<p> Dep’t of Correction v. Cooper OATH Index Nos. 2585/08 & 2586/08 (Nov. 12, 2008)</p><p>Two correction officers found to have submitted false or misleading use of force reports. 15-day suspension recommended for Cooper and 20-day suspension recommended for Phillips. Charge that officers colluded with each other and/or other officers in writing their reports is dismissed. ______</p><p>NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS</p><p>In the Matter of DEPARTMENT OF CORRECTION Petitioner - against – PATRICK COOPER AND JERMAIN PHILLIPS Respondents ______</p><p>REPORT AND RECOMMENDATION FAYE LEWIS, Administrative Law Judge This is a disciplinary proceeding referred to this tribunal pursuant to section 75 of the Civil Service Law. Petitioner alleges that respondents, Correction Officers Patrick Cooper and Jermain Phillips, submitted false and/or misleading use of force reports concerning an incident that occurred on October 17, 2007, in the Central Punitive Segregation Unit (“CPSU”) of the Otis Bantum Correctional Center (“OBCC”). Also alleged is that the officers inefficiently performed their duties by including information in their reports that they did not personally observe, and that they wrote their reports either together or in consultation with other officers (ALJ Ex.1). During the hearing, petitioner presented the testimony of Assistant Deputy Warden Ronald Miller, Investigator Christopher Edgar, and Captain Emelia Knox. Petitioner also submitted a videotape of the incident, respondents’ use of force reports, and other documentary evidence. Respondents testified in their own behalf. For the reasons set forth below, I find that the false and misleading charge is sustained in full as to Phillips and in part as to Cooper, the inefficient performance charge is sustained as to 2</p><p>Phillips only and the collusion charge is not sustained. I recommend that Cooper be suspended for 15 days and that Phillips be suspended for 20 days. </p><p>ANALYSIS These charges arise out of a use of force incident that occurred at about 11:30 a.m., on October 17, 2007, when Officer Walter Ross escorted inmate Edwin Ortega out of the third floor dayroom. Ross admitted in a negotiated plea agreement that as he and Ortega approached a flight of stairs leading to the lower tier of the housing area, he pushed Ortega, who fell down the stairs (Pet. Ex. 14). At this time, respondents were positioned at or near a desk in an open area adjacent to the dayroom. Ross and Ortega crossed in front of the desk just prior to reaching the stairs. The incident was captured on videotape, both hand-held and overhead surveillance time- lapse (Pet. Ex. 16). The overhead footage first shows Ortega in the dayroom, attending a religious service with a priest and two other inmates. An officer enters and handcuffs Ortega’s hands behind his back. In the next frame, in the housing area, Ross and Ortega cross from the dayroom on the right of the desk to a staircase on the left, which leads to the lower tier, near the showers. At first, Ortega is walking by himself, ahead of Ross. However, as they near the desk, Ross establishes a control hold on Ortega. Phillips is shown seated at the desk, facing toward the camera with the dayroom door on his left and the staircase on his right. Cooper is standing to the left of the desk, facing the dayroom. Cooper leans on the desk as Ross and Ortega approach, still facing toward the dayroom. Chalmers is standing on the right side of the desk, holding a camera at waist level. The hand-held audio and video footage clearly shows Ross pushing Ortega down the steps. Ortega first appears facing the camera, with Ross behind him. Ortega says, “Chalmers, my legs is free, my shit ain’t chained.” A voice, presumably that of Chalmers, replies, “So what man, I want you to kick me. I got it all on camera.” Next, Ross and Ortega are seen from behind, crossing a few steps from beside the desk to the top of the stairs. Ross is guiding him with a hand on the cuffs. When they reach the top of the stairs, Ross turns Ortega sideways and pushes him. Ortega falls down the short staircase and ends up at the bottom on one knee. Ross proceeds to the bottom of the stairs and pushes Ortega so that he is lying on his side while saying, “Stay down.” Cooper is seen helping Ross hold Ortega down. Phillips comes down the stairs and applies leg irons to Ortega’s ankles. 