Jarrell v. City of Nitro

856 S.E.2d 625

Timothy JARRELL, Respondent Below, Petitioner

v.The CITY OF NITRO, West Virginia, Petitioner Below, Respondent

No. 19-0907

Supreme Court of Appeals of West Virginia.

Submitted: January 13, 2021

Filed: March 26, 2021

Mark McMillian, Esq., Mark McMillian–Attorney at Law, L.C., Charleston, West Virginia, Counsel for Petitioner Jarrell.

John R. Teare, Jr., Esq., Spilman Thomas & Battle, PLLC, Charleston, West Virginia, Counsel for Respondent City of Nitro.

HUTCHISON, Justice:

The petitioner, Timothy Jarrell, appeals the September 6, 2019, order of the Circuit Court of Kanawha County, which reversed and vacated a March 30, 2019, order of the Nitro Police Department Civil Service Commission. The commission had concluded that the petitioner was improperly terminated from his employment as a police officer with the City of Nitro Police Department, but the circuit court decided that the termination was appropriate. After reviewing the parties’ written and oral arguments, the appendix record, and the pertinent legal authorities, we conclude that the circuit court impermissibly substituted its judgment for that of the commission, which was the factfinder in this matter. Accordingly, we reverse the circuit court's order and remand this case to the circuit court for entry of an order reinstating the commission's order.

I. Facts and Procedural Background

Late on a night in May 2016, Jared Hester was a customer at the Mardi Gras Casino & Resort. After drinking several alcoholic beverages, Mr. Hester went outside of the casino building, sat on a bench, and fell asleep. Casino security employees roused him and advised that he could not sleep on the bench. Mr. Hester attempted to go to his parked car, but casino employees would not allow this because he was intoxicated and they were concerned that he would drive. According to Lisa Smith, the Mardi Gras Director of Security, Mr. Hester acted aggressively, pointed his middle finger at the security staff, used profanity, and called the staff foul names. The casino staff called police.

Officers with the City of Nitro Police, including Sergeant Timothy Jarrell (the petitioner herein), responded to the call. Mr. Hester, a North Carolina resident, had not made any arrangements for lodging that night. The officers determined that Mr. Hester was publicly intoxicated and unfit to drive, but they told him that they would not arrest him if he would check into a hotel for the night. Mr. Hester ultimately agreed to this plan and accepted a ride in the casino's courtesy van to a Comfort Inn hotel approximately one mile away in Cross Lanes. In a separate vehicle, Sergeant Jarrell followed the courtesy van to the Comfort Inn.

A hotel security video recording¹ shows the van pulling up to the Comfort Inn, Mr. Hester exiting the van and walking toward the lobby doors, and Mr. Hester stopping and standing outside of the hotel. Sergeant Jarrell arrived alone, exited his own vehicle, and stood a few feet away from Mr. Hester. Mr. Hester told Sergeant Jarrell that he was not going to check into the hotel, and that Sergeant Jarrell could not make him do so. Sergeant Jarrell responded that Mr. Hester would be arrested. The video recording lacks audio, but Mr. Hester has admitted that Sergeant Jarrell instructed him to place his hands behind his back and to stop resisting arrest. The video shows that Mr. Hester did not put his hands behind his back, and instead crossed his arms in front of himself. After their short discussion, Sergeant Jarrell approached Mr. Hester and, in the process of arresting him, performed a "lateral carotid restraint."² Specifically, the sergeant placed his arm around Mr. Hester's neck, briefly disrupting blood circulation and rendering Hester partially or fully unconscious. Sergeant Jarrell lowered Mr. Hester to the ground. Mr. Hester regained consciousness a few moments later, and other officers arrived at the Comfort Inn. The officers arrested Mr. Hester and charged him with public intoxication and resisting an officer; these charges were later dismissed with prejudice.

The City of Nitro (respondent herein), along with the Kanawha County Sheriff's Department, investigated to determine whether Sergeant Jarrell had acted inappropriately and used excessive force in his arrest of Mr. Hester. Sergeant Jarrell was placed on paid administrative leave and was subsequently indicted for battery and false swearing. However, at a December 2017 trial, a magistrate court jury acquitted Sergeant Jarrell of all charges.

