ALJDEC decisions subject to certification as final

18A-054-POST · Peace Officers Standards and Training · 2018-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2018 APPEARANCES: Christopher R. Houk, Esq. for Gabriel E. Marcurio; Seth T. Hargraves, Esq. for the Arizona Peace Officer Standards and Training Board ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT On September 7, 2018, the Arizona Peace Officer Standards and Training Board (“POST”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 23, 2018 at the Office of Administrative Hearings. The issue for hearing is Gabriel E. Marcurio’s appeal of POST’s June 20, 2018 decision to deny his application for peace officer certification. The Notice of hearing shows that POST denied Mr. Marcurio’s application based on two allegations: (1) on March 9, 2018, Mr. Marcurio, out of anger, physically pushed a fellow recruit during defensive tactics training; and (2) when questioned about the incident by the defensive tactics instructors, Mr. Marcurio advised them that he has anger issues, and at times, while angry, he wants to kill people. POST alleges that Mr. Marcurio’s conduct violates Ariz. Admin. Code sections: a. R13-4-109(A)(8)( Committing malfeasance, misfeasance, or nonfeasance in office); and b. R13-4-109(A)(12)(Engaging in any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession). Mr. Marcurio testified on his own behalf and presented the testimony of William Ponce and Rev. Jeremiah Holcombe. POST presented the testimony of Det. Eric Teague, Det. Jesse Kennedy, and Steve Jacobs. Mr. Ponce is the Quartzite Chief of Police. Mr. Marcurio works for Quartzite as a code enforcement officer. Chief Ponce testified that he has found Mr. Marcurio to be level headed, calm and passive. Chief Ponce would be willing the hire Mr. Marcurio as an officer provided that he was found to be fit-for-duty. Chief Ponce acknowledged that an officer whose anger made him want to kill would jeopardize the public’s trust in the profession. Rev. Holcombe is the pastor at the Quartzite Alliance Church, and he has known Mr. Marcurio since the latter was a sophomore in high school. Rev. Holcombe testified to Mr. Marcurio’s good moral character and as to his involvement with the church and community, as an adult and as a teenager. Det. Teague is employed by the Bullhead City Police Department and has been a peace officer since 2001, during which time his duties have included that of a field training officer. He has been a certified instructor since 2005 and for the last five or six years has been a defensive tactics instructor at the Western Arizona Law Enforcement Training Academy (“WALETA”) teaching two classes per year. Det. Kennedy is employed by the Kingman Police Department and has been a peace officer for almost six years, during which time he has served as a field training officer and received eighty hours of training in defensive tactics, which qualifies him to teach that class. Det. Kennedy has taught four or five classes at WALETA since 2016. Mr. Jacobs a POST compliance specialist who was assigned Mr. Marcurio’s matter, initially reviewing information in his background check and then investigating the events at issue. Mr. Jacobs had been a compliance officer for almost twenty-four years. Prior to that, Mr. Jacobs spent twenty years as a police officer in the United States Air Force. Mr. Jacobs learned of the events at issue soon after they happened. Because the record showed that Mr. Marcurio might be suffering from post-traumatic stress disorder (“PTSD”), Mr. Jacobs was open to the idea that with counseling and treatment Mr. Marcurio might be cleared and able to continue to work toward certification. As of the time of his testimony however, Mr. Jacobs was of the opinion that Mr. Marcurio was lying about the events at issue, which would create a bar to certification. Mr. Marcurio has never been diagnosed with PTSD, and there appears to be no evidence in the record showing whether he has ever been assessed for it. Because peace officers are subject to stressful situations, the training academies are high-stress and militaristic in nature, with the purpose being to see if the recruits can handle stress. When a peace officer is attacked, there is a “window” during which he may physically respond to the attack as a matter of self-protection, but once that window closes, any physical response is no longer appropriate and the officer must stand down. It is never appropriate for an officer to use physical force in retaliation. Mr. Marcurio served in the military for about twenty-nine months, some of which may have been in the reserves. Mr. Marcurio was an MP and he