3</p><p>Phillips and Cooper both submitted use of force reports dated October 17, 2007 (Pet. Exs. 1, 2). Neither respondent reported that Ross pushed Ortega. In section six of the report, which asks for a description of the incident and “the specific force used,” Phillips wrote, “As CO Ross . . . was escorting said inmate his cell. Said inmate suddenly stop walking & broke CO Ross . . . control hold by turning towards CO Ross in a aggressive manner. At which time said inmate lost his balance and stumbled down the lower tier stair in 3 south [sic]” (Pet. Ex. 1). Cooper wrote in section four of the report, which asks for “the sequence of events leading up to the incident,” that he saw Ortega “physically resisting c/o Ross . . . by pulling away from said officer control holds when being escorted from the interview room.” Cooper also wrote in section six of the report that Ortega “began to pull away and physically resist c/o Ross . . . control holds and said inmate was being taken down the stairs when this writer so said [sic] inmate on the floor and assisted securing said inmate in control holds . . .” (Pet. Ex. 2). Cooper acknowledged that “so said” was a mistake, and that he meant to write that he “saw said” inmate on the floor (Tr. 116). For the sake of clarity, the false reporting/inefficient performance charges are discussed first. A discussion of the collusion charges follows.</p><p>False reporting/inefficient performance The charges against both respondents allege that their reports were false and misleading because they contained a “material omission” that Ross pushed Ortega causing him to lose his balance and fall down the steps. Additionally, the charge against Phillips alleges that his report falsely stated that Ortega suddenly stopped walking and broke Ross’s control hold, and that Ortega turned toward Ross in an aggressive manner at which time Ortega lost his balance and stumbled down the steps. The charge against Cooper alleges that his report falsely stated that Ortega was resisting Ross’s control holds and pulling away. As noted above, both officers are charged with including information in their reports which they did not personally observe. Phillips testified that he was assigned to meal relief on the day of the incident and was sitting behind the desk. He first observed Ortega as the inmate came out of the dayroom. Ortega was being “disruptive” and “pulled away” from Ross. Ross regained control of Ortega and Phillips focused on the writing he was doing in the logbook (Tr. 87, 88). He stated that he only became aware of the use of force “once everything was said and done. After everything 4 happened, I seen [Ortega] on the floor [sic]” (Tr. 89). He denied seeing Ross push Ortega (Tr. 93-94). I do not credit Phillips’ testimony that he did not see the push. Phillips acknowledged seeing Ross re-establish his hold on Ortega, just as Ross and Ortega reached the desk where Phillips was sitting. Ross and Ortega then passed directly in front of Phillips. The push occurred within seconds later. It defies credibility that Phillips would, in that split moment, focus so intently on his paperwork that he was unaware of what happened next. Moreover, the video evidence, viewed closely, establishes that Phillips looked in the direction of Ross and Ortega as they reached the top of the stairs. Although there is a pillar at the top of the stairs, Phillips did not contend that it blocked his view and Investigator Edgar, who visited the scene in order to re- enact the incident, testified credibly that he could view the top of the stairs from behind the desk (Tr. 26, 30). Thus, I find that Phillips saw Ross push Ortega down the stairs, but omitted any mention of the force in his report. This is a fundamental omission which could not have been inadvertent. See, e.g., Dep’t of Correction v. Hall, OATH Index Nos. 155/05 & 156/05, at 15 (Aug. 11, 2005) (respondent submitted a false or misleading report where omission of material facts was intentional). The use of force report requires officers to describe “the incident and the specific force used.” The use of force directive (Pet. Ex. 8) requires all staff to include in a use of force report “a precise description of the incident . . . ; and the type of force the writer employed or observed being employed, e.g. control holds, blows, etc” (Pet. Ex. 8, at V, 3(b)). Officers are required to be aware of all directives (Tr. 68). Moreover, Captain Knox, who is the chairperson for the law and compliance area in the Department, testified that all officers, including Phillips and Cooper, received use of force training, which included instruction on how to write use of force reports. Such instruction is given to recruits and then as follow-up training for officers (Tr. 57, 61-65; Pet. Exs. 9, 10, 11, 12). Officers are instructed to describe any force utilized with “attention to detail,” in order to comply with the use of force directive (Tr. 65). Accordingly, I find that Phillips wrote a false and misleading use of force report by deliberately omitting any reference to Ross pushing Ortega. I further find the report false and misleading because it alleges that Ortega “suddenly stop walking & broke CO Ross . . . control hold by turning towards CO Ross in a aggressive manner. At which time said inmate lost his balance and stumbled down the lower tier stair in 3 south [sic].” Phillips testified that he saw Ortega break away from Ross when the two men actually came out of the day room (Tr. 92). 