Meanwhile, by letter dated October 19, 2017, Nitro Police Chief Robert Eggleston terminated Sergeant Jarrell's employment with the Nitro Police Department based upon his actions during the Hester arrest. Sergeant Jarrell demanded a review by an internal department hearing board, which found that he should not have been terminated. Chief Eggleston and the City of Nitro then appealed to the Nitro Police Department Civil Service Commission, which held a de novo evidentiary hearing in February 2019.³

During the commission's hearing, Sergeant Jarrell narrated the events shown on the hotel security video to explain why he used a lateral carotid restraint. He testified that after Mr. Hester changed his mind and refused to check in to the Comfort Inn, the sergeant informed him that he could not "wander the streets intoxicated at your level" and their "discussion [grew] more heated." The sergeant testified that he instructed Mr. Hester to "[t]urn around, put your hands behind your back. You're under arrest. I'm tired of fooling with you" but Hester responded that he was "not going to jail." The sergeant testified that he stepped closer to Mr. Hester, who was "clinching [sic] his fist." Based on his experience in law enforcement, Sergeant Jarrell was concerned that Mr. Hester was about to hit him:

In my mind, he's contemplating swinging at me or hitting me in the face, so he is slightly belated [sic], and he's pumping his fist. So I'm thinking he's left-handed, he's going to swing with his—with his left arm. So that's what I need to watch for.

But at the same time, I've already told him, "You're under arrest, turn around, put your hands behind your back." I've told him this countless times. I have to get a response. We have to go somewhere from here.

So I reach out and touch his elbow, and that's all I intend to do at that second, because when he swings at me, I need to be prepared. So in my mind, I think he's going to swing. To my surprise, when I reach out and touch his elbow, he turns away from me.

So that's the next portion of what we're going to see [on the hotel security video]. So you see my left hand on his—on him. So if I can back up just slightly—I don't know where that put me. As I reach out to touch, prior to him turning—if I can correct myself, prior to him turning, I grab, go to pull, and he pulls away from me.

So at that point, that's what happens right here [referring to the video]. So when he pulls away, turns his back towards me, is what we're about to see. I step closer, you see me touch the elbow, grab him, he turns away....

So at this position, if you trust me sir, we're here. [Witness demonstrates move on another person in the commission's hearing room.] Now, this is not a choke. You can talk, you can do anything, you can eat a sandwich, whatever he'd like to do.

From here, I'm standing behind him. I'm relatively safe here. He could—he would have a hard time to, you know, to assault me easily. So from here, I'm telling him, "Stop, stop, stop, stop." That's what I said. That's exactly what I said, "Stop, stop, stop, stop."

He doesn't, and where things get much more dangerous, he's a very, very strong man. He's extremely strong. From this position, he's here. He just leans forward. Now, Mr.—there we go. So my feet, my heels start to come up off the ground.

It's not super pronounced in this video, but when I'm holding him here, just telling him to stop, there's no choking. There's no constriction of any airway, nothing. He starts to lean forward, and I think, "I'm going to get flipped right over his back. I'm going to land on my head on the concrete."

So at that point is when I used a carotid restraint....

... [When] my feet start[ed] to come up, the only way that I can change that is to get him back standing more direct and to use a carotid restraint. That's what I had to do.

The sergeant testified that he carefully lowered Mr. Hester to the ground, and Hester regained full consciousness a few seconds later. In response to further questioning, Sergeant Jarrell testified that alternative techniques, such as using other means of physical force to overtake Mr. Hester, sweeping Mr. Hester's legs, or using a taser or stun gun, might have been effective but posed a greater risk of harm to the intoxicated Mr. Hester because he would have fallen to the concrete sidewalk in an uncontrolled manner.

In his pre-recorded testimony,⁴ Mr. Hester acknowledged that he was intoxicated and had refused to check into the hotel. He admitted that Sergeant Jarrell instructed him to put his hands behind his back, but he could not remember whether he did so.⁵ Mr. Hester testified that he did not move during the arrest. When asked whether he had resisted arrest, Mr. Hester testified "although I don't remember a hundred percent, I don't believe that I would have[.]"

The city presented testimony from its City Attorney, Johnnie Brown, who had given a training session to city police officers—including Sergeant Jarrell—just a few weeks before this arrest. Mr. Brown testified that during the training, he explained the continuum of force that police officers must follow; essentially, the more dangerous a situation is to the officer or another person, the more force that the officer may employ. The department's policy manual at the time prohibited "[a]ny use of force not reasonably necessary in light of the circumstances confronting the officer." During the training and again during the commission's...