Dep T of Correction V

Dep’t of Correction v. Dyce OATH Index Nos. 1456/08, 1459/08, & 1542/08 (June 17, 2008)

Three correction officers charged with using excessive force, making false reports, and failing to take appropriate action. Administrative law judge found proof, which consisted principally of video surveillance, sufficient to sustain the false report and other charges and recommended that officers be suspended for 45 days. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF CORRECTION Petitioner - against – CAVELITO DYCE, LOUIS RIOS, AND PHILIP HUNTER Respondents ______

REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Correction, charged that respondents Cavelito Dyce, Louis Rios, and Philip Hunter, correction officers, used excessive force against an inmate and submitted false reports about the incident. A hearing on the charges was conducted before me on April 21 and 22, 2008. Petitioner presented the testimony of an assistant deputy warden, a captain, and two Department investigators, as well as a video surveillance DVD. Respondents testified on their own behalf, denying any misconduct. For the reasons provided below, I find that evidence was sufficient to sustain most of the charges against all three respondents and recommend that the officers be suspended for 45 days.

ANALYSIS The charges concern an incident which occurred on May 15, 2006, in the maximum security housing area of the George R. Vierno Center (“GRVC”) on Riker’s Island. The charges -2- allege that Officer Dyce, along with another officer, used excessive force and improper hand holds on inmate Miguel Colon while escorting the inmate from his cell to the intake area. The charges assert that Officer Dyce then failed to report the use of force or profanity and made false statements during an interview. Officers Rios and Hunter are alleged to have witnessed the force and failed to report it, made false reports and made false statements during their interviews. All three respondents are also alleged to have improperly collaborated in writing their reports. It was undisputed that, at around 9:00 p.m. on May 15, 2006, Mr. Colon refused to permit officers to search his cell, blocking his door with a mattress and wet bed sheets. An extraction team, led by Captain Seven Oppedisano, was assigned to enter the cell by force and take Mr. Colon out of the housing area to the intake area. The team consisted of Officers Dyce, Rios, and Hunter, as well as Officer Andre Holder and probationary Officers Charles Harris and Patrick Remy. Officer Remy was assigned to operate a video camera to record the incident. Officer Rios was the “shield man,” given a large protective shield to hold and obliged to enter the cell first. Officers Dyce, Hunter, Holder, and Harris were instructed to subdue the inmate by grabbing various body parts, applying handcuffs, and removing him from the housing area. In their trial testimony, the three respondents provided substantially similar accounts of entering Mr. Colon’s cell. After some effort, Officer Harris cut the bed sheets and the officers were able to pry the cell door open. Officer Rios entered first, pushing the mattress away. Inside the cell, it was dark and the floor was flooded with water. Officer Rios stated that Mr. Colon immediately knocked the shield out of Officer Rios’s hand. Ordering Mr. Colon to stop resisting, Officer Rios grabbed Mr. Colon and pushed him to his bed (Tr. 92-93). Mr. Colon kicked at the officers and continued to resist. Officer Hunter hit his right hand on a side rail of the bed and broke a bone (Tr. 149). Inside the cell, Captain Oppedisano slipped and fell, injuring his back (see Pet. Ex. 4 at 8). Ultimately Mr. Colon was handcuffed and removed from the cell. The focus of the hearing was upon the allegedly improper use of force during the walk from the housing area to the intake area. Petitioner’s proof of this fact was purely circumstantial, consisting primarily of remarks and noises recorded on a videotape made of the escort. Petitioner also offered reports and statements of all seven staff members who had participated in the extraction. While most of these hearsay statements indicated that the inmate “resisted” while being escorted from his cell, none of them indicated that any force was used against Mr. Colon. -3-

