Fisher v. Jackson Cnty. Sheriff's Dep't

328 So.3d 704

Nathan FISHER, Appellant,

v.JACKSON COUNTY SHERIFF'S DEPARTMENT, Appellee.

No. 2019-CC-00556-COA

Court of Appeals of Mississippi.

May 18, 2021

Rehearing Denied September 7, 2021

ATTORNEYS FOR APPELLANT: JOSEPH RICHARD TRAMUTA, RUSSELL S. GILL, Biloxi

ATTORNEY FOR APPELLEE: H. BENJAMIN MULLEN, Pascagoula

EN BANC.

WILSON, P.J., FOR THE COURT:

¶1. The Jackson County Sheriff's Department terminated Nathan Fisher's employment after finding that Fisher violated the Department's policy regarding security of firearms by relinquishing control of his firearm to a civilian while responding to a domestic disturbance call. The Civil Service Commission for the Jackson County Sheriff's Department upheld Fisher's dismissal after finding that the Department terminated his employment in good faith for cause. Accordingly, the Commission denied Fisher's request for reinstatement and back pay. Fisher appealed the Commission's decision to the circuit court, and the circuit court affirmed, holding that the Commission's decision was supported by substantial evidence and was not arbitrary or capricious. Fisher again appealed.

¶2. Fisher argues that the Commission's findings that he violated departmental policy and that he was dismissed in good faith for cause are not supported by substantial evidence. He also argues that the Department violated his right to procedural due process by not affording him a pre-termination hearing. We conclude that there is substantial evidence to support the Commission's findings. Therefore, we affirm the Commission's decision upholding Fisher's dismissal and denying his request for reinstatement and back pay. We do agree with Fisher that he was entitled to notice of the charges against him and at least an informal opportunity to respond prior to his termination, and we agree that the Department violated Fisher's right to procedural due process by denying him such notice and opportunity to respond. However, we conclude that the lack of pre-termination process does not require reversal because Fisher was ultimately afforded a full and fair post-termination hearing, the Commission found that he was dismissed in good faith for cause, and there is nothing to suggest a pre-termination hearing would have prevented Fisher's dismissal. Accordingly, we affirm the judgment of the circuit court affirming the Commission.

FACTS AND PROCEDURAL HISTORY

¶3. Deputy Fisher's employment with the Jackson County Sheriff's Department was terminated as a result of his response to a domestic disturbance at the home of Michael and Samantha Ransom on January 28, 2016. The Ransoms were estranged at the time, and Michael suspected Samantha of infidelity. The Ransoms argued, and Michael put a gun to his head and threatened to kill himself unless Samantha gave him her cell phone. Samantha then gave Michael her phone. Michael looked at the phone's contents, destroyed the phone, and then left the house. He had parked his truck in the front yard, and "he coated the entire house and the neighbor's house and cars with mud" as he peeled out. Michael later returned to the home and apologized and then left again.

¶4. Samantha called the Sheriff's Department because she was concerned about Michael's suicidal threats. Fisher responded to the call. Samantha was upset, and Fisher told her that she looked like she "need[ed] a hug" and "offer[ed] her a hug." According to Fisher, Samantha accepted his offer, and they "both hugged mutually." After he interviewed Samantha about the incident with Michael, Fisher asked her how she planned to protect herself and her children if something similar happened again in the future. Samantha showed Fisher a subcompact, small-caliber pistol that she kept in her purse. Fisher thought "[t]he caliber of the gun and the round capacity was not sufficient to protect [Samantha] and her family if faced with an imminent threat." Fisher told Samantha that she "really need[ed] to get something full-sized with a larger capacity." Samantha said she was not comfortable handling a full-sized weapon, but Fisher told her there were full-sized weapons she could handle, such as his gun. Fisher then removed the bullets from his gun and allowed Samantha to hold it. Fisher then took his gun back and re-loaded and re-holstered it. Before he left, he gave Samantha his business card and information about an organization that assists victims of domestic violence. Samantha later emailed Fisher to thank him.

¶5. Michael was charged with misdemeanor domestic violence as a result of the incident. In April 2017, Michael's case went to trial in justice court. By that time, the Ransoms had reconciled. During the trial, Michael accused Fisher of hugging Samantha and handing her a loaded gun. Fisher denied the gun was loaded, but he admitted that he allowed Samantha to hold the gun after he had cleared it. The courtroom bailiff, Deputy Charles Fowler, heard this testimony and notified Captain Curtis Spiers, who then asked Captain Randy Muffley to conduct an internal investigation of Fisher's actions. In May 2017, Muffley interviewed Samantha and Fisher and conducted a computer voice stress analysis on Fisher. The analysis indicated that Fisher was not being deceptive when he stated that he had cleared his firearm before giving it to Samantha.

