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Leavitt v. Salt Lake City Corp.

Court of Appeals of Utah

May 2, 2019

Aaron Leavitt, Petitioner,
Salt Lake City Corporation and Salt Lake City Civil Service Commission, Respondents.

          Original Proceeding in this Court

          Erik Strindberg and Jonathan K. Thorne, Attorneys for Petitioner

          John E. Delaney and Mark E. Kittrell, Attorneys for Respondent Salt Lake City Corporation

          Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.


          Harris, Judge

         ¶1 In the wake of an on-duty incident at a homeless shelter, Salt Lake City Police Sergeant Aaron Leavitt was terminated from the police force for "conduct unbecoming" a police officer. Leavitt appealed his termination to the Salt Lake City Civil Service Commission (the Commission), which affirmed the decision to terminate him. Leavitt now seeks judicial review of the Commission's decision, and we decline to disturb it.


         Leavitt's Work History

         ¶2 Leavitt began working for the Salt Lake City Police Department (the Department) in 1996 and, other than a one-year stint in 2002-03 at a police department in Texas, Leavitt worked continuously for the Department for nearly twenty years. At first, he was assigned to be a patrol officer, but he rose through the ranks, earning a promotion to detective in 2004 and to sergeant in 2013.

         ¶3 During the time Leavitt worked for the Department he was generally a good employee, and in his annual evaluations he was never rated as less than "meeting standards." He had never been the subject of serious discipline, and had never before been charged with "conduct unbecoming." However, he had been the subject of three disciplinary matters during the course of his employment with the Department. The first two matters occurred in the early years of his work for the Department and were relatively minor, involving written reprimands for poor driving and improperly caring for his shotgun. The third matter occurred in 2013 or 2014, after he had been promoted to sergeant, and was somewhat more significant: Leavitt received a sixty-hour suspension for improperly using a taser as part of a prank while working security at a professional basketball game. In September 2015, when the events giving rise to this case occurred, Leavitt held the rank of sergeant, and was only a few months short of twenty years of service, a milestone that would have made him eligible to retire with full benefits.

         The Incident at the Shelter

         ¶4 On the night of September 20, 2015, Leavitt was on patrol when he received a request for additional assistance near a homeless shelter (the Shelter) in downtown Salt Lake City. A few minutes earlier, another officer had stopped a group of three males-including two black juveniles (Juvenile 1 and Juvenile 2)-for "jaywalking" across the street in front of the Shelter. After stopping the group, the officer ordered them to sit on the curb so he could issue them jaywalking citations. As the officer was writing up the citations, Juvenile 1's mother (Mother) arrived on scene, and at roughly the same time Juvenile 1's sister (Juvenile 3) proceeded to jaywalk across the street and into the Shelter. Another officer ordered her to stop, but she did not comply, and so that officer followed her into the Shelter and brought her outside with the other juveniles.

         ¶5 All this commotion near the Shelter began to attract attention, and a crowd began to gather. Officers radioed for assistance, and Leavitt (and others) heard their call. After some discussion, Juvenile 3 was detained and placed in the back of a Department car that was parked in front of the curb, and the crowd began to dissipate. At about this point, Leavitt arrived on scene, and he observed that the situation had calmed down and "appeared to be under control." Indeed, Leavitt's first action upon arrival was to instruct dispatch to "slow everybody down," meaning that additional officers en route to the scene need not hurry to arrive. Leavitt met with the officers on scene to obtain additional information, and then set a security perimeter, gave other officers instruction, and released some officers whose presence he deemed no longer necessary. However, as Leavitt was doing so he made a series of comments-that were captured by his body camera-to other officers and to himself, complaining about having to deal with the residents of the Shelter area, and lamenting that he could no longer get "rough" with them "like we used to" back in the day.[2]

         ¶6 A few minutes after making these comments, Leavitt approached the car where Juvenile 3 was detained and began talking to the officers. During the conversation, Leavitt "made a comment and pointed in the general direction" of where Juvenile 1 and Juvenile 2 had been sitting on the curb. In response, Mother began arguing with Leavitt. At about the same time, Juvenile 3 was released from the car and Leavitt confronted her by "point[ing] his finger in [her] face while lecturing her about her behavior." Leavitt then walked over to the curb and began lecturing Juvenile 2 about his behavior.

