APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE JANINE KERN Judge
The opinion of the court was delivered by: Konenkamp, Justice
[¶1.] The Rapid City Police Department fired a patrol officer for excessive use of force. On appeal, the officer contends that he never acted beyond the Department's use of force continuum policy. But the question comes down to whether the officer's own actions generated his claimed need to use force. Considering both the subject incident along with the officer's disciplinary record, we conclude that there were sufficient grounds to support the officer's discharge.
[¶2.] The Rapid City Police Department hired Officer Timothy Farmer on August 1, 2005. As a patrol officer, Farmer made routine traffic stops, patrolled designated sectors and neighborhoods, investigated crimes, and took suspects into custody. In early 2009, though he had prior disciplinary issues, the Department promoted Farmer to training officer.
[¶3.] On Sunday, March 8, 2009, Farmer was working the north central sector of Rapid City. At 4:45 a.m. he was dispatched to investigate an aggravated assault at the Golden Living Center, an assisted living facility on North 7th Street. On arriving, Farmer saw a nurse standing in front of the building and a woman lying on the ground. The woman was later identified as Wilma Leach, the victim of the aggravated assault. In talking with Leach and the nurse, Farmer learned that Leach was assaulted with a pipe by two males and a female. The nurse last saw the suspects running north. Farmer called for an ambulance.
[¶4.] Within the next five minutes, another dispatch message relayed that a gang fight was taking place nearby on Galaxy Drive involving males and a black SUV. Farmer believed the newly reported incident was related to the Leach assault. He left the Golden Living Center and Leach to respond to the gang fight.
[¶5.] Farmer's in-car video camera recorded much of what happened next. When he arrived near the location of the reported gang fight, he saw a light-colored car pull into a paved parking area. Farmer activated his lights and siren and pulled up behind the car. Two women, Martina Martinez and Bryanna Bear, exited the vehicle and quickly walked away, each taking a different route into a housing complex. Farmer believed the women were involved in the assault. He exited his vehicle and yelled at Bear and Martinez, "Get on the ground right now!" Neither woman complied. Farmer ran toward Bear, saying again, "Get on the ground."
Bear can be heard saying in a shrill voice, "Me? Why?" Farmer grabbed her by the arm, using a "soft empty hand technique" in the Department's use of force continuum policy. When Martinez saw Farmer detain Bear, she turned back and approached Farmer. Farmer told Martinez, "You better back up, Ma'am." Martinez shouted, "No, you better fucking back up, that's my daughter." Believing Martinez now posed a greater threat, Farmer let go of Bear, and grabbed Martinez, still using a "soft empty hand technique." He took hold of her arm, forced her onto the hood of her car, and told her to place her hands on the car. Farmer called for a backup officer. All the while, Bear was yelling at Farmer insisting they did nothing wrong. Martinez told Bear to run away to her uncle's house, and Bear headed east, out of sight of the camera.
[¶6.] Officer Sean Doyle arrived. According to Farmer, he motioned for Doyle to take control of Martinez so he could apprehend Bear. Farmer then let go of Martinez and ran after Bear. Once free of Farmer's restraint, Martinez can be seen getting into her car and retrieving something. Later it was learned she had grabbed her cell phone. Then she ran in the direction of Farmer and Bear. Now, everyone involved was out of view of Farmer's in-vehicle camera. Nonetheless, Martinez can be heard calling 911 for help, reporting that she and her daughter were being assaulted by a police officer. Ultimately, Farmer apprehended Martinez by taking her to the ground and handcuffing her, using a "hard empty hand technique." Martinez was arrested and charged with obstruction, but the charge was later dropped. Bear was also restrained, but was not cited for any infraction. As a later investigation revealed, Martinez was at the scene to pick up her son, who had called her reporting a fight.
[¶7.] Shortly after the incident, Martinez filed an excessive force complaint with the Rapid City Police Department. Sergeant Cliff Peterson interviewed Martinez. He also spoke with Farmer and Doyle. The Department then assigned Lieutenant Tom Vlieger to conduct an investigation, and Farmer was placed on administrative leave.
[¶8.] As part of his investigation, Vlieger interviewed Bear and Farmer, and reviewed the interviews conducted by Sergeant Peterson. He also watched the video of the incident, listened to Martinez's 911 call, and played the recorded radio transmissions from that morning. Vlieger concluded that "[t]he allegation of excessive force during the arrest of Martina Martinez is substantiated." He thought that "Farmer's judgment [was] questionable in this incident." Vlieger noted that Farmer stopped a vehicle that was not fleeing, but was arriving at the alleged gang- fight scene, and contained female, not male, occupants. He concluded that "nothing in the video . . . justifies [Farmer's] immediate response with the level of force used." In Vlieger's opinion, instead of ordering them to get on the ground, Farmer "could simply have told them to stop so he could talk to them." Vlieger believed that Farmer looked "confused as to what he should do throughout the incident[.]" He wrote, "It appears he cannot make a decision about which of the two individuals he should be arresting as he goes back and forth from one to the other without ever completing an arrest on either." Finally, Vlieger questioned Farmer's decision to respond to the misdemeanor gang-fight call, considering that he was on a "felony aggravated assault call" with the victim. Vlieger recommended that the Department discipline Farmer by (1) removing his training officer status, (2) requiring a fit for duty examination, (3) removing him from the night shift and north sector, and (4) suspending him from duty without pay.
[¶9.] Vlieger's memo and recommendations were sent to Captain Doug Thrash. Following his review, Thrash issued a memorandum concluding that "[t]he Rapid City Police Department has determined that [Farmer] engaged in conduct that was detrimental to the department on 3-8-09." Thrash identified three specific issues. First, he questioned Farmer's judgment because Farmer "left a call that involved an aggravated assault to respond to a fight call knowing there was another officer in the area who was on a traffic stop that could have responded." Second, Thrash addressed Farmer's tactics: "nothing justifies [Farmer's] level of force used" when yelling commands at Bear and Martinez to get on the ground. Also, by restraining Bear, but letting her go to restrain Martinez, then letting Martinez go to run after Bear, Farmer allowed Martinez to get into her vehicle. And the release of Martinez obliged Farmer to use a higher level of force to restrain her a second time, which led Thrash to conclude that "[t]he force [Farmer] used to subdue [Martinez] was clearly excessive." Third, Thrash questioned Farmer's credibility, concluding that Farmer's "report [of the incident] demonstrates embellishment of either [his] perception of [Martinez's] movements or efforts to justify the force used."
[¶10.] In addition to the March 8, 2009 incident, Thrash reviewed Farmer's personnel record. Farmer had received six formal complaints in his last three and a half years with the Department, three with substantiated use of force issues and one for unprofessional behavior. In one instance, Farmer received a letter of reprimand for using "unnecessary" force two years earlier in his handling of Michael Slow Bear, a man in custody who was being booked into jail. Regarding this incident, in a memorandum prepared by Lieutenant Dave Stratton, Farmer was warned: "I trust you have learned from this experience and caution you that similar incidents in the future could result in more severe disciplinary action." Considering Farmer's record, ...