PDF copy: ALJDEC decisions subject to certification as final

14A-197-POST · Peace Officers Standards and Training · 2017-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Hearing Regarding the No. 14A-197-POST Peace Officer Certification of:

Chad E. Killian ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 22, 2016 APPEARANCES: Neil Landeen, Esq. for Chad E. Killian; Seth T. Hargraves, Esq. for the Arizona Peace Officers Standards and Training Board ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On May 17, 2016, the Arizona Peace Officer Standards and Training Board (“POST”) issued a Notice of Hearing setting the above-captioned matter for hearing on June 22, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing shows that the hearing was being conducted to take evidence and argument with respect to the potential suspension, revocation, or cancellation of Chad E. Killian’s peace officer certification (initiated on June 17, 2015). 3. POST alleges that on October 19, 2014, Officer Killian engaged in a physical altercation that constituted a violation of ARIZ. ADMIN. CODE sections R13-4- 109(A)(7)(to wit, a violation of ARIZ. REV. STAT. section 13-2904(A)(1)), (A)(8), and (A)(9). 4. On the night of October 18, 2014 and into the morning hours of October 19th, Officer Killian and other members of the Yuma Police Department (“YPD”) were out celebrating a birthday at Red’s Birdcage, a bar in Yuma. Also present were Officer Killian’s wife, members of other law enforcement agencies, and at least three sailors, including Chief Petty Officer Shawn Cox.

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 5. There is no dispute that Officer Killian and CPO Cox had a physical altercation that morning, however Officer Killian testified that he was acting in self- defense.

6. At some point, one of the sailors said to Officer Killian’s wife “you are

beautiful, I’d like to fuck you” or “hey beautiful, are you going to fuck me” or words to

that effect. Officer Killian found the remarks to be offensive and inappropriate,

particularly considering that these were members of the military representing the United

States.

7. Officer Killian’s wife could not identify the offender and Officer Killian

approached CPO Cox, because he was the ranking officer.

8. Officer Killian told CPO Cox that he did not appreciate the comments and

that the CPO should “check” his people. CPO Cox responded that he did not know who

made the comment and asked Officer Killian if he wanted the CPO to “f-in” muster his

people. Officer Killian considered the remark to be sarcastic.1

9. YPD Officer David Williams tapped Officer Killian and the two went back

inside. About five to fifteen minutes later, Officer Williams approached CPO Cox, who

was also inside at that time. Officer Williams testified to the effect that the navy personnel were looking at him and the others from YPD and that his intent was that of a peacemaker.2 10. Officer Killian observed the two speaking and thinking that CPO Cox was being a “jerk” to Officer Williams, he went over to the two men. At that time, according to Officer Killian, he explained his concerns and that he wanted no problems. 11. Officer Killian testified that CPO Cox set down a beer bottle he was holding, took a confrontational posture, told Officer Killian that was the one who had

POST’s attorney asked Officer Killian why he did not have the CPO muster his people, asserting that this is what Officer Killian wanted. Officer Killian explained that CPO Cox was being sarcastic and that a muster is a formal procedure. Nevertheless, POST, in its closing argument, took the position that CPO Cox was attempting to be cooperative, but this position is contrary to the evidence of record. 2 Officer Williams made clear that his recollections of the events at issue had faded and he testified that statements he made during the YPD’s internal affairs investigation would be more accurate than his testimony because those statements were closer in time to the events at issue. insulted Officer Killian’s wife, asked Officer Killian what he was going to do about it, and then stepped forward with his arms out. 12. Officer Killian testified that based on his training and experience he felt

threatened, and he punched CPO Cox. At roughly the same time, CPO Cox hit Officer

Killian. Both men fell to the floor where they were quickly separated. Both men received

minor injuries, with Officer Killian sustaining a bloody nose and chipped tooth.

13. Officer Killian acknowledged that he used profanity in his conversations

with CPO Cox, but based on his experience dealing with members of the military he did

not believe this was disrespectful.

14. The City of Yuma referred the matter to a “conflict” prosecutor to

determine whether Officer Killian should be prosecuted for assault or disorderly

conduct. That prosecutor also considered whether CPO Cox should be prosecuted for

disorderly conduct.

15. The conflict prosecutor declined prosecution of either man because: (1)

both men were subject to employer-sanctions; and (2) there was conflicting information

about which man was the aggressor, with the lack of clarity being exacerbated by CPO

Cox’s statements that he “would go another round” with Officer Killian, which CPO Cox made immediately after the incident and to the police who investigated. The conflict prosecutor also noted that both men and all witnesses were under the influence of alcohol, which distorted any accurate picture of the events. 16. The conflict prosecutor was of the opinion that Officer Killian’s injuries were more significant than CPO Cox’s. 17. After the decision not to prosecute, YPD conducted an internal affairs investigation of the matter.3 Sargent William Martin conducted that investigation. 18. Sgt. Martin interviewed members of the YPD, including Officer Killian, but he did not interview CPO Cox or the other navy personnel.4 19. Sgt. Martin was unable to confirm or disprove Officer Killian’s statements that CPO Cox had been holding a bottle and that he advanced toward Officer Killian.

