidence was a "Resistance Response Continuum Example" (Resistance Example), which set forth an example of LSUHSC's policy of when to use force to subdue a potential arrestee. The Resistance Example permitted pressure point manipulation, joint manipulation, and balance displacement, all called soft empty-handed control, to be used by the officer when the arrestee was verbally non-compliant, argumentative, or offering passive resistance. Hard empty-handed control, such as motor dysfunction, kicks or strikes, and take-downs, could be used for defensive resistance and for pulling away from an officer's control, but with no attempt to harm the officer.
Captain Ron Lara testified that Officer Tannehill did have probable cause to arrest the patient for disturbing the peace, and that his actions did not violate the Continuum. The Resistance Example states that it is an example, not a strict guideline, that the totality of the circumstances and exigent conditions must be taken into consideration, and that the officer may enter the Continuum at any appropriate point. LSUHSC contended that Officer Tannehill violated its policy in not calling for backup officers when he could do so.
The Commission took into consideration the totality of the circumstances including many factors listed in the policies and procedures of LSUHSC. The facts proven at the hearing were that the patient was in a wheelchair and was paralyzed; Officer Tannehill was a large man and backup officers were available and immediately appeared when called. The video of the incident shows Officer Tannehill striking the patient and putting him in a headlock, causing both of them to fall to the floor, all within less than thirty seconds. The disturbance being caused was all verbal until Officer Tannehill escalated the situation. There was sufficient testimony that backup officers could have been called before any physical intervention. Captain Ron Lara, Officer Arthur Hampton, Sr., and Assistant Chief Allen Freeman testified that Officer Tannehill should have called for backup prior to using physical force on the patient. Assistant Chief Freeman criticized Officer Tannehill's entire handling of the situation with the patient.
With regard to the Commission's finding that Officer Tannehill immediately used force despite his efforts to calm the patient, the videotape entered into evidence clearly shows the patient arguing with Officer Tannehill. There is no dispute that Officer Tannehill did attempt to calm the patient. Even the fact that he did so for several minutes did not then give Officer Tannehill the authority to use unnecessary force on the patient. The confrontation in this matter was entirely verbal until Officer Tannehill began to arrest the patient. Even though the patient may have pulled his arm away when Officer Tannehill attempted to handcuff him, the totality of the circumstances was that the patient was a paralyzed man in a wheelchair at the time of the arrest. After viewing the videotape, we agree with the Commission that it was unnecessary for Officer Tannehill to use the two brachial stuns on the patient, put the patient in a headlock, and drag him to the ground from his wheelchair without seeking backup prior to attempting the arrest of the patient.
With regard to the backpack, Officer Tannehill complains that he had to use the force he did because the patient potentially could have had a weapon in the backpack which rested on his lap. However, there is no evidence in the record that Officer Tannehill ever attempted to remove the backpack or ascertain whether a weapon was in the backpack.
We also agree with the Commission that backup could have been called in this instance, given the circumstances that there were other officers present in the hospital and nearby at the time of the incident. Captain Lara testified that the officers were all trained annually how to de-escalate a confrontation before it becomes physical. The policy of LSUHSC was for the officers to use the minimum amount of force necessary for the particular situation. The Commission found that Officer Tannehill "employed extreme physical force to a patient who did not present an imminent threat of danger to himself or others." We agree with the Commission that the level of force used in this particular incident was greater than what was required under the circumstances, taking all of the evidence and the totality of the circumstances into consideration.
CONCLUSION
For the foregoing reasons, we find the Commission did not commit manifest error in finding that Officer Tannehill used excessive force in arresting the patient. Accordingly, we affirm the Commissioner's decision. All costs of this appeal are assessed to Officer Tannehill.
AFFIRMED.