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Howard v. City of Columbus

Court of Appeals of Mississippi

January 7, 2020

TONI HOWARD APPELLANT
v.
CITY OF COLUMBUS APPELLEE

          DATE OF JUDGMENT: 08/22/2018

          LOWNDES COUNTY CIRCUIT COURT HON. JAMES T. KITCHENS JR. TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: FRANCIS STARR SPRINGER

          ATTORNEY FOR APPELLEE: JEFFREY JOHNSON TURNAGE

          BEFORE CARLTON, P.J., WESTBROOKS AND McCARTY, JJ.

          CARLTON, P.J.

         ¶1. This appeal concerns a disciplinary matter against Toni Howard, a full-time police officer with the Columbus Police Department (CPD). Two separate incidents are at issue. On September 9, 2017, Officer Howard left her assigned beat without permission, and two days later she exhibited conduct unbecoming an officer and improperly used her taser around a handcuffed and shackled arrestee. Based upon the Columbus Chief of Police's recommendation, the Mayor and the Columbus City Council (City) voted unanimously to suspend Officer Howard for three working days without pay for the first incident and fourteen working days without pay for the second incident. The suspensions ran concurrently, so Officer Howard was suspended without pay for fourteen working days. The Columbus Civil Service Commission (Commission) affirmed the City's decision on appeal. Howard appealed that decision to the Lowndes County Circuit Court, which affirmed the Commission's decision. It is from this judgment that Howard appeals. Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. Toni Howard is a patrol officer with the CPD, which operates under a statutorily authorized civil service system pursuant to Mississippi Code Annotated section 21-31-1(2)(f) (Rev. 2015). Following two incidents occurring in mid-September 2017, Officer Howard received a written notice that the CPD intended to recommend to the City that she be given a seventeen-day suspension without pay based upon these two incidents. According to the notice of intent, on September 9, 2017, Officer Howard left her assigned beat for approximately one hour without permission. She was the only patrol officer assigned to that patrol area. While Officer Howard was absent, a burglary occurred on her beat. Chief Oscar Lewis recommended three working days' suspension without pay for this incident.

         ¶3. The second incident occurred two days later, on September 11, 2017. The notice provided that Officer Howard failed to follow police-department procedures by displaying conduct unbecoming an officer and improperly using her taser when dealing with an arrestee. Chief Lewis recommended fourteen working days' suspension without pay for this conduct.

         ¶4. Officer Howard exercised her rights to appear before the City, with counsel, on November 21, 2017, to answer and defend the charges. The City unanimously voted to adopt Chief Lewis's recommendation but decided to have the suspensions run concurrently. Officer Howard was therefore suspended for a total of fourteen working days without pay.

         ¶5. Pursuant to Mississippi Code Annotated section 21-31-23 (Rev. 2015), Officer Howard appealed to the Commission for a review of the City's decision. The Commission conducted an investigation as required under section 21-31-23, which consisted of a hearing taking place on January 24, 2018. The City presented six witnesses. Officer Howard, represented by counsel, testified on her own behalf.

         I. Incident 1 - Officer Howard's Absence from Her Assigned Beat

         ¶6. The City established at the hearing that on September 9, 2017, Officer Howard was assigned to the north beat in Columbus, Mississippi. Only one officer was assigned to that area. Without obtaining permission from anyone above her in the chain-of-command, Officer Howard left her assigned beat for approximately sixty minutes to participate in training new officers on how to conduct a traffic stop. Chief Lewis testified that he had already rejected her request to be a field training officer, so Officer Howard was not authorized to participate in this training. In her absence, a burglary occurred on Officer Howard's assigned beat.

         ¶7. Officer Howard's immediate supervisor, Corporal Joshua Vandiver, testified that he wrote her up for neglect of duty for this misconduct. He conferred with Officer Howard about the report. Officer Howard was given the opportunity to add her own comments to the report. She signed the report without making any comments to it.

