Court of Appeals of Missouri, Western District, First Division
Appeal from the Circuit Court of Clay County, Missouri. The Honorable Janet L. Sutton, Judge.
Morgan L. Roach, Kansas City, MO, for appellant.
James F. Ralls, Liberty, MO, for respondents.
Before Division One: Cynthia L. Martin, Presiding Judge, Mark D. Pfeiffer, Judge and Gary D. Witt, Judge. All concur.
Cynthia L. Martin, Judge.
Anthony Melkowski (" Melkowski" ) seeks judicial review of the Kansas City Board of Police Commissioners' (" Board" ) decision to terminate his employment with the Kansas City Police Department (" Department" ) because he violated personnel policies addressing the use of profanity, the use of force, and repeated discipline. Melkowski argues that the Board erred in terminating his employment because it failed to consider a legal bulletin describing the reasonable use of force and because it exceeded its jurisdiction by terminating him in reliance on a personnel policy that was not identified in his initial charge. Because the Board considered the legal bulletin and did not exceed its jurisdiction, because the Board's decision to terminate Melkowski was not arbitrary and capricious based on the record as a whole, and because Melkowski does not challenge on appeal all bases for termination identified in the Board's written decision, we affirm.
Factual and Procedural History
On November 2, 2006, Melkowski and his partner Officer Rares Toma (" Toma" ) saw Michael Payne (" Payne" ) walking on the sidewalk near some apartment buildings. Payne was identified by the Department as a " red-file target" because of his criminal history. Payne was suspected of narcotics activities and had been identified by several local landlords and business owners as someone they wanted prosecuted for trespassing if seen on their property.
Because the Department authorizes red-file targets to receive higher attention from police officers, Melkowski and Toma began following Payne. After following Payne in their patrol car for a while, Melkowski and Toma approached Payne on foot. The patrol car was equipped with a video camera that recorded the 12-minute encounter between Melkowski and Payne that followed.
As the officers approached Payne, Toma saw Payne put something in his mouth. Once the officers reached Payne, they placed him in handcuffs in front of the patrol car. Toma shined his flashlight in Payne's mouth and determined that Payne was attempting to conceal narcotics. Toma believed that Payne had approximately three crack cocaine rocks under his tongue.
Toma told Melkowski that Payne was trying to swallow the drugs. Melkowski quickly grabbed Payne's Adam's apple. Melkowski later reported that he grabbed Payne's throat to preserve the narcotics as evidence and to keep Payne from ingesting a dangerous substance. The officers bent Payne over the hood of the patrol car. While Melkowski did not choke Payne or impair his breathing, he did have his hand around Payne's throat and was holding onto and pulling Payne's hair.
After a few minutes, Melkowski released his hold on Payne's throat but continued to hold him down on top of the hood of the patrol car. While using profanity, Melkowski threatened to call an ambulance and to have Payne's stomach pumped, to spray him with pepper spray, and to open his mouth with an ink pen in order to get him to spit out the drugs. The video shows Melkowski asking Toma for an ink pen. Payne did not comply with Melkowski's efforts to remove the drugs from Payne's mouth.
Melkowski then turned Payne's face away from the camera, grabbed his night stick, and held the night stick close to Payne's face. Payne can be heard making gagging noises and begging Melkowski not to hurt him. Because of Payne's positioning, the video neither confirms nor negates that Melkowski inserted the night stick into Payne's mouth. However, after Payne is heard gagging and begging Melkowski to stop, the video shows Melkowski wiping his night stick through Payne's hair.
It was eventually determined that Payne had swallowed the drugs. Though Melkowski later testified that he acted as he did out of concern for Payne's safety should he ingest the drugs, Payne was released and allowed to walk away without receiving medical attention.
Throughout the encounter with Payne, Melkowski used profanity frequently, including epithets directed at Payne after he was released from custody. These included " All we did was save your ass; " " Why the hell you treat us like we are f**** stupid; " " Treating us like we're assholes; "
" Make me sick; " and " Keep your f*** mouth shut."
Less than an hour after being released, Payne filed a complaint against Melkowski with the Office of Community Complaints. Payne alleged that Melkowski used excessive force by shoving a night stick into the front of his mouth and by sticking a pen into his mouth. An Internal Affairs Unit investigation was conducted.
The Internal Affairs Unit generated a report after completing its investigation that included all of the statements that had been taken. The report was presented to the four officers in Melkowski's chain of command. After reviewing the report, each officer recommended that Melkowski be terminated for violating Department policies. Kansas City Chief of Police James Corwin (" Chief Corwin" ) independently reviewed the report and recommended termination, subject to review by the Board (" Charges and Specifications" ). The Charges and Specifications charged Melkowski with violating Department Personnel Policy 201-7 (" Policy 201-7" ), specifically the Code of Ethics provisions and Rules of Conduct paragraphs 1, 9, 12, 44, 58, 59, and 60. The Charges and Specifications specified two counts of misconduct: count one, alleging that Melkowski used profanity and unnecessary force on Payne, a handcuffed subject; and count two, alleging that Melkowski had previously received a 15-day suspension for discourtesy and unnecessary force involving a different handcuffed subject in 2005.
Paragraph B of Policy 201-7's Code of Ethics, titled Performance of Duties of Police Officers, states that " [a]ll citizens will be treated equally with courtesy, consideration, and dignity. Officers will never allow personal feelings, animosities, or friendships to influence official conduct." Paragraph D of the Code of Ethics, titled Use of Force, provides:
Police officers will never employ unnecessary force or violence and will use only such force in the discharge of duty as is reasonable in all circumstances. While the use of force is occasionally unavoidable, police officers will refrain from applying the unnecessary infliction of pain or suffering ...