This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-2393

City of Elk River,

Respondent,

vs.

Kenneth Rollins,

Appellant.

Filed July 8, 1997

Affirmed

Amundson, Judge

Sherburne County District Court

File No. C3-96-141

Dayle Nolan, C. Erik Hawes, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue, Bloomington, MN 55431 (for Respondent)

Patrick J. Kelly, Song L. Fawcett, Bannigan & Kelly, P.A., 1750 North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellant Kenneth Rollins challenges the district court's reversal of a veterans preference hearing which found that the city improperly started termination of Officer Rollins. Officer Rollins argues that substantial evidence supported the hearing officer's decision, that his notice of termination constituted disparate treatment as a veteran, and that the district court did not have jurisdiction to review the hearing officer's decision. We affirm.

FACTS

On July 18, 1995, appellant Kenneth Rollins, then a police officer for the city of Elk River, and Corporal David Hurd, an Elk River police officer, apprehended a juvenile suspect running in his socks near a housing development that was under construction. Fleeing Corporal Hurd in the dark, the juvenile was stopped when he ran into a large tree stump. As a result, he was easily subdued and handcuffed by Corporal Hurd. As Corporal Hurd led the juvenile away, Officer Rollins, thinking that the juvenile might well be a burglar working with others, asked him the whereabouts of his comrades. When the juvenile did not respond, Officer Rollins grabbed him and again asked where the others were. How and where Officer Rollins grabbed the juvenile is a source of considerable controversy. Officer Rollins testified that he held the juvenile's jaw, Corporal Hurd testified and the juvenile stated that Officer Rollins grabbed the juvenile around the neck. Wherever the contact was made, it was on this occasion that Corporal Hurd directed Officer Rollins to stop the interrogation. Corporal Hurd led the juvenile back to the squad car.

After Corporal Hurd brought the juvenile back to the police station, he noticed red marks on the juvenile's neck. Corporal Hurd testified that he assumed the red marks were the result of Officer Rollins hold. Corporal Hurd telephoned his supervisor, who directed him to take pictures of the juvenile. The next day, an internal investigation of Officer Rollins use of force was initiated. After the internal investigation, the city of Elk River gave Officer Rollins notice of termination due to his excessive force and deception. Officer Rollins, a military veteran, requested a veterans preference hearing to ascertain the reasonableness of the city's termination. The hearing officer found that the city had not provided sufficient reason for Officer Rollins termination and reinstated him. The city appealed the decision to the district court, which reversed the hearing officer's decision. This appeal followed.

D E C I S I O N

Where the district court acted in an appellate capacity in reviewing an agency decision, this court will independently review the agency's record. In re Hutchinson, 440 N.W.2d 171, 175 (Minn. App. 1989), review denied (Minn. August 9, 1989). A reviewing court may reverse or modify a decision of an agency if the decision is:

(a) In violation of constitutional provisions; or

(b) In excess of the statutory authority or jurisdiction of the agency; or

(c) Made upon unlawful procedure; or

(d) Affected by other error of law; or

(e) Unsupported by substantial evidence in view of the entire record as submitted; or

(f) Arbitrary or capricious.

Minn. Stat. § 14.69 (1996).

I. Substantial Evidence

The Veterans Preference Act dictates that a public employee who is a veteran cannot be dismissed or demoted without a hearing determining "incompetency or misconduct." Minn. Stat. § 197.46 (1996). The issue before Officer Rollins veterans preference hearing was whether substantial evidence supported the city's finding of misconduct. See Bush v. City of St. Joseph, 395 N.W.2d 466, 468 (Minn. App. 1986).

A review of the record indicates that when the verbally abusive, yet otherwise compliant, juvenile was handcuffed, Officer Rollins grabbed the juvenile and asked him the whereabouts of his comrades. Testimony diverges concerning whether Officer Rollins grabbed the juvenile's neck or jaw. The juvenile's statement was that Officer Rollins asked where "the rest of them" were, and then he "grasped my neck and proceeded to keep on squeezing until finally he stopped," again asking during the hold where others were. The juvenile described the encounter, saying, "his thumb was across my esophagus and his forefingers were on the back right side of my neck." Corporal Hurd testified that the juvenile made an obscene comment to Officer Rollins, after which Officer Rollins

grabbed him around the throat, grasping around the trachea, and again asked him where his buddies were. * * * At that time I remember myself making three separate statements to Officer Rollins something to the effect of lighten up, let go, that's enough. At that point I still had a hold of the suspect's left elbow and I even started trying to pull the suspect towards me or away from Officer Rollins. It appeared to me that Officer Rollins started to release his grip and then re-grasped the juvenile and just for a very short period of time. Then Officer Rollins did let go.

