Walters v. Bd. On Law Enf't Officer Standards & Training

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JORDAN WALTERS APPELLANT v. BOARD ON LAW ENFORCEMENT OFFICER STANDARDS AND TRAINING APPELLEE

No. 2022-SA-00378-COA

Court of Appeals of Mississippi

August 1, 2023

DATE OF JUDGMENT: 03/10/2022

DESOTO COUNTY CHANCERY COURT TRIAL JUDGE: HON. VICKI B. DANIELS

ATTORNEY FOR APPELLANT: FRANCIS STARR SPRINGER

ATTORNEY FOR APPELLEE: SAMUEL PHILIP GOFF

BEFORE WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.

WESTBROOKS, J.

¶1. The DeSoto County Chancery Court affirmed the Board on Law Enforcement Officer Standards and Training's (the Board) decision to recall Jordan Walters' professional certificate. Walters appeals and requests a determination of whether the chancery court erred in affirming the certificate's recall because the Board's decision was arbitrary and capricious, in violation of his constitutional rights, and not supported by substantial evidence. Finding no error in the court's determination, we affirm. Furthermore, we address the Board's motion to this Court to unseal the case file before us.

FACTS AND PROCEDURAL HISTORY

A. Background

¶2. Walters was originally employed by the Olive Branch Police Department (Olive Branch) as a certified full-time law enforcement officer. Walters resigned from Olive Branch in August 2019. Later that same month, he was hired by the DeSoto County Sheriff's Department. Walters' professional certificate "remain[ed] the property of the [B]oard." Miss. Code Ann. § 45-6-11(7) (Rev. 2015). The certificate was issued to Olive Branch when it became Walters' employer. When Walters left Olive Branch, the certificate was required to be returned to the Board, which would be required to "decide the disposition of [the] certificate within a reasonable time ...." The Board on Law Enforcement Officer Standards and Training Professional Certification Policy and Procedures Manual, pt. 301, Ch. 3 Rule 3.3(1)(D)-(E) ("Policy Rules"). The Board could then reissue the certificate to Walters' new employer or choose to inactivate, delay, annul, or revoke the certificate. Policy Rule 3.3 (1)(E).

¶3. A "report form" from Olive Branch was included with the returned certificate. This form was also required by the certification rules. Policy Rule 3.3(1)(D). Olive Branch attached to the report form documents related to two ongoing internal affairs investigations into Walters' conduct while he was an Olive Branch employee. The form also had attached documentation of a third incident of misconduct that was discovered during the two internal affairs investigations. Based on the information provided to it by Olive Branch, the Board declared Walters ineligible for a new certification. Walters requested a review of the decision by the full Board, and a hearing on the matter commenced on July 22, 2021.

B. Four Conduct Issues Considered by the Board

1. Use of Unnecessary Force During an Arrest

¶4. On April 4, 2019, an incident occurred that led a citizen^[1] to complain that Walters used excessive force during his arrest. The citizen said that he could not comply with Walters' command to remove his hand from his pocket because his arm was disabled. He said that even though he told Walters about his disability, Walters grabbed his disabled left arm and threw him to the ground during his arrest. Walters and several fellow officers were investigated. Video footage of the incident captured by one officer's body camera showed that many of the allegations against the officers were unfounded. But the citizen's complaint that he was thrown to the ground with unnecessary force during the arrest was sustained. Walters was suspended for one day for the infraction. At the Board hearing, Walters stipulated that his appeals in the matter were exhausted without the finding being reversed. A "litigation hold" regarding this incident was requested on April 29, 2019.

2. Admission of Recording and Sharing Police Dash-Cam Videos

¶5. On August 13, 2019, an officer mentioned to Chief Don Gammage that Walters showed him a video of the April 4, 2019 excessive-force incident that led to the first internal affairs investigation. The video had been recorded from Walters' dash-mounted camera onto his personal cell phone and shared with people outside the department in violation of Olive Branch's policy.

¶6. This report led to a meeting among Chief Gammage,^[2] Major Leann Farr, Deputy Chief William Cox, Major Danny Dishmon,^[3] and Walters. What took place at the meeting is disputed. Walters was asked about the video and admitted that he had it on his personal cell phone. He wrote down the names of people to whom he could recall showing the video. After this admission, Walters resigned, effective immediately, in lieu of termination.

