CASE NO. CSC-12-2017 THE CITY OF FORT WORTH IN THE MATTER OF THE AND APPEAL OF POLICE SERGEANT POLICE KENNETH PIERCE CIVIL SERVICE COMMISSION INDEFINITE SUSPENSION ORDER OF THE HEARING EXAMINER IN CSC-12-2017 This matter came on for public hearing on. January 30, 2019. Both parties appeared through counsel. The parties have represented that they were in agreement to forego a hearing on the merits of this appeal pursuant to the following ?ndings of the Hearing Examiner: After due consideration of the facts and evidence, including the attached letter submitted to the Police Chief from the District Attorney (Exhibit in which the District Attorney concludes that the arrest underlying this controversy was a lawful arrest, the Hearing Examiner sustains only the following allegation: failure to supervise in violation of Fort Worth Police Department General Order 703.00 and Fort Worth Local Civil Service Rule 13.00402) based, in part, on Sergeant Pierce?s failure to utilize de-escalation tactics during the underlying incident. The allegations that General Order 703 (?O-Professional Conduct and General Order 306.05- Force Options were violated are not sustained. Accordingly, the Hearing Examiner ?nds that Sergeant Pierce?s inde?nite suspension should be reduced to a 35-day suSpension without pay. Any and all backpay due shall be mitigated in compliance with the terms of the current Meet and Confer Agreement between the City of Fort Worth and the Fort Worth Police Of?cers Association. This matter is now closed. Hearing Examiner athy Fragnoli a EXHIBIT SHAREN WILSQN Criminal District Attorney Tarrant County Septembers, 2018 Chief Joel Fitzgerald - Fort Worth Police Department 505 West Felix. Fort Worth, Texas 76115 Re': Review of Incident Dear Chief Fitzgerald: On August 9, 2018, the Fort Worth Police Department (FWPD) requested the Tarrant County Criminal District Attorney's Of?ce review the facts and law to determine whether state criminal legal proceedings are warranted in the matter of the events of August 13, 201?, invoiving Sgt. Ken Pierce and. Of?cers Bayona and Garcia. The matter involved FWPD personner response to a domestic disturbance call at 13936 Tristan Lane, referenciad in FWPD report number 17-75125. The purpose of this letter is to answer whether there rs a violation of state law and to acp'iain the legal reasoning for that decision. Previously, on or about January 8, 2018, FWPD had. requested the Federai Bureau of investigation (FBI) determine whether any violation of federal law occurred during that police response. After review, "the FBI advised that the actions of the of?cers during this incident did not violate federal law and thus they would not be initiating an investigation or taking any further action."1 After reviewing body camera videos, reports, photos, narratives, and incident call sheets, we ?nd that the FWPD narrative regarding the incident written by Detective C. D. Scroggins after he reviewed the body camera footage and the 9-1-1 call placed by Ms. Morris is the most correct rendition of the events of August 13, 2017. 2. He found that "there was no probable cause to ?le the charges of Aggravated Assault with a Deadly Weapon or Resist Arrest/Search/Transport?3 against Ms. Morris The evidence in this case indicates that Of?cers Bayona and Garcia lawfully responded to a 9-1-1 call made by Ms. Morris and encountered Ms. Morris and Mr. Savala in a public place, the landing outside the apartment. The call detaiis known to the of?cers priorto their arrival justi?ed the exercise of caution. Mr. Savala submitted to detention by Of?cer Garcia without incident. He was'later arrested for Public Intoxication. Of?cer Bayona attempted to detain Ms. Morris to safely verifywhether an offense had been committed, was being committed, or was about to be committed. Ms. Morris refused to cooperate and actively resisted attempts to detain her by Of?cer Bayona and Sgt. Pierce who had arrived on the scene 1 Email from Capt. Bryan Jamison, FWPD to Robert Huseman, ACDA on AuguSt 13, 2018 2 FWPD 17-75125, supplement 0004, by Detective Scroggins #3436 3 Id. 1 401 W?t?ellcnap - 1?thme 76196 817.884.1400 - oda?lrmantcountyoom and she was arrested. Charges were later ?led on Ms. Morris for Aggravated Assault with a Deadly Weapon and Resisting Arrest. These charges were properly dismissed by Det. Scroggins who found no probable cause for a charge for either Aggravated Assault or Resisting Arrest. The conduct ongt. Pierce and Of?cer Bayona was examined to determine whether either ofthem committed a violation of the penal laws of Texas, speci?cally the crime of Of?cial Oppression. The law provides that a public sewant acting under color of his of?ce or employment commits the offense of Of?cial Oppression if he intentionally subjects anotherto arrest or detention gthat he knows is unlawful. An essential element of the crime of Of?cial Oppression is that the of?cer knew that the detention or arrestwas unlawful.This requires that the arrest or detention actually be unlawful. Under the facts, it was lawful for Of?cer Bayona and Sgt. Pierce to detain Ms. Morris. Given Ms. Morris' physical rasistance to lawful detention, the resulting arrestwas lawfuL The detention of Ms. Morris was lawful. Several factors are considered in determining the legality of the detention: the amount of force displayed-handcuf?ng a person during detention is lawful, Balentine v. State, 71 763 (Tex. Crim. App. 2002); the duration of detention-here, fem: minutes; ef?ciency- of?cers attempted to obtain the necessary information in a direct and ef?cient manner; location-Ms. Morris was initially detained where she was found and was only moved to a police car as a result of her refusal to cooperate; officer's expressed intent-Sgt. Pierce stated that Ms. Morris would be handcuffed and taken to jail unless she provided her identi?cation, which did not legally equate to telling herthat she was under arrest. The arrest of Ms. Morris was [awful for the offense of Interference with. Public Duties, Penal Code Sec. 38.15. Her af?rmative actions, most notably pushing the of?cers away and trying to avoid being placed in handcuffs, while under detention interfered with the investigation by Of?cer Bayona and Sgt.- Pierce in a manner suf?cient under the law to warrant her arrest for interference with public duties, Trevino v. State, 512 587 (El Paso, 2017). Courts have found that overriding public policy requires a person to acquiesce to an of?cer?s exercise of authority. ?Use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned," Tucker v. State 114 718 (Tex. App. Corpus Christi 2003, pet. rel?d). Ms. Morris? actions in impeding her detention and arrest constituted the offense of Interference with Public Duties. Because there was a lawful detention and a lawful arrest, there is no legal reason to ?nd that Sgt. Pierce or Of?cer Bayona committed the offense of Of?cial Oppression. We ?nd no other crime that could be charged?. Therefore, under the facts and the law, we find that the actions of the officers during this incident did not violate state law. We will not be taking any further action. Very tru ours, Sharon Wilson Criminal District Attorney 4 We are not making any determination about whether these actions violated FWPD policy or training. 2