CSA publishes case overturning firing of officer who used pepper spray

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The St. Mary’s County Sheriff unlawfully discharged one of his deputies for allegedly using excessive force and making untruthful statements to investigators, the Court of Special Appeals has held. Evidence that the deputy used pepper spray to subdue a violent patron at his part-time job did not support a finding that he used excessive force; nor was there any evidence that the deputy had been untruthful about the incident, the intermediate appellate court held.Furthermore, even if Deputy First Class Steven M. VanDevander’s alleged actions had warranted a penalty beyond the suspension and demotion recommended by an administrative board, Sheriff Richard J. Voorhaar waited too long to impose the enhancement. “Even if the hearing board’s findings of fact and law had been correct, [VanDevander] should suffer, at most, only that penalty suggested by the board,” Judge Raymond G. Thieme Jr. wrote for the court. “Sheriff Voorhaar’s penalty enhancements were instated outside the clear boundaries of the law and cannot stand.”The incident that gave rise to the disciplinary action took place in December 1997 at a Perkins’ Restaurant where VanDevander, then an eight-year veteran of the St. Mary’s Sheriff’s Department, held a part-time job, according to the opinion reported by the court on Friday. A “loud, disruptive and quite intoxicated” patron who had refused several requests to leave the premises changed his mind after VanDevander identified himself as a law enforcement officer, Thieme wrote. However, the drunken man later returned and refused VanDevander’s renewed request that he leave. The deputy and a citizen had to remove him physically from the premises, the judge added, noting that “in order to effectuate lawful arrest of the now-violent patron … VanDevander used pepper spray.”Five internal affairs charges were filed against VanDevander in consequence: untruthfulness, use of force, unbecoming conduct, withholding evidence and prisoner safety. An administrative hearing board found VanDevander guilty of the first two charges; it recommended a five-day suspension for excessive force and a one-year reduction in rating for untruthfulness. However, Sheriff Voorhaar increased his deputy’s penalty to termination.The circuit court judge who reviewed the board’s recommendations affirmed these findings, but sent the matter back to the sheriff for failing fully to satisfy the procedural requirements of the Law Enforcement Officers Bill of Rights. The sheriff reiterated his earlier decision, and the circuit court issued its final order in his favor.The Court of Special Appeals reversed, in an unreported opinion issued in December and reissued as a published opinion on Friday.Mace is “a lawful self-defense tool even for civilians,” the court noted, and the hearing board ignored the law by considering the prosecutor’s contention that it might not have been “the best option” under the circumstances.“We believe the officers on the hearing board, though conscientious, sought to substitute their own judgment in the calm of the hearing room for Deputy VanDevander’s judgment while in the midst of lawfully arresting a violent and intoxicated suspect who actively resisted seizure,” Thieme said.“Although hindsight may reveal flaws in Deputy VanDevander’s judgment, the [applicable] standard does not allow those who would judge police conduct to be Monday-morning quarterbacks,” Thieme added. “Any errors committed by Deputy VanDevander were not so egregious as to create liability on his part.”<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″