5</p><p>There is some support in the record for this proposition. As noted above, when Ortega and Ross are first seen existing the dayroom on the videotape, Ortega is walking by himself, in front of Ross. This is consistent with Ortega breaking away from Ross’s control hold. Indeed, Investigator Edgar, who investigated this matter for the Department, testified that Ortega should have been held by Ross, and that it is possible for an inmate to break away from the grip of an escort officer (Tr. 38). Moreover, inmate Ortega, in his inmate witness report, wrote that he “pulled back” from Ross, because Ross was “pulling” him forcibly (Pet. Ex. 5), which is somewhat consistent with the statement that Ortega broke away from Ross. However, Phillips’s testimony that he saw Ortega break away from Ross near the day room, which he termed “horse playing” (Tr. 92), is a far cry from what he wrote in his report, which is that Ortega broke away from Ross, “at which time,” he lost his balance and fell down the steps. This clearly is not the truth. As captured on the videotape, Ortega was compliant once Ross re-asserted his control hold by the side of the desk. Ortega remained compliant as the two men walked in front of the desk and then a short distance to the stairs. He did not resist, nor turn toward Ross aggressively. He did not lose his balance as a result of breaking away from Ross; he lost his balance and fell down the steps because Ross pushed him. Phillips is shown on videotape looking at the two men as they reached the steps, so he had to have known that his written statement about how Ross came to fall down the steps was untruthful. Additionally, even though Phillips did not admit making a false statement, he admitted not actually observing what occurred at the top of the steps. He acknowledged that he made an “assumption” based on “things that normally happen everyday” (Tr. 102). Along the same lines, he testified, “I would just say that I wrote this report wrong, that’s all. I worded things incorrectly” (Tr. 106). Even if true, making such assumptions to explain how an inmate landed on the floor at the bottom of a flight of stairs is contrary to the purpose and the specific language of the use of force directive, which requires that officers write reports based on their “own personal observation” (Tr. 51; Pet. Ex. 8, at V, 3(b)). For all these reasons, the charges that Phillips wrote a false and misleading use of force report and included information in his report that he did not actually observe are sustained. To the extent these charges are duplicative, they will be treated as a single charge for purposes of penalty. Dep’t of Finance v. Anderson, OATH Index No. 1485/08, at 1 n.1 (May 6, 2008); Dep’t of Transportation v. Mendez, OATH Index No. 384/05, at 4, n.2 (Jan. 19, 2005). 6</p><p>With regard to Cooper, I find that his report was false and misleading in that it contained a material omission about Ross pushing Ortega. Cooper denied seeing the push. He testified that he was facing toward the dayroom, and did not turn toward the stairs (Tr. 120). However, he contradicted his own testimony when he admitted on cross-examination that he “may have turned for a minute” (Tr. 119). Moreover, a close look at the videotape shows that Cooper was initially facing toward the day room, but turned his head and looked in the direction of Ross and Ortega as they reached the stairwell where Ross pushed Ortega. I credited Investigator Edgar’s testimony that, when he re-enacted the incident, he could see the stairs from where Cooper was standing (Tr. 30). I do not find, however, that Cooper’s written statement is false and misleading because of the sentence in section six that the inmate “began to pull away and physically resist C/O Ross . . . control holds and said Inmate was being taken down the stairs when this writer [saw] said inmate on the floor.” This sentence is written in such an awkward fashion that it is not clear what it means. Certainly, it is more ambiguous than Phillips’s report, which indicated that Ortega resisted, “at which time,” he purportedly stumbled and fell down the steps. And, unlike Phillips’s report, Cooper’s statement does not indicate what happened to cause the inmate to wind up on the floor. As it is the Department who has the burden of proof, any ambiguity must be construed in favor of the respondent. Moreover, it is striking that the first part of this sentence -- referring to the inmate pulling away and physically resisting Ross’s control holds -- is identical to the language which Cooper used in section four, which was that the inmate was “physically resisting C/O Ross . . . by pulling away from said officer control holds when being escorted from the interview room” (emphasis added). Reading the two sections together, the fairest reading of section six is that it refers to Ortega pulling away from Ross when being escorted from the interview room. As noted above, there is some evidence to support this assertion, most notably the videotape, which shows Ortega walking by himself upon exiting the day room, before Ross re-asserted a control hold near the desk. For these reasons, the false and misleading charge against Cooper is sustained only insofar as the report has a material omission that Ross pushed Ortega down the steps. The charge that Cooper wrote information in his report which he did not witness is not sustained.