ALJDEC decisions subject to certification as final

2021-124-POST · Peace Officers Standards and Training · 2024-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Hearing Regarding

the Peace Officer Certification of:

Conner W. Orth-Smith,

Respondent.

No. 2021-124-POST

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 22, 2024 and May 23, 2024

APPEARANCES: Assistant Attorney General Joseph Dylo, Esq. appeared on behalf of the Arizona Peace Officers Standards and Training Board (AZPOST). Eric Wilson, Esq. appeared as counsel for Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: AZPOST Exhibits 1-5, 7-11, 15, 16, 18, 19, 22 were admitted. Respondent’s exhibits B and D were admitted.

_____________________________________________________________________

FINDINGS OF FACT

Background

Officer Conner W. Orth-Smith (Respondent) was employed by the Phoenix Police Department (PPD) from May 18, 2020 through July 23, 2021.

On July 20, 2021, the PPD was notified by the Maricopa County Attorney’s Office of potential misconduct after reviewing the body worn camera (BWC) footage related to the prosecution of Mardell Tad Curley (Curley).

On or about July 23, 2021, the PPD Professional Standards Bureau and Special Investigations Detail commenced an investigation into the use of force that Respondent utilized against Curley during his July 16, 2021 interaction that was captured on BWC footage.

On July 23, 2021, Respondent resigned from the PPD based on his probationary employment status.

On September 28, 2021, AZPOST received a termination report from the PPD with an effective date of July 23, 2021, regarding Respondent that indicated the PPD was aware of conduct that may violate AZPOST rules.

On February 16, 2022, AZPOST Compliance Specialist Mike Deltenre (Deltenre) presented a case overview document that he prepared to the AZPOST Board.

The case overview was not a product of any independent fact-finding by AZPOST staff; rather, the case overview was a summarization of the BWC footage, the criminal investigation, and other documents provided by the PPD.

AZPOST was unable to communicate with Respondent to ascertain his position on the allegations asserted by AZPOST.

AZPOST’s case overview was not aided by an AZPOST trained use of force subject matter expert, Mike Puente’s (Puente) opinions, before it was presented to the AZPOST board on February 16, 2022.

On February 16, 2022, the AZPOST board voted to initiate proceedings against Respondent’s certification alleging, “[o]n July 16, 2021, [Respondent] used excessive force on Curley while he was handcuffed.”

On March 10, 2022, Respondent requested a hearing based on the February 16, 2022 Complaint and allegation.

On April 3, 2024 a Notice of Hearing was issued, setting the hearing for May 22, 2024. It further stated the allegation to be as written in the complaint; however, a footnote was added to the allegation in the Notice of Hearing that was not present in the charging Complaint.

AZPOST presented its evidence through the testimony of its Use of Force and Defensive Tactics Master Instructor, Mike Puente (Puente), and its Compliance Specialist, Deltenre. It submitted exhibits 1-5, 7-11, 15, 16, 18, 19, and 22.

Respondent presented his evidence through the testimony of Respondent’s licensed criminal law attorney and former AZPOST certified officer Robert Kavanagh (Kavanagh); Use of Force subject matter expert and former AZPOST recognized expert Lon Bartel (Bartel); and through Respondent himself. Respondent submitted exhibits B and D.

Criminal Prosecution

On December 16, 2021, the Maricopa County Attorney charged Respondent with two counts of aggravated assault, to wit: strikes to the back while he was bound or otherwise physically restrained and strikes to the head while he was bound or otherwise physically restrained.

In August 2022, Respondent entered into the Maricopa County Attorney’s Felony Diversion program.

In November 2022 the aggravated assault matter was dismissed, with prejudice, due to Respondent’s successful completion of the Felony Diversion program.

The Incident

On July 16, 2021, Respondent was working patrol in the 800 Maryvale precinct and was dispatched to a priority one “hot call” at a local hospital to help security personnel that was dealing with Curley who had trespassed, refused to leave, and had become physical with the security personnel.

Prior to his arrival, Respondent was provided a brief description of a Native American male who was approximately 6’1’’, weighing approximately 260 pounds.

Respondent, at that time, weighed approximately 225 pounds.

