ALJDEC decisions subject to certification as final

2019-097-POST · Peace Officers Standards and Training · 2023-07-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Hearing Regarding the Peace Officer Certification of:

Joel C. Ensley,

Respondent.

No. 2019-097-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 28, 2023

APPEARANCES: Respondent Joel C. Ensley did not appear. The Arizona Peace Officers Standards and Training Board was represented by Assistant Attorney General Mark Brachtl.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Joel C. Ensley (Respondent) completed peace officer training in 1998 and received certification from the Arizona Peace Officer Standards and Training Board (POST). Respondent was previously employed by the Phoenix Police Department, the Arizona Department of Administration, the Apache Junction Police Department, the Hayden Police Department, and the Gila River Police Department. Respondent was employed by the Superior Police Department (SPD) from August 1, 2014, through September 28, 2020.

On or about July 19, 2019, POST received a letter from attorney Martin Bihn, which alleged misconduct on the part of various members of the SPD, including Respondent.

POST staff notified the SPD about the complaint and Chief Frank Alanis initiated an internal investigation, which was conducted with the assistance of the Pinal County Sheriff’s Office (PCSO). Chief Alanis forwarded the completed case file to POST.

Based on the investigation, the following events occurred:

On the night of March 10, 2017, an SPD officer attempted to pull over a vehicle drive by Aaron Maughan, but the suspect was able to elude capture at that time.

On March 11, 2017, Respondent and SPD Officer Marsden located Mr. Maughan apparently sleeping or passed out on a cement block near a convenience store in town.

Without attempting to wake him up or talk with him, Respondent walked up to Mr. Maughan, grabbed his arm, and told him to comply with orders.

Mr. Maughan stated he was “trying” to comply with Respondent’s instructions.

Respondent ordered Officer Marsden to “cuff him up.”

Officer Marsden placed a handcuff on Mr. Maughan’s right wrist as Respondent took him to the ground. As they attempted to control Mr. Maughan, Respondent told Officer Marsden to use his taser. Respondent retrieved his own taser, removed the cartridge, and deployed the device in drive-stun mode a short time after Officer Marsden place the second handcuff on Mr. Maughan

After Mr. Maughan was secured, Respondent approached a male in the parking lot of the convenience store who witnessed the arrest and made comments about Respondent’s conduct. Respondent demanded identification from the unidentified person and asked if he “wanted to go to jail” for Mr. Maughan. Respondent asked the male if he was trespassing or if he had permission to be at the store, which was open to the public. Respondent then ordered the male to leave the scene.

Mr. Maughan was transported to SPD and placed in a holding cell.

Respondent later wrote and submitted a supplemental report describing the events surrounding the arrest of Mr. Maughan including the following:

After struggling with the suspect for a few minutes, I deployed by [sic] taser.

After the stun, the suspect’s arms were finally placed behind his back and he was handcuffed.

A review of the body-worn camera footage from both Respondent and Officer Marsden indicated the use of force involving Mr. Maughan lasted less than one minute and that Respondent deployed the taser against Mr. Maughan shortly after Officer Marsden placed Mr. Maughan in handcuffs.

Later on March 11, 2017, a male named Clint Peterson came to the police department, asking about his friend, Mr. Maughan

Respondent and Officer Gill met with Mr. Peterson in the lobby, he told them Mr. Maughan called him from the gas station asking him for a ride, and Mr. Peterson came to the police station for additional information.

Respondent demanded identification from Mr. Peterson asserting that Mr. Peterson had involved himself in a criminal investigation. Mr. Peterson was reluctant to give Respondent his ID. Without any warning or provocation, Respondent grabbed Mr. Peterson’s left arm in an apparent wristlock with his left hand on Mr. Peterson’s left hand. In the body worn camera footage, Mr. Peterson’s left hand was bent down.

As Respondent was holding Mr. Peterson’s hand, Respondent asked, “Do you have ID?” Mr. Peterson asked if he was required to carry ID, to which Respondent answered, “You have to identify yourself to the police when they have probably case to contact you.” Mr. Peterson then asked, “Am I being suspected of a crime?”, to which Respondent answered, “Yeah, it’s called refusing to give truthful name.”

Mr. Peterson then identified himself by name. Respondent said, “Thank you, Clint,” and released the hold.

Moments later, Mr. Peterson stated he was there to pick up his friend and Respondent asked, “How do we know you’re not a part of this?” Mr. Peterson asked, “Part of what?” and Respondent said “Your boy ran from the cops in a pursuit last night, how did you get in touch with him?” Mr. Peterson then said “He did not run from the cops last night in a – pursuit last night,” and Respondent asked, “Is that right, how do you know that?” Mr. Peterson answered, “Cause he was with me.” Respondent asked, “Where?” and Mr. Peterson said “In AJ (Apache Junction).” Respondent asked, “Were you driving, maybe?” and Mr. Peterson replied, “No.”

Respondent grabbed Mr. Peterson’s left arm, again placing him in an apparent wristlock, while saying there was enough information to arrest him. With the assistance of other officers, Mr. Peterson was taken to the ground and handcuffed. He was informed he was being charged with giving false information to the police and resisting arrest.

Criminal charges were filed against Mr. Peterson, but were eventually dropped in Pinal County Court.

Prior to his interview, Respondent was provided a Notice of Allegations, a Notice of Administrative Investigation, and a Garrity Admonition. During his interview, Respondent provided the following information:

Regarding Mr. Maughan, Respondent asserted he and Officer Marsden were in a dangerous situation and that his decision to use force was predicated on Mr. Maughan’s immediate and active resistance.

