Richard L. Haden
Bethany Beach Police Department and the Criminal Justice Council
Submitted: March 31, 2014
Julianne E. Murray, Esq. Murray Law LLC 109 North Bedford Street Georgetown, DE 19947
Rae M. Mims, Esq. Delaware Department of Justice 102 West Water Street Dover, DE 19904
RICHARD F. STOKES
Before the Court is Appellee the Criminal Justice Council's (the "CJC's") Motion to Dismiss the Appeal of Appellant Richard L. Haden ("Haden"). Also before the Court is Haden's Motion to Amend the Notice of Appeal to a Writ of Certiorari. The Court GRANTS the CJC's Motion to Dismiss for lack subject matter jurisdiction. Regarding Haden's Motion to Amend, the Court agrees with Haden that his Motion is not procedurally time-barred. However, because the Court considers certiorari review of this case to be a futile endeavor, it DENIES Haden's Motion.
FACTS & PROCEDURAL BACKGROUND
The present Motions stem from the Bethany Beach Police Department's (the "BBPD's") charging Haden with six violations of its regulations. On March 3, 2013 Haden, a lieutenant and sixteen-year veteran of the BBPD, was working the noon to midnight shift. At around 8:30 p.m., Haden responded to assist BBPD Patrolman Zachery Bonniwell ("Boniwell") in a traffic stop which resulted in Bonniwell's arresting the driver, Joseph F. Burke ("Burke"), for driving under the influence of alcohol. According to Haden, after he arrived on the scene, Burke said to Haden "We're neighbors. I know who you are. We're going to see each other all the time." Bonniwell was out of ear shot during this conversation. Haden, who did not recognize Burke, found these comments odd but nonthreatening.
Burke was then brought back to the BBPD for booking. At some point, Burke and Bonniwell were in a detention area being videotaped. This tape did not have audio. In it, Bonniwell has his back to the camera, standing next to an Automated Fingerprint Identification System ("AFIS"). Bonniwell was taking Burke's personal information. Burke was in the front left of Bonniwell, who was putting Burke's information into the AFIS. In the tape, Haden suddenly rushes into the area and grabs Burke by the left side of his throat. Staring into Burke's face, Haden is claimed to have said "You want to threaten my wife and family now that I'm in front of you?" This prompted Burke to lift both of his arms and push Haden back. Burke's push caused Bonniwell and Haden to attempt to subdue him. The Board noted that the BBPD's charge of excessive force by Haden against Burke was limited to Haden's first physical contact with Burke (i.e., Haden's grabbing Burke by the throat), and not Haden and Bonniwell's subsequent physical contact used in subduing Burke. The Board believed that this subsequent contact was objectively reasonable under the circumstances, even though Burke was provoked by Haden.
Before concluding his shift, Haden completed two reports, each containing the same language. In them, Haden described Burke's remarks to him, which, according to Haden, were particularly threatening and targeted to Haden and his family. Haden also stated that he moved towards Burke in the detention area and asked if he was being threatened. Burke then stood up, which caused Haden to reach for Burke's throat in an attempt to locate a pressure point which would subdue Burke. This failed. Burke then tried to grab Haden's hand, which cause Burke to place his hand on Burke's throat and push him back in his seat. Once seated, Haden asked again if Burke was threatening his family or him.
The Board found that the video contradicted Haden's version of the story, and did not find his explanation credible. According to the Board, Haden stated during questioning that he was angry with Burke for his remarks, and entered the detention area with the intention of engaging in a physical altercation with Burke in order to let Burke know that Haden "was the Alpha male." The Board found that Haden grabbed Burke in anger, and that Burke did not pose an imminent threat to Haden, Bonniwell, or others. The Board also found that Burke, who was not handcuffed, was not a flight risk. Further, the Board considered Haden's use of force punitive, rather than for the use of subduing Burke. Lastly, the Board found that the statements made by Haden in his reports were false.
Chapter 92 of Title 11 of the Delaware Code, called the Law-Enforcement Officers' Bill of Rights ("LEOBOR"), grants law-enforcement officers charged with misconduct the right to a hearing before an impartial trial board (the "Board") of officers before departmental discipline is imposed. Under 11 Del. C. § 9205(b), if an impartial board cannot be convened internally, a board of three or more members shall be convened under the auspices of the CJC to hear the matter. In Haden's case, the Board convened by the CJC consisted of Senior Lieutenant Douglas G. Merrill of the New Castle County Police Department, Lieutenant Eric L. Hamm of the Delaware State Police, and Lieutenant Jason Pires of the Dover Police Department.
The Board met on November 12, 2013 at the Bethany Beach Municipal Building. The Board heard evidence as to the charged violations, deliberated, and announced its decision on the record. Haden pled guilty to two of the charged violations. The Board dismissed another charge as duplicative, and then found the three remaining charges substantiated by evidence. These three charges involved use of excessive, unnecessary, or unreasonable, yet non-lethal force, and knowingly making a false official report or causing to be entered into a book or record inaccurate, false, or improper entries or misrepresentation of facts. The Board memorialized its findings in a written opinion on November 25, 2013.
On November 26, 2011, Haden filed a notice of appeal of the Board's decision to this Court. On January 8, 2014, the CJC moved to dismiss the appeal, claiming that this Court lacked subject matter jurisdiction to hear it. On January 24, 2014, Haden responded to the merits of Haden's motion to dismiss, and requested that if the Court found that it lacked jurisdiction over his appeal, Haden requested leave to amend the notice of appeal to a writ of certiorari in order to establish jurisdiction in this Court. Haden made this request in a concurrently filed motion to amend the notice of appeal. On February 4, 2014, ...