¶6. On June 12, 2017, after concluding his investigation, Captain Spiers prepared a Notification of Intent to Initiate Disciplinary Action and a Disciplinary Action List of Charges. Fisher was charged with violating Department Policy 2.06 (regarding professional conduct and conduct unbecoming an officer) and Department Policy 5.05 (regarding firearms training, use, and security).¹ Policy 5.05 provides in relevant part that "[a]n officer will provide maximum security of all firearms in his custody." Spiers recommended that Fisher be dismissed. On June 13, 2017, Fisher's division commander, the chief deputy, and Sheriff Mike Ezell signed off on Spiers's recommendation, and Fisher was given notice of his termination. The notice stated that Fisher was being terminated for the reasons stated in the disciplinary action notice prepared by Spiers. The notice also advised Fisher that he had ten days to file an appeal and request for investigation with the Civil Service Commission for the Department.² Fisher filed a timely appeal with the Commission, along with a request for copies of his disciplinary action notice and list of charges, which he had not received to that point. About two months later, Fisher finally received a copy of the requested documents.

¶7. The Commission held a hearing on Fisher's appeal on January 10, 2018. Captain Muffley testified that Samantha claimed that Fisher had handed her a fully loaded firearm. Samantha also told Muffley that she "thought it was a little strange that [Fisher] hugged her." According to Muffley, Samantha was upset that charges had been filed against Michael. She said she had called law enforcement "just ... to get [Michael] some help" because he had threatened to kill himself. Captain Muffley subsequently interviewed Fisher, who insisted that he unloaded his gun before handing it to Samantha.

¶8. Fisher testified that Samantha was upset when he arrived on the scene, so he hugged her to comfort her. Fisher also stated that Samantha seemed fearful of handling a larger gun, and he was merely trying to show her that she could handle a larger gun. Fisher admitted that it had occurred to him that Michael could return to the house at any time. However, Fisher insisted that he would not have unloaded or relinquished possession of his gun if he felt the scene was unsafe.

¶9. On January 30, 2018, the Commission issued its findings of fact and decision, upholding the Department's decision to terminate Fisher's employment. The Commission found that "Fisher violated ... Department policy 5.05 in failing to provide maximum security for all firearms in his custody when he relinquished control of his weapon to [Samantha]." For that reason, the Commission found that "Fisher was terminated for cause and in good faith for his actions on January 28, 2016." The Commission also found that "due process was afforded to Fisher during his termination and subsequent proceedings."

¶10. Fisher appealed the Commission's decision to the Jackson County Circuit Court. The circuit court affirmed, holding that the Commission's decision "was supported by substantial evidence, was not arbitrary or capricious, was not beyond the statutory power of the Commission," and did not "violate any statutory or constitutional right of [Fisher]." Fisher again appealed.

ANALYSIS

¶11. "A discharged police officer may appeal his or her termination to a civil service commission, which shall determine whether the decision to terminate the officer ‘was or was not made for political or religious reasons and was or was not made in good faith for cause.’ " Renfro v. City of Moss Point , 156 So. 3d 913, 917 (¶18) (Miss. Ct. App. 2014) (quoting Miss. Code Ann. § 21-31-23 (Rev. 2007)). The decision of a civil service commission may be appealed to circuit court. City of Vicksburg v. Lane , 11 So. 3d 162, 164 (¶10) (Miss. Ct. App. 2009). On appeal, the circuit court "is limited to determining whether the act of the commission was or was not made in good faith for cause." Id. "This Court follows the same standard of review as the circuit court and evaluates whether the commission's ruling is supported by substantial evidence." Patterson v. City of Biloxi , 965 So. 2d 765, 766 (¶6) (Miss. Ct. App. 2007). We do not make "credibility determinations," reweigh the evidence, or "determine issues of fact regarding whether an employee was guilty of the charge or not." City of Laurel v. Brewer , 919 So. 2d 217, 221-22 (¶15) (Miss. Ct. App. 2005). Rather, we "only determine whether the commission acted in good faith based on the evidence before it." Id. at 222 (¶15). Therefore, we must affirm a commission's decision unless it is not...