Regarding the arrest of Mr. Peterson, Respondent agreed that Mr. Peterson “wasn’t initially aggressive” while at the police department and that as a witness, he did not have to cooperate with officers. However, Respondent stated he felt he had a valid reason to interview Mr. Peterson and eventually arrest him.

Respondent asserted he had been “targeted,” apparently by media reporting of this incident as well as POST.

On or about September 1, 2020, Chief Alanis issued a Final Case Disposition in which he sustained the allegations against Respondent including the excessive use of force during the arrest of Mr. Maughan, discourtesy to a citizen (the male in the parking lot of the convenience store where Mr. Maughan was arrested), excessive use of force with Mr. Peterson, and arresting Mr. Peterson without probable cause. Chief Alanis specifically noted in his report the following:

[Mr. Peterson’s] reluctance to provide you with ID is not a crime and going hands on with him when he displayed no signs whatsoever of physical aggression is unwarranted, excessive and can be perceived as taking one’s personal liberties away from them through the color of our authority. . . .

These actions are disturbing. . . . Applying force to affect an arrest on a person who was not providing the answers you wanted to hear and is not physically confrontational is unwarranted.

Respondent was placed on administrative leave with intent to terminate. Respondent resigned from SPD on September 27, 2020.

Once the SPD investigation was complete Compliance Specialist William Caldwell investigated whether the circumstances of Respondent’s termination from SPD provided cause to discipline his peace officer certification under POST’s administrative regulations. After review, POST determined that cause existed to discipline the certification.

Respondent requested an administrative hearing on POST’s decision. POST referred the matter to the Office of Administrative Hearings (the OAH), an independent state agency, for an evidentiary hearing.

On April 12, 2023, POST issued a Notice of Hearing. The Notice of Hearing charged Respondent with violating A.A.C. R13-4-109(A)(8) and (12) by committing the following alleged misconduct:

Superior Police Department Officer Joel Ensley submitted a report that improperly documented an incident that occurred on March 11, 2017: specifically when he wrote that officers struggled with a suspect, Mr. Aaron M. (Aaron), for a few minutes and that Aaron was handcuffed after a taser was deployed against him. Body-cam footage revealed the use of force lasted less than a minute and Aaron was tased after he was placed in handcuffs.

On March 11, 2017, Superior Police Department Officer Joel Ensley used excessive force when he grabbed an individual named Clint P. (Clint) and placed him in a wristlock, without articulable suspicion or probable cause to do so. An internal investigation by the Superior Police Department concluded Clint showed no sign of aggression and Officer Ensley’s use of force was possibly made to elicit information from him.

On March 11, 2017, Superior Police Department Officer Joel Ensley arrested a male subject named Clint and an internal investigation by the Superior Police Department later concluded he had no probable cause to do so.

On June 28, 2023, a hearing was held at the OAH on the issue of whether cause existed for POST to discipline Respondent’s peace officer certification. POST submitted 6 exhibits and presented the testimony of three witnesses: (1) Mr. Caldwell; (2) Chief Alanis; and (3) Sergeant Michael Benedict, PCSO. Respondent did not appear at the hearing and therefore did not present any evidence or testimony in his defense.

CONCLUSIONS OF LAW

This matter lies within POST’s jurisdiction.

POST bears the burden of proof to establish cause to discipline Respondent’s peace officer certification by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

A preponderance of the evidence is “[t]he 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.”

Under A.A.C. R13-4-109(A), POST may “[d]eny, suspend, revoke or cancel the certification of an officer” who does not comply with duly promulgated rules prescribing reasonable minimum qualifications for officers. POST may discipline an officer’s certification under A.A.C. R13-4-109(A)(8) and (12) if it determines that he has committed acts that constitute any of the following:

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.

Malfeasance is defined as “[a] wrongful or illegal act.” Misfeasance is defined as “[a] lawful act performed in a wrongful manner.” Nonfeasance is defined as “[t]he failure to act when a duty to act existed.”

Arizona Revised Statutes 13-2412(A) provides as follows:

It is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person's true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime. A person detained under this section shall state the person's true full name, but shall not be compelled to answer any other inquiry of a peace officer.

As to the allegation that Respondent submitted a report that improperly documented the events that occurred on March 11, 2017, the body worn camera footage established that Respondent’s interaction with Mr. Maughan lasted less than a minute and that Mr. Maughan was handcuffed before Respondent deployed his taser. Respondent’s report falsely reported that the struggle lasted for a few minutes and Respondent deployed his taser before Mr. Maughan was handcuffed.

As to the allegation that Respondent used excessive force when he grabbed Mr. Peterson and placed him in a wristlock without articulable suspicion or probable cause to do so, the body worn camera footage established that Mr. Peterson showed no signs of aggression during his interaction with Respondent that would warrant a use of force. As a potential witness, Mr. Peterson was free to leave the police department without answering any questions or providing any identifying information.

As to the allegation that Respondent arrested Mr. Peterson without probable cause to do so, Respondent had no reasonable suspicion that Mr. Peterson had committed a crime, therefore Mr. Peterson was not lawfully detained. Accordingly, Mr. Peterson was not required, pursuant to A.R.S. § 13-2412(A), to provide his true full name when Respondent asked for that information.

POST established that Respondent’s actions constituted malfeasance, misfeasance, or nonfeasance. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(8).

The public expects peace officers to use force only when required, to be truthful, and to properly exercise their power. Respondent improperly used force against Mr. Maughan and Mr. Peterson; falsely described the events during the interaction with Mr. Maughan in the report; and arrested Mr. Peterson without probable cause.

Thus, Respondent’s conduct jeopardized public trust in the law enforcement profession. Therefore, POST established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(12).

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-137160-45720000Done this day, July 18, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Matt Giordano, Director

Peace Officers Standards and Training

By: OAH Staff