         ¶8. Sergeant John Bishop testified that he approved the report and that there was good cause for Officer Howard to be disciplined for leaving her assigned beat. Captain Ric Higgins was the next supervisor up the chain-of-command who received the report from Sergeant Bishop. Captain Higgins also testified that he believed there was good cause for discipline and forwarded it to Chief Lewis. Captain Higgins believed that Chief Lewis's recommendation of three working days' suspension for this incident was made in good faith.

         ¶9. Current Chief Frederick Charles Shelton was the assistant chief when Chief Lewis decided Officer Howard should be suspended. Assistant Chief Shelton was promoted to Chief shortly before the City voted to suspend Officer Howard and testified as the Chief of Police at Officer Howard's hearing before the Commission. He testified that he recommended Officer Howard's suspension and agreed with former Chief Lewis's length of suspension in his recommendation. He and former Chief Lewis discussed the length of the suspension and recommended this amount because an officer must go through the proper chain-of-command to obtain permission to leave his or her beat, and Officer Howard did not do so in this case. Further, Chief Shelton testified that in this case there was also the concern that a burglary had occurred in the north beat while Officer Howard was gone, and it may have been prevented if she had been in her assigned area. II. The Hospital Incident

         ¶10. Two days later, on September 11, 2017, the record reflects that Officer Howard drove an arrested suspect in the City's patrol car to Baptist Memorial Hospital for medical and mental clearance before the arrestee could be put in the Lowndes County Adult Detention Center. Sergeant Bishop testified that another officer who was also on the scene, Officer Glenn Jenkins, told him (Sergeant Bishop) that he may want to watch Officer Howard's body-camera footage of the incident because Officer Jenkins thought "things kind of [got] out of hand at the hospital." Sergeant Bishop testified that he and Corporal Vandiver watched the video. The video was entered into evidence, and it was played for the Commission.

         ¶11. The video shows that the arrestee was agitated and disrespectful toward Officer Howard, and she told the arrestee to shut up a number of times. When the arrestee said he was not going to jail and this could all be "cleared up," Officer Howard told him he was going back to jail and, "You ain't clearing shit up." Then Officer Howard told the arrestee, who was handcuffed and in shackles, that she was not "taking any shit" from him, and she said that she was not "talking shit." Later in the video, the arrestee continued to be disrespectful to Officer Howard. Officer Howard deployed her taser, approached the hand-cuffed and shackled arrestee, pointed the taser in his general direction, and yelled for him to "shut-it." The record reflects that hospital employees were nearby when this occurred.

         ¶12. Sergeant Bishop testified that he counseled Officer Howard about this incident. She was given the opportunity to add or explain the incident description in the counseling report. She had no changes to the report, and she signed the report.

         III. Prior Incidents

         ¶13. At the hearing, the Commission allowed testimony and documentary evidence of two prior incidents involving Officer Howard that were similar to the September 11, 2017 hospital incident. Her actions in both of these incidents were found in violation of department procedures, specifically "General Order #303.4, Disciplinary Procedures, Conduct Unbecoming An Officer." Captain Higgins testified about these two incidents, and the reports relating to these incidents were admitted into evidence. The first incident involved a counseling report served on Officer Howard in early July, 2017, which cited Officer Howard as being guilty of using rude or insulting language or conduct offensive to the public based on complaints that Officer Howard used profanity on several calls.

         ¶14. The second report concerned Officer Howard's conduct on July 16, 2017. According to the testimony of Captain Higgins, Officer Howard threatened to use her taser on a hospital security guard when she learned that the guard had failed to get the name of a person suspected of stealing personal property out of a hospital employee's purse. The security guard complained to the CPD about Officer Howard's actions and statements. Captain Higgins testified that he downloaded and viewed Officer Howard's body-camera data. According to Captain Higgins's report, Officer Howard is seen on the video saying that she was going to "chew him [the security guard] a new one," and that she was "fixing to tase him." The report also provided that Officer Howard said the security guard "screwed me for two cases now," and that he "botched this up ...


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