The juvenile's account of the incident was as follows:

Once Officer Hurd said, "All right, that's enough...," and once he said that, I think, that's where the bruises came 'cause he pinched his fingers... and, like, when he was letting go of his hand and pulling it away, he pinched his fingers right at the end.

Neither Corporal Hurd nor the juvenile indicated that the juvenile's breathing was obstructed, though the juvenile stated talking was difficult.

Officer Rollins testimony differs:

I then, uh, I first asked the uh, juvenile, where his friends were and he said something to the effect that uh, I don't know what you're talking about. At that point he slightly turned away from me. I reached up and I took him by the jaw bone and I turned his face towards mine to make uh, have him focus on me, as it seemed as if he didn't want to make any eye contact with me at all. I asked him where his friends were at.

Photographs of the juvenile that Corporal Hurd took after the arrest were entered into evidence. Corporal Hurd testified that the injuries were more visible in reality than they appeared in the photographs. The photographs show red marks on the side of the neck consistent with finger impressions, as well as small scabs consistent with a pinching move made by fingernails.

There was also testimony by other police officers regarding the appropriate force used under these circumstances. Sergeant Jeff Mordahl of the Elk River Police Department testified that other than directing a suspect by walking him out, there is no reason to have physical contact with a compliant handcuffed suspect. Donald Davis, a former police officer and current deputy commissioner for the Minnesota Department of Public Safety, testified that it is excessive force for an officer to put his hands around the neck of a compliant, handcuffed suspect who is being held by another officer. In addition, both Corporal Hurd, who was present, and Sergeant Thomas Tyler of the Elk River Police Department, who conducted the internal investigation, believed that Officer Rollins conduct constituted excessive force. Elk River Police Department's policy manual provides the following guidelines on excessive force:

All force beyond what is reasonably required to successfully effect legitimate self-defense or any other lawful purpose. Excessive force is always unnecessary force.

Elk River Police Department Use-of-Force Policies and Procedures § I (I). Minnesota law defines reasonable force by a police officer as that used

(a) in effecting a lawful arrest; or

(b) in the execution of legal process; or

(c) in enforcing an order of the court; or

(d) in executing any other duty imposed upon the public officer by law.

Minn. Stat. § 609.06, subd. 1 (1) (1996).

Whether Officer Rollins grabbed the juvenile's neck or jaw, the agency's decision that Officer Rollins did not use excessive force was unsupported by the substantial evidence of the record. See Minn. Stat. § 14.69(e) (1996). Furthermore, the agency's decision was arbitrary and capricious. See Minn. Stat. § 14.69(f) (1996). The handcuffed and compliant juvenile was under the control of Corporal Hurd. There is no evidence that the juvenile posed a flight risk or a threat of physical harm. To the contrary, Officer Rollins used physical force to extract information from the juvenile in violation of the juvenile's Fourteenth Amendment rights. See State v. Reilly, 269 N.W.2d 343, 348 (Minn. 1978) (discussing factors involved in determining involuntary confessions).

II. Disparate Treatment

Officer Rollins argues that his notice of termination constituted disparate treatment as a veteran because non-veteran officers were not as severely disciplined for excessive force. Officer Rollins provided examples of non-veteran officer excessive force cases to illustrate his disparate treatment. These examples, however, present circumstances very different from the instant case and do not support Rollins argument. More importantly, any assertion of disparate treatment would be considered under the broader question before us, which is to determine whether the veterans preference hearing properly determined whether the city's finding of misconduct was supported by substantial evidence.

III. Jurisdiction

Officer Rollins further asserts that the district court did not have jurisdiction to review the veterans preference hearing. He argues that the city could have only exercised its writ of certiorari with this court. We disagree.

The statute which provides for the Veterans Preference Board states that

[t]he veteran may appeal from the decision of the board upon the charges to the district court by causing written notice of appeal.

Minn. Stat. § 197.46 (1996). While the statute specifically allows the veteran's right to appeal, both parties have the same right to appeal. See In re Schrader, 394 N.W.2d 796, 801-02 (Minn. 1986) (employer petitioned district court for review of hearing board's decision).

Affirmed.