Upon arrival, Respondent located multiple security personnel outside the hospital who had physically detained Curley.

Respondent and the security personnel placed Curley’s hands behind his back and put him in handcuffs.

Curley appeared agitated and intoxicated and had become physical with the hospital personnel.

The hospital security personnel provided Respondent with a brief description of Curley’s conduct and despite the existence of a crime, to wit: trespassing and assault, hospital security personnel declined to prosecute and simply wanted Curley removed from the property.

Respondent escorted Curley to the prisoner compartment of his patrol Tahoe and placed him in the Tahoe.

While walking Curley to the patrol Tahoe, Curley had a level of noncompliance wherein he was moving in his own direction and Respondent could feel Curley try to maneuver in certain directions and eventually leaning back on Respondent at one point.

Respondent offered to call family for Curley and offered him a ride to wherever he wanted to go. Curley asked to be dropped off at the bus stop across the street; however, when they arrived, Curley refused to get out of the vehicle.

After some back and forth about a destination, Curley asked to go to a facility called CBI. Curley demanded to be transported to a location outside Phoenix city limits, outside of Respondent’s patrol beat, and ultimately Respondent agreed to drop Curley off at the border of Phoenix and Avondale, near 99th Ave. and McDowell Road.

Respondent pulled to the drop off location near 99th Ave and McDowell Rd. at a dirt lot next to a convenient store, customarily used by PPD officers in the 800 precinct so that Curley could exit the vehicle and walk the rest of the way to his desired destination at 105th Ave. and McDowell Road.

Respondent opened the driver’s side prisoner compartment door for Curley to exit; however, Curley laid down and refused to exit. Respondent then walked to the passenger side and opened the opposite door for Curley to exit. Curley still refused to exit.

When Respondent opened the passenger side door of the prisoner compartment of his Tahoe, Curley was already almost falling out onto the floor.

Respondent used as much strength as he could trying to move Curley into a seated position. This attempt physically exhausted Respondent.

As Respondent pulled on Curley in order to get him to the edge of the vehicle, Respondent began to lose his grip.

It was at that point that Curley “dead weighted” Respondent.

Respondent took a step back at that time because Curley’s body weight began to fall onto Respondent. Respondent would have been physically incapable of stopping Curley from sliding down.

Respondent cushioned Curley’s fall.

Curley’s upper back and shoulders contacted the dirt.

Once out of the vehicle, Respondent removed the handcuffs from Curley and told him to leave.

Respondent walked away from Curley, who could be seen looking around and attempting to enter the Tahoe by pulling on the door handles, which Respondent had locked.

Curley then quickly aggressed upon Respondent, who had his back to Curley as he was walking around the rear of the Tahoe.

Curley appeared to punch or grab Respondent.

Respondent, in response to this active aggression and assaultive attack, defended himself with strikes and ultimately an impact push to Curley, who fell to the ground.

At that point in the interaction, Curley had committed aggravated assault on a police officer (Respondent), who had used force to defend himself.

Respondent, physically exhausted and out of breath, advised dispatch that Curley had become physical with him and had a bloody nose.

Curley again used assaultive active aggression in an apparent attempt to grapple Respondent’s leg when Respondent reengaged Curley to place handcuffs on him again.

Respondent was able to again place handcuffs on Curley and while attempting to control Curley, Curley grabbed Respondent’s hand and squeezed his fingers delivering pain to Respondent.

In response to that active aggression, Respondent ordered Curley to “let go.”

Respondent tried to pull his hand away, but was unable to.

Respondent was in fear that Curley could break or dislocate his fingers.

At this point, Curley did not let go, but rather torqued down on Respondent’s fingers further.

Respondent then delivered approximately 5 strikes to the large muscle groups on Curley’s back until Curley let go.

The strikes were effective, and Curley let go of Respondent’s hand.

Curley again attempted to grab Respondent’s hand, but Respondent was able to remove his hand without use of force.

As additional officers arrived on scene, Curley continued to grab at the additional officers.

This caused the additional officers to utilize a RIPP restraint to secure Curley’s legs to prevent him from kicking.

