In a case that’s not without precedent, a circuit court judge recently determined the Mobile Police Department’s pre-disciplinary procedures violate the rights of its employees, and has now twice overturned the firing of an officer accused of stealing money from the scene of a robbery.
In March 2015, after a review by a trial board of MPD superiors, the MPD announced officer Fred Lawley had been terminated for four “major violations.” The same month, allegedly using evidence from the incident, Lawley was arrested and charged with theft of property.
Generally, the MPD doesn’t reveal details regarding employee terminations. However, if an employee appeals his or her case to the Mobile County Personnel Board, the allegations surrounding a termination become part of the public record.In Lawley’s appeal, minutes from the trial board hearing in February 2015 revealed the board was made up of Maj. Richard Barton, Lt. William Reed and Capt. John Barber, who is the brother of MPD Chief James Barber.
At the hearing, multiple witnesses gave statements corroborating the MPD’s accusations, including one who testified security video from the scene of the burglary at a convenience store on Spring Hill Avenue depicted Lawley rummaging through a filing cabinet where cash was later discovered missing.
Ultimately, the board unanimously voted to terminate Lawley based on evidence he “removed $2,050 in cash” while responding to the burglary and was “deceptive” in a related polygraph test.
One of the witnesses at the hearing was Officer Jerome Westry, who responded to the scene with Lawley on Jan. 4, 2015. According to Westry’s statements, the officers were having trouble finding an owner of the store.
He said Lawley, who was serving as his backup, remained in the store alone while he wrote his report in his patrol car. Westry, who claimed he’d worked with Lawley before, said the former officer’s behavior at the time seemed unusual.
According to the minutes, surveillance footage also revealed Lawley wasn’t wearing gloves when he told Westry and later internal affairs investigators he was dusting for fingerprints. He also failed to dust the front door before leaving the scene.
The trial board also discussed security video from inside the store allegedly showing Lawley spending several minutes near a metal filing cabinet. Inside the cabinet were several cartons of cigarettes as well as deposit bags filled with cash.
According to Westry, Lawley told him he believed the store owner was selling spice, which he offered as an explanation for searching through the open filing cabinet. However, Westry and others said searching the cabinet without a warrant while investigating a burglary violated both MPD policy and the Fourth Amendment.
Lawley eventually asked a lieutenant to bring a ladder to the scene so he could search a void between the ceiling and the roof of the building. According to Westry and others on the scene, Lawley wanted to check the roof because “he heard something” he thought could be the burglar.
Sgt. Scott Congleton, an internal affairs investigator, was tasked with obtaining and reviewing the footage taken from the Speed Stop store that day. Walking the trial board through the footage, Congleton said the burglar entered the back room, took several items and then left before officers arrived and secured the scene three to four minutes later.
Then, he said, “you see officer Lawley return to the metal cabinet in the back room.”
Congleton said the footage shows Lawley focusing on the shelf where the deposit bags were with his flashlight, before the light is extinguished for about 25 seconds. Congleton said in the video it “appears [Lawley] is possibly ripping open a deposit bag.” Afterward, the video allegedly depicts Lawley stuffing something into his left pocket and smoothing it out.
History of due process violations
Despite the evidence presented against him, Lawley wasn’t permitted to sit in on the trial board hearing — a fact that has caused his termination to be overturned by the Personnel Board and a Mobile County Circuit Court.
It’s also not the first time the MPD has been told preventing officers from hearing evidence against them would violate their constitutional right to due process. In July 2015, the Personnel Board gave a similar ruling in an appeal brought by Jeffrey Whitaker.
In that case and Lawley’s, MPD attorney Wanda Rahman maintained that officers accused of wrongdoing have an opportunity to answer their charges, respond to any allegations against them and rebut the statements of any witnesses called by the department. According to Rahman, not allowing officers to sit in on their trial board hearings doesn’t create a “fatal defect” in the process because they retain the right to appeal to the personnel board.
“The personnel board at that time wipes the slate clean. It’s considered a de novo hearing, which means anything that happened during that hearing in the department, that’s really not at issue,” Rahman said. “The board also has the right to remand the case back to [MPD]. So, if you are saying we did it wrong, it give us the opportunity to correct it and do it right.”
Regardless, the board voted in favor of Lawley and ordered his reinstatement. The MPD appealed its case in circuit court, but on Aug. 31, Judge Jay York upheld the board’s decision.
At this point, it’s unclear if the MPD will also take Lawley’s case to the Court of Civil Appeals, but it has already appealed a similar case involving former Public Safety dispatcher Cassandra Matthews. In her case, the Personnel Board and Judge Sarah Stewart each concluded the MPD violated Matthews’ right to due process by preventing her from attending her pre-disciplinary hearing.
A ruling is pending from the Alabama Court of Civil Appeals, but the MPD received a stay on Stewart’s order to reinstate Matthews. According to Rahman, Matthews has yet to return to her position in the department, and according to an MPD spokesperson, neither has Lawley. The department has a policy not to comment on any pending litigation, and Lawley also declined to speak on the record for this report.