Nonetheless, petitioner asserted that certain portions of the officers’ statements were relevant to the issue of whether force was used. Officer Hunter admitted that he was “real angry” about being injured and, as the inmate was brought out of the cell, said, “Throw the piece of shit off the tier” (Tr. 150). The inmate was taken down the stairs from the upper tier of cells to the floor. As the escort continued, Officer Dyce held the inmate’s right arm and Officer Holder held the inmate’s left arm. The rest of the extraction team, including Captain Oppedisano, followed up the rear. From the housing area, the group proceeded through two gates, down a long corridor, and through another gate to the intake area. Mr. Colon was taken to the clinic but refused treatment and also refused to be interviewed by Department investigators concerning the incident (Resp. Exs. A and B). Officer Dyce was treated for injuries to his right hand and his right knee (Resp. Exs. D and E). Following the incident, Captain Oppedisano reprimanded Officer Hunter for yelling that they should throw inmate Colon’s ass over the rail (Tr. 153-54). Since the inmate did not complain, it was the examination of the surveillance videotape by Department supervisors and investigators that caused all of the participants to be interviewed and disciplinary charges to be filed. The video surveillance tape (Pet. Ex. 7), which was offered in both VHS cassette and DVD format, is notable for how little it shows of the actual contact with the inmate. After the initial introductions, during which the captain and each of the officers faced the camera and stated their names, most of the video depicts only the officers’ backs and helmets as the group enters then exits the cell, goes down a set of stairs, down several corridors and through three gates, with brief glimpses of the inmate in front of the officers. Although at one point, the inmate’s head can be seen moving quickly near a gate, it is impossible to tell whether he was pushed or moved on his own. It is the audio of the 36-minute videotape which offers the most persuasive evidence that first inappropriate language and then excessive force was used. The audio picks up three instances of the inmate crying out as he is being escorted through various gates, as if the officers might be using some kind of force on him. The audio further demonstrates that some of the officers were angry at the inmate due to his actions, that the officers repeatedly ordered the inmate to “stop resisting” even though twice the inmate protested that he was not offering resistance, and that the officers were pleased that their actions had not been picked up by the video camera. -4-

The three inmate cries occur as the group of officers, with the inmate in front, go through three gates. At time counter 9:36:58 on the DVD, a short cry is heard and an officer says, “Get up. Get the fuck up.” At 9:37:54, the escort group approaches a gate. There is a bang and a cry as the video shows the inmate next to the gate. An officer says, “Oh, what happened there. Oops.” At 9:38:02, officers can be heard stating, “Oops, your shoes are wet. Watch your shoes are wet. Stop resisting.” At 9:38:22, an officer says, “Watch that floor. Watch that floor” as they approach another gate. The inmate is seen going to the left at 9:38:25 and heard crying, “Ow,” followed by two officers shouting, “Stop resisting.” At 9:39:23, the group approaches another gate. Just as the inmate reaches it, the camera angle moves down and there is a cry, followed by three officers saying, “Stop resisting.” At 9:39:27, there is a bang and more cries of “stop resisting.” At 9:39:29, there are sounds of scuffling feet and another cry as the group apparently moves through the gate. The anger of the officers toward the inmate is shown by a number of profane and threatening remarks. At tape counter 9:34:25, one of the officers says, “Put your fucking hands behind your back.” At 9:35:09, a voice mutters something that sounds like “that piece of shit” and then something about “fucking help.” At 9:36:05, a voice says, “Throw his ass over. Throw that piece of shit over.” Captain Oppedisano immediately shouts, “Hunter.” At 9:36:16, a voice says something like “Look, you nigger.” At 9:38:17, a voice says “he a gangster.” On the video, hardly a minute passes without one or two officers yelling “stop resisting” at the inmate. There is reason to conclude that at least some of these orders are being issued for the purposes other than to control the inmate. At 9:33:46, the inmate is again commanded to “stop resisting,” after which a voice says, “I’m not resisting.” At 9:34:48, the captain orders “get the inmate up” and officers again say, “Hands behind your back.” Officers now shout “stop resisting” and a voice replies, “Not resisting.” As argued by petitioner, the unusually high number of commands for the inmate to stop resisting, even after the inmate is rear-handcuffed and removed from his cell and while the camera is positioned where it can capture nothing of the inmate’s actions, seems suspicious. Whatever the purpose of the loud orders for the inmate to “stop resisting,” the two whispered comments about the camera were clearly not intended to be picked up by the camera microphone. At 9:35:17, soon after the inmate is brought out of his cell, an officer softly asks, “Where’s that camera?” Again, after the officers and inmate descend the stairs from the upper -5- tier to the floor, at 9:36:50, an officer says, “Right there. Perfect, no camera,” followed by another officer saying, “No camera.” The officers’ care in ensuring that the camera is at the rear of the phalanx of officers, with a completely obstructed view of the inmate, strongly suggests that the placement of the camera was deliberate to ensure that some actions would not be recorded on videotape. Other than using some kind of retaliatory force against the inmate, it is difficult to imagine what sort of action the officers would want to conceal. It was also notable how frequently and persistently the officers shouted out the words, “Stop resisting,” even after the inmate had been rear-handcuffed and was being escorted down the corridor with a helmeted officer in riot gear on either side of him. This same command of “stop resisting” was used after each of the cries of pain, apparently from the inmate, although no other more specific commands were given to the inmate. This also suggested that the officers might be using the command of “stop resisting” to falsely suggest a need to use force against the inmate, when, in fact, the inmate was doing nothing and one or both of the escort officers were shoving him against the gates out of anger. None of the officers could offer any innocent explanation for any of these suspicious remarks picked up on the audio. Although he admitted that he was one of the officers escorting the inmate, Officer Dyce denied that he witnessed any force being used against the inmate during the escort from the inmate’s cell to the intake area (Tr. 129-130). He also denied hearing the inmate cry out during the escort (Tr. 142). No one could recall hearing mention of a camera and all insisted they first heard it when viewing the video. Most importantly, no one offered any explanation of why anyone would comment upon the camera position. None of the officers described any specific actions by the inmate which prompted the repeated command of “stop resisting,” even though the possibilities for a rear-handcuffed inmate to resist being controlled by five officers would appear to be limited. Nor could the officers recall or explain the three cries which appear to come from the inmate as the group moves through the gates. The reports from the officers and captain provide further reason to suspect an effort to adopt a collective account of what happened during the incident. In reports written soon after the incident, all of the officers involved, using very similar language, indicated that while escorting Mr. Colon from his cell to the intake area Mr. Colon simply “resisted,” without offering any description of what the inmate actually did: -6-