</p><p>Collusion charge 7</p><p>This charge alleges that respondents “either wrote their reports together, shared their reports with other officers, reviewed other officers’ reports prior to/while writing their own reports, or discussed the incident with each other prior to/while writing their own reports”. As noted above, the use of force directive requires that officers describe the incident based on their own observations (Pet. Ex. 8). More specifically, the directive requires that the report be “written independently from other staff that were involved or were alleged to have been involved in the incident” (Pet. Ex. 8, at V, 3). Captain Knox confirmed that officers, including respondents, are instructed that they may not seek help or advice about how to write a use of force report from anyone who was a participant in, or a witness to, the use of force (Tr. 51, 57, 61-65). By contrast, officers may seek outside help from officers who were not involved in or witness to the incident, for example, to ask about the choice of a particular word or to get “input” or “constructive feedback” (Tr. 80). This rule is in place so as to “maintain the integrity of the investigation and the report writing” (Tr. 51). Respondent Cooper testified that no one helped him write his report and that he did not talk to Phillips, Chalmers, or Ross prior to writing his report (Tr. 113). Respondent Phillips also denied that anyone helped him with his report. More specifically, he denied speaking with Ross, Chalmers, or Cooper about the incident or getting any help from them with the report (Tr. 94, 96). He testified that he wrote his report at CPSU and that no one else was there when he did so (Tr. 95). Petitioner’s proof as to the collusion is solely circumstantial, based upon the language of the reports. In order to establish a fact in issue by circumstantial evidence, the inference sought to be drawn must be based on and reasonably taken from proven collateral facts. See Dep’t of Education v. Fleischmann, OATH Index No. 1528/05 (July 26, 2006); Transit Auth. v. Dugger, OATH Index No. 794/91 (May 14, 1991); Dep't of Transportation v. Mascia, OATH Index No. 403/85, at 8-9 (May 30, 1986); Ridings v. Vaccarello, 55 A.D.2d 650, 390 N.Y.S.2d 152 (2d Dep't 1976). As stated in Fleischmann, at 10, “It is only permissible to draw an inference from the proven collateral facts where it is more likely that the inference arises as a consequence of the proven facts. If the probabilities are evenly balanced, no inference as to the fact in dispute may be drawn. To do so would be speculative.” In this case, although Cooper and Phillips both omitted any reference to the push, the language of their reports is substantially different. As noted above, Cooper did not indicate how Ortega came to be on the bottom of the stairs, only that Ortega was being taken down the stairs 8 and then was on the floor. Moreover, while Cooper said that Ortega resisted Ross’s control holds, he indicated in a prior section of his report that this occurred when the two men exited the interview room. Thus, there is insufficient evidence from which to infer that Cooper and Phillips wrote their reports together, or discussed the incident with each other prior to or while writing their own reports, as charged. For similar reasons, there is insufficient evidence that Cooper discussed his report with Chalmers or Ross prior to submitting it. Cooper’s report is considerably more vague than the report of either Chalmers or Ross. Ross stated specifically in his report (Pet. Ex. 3) that Ortega broke his “control hold” or “made an attempt to kick” him, and that Ortega “lost his balance and stumbled down the stairs.” Chalmers wrote that Ortega tried to break Ross’s control hold, Ross re-affirmed his hold, and that Ortega “aggressively turned sharply facing CO Ross who simultaneously stepped back, Inmate Ortega stumbled backward falling downstairs” (Pet. Ex. 4). The question of whether Phillips conferred with Chalmers or Ross prior to writing his report is a closer one. Clearly, there is some similarity in the language of their reports. All three said that the inmate “stumbled” down the stairs, after putting up some sort of resistance to Ross. Both Ross and Phillips said the inmate “lost his balance” prior to “stumbling.” These similarities are troubling, but there are also some differences between the reports. As noted above, Chalmers acknowledged that Ross re-affirmed his control hold, while Phillips said that Ortega broke Ross’s control hold. Ross and Chalmers both said that the inmate turned toward Ross, but Ross, unlike Chalmers, said