The officers attempted to place Curley in the back of Respondent’s Tahoe as Curley was handcuffed and RIPP restrained in a kneeling position, facing the prisoner compartment of the Tahoe with the door open. Respondent was standing behind Curley.

Respondent was the primary officer trying to keep control of Curley at this time.

Officer Baron-Mosqueda was present to Respondent’s left at the time.

Officer Baron-Mosqueda was not effectively assisting Respondent in controlling Curley.

Curley used his hands to grab Respondent’s pant leg, causing Respondent to become off balance.

Respondent gave Curley a verbal command to “let go” and “let go, you’re gonna get popped again dude.”

In response to Curley continuing to pull on Respondent’s leg, Respondent simultaneously pulled his leg away from Curley and used his open palm in front of his chest to push Curley’s head in a stiff-arm pushing motion while telling him “stop.”

Curley’s head did not hit the plastic seat in front of him.

CONCLUSIONS OF LAW

This matter lies within POST’s jurisdiction.

AZPOST 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), AZPOST 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. AZPOST may discipline an officer’s certification under A.A.C. R13-4-109(A)(7), (8), and (12) if it determines that he has committed acts that constitute any of the following:

7. Committing a felony, an offense that would be a felony if committed in this state, or an offense involving dishonestly, unlawful sexual conduct, or physical violence (To wit: ARS 13-1204.A.4, Aggravated Assault);

. . . .

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.”

There are, in essence, three “separate” use of force interactions that AZPOST found to have resulted in Respondent’s excessive use of force: (1) Respondent’s extraction of Curley from the police Tahoe while handcuffed (Curley’s Extraction); (2) Respondent’s use of force in reaction to Curley grabbing and squeezing Respondent’s finger (Act of Aggression I); and (3) Respondent’s use of force in reaction to Curley grabbing his pant leg while Curley was restrained near the prisoner compartment of the police Tahoe (Act of Aggression II).

Both AZPOST’s expert, Puente, and Respondent’s expert, Bartell, testified that, when evaluating the reasonableness of the use of force, “ability”, “opportunity”, “jeopardy”, and “preclusion” need to be evaluated in each instance.

“Ability” and “opportunity” are given their common definitions. “Jeopardy” includes the risk involved with the act of aggression. “Preclusion” means to eliminate by necessary consequence.

Curley’s Extraction

Puente testified that Respondent put Curley in the position of falling out of the car by “yanking him out” of the vehicle. In other words, it was Respondent’s use of force that caused Curley to fall out of the vehicle the way he did. Puente additionally testified that under the facts and circumstances, Respondent’s use of force in immediately and aggressively removing Curley from the vehicle and allowing him to fall to the ground was an objectively unreasonable and excessive use of force. He also stated, however, that there were other options available to Respondent to remove Curley from the vehicle, including getting Curley to sit up.

The Tribunal has found that Respondent attempted to pull Curley to the edge in order to sit him upright when Curley began to slide out of the Tahoe. The testimony, and therefore credible evidence on this issue, is that Respondent would have been physically incapable of being able to prevent the fall. Additionally, if Respondent was unable to stop Curley’s fall, and Curley’s bodyweight lands on top of Respondent, this would have placed Respondent in a greater vulnerable position.

AZPOST’s version of events is solely based on watching the BWC video and does not account for any of Respondent’s actual experience in the incident, and is therefore, not the most credible evidence. Mr. Puente’s bases his entire opinion on the BWC footage. To watch the BWC footage and say that the force was created by Respondent that caused Curley to fall or that force was what caused Curley to fall out of the vehicle is problematic based on the footage alone. The footage is a two-dimensional rendition of a three-dimensional incident. Case in point, the fact that multiple individuals can watch the same BWC footage and “see” multiple different points of view only lends credibility to the fact that the BWC fotoage is not, in fact, the best evidence.

Ultimately, the analysis must rely upon what facts Respondent can articulate as to what he was experiencing in his final attempt to sit Curley up when Curley ultimately slides out of the vehicle.

Finally, the Training Bureau Incident Review report even indicated:

While this is not in contradiction of our training to remove a combative or non-compliant subject from a patrol vehicle while along, it is recommended that we have two or more officers to assist during incidents similar to this.