Officer Dyce’s report (Pet. Ex. 11): “Once in the corridor of the gym bubble said inmate started to resist again. We gave verbal command to inmate Colon to stop resisting. Said inmate complied after several verbal commands and was escorted by CO Holder #15794 and myself to the clinic area for medical attention without further incident.”

Officer Rios’s report (Pet. Ex. 10): “Said inmate was escorted to the clinic. While in the corridor subject inmate started to resist but after several verbal commands inmate complied and was escorted to the intake without further incident.”

Officer Hunter’s report (Pet. Ex. 12): “Said inmate was resisting while escorted through the corridor. He was once again given verbal command to stop resisting. Inmate Colon, Miguel complied at this time and was escorted to the clinic for medical attention.”

Officer Holder’s report (Pet. Ex. 9): “While being escorted in the hallway inmate Colon began to resist tring [sic] to brake [sic] away form [sic] our rear arm control hold at which time verbal commands were given for inmate Colon to stop resisting. Rear arm control hold was reapplied. Inmate then stop [sic] resisting and complied. Dyce 9585 and this writer continued escorting inmate Colon to the clinic without further incident.”

Officer Remy’s report (Pet. Ex. 15): “While being escorted in the hallway said inmate began to resist, at which verbal commands were given to stop resisting. Rear arm control holds were reapplied. Said inmate stop [sic] resisting and complied. Said inmate was escorted to the clinic without further incident.”

Officer Harris’s report (Pet. Ex. 14): “In route to the clinic inmate Colon began to resist, verbal commands to stop resisting were given and said inmate complied. Inmate was taken to the clinic without any incident.”

There are other suspicious similarities in the reports demonstrating collaboration. As noted in the amended specifications, all three respondents, Officers Remy, Holder, and Dyce all used the same misspelling of inmate Colon’s first name (“Migual”). All of the officers state in their reports that the inmate was brought to the clinic, even though he was actually taken to a cell in the intake area to await an escort to the clinic. Again, the most likely reason for this collaboration in drafting the reports would appear to be to ensure concealment of certain portions of the incident. There are two notable exceptions to the general conformity of all the officers’ accounts. In his report (Pet. Ex 13), Captain Oppedisano states that, en route to the intake area, Mr. Colon “did resist and fell to the floor in the corridor area.” Similarly, in his MEO 16 interview, Officer -7-