         ¶7 A few minutes later, after Leavitt had returned to his police car, he witnessed a group of individuals-including Juvenile 1, Juvenile 3, Mother, and other juveniles-walking on the sidewalk in front of the Shelter. Leavitt later testified that he "heard one of the juvenile males make a threat to either [Leavitt] or to other [officers] in the area."[3] Leavitt then crossed the street, by himself, to confront the juvenile who had allegedly made the threat, and a heated exchange ensued. As shown in the footage from Leavitt's body camera, which Leavitt activated as he approached the group, Leavitt first asked an unidentified male juvenile, in a challenging manner, "You got something to say now, I'm standing right here." Then, in response to a statement made by one of the individuals in the group regarding freedom of speech, Leavitt replied, "Freedom of speech isn't protected like you think it is." Following this exchange, Leavitt turned his attention to a female juvenile in the group after she said, "Get the fuck outta here nigga." Leavitt replied, "Did you tell me to get the fuck out of here nigger, is that what you just said?" The female juvenile replied, "No, nigga clean your fucking ears," after which Leavitt ended the exchange by saying "nigga" in a tone the Commission found to be "mocking."

         ¶8 Leavitt continued to walk alongside the group, all the while engaging the entire group-and Mother specifically-in various argumentative exchanges. After arguing with Leavitt for a few minutes, Mother directed the group to return to the Shelter. At about the same time, a female juvenile said to Leavitt, "Oh, you don't like what you're hearing," to which Leavitt responded, "No, I don't like what I hear, I don't like the disrespect from you, 'cause you're not so bad, you're not tough, you run your mouth and walk away."

         ¶9 By the end of this exchange the group had arrived at the Shelter doors. Leavitt, however, continued to argue with Mother and then pointed his finger directly at Mother, and then at a female juvenile, saying, "I'm gunna confront you." In response to Leavitt's actions, Juvenile 1 pointed his finger at Leavitt and- accidentally or not-poked him in the face near the eye. In response, Leavitt reached into the Shelter doorway and grabbed Juvenile 1 by the neck, sparking what the Commission described as a "melee." People inside the Shelter, including Mother and Juvenile 3-Juvenile 1's family-began to push and shove Leavitt, and a crowd gathered. In response, numerous officers ran across the street to the Shelter doorway to assist Leavitt. As officers arrived at the doorway they were surrounded by the crowd in a confined environment, a situation the Commission described as a "fatal funnel" that jeopardized officer safety by leaving the officers subject to attack by armed individuals. The officers were eventually able to break up the melee and, after a number of minutes, they detained Juvenile 1 and Juvenile 3 and took them outside the Shelter and handcuffed them.

         ¶10 After the melee was contained, Leavitt returned to the street in front of the Shelter where he met with other officers and discussed, among other things, "what had transpired, what charges would be issued against the people involved, how the situation was going to be wrapped up, and whether the identity of the juvenile who allegedly made the threat was known." During these discussions, captured by Leavitt's body camera, Leavitt again made comments to other officers, and himself, about how dissatisfied he was with the current state of policing and with being told not to be "rough" with people. Among other comments, Leavitt declared:

The degradation of the moral fabric of our community, of our world, look what's happened ever since that bullshit in Ferguson. President Clinton came-or uh Obama-not standing up and he keeps running his mouth, all of them, and the judge is saying oh, it's no big deal, thanks Baxter.[[4]

         The Investigation

         ¶11 Within a day or two of the Shelter melee, the Department began an investigation into Leavitt's actions that night. The investigation was formally initiated by a complaint submitted by a Department lieutenant, and Leavitt was placed on paid administrative leave pending the outcome of the investigation. The investigation, conducted by the Department's Internal Affairs (IA) division, included interviews with officers who were on the scene during the incident, as well as a review of body camera footage (Body Cam Footage) from all of the officers on the scene, including Leavitt. After reviewing all the facts gathered during the investigation, and particularly Leavitt's Body Cam Footage, the head of IA determined that Leavitt "had violated Department and City policies," and issued a predetermination notice (the Notice) setting forth facts "that illustrated the policy violations." It was not, however, up to IA to ...

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