the inmate broke his control hold and made an attempt to kick him. Moreover, Captain Knox acknowledged that officers often use certain words or phrases on a recurring basis within their reports (Tr. 82). It is unclear whether Phillips used the words “stumbled” or “losing balance” because he, Ross, and/or Chalmers, had talked about writing reports with this explanation, or whether he unilaterally decided on this phrasing because he did not want to inculpate another correction officer and needed somehow to justify how the inmate wound up on the floor. Accordingly, I find that the evidence is insufficient to permit an inference that Phillips conferred or collaborated with Ross or Chalmers. This charge is dismissed. </p><p>FINDINGS AND CONCLUSIONS 9</p><p>1. Respondents Cooper and Phillips submitted a false and misleading use of force reports, in that each report contained a material omission that an escort officer pushed an inmate down the steps.</p><p>2. Respondent Phillips made a false statement in his use of force report about the inmate stumbling down the steps after turning toward the escort officer in an aggressive manner.</p><p>3. Respondent Phillips included information which he did not personally observe in his use of force report. </p><p>4. Petitioner failed to prove by a preponderance of the credible evidence that respondent Cooper made a false statement in his use of force report about the inmate physically resisting the escort officer’s control holds. </p><p>5. Petitioner failed to prove by a preponderance of the credible evidence that respondent Cooper included information which he did not observe in his use of force report.</p><p>6. Petitioner failed to prove by a preponderance of the credible evidence that either Cooper or Phillips collaborated with other officers prior to or while writing their use of force reports. </p><p>Therefore, specification one is sustained in full against Phillips and in part against Cooper. Specification two is not sustained. Specification three is sustained against Phillips only. </p><p>RECOMMENDATION Upon making these findings, I requested and reviewed a copy of respondents’ disciplinary abstracts. Respondent Cooper was appointed in 1996 and has no prior disciplinary record. Respondent Phillips was appointed in 2005 and has no prior disciplinary record. Petitioner has requested a 60-day suspension for each respondent. There is no doubt that failing to accurately report a use of force by another officer is serious. However, the penalty sought by petitioner is excessive, given the respondents’ lack of any prior disciplinary record and, in the case of Cooper, his lengthy tenure with the Department and the fact that the false reporting charge was sustained only in part. Moreover, prior precedent suggests that the penalties for false reporting fall into the fifteen to twenty-day range. See Dep't of Correction v. Crichlow, OATH Index Nos. 577/03 & 578/03 (June 11, 2003), aff'd in part, modified in part, 10</p><p>NYC Civ. Serv. Comm'n Item No. CD 06-131-SA (Nov. 14, 2006) (20-day suspension for officer who used excessive force against an inmate and falsely denied it, and 15-day suspension, modified to 7-day, for officer who falsely denied knowledge of another officer’s use of force against an inmate); Dep’t of Correction v. Fulton, OATH Index No. 513/02 (Mar. 13, 2002), aff'd, NYC Civ. Serv. Comm'n Item No. CD 03-92-SA (Sept. 18, 2003) (20-day suspension for an officer who falsely denied her own minimal use of force in an MEO statement); Dep’t of Correction v. Centeno, OATH Index No. 2031/04 (Mar. 16, 2005) (20-day suspension for false MEO statement); Dep’t of Correction v. Wells, OATH 1421/96 (20-day suspension for false statement that was solitary blot on respondent's six-year employment record); Dep’t of Correction v. Jones, OATH Index Nos. 1332/95 & 1334/95 (Dec. 22, 1995) (10-day suspension for correction officer who falsely denied knowledge of another officer's use of force against an inmate); Dep’t of Correction v. Butler, OATH Index Nos. 876/92, 877/92 & 878/92 (Dec. 2, 1992) (20-day suspensions for two correction officers who gave false reports about a third officer's use of force); Dep't of Correction v. Boyce, OATH Index Nos. 505/89 & 510/89 (Oct. 25, 1989), aff'd, NYC Civ. Serv. Comm'n Item No. CD 90-88 (Oct. 16, 1990) (15-day suspension for witnessing force and failing to report it). Accordingly, taking into account the differences in their tenure with the Department, as well as the differences in the charges sustained against each of them, I recommend that respondent Phillips be suspended for 20 days and that respondent Cooper be suspended for 15 days. </p><p>Faye Lewis Administrative Law Judge</p><p>November 12, 2008</p><p>SUBMITTED TO:</p><p>MARTIN F. HORN Commissioner</p><p>APPEARANCES:</p><p>DAVID KLOPMAN, ESQ. 11</p><p>RICHARD ASKIN Attorney and Representative for Petitioner</p><p>KOEHLER & ISAACS, LLP Attorneys for Respondents BY: BRIAN COLEMAN, ESQ.</p>