Holder stated that during the escort Mr. Colon tried to get away and fell backwards. The audio of the videotape also includes remarks consistent with Mr. Colon falling. At the second gate, after a bang and a cry, an officer says, “Oh, what happened there? Oops” and “Oops, your shoes are wet. Watch your shoes are wet. Stop resisting.” These comments could be interpreted in two ways. It is true that they might be spontaneous reactions by the officers to seeing the inmate fall as he tried to escape. However, they could be calculated efforts by the officers to cover up the fact that the inmate fell only when the officers shoved him. The evidence here supports the second interpretation for a number of reasons. As described above, there are multiple factors suggesting that the officers were angered that the inmate barricaded himself inside his cell, forcing them to extract him. They were no doubt further angered when two staff members were apparently injured subduing the inmate inside the cell. They also commented that the video camera was not capturing any of their contacts with the inmate. Before being escorted down the corridor, the inmate’s primary comment was to deny that he was resisting. He said little else while walking with the officers. It is difficult to understand how a rear-handcuffed inmate, being held by the arms on either side by two officers, could fall backwards. Thus, other than the written reports, none of the evidence, including the video and the multiple statements taken, support the notion that the inmate tried to escape or to resist the officers between the cell and the intake. Moreover, even though Mr. Colon apparently fell at some point during the walk to the intake area, none of the officers, except for Officer Holder, mentioned this fact. Instead, in their reports, the officers indicated only that Mr. Colon either “resisted” or “tried to resist” but then “complied.” This, too, is consistent with the officers being aware that improper force was used, perhaps by Officer Holder, and then agreeing to omit mention of the force from their reports. I therefore make the following findings. After assisting in extracting Mr. Colon from his cell, Officer Hunter yelled, “throw that piece of shit over,” in violation of Department rules prohibiting profane or threatening behavior. I further find that, during the escort from the cell to the intake area, one or both of the two officers on either side of Mr. Colon pushed Mr. Colon into a gate on three occasions, causing him to yell, and that they did so in retaliation for Mr. Colon’s barricading himself in his cell. All of the officers on the extraction team then agreed to conceal these pushes when writing their reports. -8-

Based upon these findings, several of the charges must be dismissed. First, while the evidence establishes that one of the two officers, Officer Holder or Officer Dyce, used the unlawful force against the inmate, there is scant proof as to which one did so. In this regard, I note that, some six months after this incident, Officer Holder was found to have struck an inmate in a facility corridor. See Dep’t of Correction v. Holder, OATH Index No. 2208/07 (Sept. 14, 2007). Although this subsequent incident would be insufficient to find that Officer Holder pushed Mr. Colon, it does raise the significant possibility that Officer Holder alone may have shoved Mr. Colon and then enlisted his fellow officers to shield him from blame. In any event, in the absence of proof establishing by a preponderance that Officer Dyce used force against Mr. Colon, specification1 against Officer Dyce must be dismissed. Several of the charges rest upon an expansive interpretation of the obligation of correction officers to include factual details in their use of force reports. Specification 5 against Officer Dyce, specification 4 against Officer Rios, and specification 4 against Officer Hunter allege that the officers failed to mention in their reports the use of profanity and remarks about there being “no camera.” After careful consideration, I find that neither of these details were required for the reports the officers were preparing. The form report for a use of force requires an explanation “in detail” of the events leading up to the incident, any alternatives, such as verbal commands, attempted force, and a description of the incident. The Directive further requires that a report include descriptions of weapons used, injuries observed, and a list of all participants and witnesses. Directive No. 5006R-A § V (E) (2).1 As to the officers’ failure to mention profanity in their reports, the proof is insufficient to establish that these denials were intentionally false. Some of the profanity captured in the video, particularly the angry threats by Officer Hunter concerning throwing the inmate off the upper tier landing, was certainly inappropriate and in violation of Department rules. However, nothing in the use of force report form or the force directive suggests that either angry or profane remarks by staff must necessarily be included in a use of force report. Likewise, there is no indication that the other remarks made during a force incident must necessarily be recorded in the officers’ reports. Indeed, for the Department to punish staff whenever profane or discourteous remarks picked up on a video recording are not mentioned in the officers’ written reports would seem to be of questionable value, given the relative frequency of such language in a jail setting. If an