¶7. Major Farr testified that Olive Branch felt bound by the April 2019 litigation hold to make a record of the videos Walters had captured and the people to whom they were sent. Deputy Chief Cox and Major Farr testified that Walters voluntarily surrendered his cell phone, along with the security code to the cell phone, to help make this record. Deputy Chief Cox testified, "[W]e advised him that the phone contents would be downloaded." Chief Gammage, Major Farr, and Deputy Chief Cox all testified that the copy of the contents of Walters' cell phone was part of an administrative inquiry into policy violations.

¶8. But Walters testified that the phone was taken from him after he placed it on the Chief's desk and that he was coerced into giving the security code for the phone by comments such as Chief Gammage's statement that "he should arrest me right then." Walters testified that he was "intimidated and coerced into relinquishing [his] phone." Walters did not testify that he objected to or attempted to limit the scope of the phone search. He admitted that as a police officer, he knew he could stop the search at any time, but he "didn't feel like [he] was able to do that at all." After it was taken, the cell phone's contents were copied, and the phone was returned to Walters that afternoon.

¶9. The copy of Walters' cell phone contents showed that Walters had recorded and shared not just the April 2019 excessive-force incident, but a total of seventeen police department videos. According to Major Farr, the majority of the videos were of "African-American individuals, [and] usually, they were male." Major Farr testified that "[Walters] would only record the parts where he was using force on those individuals, and then he would share those." This conduct violated many of Olive Branch's policies.

3. Texts with Racial Slurs and Threats of Violence Against Minorities

¶10. On August 22, 2019, upon receiving the information that the majority of the cell phone videos were "showing force on African-American individuals," Major Farr requested the copy of Walters' cell phone contents be searched again for the derogatory terms "nigg*" and "ni**er." Major Farr found an excess of racial slurs and threats of violence against minorities contained in Walters' texts. Some texts captioned the videos that he shared; others described incidents from his work as an Olive Branch police officer. Other texts derided Walters' African-American co-workers. The blatantly racist texts, which were compiled by Olive Branch and attached to the internal investigation report, were sent from Walters to friends and family. The investigative report noted that

through these text messages Walters has shown a pattern of his failure to control his personal emotions and that he was spiraling out of control and becoming more aggressive in nature.... He has continued to show his racist tendencies and dislike for the African American race through numerous derogatory remarks. His demeanor towards our police department, subordinates and fellow officers reflected a continued pattern of disrespect, implied insubordination and veiled racism towards fellow black officers. This conduct was also found to violate Olive Branch Police Department's policies.

4. Walters' Arrest

¶11. The Board was also given an expunged arrest report to consider. The arrest occurred after Walters had left Olive Branch and while he was employed at the DeSoto County Sheriff's Department. The incidents surrounding the arrest were described by Walters during his testimony. He also testified that because the alleged victim did not show up in court, the charge was eventually dropped. Walters testified that he then proceeded to have the arrest expunged from his record.

C. The Board's Hearings and Decision

¶12. The Board, in its July 2021 hearing, originally excluded testimony regarding the text messages because the Board was concerned that the scope of the search of the cell phone's copy may have exceeded the scope of the search for which Walters relinquished his phone. The Board then met in a closed session, after which it expressed concern the information was improperly excluded. Due to this concern, the Board requested the Attorney General's Office research the "matter of whether or not that information was properly excluded." It continued the hearing until the Attorney General could relay its opinion.

¶13. The hearing resumed on October 7, 2021, after the Attorney General advised the Board

that Rule 4.3, Subsection 1, J2 of the Board [on] Law Enforcement Officers Standards [and] Training Policies and Procedures provides . . . [t]he Board shall consider all oral and written material presented at the hearing. I'm advised that this Rule controls the admission of evidence in certification hearings, and that pursuant to this Rule, the presiding officer may not exclude evidence at a certification hearing.

This hearing allowed the previously excluded testimony related to the text messages from Walters' cell phone.

¶14. In its detailed order, the Board outlined the four issues it...