served a nine month tour of duty in Afghanistan. He was honorably discharged on March 13, 2014 as an E4 corporal. Mr. Marcurio graduated from Grand Canyon University in 2017, where he then worked as a security guard. He received a certificate acknowledging his conduct in assisting in the identification, tracking, and apprehension of a burglary suspect. In December 2017 he was hired by La Paz County Sheriff’s Office, where he started work in January 2018. Mr. Marcurio was appointed by the La Paz County Sheriff’s Office and was attending WALETA. On March 9, 2018, Mr. Marcurio and two other recruits were participating in a multiple-assailant defensive-tactics drill being supervised by Dets. Teague and Kennedy. During the drill, two “suspects” who are carrying strike pads will approach the “officer” who defends herself by striking the suspects’ pads and “stacking” one in front of the other. On March 9th, Mr. Marcurio and another recruit were acting as suspects and Recruit Vanpelt as the officer. During the exercise, Ms. Vanpelt struck Mr. Marcurio in the face. Det. Teague, Det. Kennedy, and Mr. Marcurio each testified as to their recollection of that event and as to a discussion among the three men shortly after the incident. Regarding the training incident, Mr. Marcurio testified to the effect that:

a. Ms. Vanpelt was throwing him around with great force and more energy than the drill called for. b. Then she struck him with three elbow jabs to the face, which he felt were intentional, and he felt that he was being attacked. She also scratched his face and his shirt was torn. c. Ms. Vanpelt went beyond the boundaries of the drill. d. He moved past her and pushed her hard with the strike bag, but this was an appropriate use of force; it was extra force, but a proper use of force with the bag. e. By extra force, he meant he used more strength and he moved faster when he pushed Ms. Vanpelt. f. He acknowledged that this was more force than the instructors wanted the recruits to use, but he explained that because Ms. Vanpelt had assaulted him with her elbow and by scratching him, his use of force was proper. g. He was not sure, but thought that about twenty seconds after he pushed her, the drill ended and he put bag down. The instructors told him to leave the room and the discussion took place. h. He did not throw the bag, but he was getting thrown across the exercise floor and he may have dropped it. Mr. Marcurio also testified that he takes someone hitting him as a threat and does not take it lightly. Mr. Marcurio acknowledged that the detectives’ experience as instructors would put them in a better position than him to determine whether too much force was used when he pushed Ms. Vanpelt. Mr. Marcurio explained that there was ill-will between him and Ms. Vanpelt. For example, they had not seen eye-to-eye on laws during discussions, and when he was trying to motivate the recruits while running, she told him to shut up. Regarding the training incident, Det. Teague testified to the effect that: a. Ms. Vanpelt struck Mr. Marcurio’s bag and the blow traveled up the bag and hit him in the face. b. He saw only one blow and was in position to see if there had been more than one; he had a good view. c. Mr. Marcurio responded in anger, charging at Ms. Vanpelt and pushing her with his bag with enough force that she would have fallen down had other recruits not prevented it. d. Mr. Marcurio used more force than he had been using before being struck and more force than anyone else was using. e. It is not uncommon for a strike to go astray and impact the bag holder. f. He had never seen one recruit push another like Mr. Marcurio did Ms. Vanpelt. He estimates/guesses that he has supervised about 150 recruits over five or six years, and although he has seen people get upset during the drill, it was never like this. g. He knew that Mr. Marcurio threw his bag down hard, but he was uncertain whether this was during the drill or after it ended. The entire drill takes about two minutes and he was not sure how long after Mr. Marcurio pushed Ms. Vanpelt that the drill ended. h. His opinion was that Mr. Marcurio was retaliating against Ms. Vanpelt. i. He told Mr. Marcurio to leave the room and once outside he and Det. Kennedy addressed Mr. Marcurio about his actions. Det. Teague’s opinion was that Mr. Marcurio’s response to Ms. Vanpelt was not appropriate because it was obvious that the strike was unintentional and because Mr. Marcurio’s response was in retaliation for that strike. Det. Teague’s opinion was that Mr. Marcurio’s reaction to being struck was not reasonable because in the years he has been teaching the defensive tactics