1 The force directive in effect at the time of the incident, Directive No. 5006R-A, was revised as of June 20, 2006, becoming Directive No. 5006R-B. The force and reporting guidelines relevant to the instant case were unchanged. -9- officer fears disciplinary charges for omitting references to all profane, angry, or otherwise improper remarks by his fellow officers, this may distract him from the primary purpose of describing force used. Forcing officers to report every discourteous remark made by fellow officers during a force incident may also have the undesired effect of distracting them from maintaining security as they focus on memorizing dialogue. Insofar as they allege that the officers’ failure to mention remarks containing profanity or mention of a camera, portions of the false statement charges against the three respondents should be dismissed. Specification 3 against Officer Rios and specification 3 against Officer Hunter allege that, in their MEO 16 interviews, both officers denied observing force used during the escort and also denied hearing officers using profanity. In his interview, Officer Rios stated that he was the third or fourth officer behind Mr. Colon (Pet. Ex. 5 at 18). When he viewed the videotape, he acknowledged that the image and audio on the tape suggested that the inmate seemed to have been pushed, but Officer Rios insisted he was unable to view this action from behind the other officers (Pet. Ex. 5 at 23-24). Officer Rios further stated that he did not recall hearing the remark from Officer Hunter (Pet. Ex. 5 at 25). Officer Hunter recalled that there were one or two officers between him and the inmate (Pet. Ex. 6 at 9) and denied that he observed anything “out of the ordinary” during the walk from the inmate’s cell to the intake area (Pet. Ex. 6 at 10-11). Officer Hunter acknowledged making the remark about throwing the inmate off the tier (Pet. Ex. 6 at 10) but could not recall hearing any other inappropriate remarks. I could find little basis to conclude that Officers Rios’s and Hunter’s interview statements about hearing profanity were false. The videotape of the incident captured a cacophony of noises and shouts, making it extremely difficult to make out words or identify voices. During the officers’ removal of Mr. Colon from the cell, Mr. Colon, the officers, and other inmates are all shouting various remarks, some profane, some not. Given this almost constant background of shouts, it seemed plausible that, in an interview some four months after the extraction, the officers would be unable to recall much of what was said, profane or otherwise. I therefore find no misconduct in the officers’ interview answers concerning whether they heard correction staff use profanity. However, the findings that force was used and then concealed are sufficient to sustain the remainder of the charges. By either failing to mention or denying in their written reports or in -10- their interview statements having seen retaliatory force against Mr. Colon, the three respondents violated the rules regarding reporting use of force and reporting generally. See Dep’t of Correction v. Jones, OATH Index Nos. 1332/95 & 1334/95 at 20 (Dec. 22, 1995); Dep’t of Correction v. Butler, OATH Index Nos. 876/92, 877/92 & 878/92 at 15 (Dec. 2, 1992); Dep’t of Correction v. Porter, OATH Index Nos. 1378/04 & 1379/04 at 21-22 (Feb. 21, 2006). Since it was undisputed that Officer Dyce was next to the inmate for the entire procession from the cell to intake, there is no question that he saw the force applied, even assuming he was not the one who used it. As to Officers Rios and Hunter, it is probably true that their view of Mr. Colon was partially and momentarily obscured by their fellow officers. However, both were only a few feet behind, would have clearly seen rapid movements and, more importantly, would have heard the inmate’s cries and the bangs as he hit the gates. In their reports, both used the language apparently agreed upon by the group to cloak the inmate’s cries as resistance, without acknowledging any use of force. Thus, specifications 2 and 3 against Officer Dyce, specifications 1, 2, and 3 against Officer Rios, and specifications 1, 2, and 3 against Officer Hunter must be sustained. Officer Hunter’s remark “throw that piece of shit over” violated general rules regarding supervising and caring for inmates. See Department rules 3.05.120, 3.20.030, 3.20.300, and 3.20.010; Dep’t of Correction v. Bluenke, OATH Index No. 320/92 (Jan. 7, 1992) (1-day suspension for officer who used profanity and verbally challenged inmates); Dep’t of Correction v. Price, OATH Index No. 1103/07 (May 1, 2007), modified, NYC Civ. Serv. Comm’n Item No. CD08-08-M (Department’s primary mission is the care, custody and control of inmates). Charge 5 against Officer Hunter must be sustained. Specification 4 against Officer Dyce alleges that he violated Department rules by placing his hand on Mr. Colon’s shirt collar instead of on his elbow. The proof on this issue consisted of the testimony of Captain Dannie Lomas, a 20-year Department veteran who has taught various classes on use of force at the Department of Correction Academy. He stated that all correction officers are taught the proper method of escorting an inmate by holding the weaker hand on the inmate’s elbow and the stronger hand on his wrist (Tr. 79). He reviewed the videotape and observed that, at one point, the shorter of the escort officers, who was identified as Officer Dyce, grabbed the back of the inmate’s shirt, an improper hold (Tr. 83-84). This charge should also be sustained. -11-

