COA upholds termination of officer who slapped detainee

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A former Starke County sheriff’s deputy will not get his job with the Sheriff’s Department back after the Indiana Court of Appeals ruled Tuesday the sheriff’s merit board considered sufficient evidence under the proper standard to support the deputy’s termination.

While on duty at the Starke County Jail in April 2014, Starke County Sheriff’s Deputy Robert Gray Jr. became involved in a verbal and physical altercation with a mentally ill pretrial detainee, J.S., who was making noises as if she were going to spit. The incident culminated in Gray slapping J.S. across the face, so the Starke County sheriff filed charges against him.

The allegations against Gray claimed he violated four Sheriff’s Department rules that related to conduct unbecoming of an officer, treatment of persons in custody, use of force and courtesy. The charges also alleged Gray “held his hand over the mouth and neck of a custodial prisoner,” among other allegations.

The Starke County Sheriff’s Merit Review Board conducted a hearing and determined J.S. was partially restrained at the time of the incident and that there was no direct evidence she actually spit on Gray. The board then determined Gray had used excessive force and ordered his employment to be terminated, a decision that was affirmed in the Porter Superior Court.

On appeal in Robert Gray, Jr. v. County of Starke, Indiana, 64A03-1703-PL-585, Gray argued he should have received review of his use of force consistent with guidance laid out in Graham v. Connor, 490 U.S. 386 (1989), particularly the “objectively reasonable standard” in that case. But Indiana Court of Appeals Judge Mark Bailey wrote the merit board was tasked only with determining whether Gray should be disciplined for his violation of department rules, not with undertaking a Fourth Amendment analysis of reasonableness.

“The excessive force objective reasonableness standard, as contemplated in Graham and its progeny, may be instructive but does not provide a minimum threshold for termination of police employment when an allegation has been made that the officer violated an internal use of force rule,” Bailey wrote. “Gray has not shown the Merit Board’s discharge decision was contrary to law on this basis.”

Gray also argued the trial court “reweighed” evidence and made additional findings in support of his termination, and Bailey conceded the court commented on evidence not specifically addressed in the merit’s board order. However, “a claim that a dismissal order is arbitrary and capricious because there was more than enough evidence discussed on review does not comport with our appellate standard of review,” Bailey said.

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