Cox v. City of Columbia

764 S.W.2d 501, 1989 Mo. App. LEXIS 141, 1989 WL 6107
CourtMissouri Court of Appeals
DecidedJanuary 31, 1989
DocketNo. WD 40286
StatusPublished
Cited by1 cases

This text of 764 S.W.2d 501 (Cox v. City of Columbia) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. City of Columbia, 764 S.W.2d 501, 1989 Mo. App. LEXIS 141, 1989 WL 6107 (Mo. Ct. App. 1989).

Opinion

NUGENT, Judge.

Plaintiff Paul Cox appeals from the trial court’s order affirming the Columbia City Manager’s decision to dismiss Cox from the City of Columbia police force. We affirm.

The circumstances surrounding Mr. Cox’s dismissal arose as follows. Mr. Cox accompanied four other policemen, Officers Pestle, Dresner, Brown and Sergeant Haws, to investigate a break-in at a local high school building. The officers heard noises from within the building and discovered the suspect, Joseph O’Campo hitting a trophy case with a chair. They drew their service revolvers and ordered the suspect to freeze. O’Campo, after throwing the chair at the officers, complied with the order. The officers handcuffed O’Campo, hands behind his back, and frisked him. Officer Dresner found a pair of scissors near the suspect.

O’Campo told the officers that he was alone, but later began laughing and screaming, “There’s three of them, there’s three of them.” The officers told him to “shut up,” but he continued to laugh and scream as the officers, one officer holding each arm, started to drag him, resisting, out of the building. Officer Dresner then tried to quiet O’Campo by hitting him in the abdomen with his flash light. When this failed, Officer Cox kicked him in the buttocks and Officer Pestle poked O’Campo “in the abdomen three times, telling him to “shut up." Finally, Officer Cox, swung his flashlight from behind O’Campo, and struck him on the head. That blow lacerated his scalp and stunned him, causing him to fall into the officers’ arms. It also quieted him, and they removed him from the building, blood streaming from his head, and into the police car without further incident. When the officers found no other suspects in the building, they took O’Cam-po for medical treatment and on to the police station.

Officer Cox testified that he struck at O’Campo trying to hit him between the shoulder blades “thinking that with a stunning blow I could cause him to be quiet.” The evidence indicated that when he struck at the suspect, Officer Cox could see that O’Campo was moving his head and, no doubt, his shoulders and upper body as he screamed, laughed and resisted being dragged away. Finally, the testimony of the officers showed that in their training on the use of the police baton they had been told that certain zones of the human body and head are “red areas,” that is, areas to which blows can cause serious injury and death. The head, neck and spine are “red areas.”

Although O’Campo filed no formal complaint about the incident, the internal affairs board conducted an investigation. It found the officers’ actions improper and recommended that Officers Cox, Dresner, Pestle, and Sgt. Haws all be suspended for fifteen days. The board also recommended that they be placed on a one year qualifying period with mandatory counseling during that time. The board forwarded its recommendations to the deputy chief.

Deputy Chief Barbee recommended to Police Chief William E. Dye that Officer Cox’s discipline should be increased to dismissal from the police force. He based his conclusion, in part, upon a previous off-duty violent incident for which the department disciplined Officer Cox. Following a hearing, Chief Dye dismissed him. Officer Cox challenged his dismissal through the city grievance procedure. First, he appealed to Chief Dye, who was head of the department. After Chief Dye upheld the dismissal, Mr. Cox appealed to the city [503]*503personnel director who reached the same conclusion. Officer Cox then appealed to the personnel advisory board. The board conducted a full evidentiary hearing at which both Officer Cox and the city were represented.

The officers defended their actions as an attempt to prevent O’Campo from alerting any other possible suspects of the officers’ location. They argued that they merely intended to quiet him. Officer Cox testified that he was not aiming at O’Campo’s head, but intended to strike him on the shoulders. The personnel advisory board concluded that Officer Cox used his flashlight as an offensive weapon; that he exhibited “extremely poor judgment” by striking at an area in which a blow could cause serious injury or death; and that those acts amounted to mistreatment of a prisoner in violation of § 19.225(3)1 of the city ordinances and Columbia Police Department Rule 2.222(8)2. The board also concluded, however, that the punishment of discharge was excessive. It recommended a sixty day suspension without pay and a one-year disciplinary qualification period.

The city manager reviewed the full record, including the board’s recommendations. He determined that just cause supported Chief Dye’s decision to dismiss Officer Cox, and, accordingly, he upheld the dismissal. Officer Cox then appealed to the circuit court, which affirmed the city manager’s decision. This appeal followed.

As the foregoing procedural history no doubt suggests, this administrative appeal arises from a contested case. As such we must comply with § 536.1403, which provides in part:

1.The court shall hear the case without a jury and, except as otherwise provided in subsection 4, shall hear it upon the petition and record filed as aforesaid.
2. The inquiry may extend to a determination of whether the action of the agency
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency’
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion. The scope of judicial review in all contested cases, whether or not subject to judicial review pursuant to sections 536.-100 to 536.140, and in all cases in which judicial review of decisions of administrative officers or bodies, whether state or local, is now or may hereafter be provided by law, shall in all cases be at least as broad as the scope of judicial review provided for in this subsection....
3. Whenever the action of the agency being reviewed does not involve the exercise by the agency of administrative discretion in the light of the facts, but involves only the application by the agency of the law to the facts, the court may weigh the evidence for itself and determine the facts accordingly. The law applied by the agency as aforesaid may include the agency’s own rules. In making such determination the court shall give due weight to the opportunity of the agency to observe the witnesses, and to the expertness and experience of the particular agency....
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5. The court shall render judgment affirming, reversing, or modifying the agency’s order, and may order the recon[504]*504sideration of the case in the light of the court’s opinion and judgment, and may order the agency to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in the agency.

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Bluebook (online)
764 S.W.2d 501, 1989 Mo. App. LEXIS 141, 1989 WL 6107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-city-of-columbia-moctapp-1989.