Emphasis added.

Use of Force in Response to Curley’s Act of Aggression I

Puente testified that the squeezing of an officer’s hand who is detaining and maintaining control over a subject would be “active resistance” if the subject is “doing it in a manner to try and cause injury.” Again, the only true evidence on this issue is Respondent’s actual experience. It was reasonable at the time, after telling Curley to let go and he did not, to deliver strikes to immediately stop the behavior. It should also be noted Curley did not let go after the first strike, or even the second strike. It required multiple strikes before Curley finally released Respondent’s fingers. The strikes ceased when Curley’s act of aggression ceased.

Curley had the ability to break, dislocate, or otherwise severely injure Respondent’s fingers. Curley had the opportunity to cause severe injury to Respondent’s fingers. The jeopardy included the risk of injury to Respondent’s finger, a risk that included possibly breaking or dislocating Respondent’s finger. Ultimately, any less use of force likely would have proven unfruitful given that it took no less than 5 strikes for Curley to release Respondent’s finger. Because Respondent’s hand was tied up, it additionally mitigated how many other options he had. Respondent had already given verbal commands for Curley to let go, and he did not. Respondent had attempted to pull his hand away, but was unable. Respondent essentially had one other tool that could immediately and decisively stop Curley’s act of aggression, and that was his right hand.

Preclusion does not include the analysis of whether another officer may have done something different. A preclusion analysis necessarily considers whether the act is reasonable at the time and whether it is going to immediately stop the behavior. Again, it took no less than 5 strikes for it to stop the behavior in this instance.

Use of Force in Response to Curley’s Act of Aggression II

AZPOST’s position is that because Curley was in handcuffs, there were additional officers on scene, and AZPOST considered the grabbing of Respondent’s pants leg a “low-level of resistance,” that Respondent engaged in excessive use of force.

Bartel testified that handcuffs restrict movement, typically, but they do not prevent movement and they do not prevent somebody from attacking.

Additionally, though there were additional officers present, specifically Officer Baron-Mosqueda, the testimony and BWC footage also show that Officer Baron-Mosqueda did nothing to assist Respondent in either controlling Curley or helping Respondent when Curley actively aggressed upon Respondent’s pant leg. Officer Baron-Mosqueda simply watched and was of absolutely no aid to Respondent in any manner.

At this point, Respondent is physically exhausted, he again gave a verbal command, and when Curley did not comply, Respondent issued a small short jab that coincided with him ripping his pant leg away. There is no evidence that the small short jab caused Curley to hit his head on the plastic seat. In fact, there is evidence to the exact contrary.

Ultimately, Deltenre presented a case overview document that he prepared to the AZPOST Board. The case overview was not a product of any independent fact-finding by AZPOST staff; rather, the case overview was a summarization of the BWC footage, the criminal investigation, and other documents provided by the PPD. AZPOST was unable to communicate with Respondent to ascertain his position on the allegations asserted by AZPOST. AZPOST’s case overview was not aided by Puente’s opinions before it was presented to the AZPOST board on February 16, 2022, yet the AZPOST board voted to initiate proceedings against Respondent’s certification alleging, “[o]n July 16, 2021, [Respondent] used excessive force on Curley while he was handcuffed.

Graham v. Connor, 490 U.S. 386 (1989) establishes the foundation for all use of force. The three factors that Graham considers when determining whether the use of force is reasonable are: (1) the severity of the crime at issue; (2) whether the individual posed an immediate threat to the safety of the officers or others; and (3) whether the individual was actively resisting arrest or attempting to evade arrest by flight. The Court explained:

... the “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make spit-second decisions about the amount of force necessary in a particular situation.”

Emphasis added. Otherwise put, the standard is whether, given the facts known at the time, would a similarly trained and experienced officer respond in a similar fashion? The analysis requires careful attention to the facts and circumstances of each particular case. Part of that analysis, necessarily and admittedly, requires the subject officer’s statements and perceptions as to the facts and circumstances as they happened, in this case, Respondent’s. The totality of the circumstances must factor into the analysis of Respondent’s decision-making process. The analysis is not a hindsight look.