class, he had never seen a recruit react in that manner. Det. Teague was also of the opinion that Mr. Marcurio’s physical response had come after the window had closed. Det. Teague did not ask Ms. Vanpelt whether she deliberately struck Mr. Marcurio because he saw that she hit the pad and that the blow went up and then struck Mr. Marcurio. He also did not ask her whether there was ill- will between her and Mr. Marcurio because the blow was not intentional. Regarding the training incident, Det. Kennedy testified to the effect that: a. His job was to watch the three recruits and particularly Ms. Vanpelt; her back was to him but he could see her strikes. b. He saw Ms. Vanpelt miss the bag and strike Mr. Marcurio in the face. It was only one strike and he would have seen if she struck Mr. Marcurio three times. c. He was not sure if Ms. Vanpelt hit Mr. Marcurio with an elbow or a fist, nor was he sure if the blow glanced off the bag first. d. He does not know Ms. Vanpelt’s intention, but the blow did not appear to be intentional, it appeared to be an accident. e. He saw Mr. Marcurio throw his bag down after the blow and he ordered Mr. Marcurio to return to the drill. Mr. Marcurio picked up the bag, charged across the room and hit her with the bag, and she fell back into the other recruits. f. Mr. Marcurio’s response was not within the window, but rather was far outside the window; he picked up the bag and charged across the room in anger. g. Mr. Marcurio’s charging across the room was not within the limits of the drill and not what the recruits had been taught. Mr. Jacobs agreed that an officer has only a limited window in which the use of force is appropriate, and that retaliation is not an appropriate basis on which to use force. Mr. Jacobs’s opinion was that Mr. Marcurio violated Ariz. Admin. Code section R13-4-109(A)(8) when he pushed Ms. Vanpelt because he acted in retaliation and because he failed to follow the limitations the instructors had placed on the class. Regarding the discussion among the three men, Mr. Marcurio testified to the effect that: a. They started yelling at him, asking what was he doing, and telling him that he would be kicked out of the academy. After seven years of hard work to get there, this statement made him cry. b. He told the detectives that he almost had to kill people in Afghanistan. c. He never said that he wants to kill people, but he did say that he has anger issues. d. He did not say that he has PTSD. Mr. Marcurio testified that the detectives did not let him explain his position, including that there was ill-will between him and Ms. Vanpelt. Mr. Marcurio added that while in Afghanistan he saw some scary stuff, but he never shot at anyone, nor was he shot at. There was however an incident one night while he was working at the ECP, or entry control point, when he almost had to kill someone. On that night, there was a commotion or yelling and he saw a person who was wearing bulky clothes on his “kill line.” Other soldiers were around that person, and Mr. Marcurio put his gun up ready to shoot. There was a dilemma with respect to whether the person was wearing a suicide vest or not, and after reflection, Mr. Marcurio chose not to shoot. Later it was learned that this person was a “local” being stupid and not a real threat. Mr. Marcurio added that this is what I was trying to convey to the detectives: I’ve almost had to kill people and when I feel frightened and that my life is in danger I will take action. Regarding the discussion among the men, Det. Teague testified to the effect that: a. He could not recall exactly what was said, but he acknowledged raising his voice and asking “what the hell” was going on, voicing his concern that Mr. Marcurio had lost control. He explained that actions such as Mr. Marcurio had engaged in would constitute a liability in the field. b. He explained the need to confine any physical response to the appropriate window and the need for an officer to control his temper. He compared this class-room situation to one in which a suspect actually wants to hurt the officer. c. He could not recall Mr. Marcurio’s exact response, but he did recall that Mr. Marcurio stated that he had PTSD and that his anger at times made him want to kill. d. Mr. Marcurio did not provide any specific situations regarding his anger, but made general statements about his anger that were not tied to the war. e. We did not tell Mr. Marcurio that he was going to be kicked out of the academy. This decision is not one that is within my authority to make. f. He did not see any scratches on Mr. Marcurio’s face, nor did he see a torn shirt. Det. Teague found Mr. Marcurio’s statements