The final charges against all three respondents allege that they “wrote their reports together” in violation of Department rules. The force directive mandates that force reports contain the author’s own observations and be written “independently.” Directive No. 5006R-A section V (E) (3). As noted above, there are numerous examples of identical or nearly identical language in all of the reports submitted. The most notable instances of duplication in the reports concern the descriptions of what occurred after Mr. Colon was removed from his cell and as he was taken to the intake area. As previously noted, there are other less striking similarities in the reports: the similar misspelling of inmate Colon’s first name the same way (“Migual”) and identifying their destination as the clinic rather than the intake area. In this case, the proof that the officers shared a collective intent to conceal the force used against the inmate, combined with the similar descriptions of what occurred, established by a preponderance that the officers discussed together what they would write in their reports prior to the time they prepared the reports. The charges alleging that the three officers did not write their reports independently should be sustained. In sum, four specifications against each of the respondents must be sustained, and the rest dismissed.

FINDINGS AND CONCLUSIONS

1. Specifications 1 of DR 9/07 against Officer Cavelito Dyce should be dismissed in that petitioner failed to prove by a preponderance of the evidence that Officer Dyce used excessive force against inmate Colon.

2. Specifications 2 of DR 9/07 against Officer Cavelito Dyce, specifications 1 and 2 of DR 6/07 against Officer Louis Rios, and specification 1 and 2 of Dr 8/07 against Officer Philip Hunter should be sustained in that, in their May 15, 2006 reports, they omitted mention that they observed force used against inmate Colon during the escort from a housing area to intake, in violation of Directive No. 5006R-A § V (E) (2) and Rule 4.30.020. -12-

3. Specification 3 of DR 9/07 against Officer Cavelito Dyce, a portion of specification 3 of DR 6/07 against Officer Louis Rios, and a portion of specification 3 of Dr 8/07 against Officer Philip Hunter should be sustained in that, in interviews in September 2006, they omitted mention that they were aware that force was used against inmate Colon during the escort from a housing area to intake, in violation of Directive No. 5006R-A § V (E) (2) and Rule 4.30.020.

4. A portion of specification 3 of DR 6/07 against Officer Louis Rios and a portion of specification 3 of Dr 8/07 against Officer Philip Hunter should be dismissed in that there was insufficient evidence to find that, in interviews in September 2006, their statements about not hearing profanity during the incident were false.

5. Specification 4 of DR 9/07 against Officer Cavelito Dyce should be sustained in that, on May 15, 2006, while escorting inmate Colon from a housing area to intake, he held the inmate by the collar in violation of Directive No. 5006R-A .

6. Specification 5 of DR 9/07 against Officer Cavelito Dyce, specification 4 of DR 6/07 against Officer Louis Rios, and specification 4 of Dr 8/07 against Officer Philip Hunter should be dismissed in that petitioner failed to prove by a preponderance of the evidence that the officers’ failure to mention remarks containing profanity and referring to a camera were in violation of Department rules or directives.

7. Specification 5 of DR 8/07 against Officer Philip Hunter should be sustained in that, on May 15, 2006, while extracting inmate Colon from a cell, stated, “Throw his ass over, throw that piece of shit over,” in violation of Department rules 3.05.120, 3.20.030, 3.20.300, and 3.20.010.

8. Specification 6 of DR 9/07 against Officer Cavelito Dyce, specification 5 of DR 6/07 against Officer Louis Rios, and specification 6 of Dr 8/07 against Officer Philip Hunter should be sustained in that, on May 15, 2006, they collaborated in writing their use of force reports, in violation of Directive No. 5006R-A § V (E) (2).