In Respondent’s case, this Tribunal takes into account the following factors:

Respondent’s perception based on his experience. Respondent had only been out of the police academy a few months;

Curley was a large and uncooperative individual that Respondent had reason to believe was intoxicated;

Curley refused to exit Respondent’s vehicle on his own volition, causing Respondent to have to attempt to sit Curley upright. This attempt physically exhausted Respondent;

Curley did not aid Respondent in his attempts to pull Curley to the edge in order to sit him upright;

Curley had some capability to prevent himself from coming out of the vehicle, but did not;

Curley, without provocation, attacked Respondent while Respondent was in full uniform;

Curley proceeded to grab Respondent’s finger’s and squeeze them, causing Respondent to fear his fingers could either break or dislocate;

Curley was unresponsive to verbal commands to let go of Respondent’s fingers;

Curley continued to show active signs of aggression by attempting to grab Respondent’s hand for a second time;

After additional officers arrived on scene, Curley continued to show active aggression by grabbing at the additional officers, forcing those officers to utilize the RIPP restraint;

Even after being placed in the RIPP restrain, Curley continued to grab Respondent’s pant leg, throwing Respondent’s off balance.

l. Curley had repeatedly assaulted Respondent and there was no indication

that the active aggression ever stopped.

At each instance, Respondent first gave a verbal command for Curley to cease his acts of aggression, and in doing so, placed himself further at risk of harm due to the delay in time. It was not until each verbal command was ignored, at times multiple commands, that Respondent resulted to a use of force in order to stop the act of aggression. There was never a point where compliance was achieved with just a verbal command. Respondent, each time, stopped the use of the force as soon as the act of aggression ceased.

Bartel testified that the BWC uses a fisheye lens which distorts distance. Ultimately, the BWC footage itself is not the analysis; the BWC footage only helps. The ultimate analysis necessarily includes the experience of the officer and the feelings of the officer at the time of the event(s).

A.A.C. R13-4-109(A)(7)

Therefore, applying Graham and analyzing the totality of the circumstances, which includes the BWC footage, but also Respondent’s testimony, AZPOST did not establish that Respondent either committed a felony or committed an offense that would be considered a felony in this state as Respondent acted in self-defense each time. Thus, AZPOST did not establish cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(7).

It could be argued that because Respondent signed “Defendant’s Consent to Participate in Deferred Prosecution Program and Acknowledgement (DDP),” part of that DDP required that Respondent acknowledge that he “[did] not contest what the evidence [would] show” and “admit[ted] that [Respondent] committed the charged offenses as further explained in the factual basis.” Notwithstanding, the events themselves, as stated in the direct complaint filed by the Maricopa County Attorney’s office, occurred. Respondent, however, was justified in issuing those strikes in each incident in self-defense. Furthermore, because the charges were ultimately dismissed with prejudice, Respondent is not considered to have committed a felony.

A.A.C. R13-4-109(A)(8)

AZPOST further did not establish that Respondent’s actions constituted malfeasance, misfeasance, or nonfeasance based on the totality of the circumstances and applying the factors in Graham. Therefore, AZPOST did not established cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(8).

A.A.C. R13-4-109(A)(12)

Finally, AZPOST did not establish that Respondent’s actions tended to disrupt, diminish or otherwise jeopardize public trust in the law enforcement profession. Therefore, AZPOST did not establish cause to discipline Respondent’s peace officer certification under A.A.C. R13-4-109(A)(12).

RECOMMENDED ORDER

AZPOST has discretion to suspend or revoke the certified status of a peace officer. In this case, AZPOST concedes that in order to have properly evaluated the use of force, it needed to have considered Respondent’s statements and experience in that evaluation, something AZPOST was not privy to at the time it made the decision to initiate the Complaint. AZPOST now has the opportunity to consider all of the evidence.

For these reasons, it is recommended that AZPOST find that Respondent did not use excessive force in any interaction he had with Curley on July 16, 2021. It is further recommended that AZPOST use its discretion and not revoke Respondent’s certification.

-54864001

001

-137160-45720000Done this day, July 21, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Matt Giordano, Director

Peace Officers Standards and Training

By: OAH Staff