to be of concern because officers find themselves in tough spots and cannot become upset; wanting to kill might result in a death. Det. Teague’s opinion was that an officer who wants to kill when angry would jeopardize public trust in law enforcement. Regarding the discussion among the men, Det. Kennedy testified to the effect that: a. Det. Teague brought up the window and explained that physical force was not for revenge, but only for protection, and that a peace officer must withhold his anger. b. Det. Kennedy explained that law enforcement officers are held to a higher standard than the public, and that the window to defend one’s self is small; an officer must hold his anger. c. Mr. Marcurio said he had friends who died in the military. d. Mr. Marcurio said that he has PTSD and he has anger that results in wanting to kill. e. Mr. Marcurio did cry and was still upset when the discussion ended; we allowed him to stay outside with another recruit so he could regain his composure. f. He did not see any scratches on Mr. Marcurio’s face and could not recall if his shirt was torn (but torn shirts are common). Det. Kennedy found Mr. Marcurio’s statements regarding his anger to be “scary” and he knew that his supervisor had to be informed. Det. Kennedy’s opinion was that Mr. Marcurio’s mindset would disrupt the trust in law enforcement because if he did have to kill someone, whether there was justification would be called into question. Mr. Jacobs expressed a similar opinion. During his investigation of the matter, Mr. Jacobs spoke to Mr. Marcurio many times. Mr. Jacobs had been told that Mr. Marcurio might have PTSD and he discussed with Mr. Marcurio that counseling might be available, which in turn might allow him to return to the academy. Mr. Jacobs explained to Mr. Marcurio that if he did not receive treatment for his anger issues and he was later to use force, his motives would be called into question based his statements. Mr. Marcurio stated that he understood the concerns. They spoke at length about the implications of Mr. Marcurio’s statements and during those discussions Mr. Marcurio never denied making the comments. After their discussion with Mr. Marcurio, Dets. Teague and Kennedy reported what had happened to lead instructor Sgt. Dave Reif. Sgt. Reif reported the incident to WALETA’s Sargent Frank Hayden. Sgt. Reif wrote a memo that the detectives reviewed, and that was later provided to POST. The Laz Paz County Sheriff’s Office was informed of the incident. The Sheriff’s Office requested that Mr. Marcurio be removed from the academy, which was done on March 9, 2018. In an email to Mr. Jacobs dated April 10, 2018, Sgt. Hayden reported that while he was escorting Mr. Marcurio to gather his things, Mr. Marcurio told Sgt. Hayden that he had made the statement about wanting to kill when he gets angry. He then asked Sgt. Hayden whether he had served in the military, and the Sargent told him that he had to explain himself to the La Paz County Sheriff’s Office, not the Sargent. At the hearing, Mr. Marcurio denied having made this statement to Sgt. Hayden. Mr. Marcurio also testified to the effect that the Monday following the incident (March 12th), he met with officers from La Paz County Sheriff’s Office and he told them about the Ill-will between him and Ms. Vanpelt. They said they were concerned with him saying he wanted to kill, and he expressed his surprise and told them that he had not made that statement. His employment was terminated on that day. La Paz County’s Captain Curt Bagby wrote an email in support of Mr. Marcurio, in which Capt. Bagby raised the possibility that Mr. Marcurio might be suffering from PTSD. Mr. Marcurio has spoken to Capt. Bagby by telephone twice since he was terminated by La Paz County, and he testified to the effect that Capt. Bagby indicated that he would like Mr. Marcurio to come back to the county as a deputy. Mr. Marcurio also testified that the county’s Lt. Epps made similar remarks to him. At the hearing, Mr. Marcurio expressed his desire to continue his career in law enforcement and expressed a willingness to do what was necessary to achieve that, including taking any fit-for-duty testing that would be required of him. CONCLUSIONS OF LAW

This matter lies within POST’s jurisdiction. See Ariz. Rev. Stat. § 41- 1821 et seq. POST may “[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). Ariz. Admin. Code section R13-4-109(A) provides that POST may deny certified status for reasons including: 8. Committing malfeasance, misfeasance, or nonfeasance in office; *** 12. Engaging in any conduct or pattern of conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession.