RECOMMENDATION -13-

Upon making the above findings, I requested and received summaries of the three respondent’s personnel records in order to make appropriate penalty recommendations. Officer Dyce was appointed in 1990, while Officer Rios and Officer Hunter were appointed in 2002. Officer Dyce has no prior disciplinary record. Officers Rios and Hunter both have command disciplines of a reprimand within the last year. Officer Dyce’s 18 years of service demand considerable mitigation. Officer Rios and Hunter’s shorter work histories are worthy of some mitigation, albeit less than that of their fellow officer. There can be no question that the disingenuousness of the three respondents in this case is deserving of a significant penalty. In past cases, where force incidents resulted in serious injury to an inmate or where the officers had poor records, similar charges have resulted in termination. Dep’t of Correction v. Debblay, OATH Index Nos. 2008/04, 2009/04, 2011/04 & 2012/04 (Dec. 3, 2004), aff'd, NYC Civ. Serv. Comm'n Item No. CD06-02-SA (Jan. 9, 2006) (Debblay 2008/04 and Echevarria, 2011/04); appeals by Turrisi (2009/04) and Clark (2012/04) withdrawn, aff'd, NYC Civ. Serv. Comm'n Item No. CD05-78-O (Sept. 30, 2005) (officers who participated in scheme to cover up beating of inmate and falsify documents terminated). On the other hand, where there were few or no inmate injuries and officers had good records, there have been penalties of suspension time only. Dep’t of Correction v. Johnson, OATH Index No. 1639/05, (Aug. 18, 2005), modified, Comm’r Dec. (Oct. 27, 2005), modified, NYC Civ. Serv. Comm’n Item No. CD07-29-M (Mar. 14, 2007) (15-day penalty where officer, with a spotless record, pushed an inmate’s head into a cell door during a struggle and submitted a misleading report about the incident); Dep’t of Correction v. Fernandez, OATH Index No. 1356/06 (Sept. 21, 2006), modified, Comm’r Decision (Feb. 22, 2007), modified, NYC Civ. Serv. Comm’n Item No. CD08-12-SA (Feb. 20, 2008) (10-day suspension where officer, without adequate warning, used spray on an inmate from less than four feet away and submitted a false or misleading report); Dep’t of Correction v. Scott, OATH Index No. 376/06 (July 10, 2006) (60-day suspension where respondent used impermissible force, relocated the inmate without approval, issued a false and misleading report, and made false statements at an MEO 16 interview); Dep’t of Correction v. Hills, OATH Index No. 632/04 (Apr. 26, 2004), modified, Comm’r Dec. (Oct. 28, 2004) (30-day suspension recommended for impermissible use of force and failure to report, noting respondent’s 20-year tenure and lack of prior discipline); Dep’t of Correction v. Romero, OATH Index No. 388/04 (Apr. 23, 2004), aff’d, NYC Civ. Serv. Comm’n Item No. CD05-46-SA (Aug. -14-

1, 2005) (40-day suspension recommended for excessive force in which multiple blows were made after inmate was subdued, where respondent had brief four-year tenure and no prior discipline). In the instant case, where the inmate was not injured and where the officers all have good work records, a penalty of suspension seems appropriate. Indeed, petitioner’s attorney recommended that all three officers be suspended for the statutory maximum of 60 days if found guilty of the charges. In this case, several factors argue for a slightly lessor penalty. First, the force used against Mr. Colon was extremely minor and caused no injury. As noted above, all three of the officers have very good work records with no prior histories of misconduct. None of the officers was found himself to have used excessive force, as was true of the one prior officer who received a 60-day penalty. See Scott, OATH Index No. 376/06 at 5; Jones, OATH Index Nos. 1332/95 & 1334/95 (10-day suspension for officer who wrote false report but who did not use force); Butler, OATH Index Nos. 876/92, 877/92 & 878/92 (20-day suspensions for officers who wrote false reports but did not use force). Furthermore, after having witnessed the shoving of inmate Colon and learning that the inmate was not complaining of either mistreatment or injury, the officers here were placed in a difficult position. If they mentioned the shoving in their reports, their statements would no doubt cause another officer to be brought up on charges and perhaps terminated. If they did not mention the shoving, they themselves would be exposed to charges. Their choice of risking their own careers to avoid betraying one of their colleagues, while regrettable and in violation of Department reporting requirements, is somewhat understandable. Their sense of loyalty, while clearly misplaced in this instance, is consistent with their good work records and suggests that, if they are able to redirect their sense of allegiance to the Department, they may yet have long, rewarding careers. As a final matter, I find that neither the inappropriate hold by Officer Dyce nor the profane remark by Officer Hunter are deserving of any additional suspension penalty, standing by themselves. Accordingly, for the misconduct which was found to have occurred here, I recommend that each of the respondents here be suspended for 45 days. -15-

John B. Spooner Administrative Law Judge

June 17, 2008

SUBMITTED TO:

MARTIN F. HORN Commissioner

APPEARANCES:

DAVID KLOPMAN, ESQ. Attorney for Petitioner

KOEHLER & ISAACS, LLP Attorneys for Respondents BY: PETER C. TROXLER, ESQ.