3 Officer Killian was not the only officer whose behavior was investigated. 20. Sgt. Martin sustained allegations that Officer Killian had engaged in Unbecoming Conduct, Conformance of Laws, and Insubordination. 21. On November 26, 2014, City of Yuma issued to Officer Killian a Notice of

Intent to Terminate. That Notice was based in part on the altercation at Red’s Birdcage,

but also included other infractions. On December 10, 2014, the City issued a Notice of

Termination.

22. In an undated letter, the City of Yuma accepted Officer Killian’s

resignation, with an effective date of December 4, 2014.

23. POST acknowledges that the June 17, 2015 Case Overview that was

presented to POST is in error in that it shows that Officer Williams observed Officer

Cox strike CPO Cox, whereas Officer Williams had repeatedly stated that he did not

see the actual altercation.

CONCLUSIONS OF LAW

1. The Arizona Legislature has empowered POST to “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with rules prescribing reasonable minimum qualifications for officers. See ARIZ. REV. STAT. § 41-1822(D)(1). 2. POST bears the burden of persuasion. See ARIZ. REV. STAT. § 41- 1092.07(G)(2). 3. The party asserting a claim or an affirmative defense must establish that claim or defense. The standard of proof on all issues is that of the preponderance of the evidence. ARIZ. ADMIN. CODE R2-19-119. 4. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. BLACK’S LAW DICTIONARY 1373 (10th ed. 2014).

4 The navy personnel had been interviewed by others as part of the criminal investigation; Sgt. Martin 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted). Statutes and rules are construed using the same principles. Id.

6. “Statutes shall be liberally construed to effect their objects and to promote

justice.” Ariz. Rev. Stat. § 1-211(B).

7. Substantial evidence is evidence that a reasonable mind would use to

reach a conclusion. See Mealey v. Arndt, 206 Ariz. 218, 76 P.3d 892 (App. 2003).

8. POST alleges that Officer Killian’s physical altercation with CPO Cox

violated ARIZ. REV. STAT. section 13-2904(A)(1)(disorderly conduct), which would also

be a violation of ARIZ. ADMIN. CODE section 13-4-109(A)(7).

9. “A person commits disorderly conduct if, with intent to disturb the peace

or quiet of a neighborhood, family or person, or with knowledge of doing so, such

person: 1. Engages in fighting, violent or seriously disruptive behavior….” ARIZ. REV.

STAT § 13-2904(A).

10. “[A] person is justified in threatening or using physical force against

another when and to the extent a reasonable person would believe that physical force

is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force.” ARIZ. REV. STAT § 13-404(A). 11. POST has not proven by the preponderance of the evidence that Officer Killian committed the offense of disorderly conduct and consequently has not proven that he violated ARIZ. ADMIN. CODE section 13-4-109(A)(7).5 Although Officer Killian was involved in a physical altercation with CPO Cox, Officer Killian provided credible testimony that he felt threatened and was acting in self-defense. POST presented no substantial evidence to rebut Officer Killian’s testimony and CPO Cox’s willingness “to go another round” and the fact that the two men struck each other at roughly the same time, support Officer Killian’s testimony.6 relied on written accounts of those interviews during his investigation. Yuma’s conflict prosecutor found that there was insufficient evidence to charge Officer Killian with disorderly conduct. 6 POST relies on statements made by sailors in the criminal investigation to the effect that Officer Killian sucker-punched CPO Cox. These sailors were not at the hearing and were not subject to cross- examination about their statements. Considering that these are not consistent with CPO Cox’s 12. POST alleges that Officer Killian’s physical altercation with CPO Cox constitutes malfeasance, misfeasance, or nonfeasance in office, in violation of ARIZ. ADMIN. CODE section 13-4-109(A)(8).

13. Malfeasance is a “wrongful, unlawful, or dishonest act; esp. wrongdoing

or misconduct by a public official.” BLACK’S LAW DICTIONARY, 1100 (10th ed. 2014).

Misfeasance is a “lawful act performed in a wrongful manner.” Id. at 1151. Nonfeasance

is a failure to act when a duty to act exists. Id. at 1216.

14. POST has not shown by a preponderance of the evidence that Officer

Killian committed malfeasance, misfeasance, or nonfeasance.

15. POST alleges that Officer Killian’s physical altercation with CPO Cox is

conduct that would tend to disrupt, diminish, or otherwise jeopardize public trust in the

law enforcement profession, in violation of ARIZ. ADMIN CODE section 13-4-109(A)(9).

POST has not proven this allegation by a preponderance of the evidence because

Officer Killian provided credible testimony that he felt threatened and was acting in self-

defense. Moreover, that the physical altercation occurred immediately after CPO Cox

told Officer Killian that he was the one who had insulted Officer Killian’s wife, further

militates against finding a violation of this rule.

Done this day, July 11, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to: Jack G. Lane, Executive Director Peace Officers Standards and Training Board

willingness “to go another round” or the evidence showing the two men struck each other simultaneously, these out-of-court statements cannot be considered as substantial evidence.