POST denied Mr. Marcurio’s request for certification because it found that he violated subsections (A)(8) and (A)(12). Mr. Marcurio bears the burden of persuasion to show that POST’s decision was in error. See Ariz. Rev. Stat § 41-1092.07(G)(1). 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. 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). “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 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. Malfeasance is doing that which the public official has no authority to do, and is positively wrong or unlawful; misfeasance is doing in a wrongful manner that which the law authorizes or requires an official to do. Holmes v. Osborn, 57 Ariz. 522, 540, 115 P.2d 775, 783 (1941)(punctuation omitted); see also Black’s Law Dictionary 1100 (10th ed. 2014)(malfeasance is “[a] wrongful or unlawful act; esp. wrongdoing or misconduct by a public official”); id. at 1151 (misfeasance is “[a] lawful act performed in a wrongful manner.)” As an initial matter, Mr. Marcurio presented no evidence to corroborate his testimony that Ms. Vanpelt struck him three times, that he was being thrown around during the drill, or that he and Ms. Vanpelt had a history, which limits the weight that can be given to his testimony. In addition, Mr. Marcuio’s testimony effectively shows that he had a bias against Ms. Vanpelt, which calls into question his objectivity on his use of force. Malfeasance, misfeasance, nonfeasance Dets. Teague and Kennedy provided credible testimony showing that when Mr. Marcurio pushed Ms. Vanpelt, he was acting outside the limits of the drill and outside what the recruits had been taught, that he appeared to be acting out of anger and in retaliation, and that he had acted outside the window during which a physical response would have been appropriate. Mr. Marcurio acknowledged that when he pushed Ms. Vanpelt he was using “extra force” that was beyond what the training officers “wanted” used. Although Mr. Marcurio testified that when he pushed Ms. Vanpelt his use of force was appropriate, the testimony from Dets. Teague and Kennedy shows otherwise. And Mr. Marcurio acknowledged that based on their experience as instructors, the detectives were better equipped to make that determination than he was. The preponderance of the evidence shows that when Mr. Marcurio pushed Ms. Vanpelt he committed misfeasance within the meaning of Ariz. Admin. Code section R13-4-109(A)(8). Conduct diminishing or jeopardizing the public trust Mr. Marcurio acknowledges that he has issues with anger and that he told the detectives this during their discussion. Although Mr. Marcurio denied stating that he wanted to kill when angry, Dets. Teague and Kennedy presented credible testimony that Mr. Marcurio made the statement, and this testimony is bolstered by the email from Sgt. Hayden. In addition, Mr. Jacobs provided credible testimony that during his discussions with Mr. Marcurio, Mr. Marcurio had never denied making these statements. The preponderance of the evidence shows that Mr. Marcurio did make a statement or statements to the effect that at times when he gets angry, he wants to kill. Mr. Marcurio argued to the effect that the use of words is not conduct within the meaning of the rule, and that there were no members of the public present during the discussion at issue (i.e., that even if he had made the statements, there would be no violation of the rule). But all the peace officers who testified, and Mr. Jacobs, agreed that an officer holding such thoughts would diminish or jeopardize public trust in law enforcement. Mr. Marcuio’s statement was “scary” to Det. Kennedy and of sufficient concern to the detectives that they immediately reported it to Sgt. Reif. And Det. Teague’s opinion was that such an attitude might put a member of the public at risk if the officer acted on his thoughts. Mr. Marcurio’s reading of the rule would lead to the unreasonable result that individuals who are compromised by their anger could be certified. As such, Mr. Marcurio’s reading of the rule is too narrow and must be rejected. The preponderance of the evidence shows that Mr. Marcurio has engaged in conduct that tends to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession within the meaning of Ariz. Admin. Code section R13-4-109(A)(12).

Conclusion Because Mr. Marcurio has violated Ariz. Admin. Code sections R13-4- 109(A)(8) and (A)(12), the Board has authority to deny his application for certification. Mr. Marcurio has failed to meet his burden to show that POST erred in denying his request for certification, his appeal should be dismissed.

Done this day, November 13, 2018. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jack G. Lane, Executive Director Peace Officers Standards and Training

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826