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The reprimand issued to an embattled Houston police captain has been overturned by a judge, who noted that the department's vague rules about profanity and conduct could have been applied against the police chief himself.
Captain Mark Aguirre received the written reprimand from Chief C.O. Bradford in November after some officers under Aguirre's command complained that he used obscene and allegedly threatening language during a stormy staff meeting on August 21.
But last week grievance examiner Tina Snelling -- the equivalent of a judge in the city's appeals process -- issued 13 pages of findings and recommendations that rejected Bradford's discipline of the captain. She concluded that the department had invoked a rule, known as a General Order, that was so vague it could be misused by police officials and applied arbitrarily.
In Aguirre's May 22 hearing to appeal the punishment, Bradford testified that he did not use harsh profanity in his position as chief. Then J.L. Breshears, executive assistant chief, testified that Bradford had once called him either a "motherfucker" or a "stupid motherfucker" during a meeting in the chief's office (see "HPD Blue," by George Flynn, May 30).
Snelling found that it is "undisputed that profanity is routinely spoken among and by HPD officers." Referring to Breshears's testimony that Bradford had sworn at him, Snelling concluded that Breshears "by his own admission is a victim of the General Order's violation -- that is, if the General Order were uniformly and equally applied to every violator."
The examiner appeared to endorse the arguments made by Terry W. Yates, attorney for the controversial captain. Yates, whose family includes law-enforcement officers and who worked closely with cops as a special crimes prosecutor, said coarse and colorful words have long been an accepted part of the internal police vernacular.
"The captain feels very good about being vindicated of these allegations," Yates said after Snelling's ruling.
Aguirre has been hit with numerous complaints since he took command of HPD's South Central Station three years ago and instituted the aggressive Operation Renaissance program to cut crime (see "The War Within," by Richard Connelly, June 27). Snelling's findings noted that Aguirre claimed the "extreme opposition" of some of his command sergeants was owing to his insistence that sergeants monitor patrol officers "at all times."
As friction mounted and crime rates began to edge up again, Aguirre ordered about 30 sergeants and lieutenants to attend the August meeting, where he says he "chewed ass."
A sergeant secretly recorded portions of the session, then sent the tape with an initially anonymous complaint to the Internal Affairs Division. Aguirre acknowledged using standard curses -- such as "sons of bitches," "shit," "goddammit" and "lazy bastards." But IAD investigators soon had 15 statements from cops who said he also told them, "I will grind you into dog patties and I will stomp you into pancakes."
The captain swore he hadn't said that, and the incomplete tape did not contain the statement. As for the complaints that he said he'd "chop heads, starting at the anuses," Aguirre said he told them "ankles," not anuses.
The discipline committee recommended five days' suspension, accusing Aguirre of violating the "sound judgment" rule against conduct that discredits or embarrasses the department, and the rule requiring police officers to treat peers and the public with respect and courtesy. Bradford reduced the punishment to a reprimand.
The hearing examiner stated that the department and the city flip-flopped to some extent on what role the profanity played in the overall decision to discipline the captain, although it dominated the testimony.
Calling Aguirre's style "Pattonesque," Snelling noted that the evidence reflected that the captain never used commonly accepted "fighting words" -- language that would incite immediate violence. She also pointed out that his swearing and perceived threats were not directed at any one officer, and that they came during an internal meeting with no civilians or outsiders involved.
However, the examiner hardly defended Aguirre's four-letter preferences or his leadership style. She called it unfortunate that he punctuated the speech "with despotic and unsavory vernacular." Snelling even recommended that he attend management classes at HPD's expense.
Her primary beef was with the absence of specifics in the rules used to punish Aguirre. With everyone acknowledging that profanity is common among police, the department had issued Aguirre no guidelines on what language might be taboo. Police officials suggested that the listeners should be the ones to determine what might be objectionable (Breshears, for example, says he didn't really mind the "motherfucker" from Bradford, because they're longtime friends).
But Snelling explained that it would be unfair to leave people guessing at what might be offensive. And she indicated in the ruling that police officials shouldn't be able to pick and choose who gets disciplined under a vague regulation.
Bradford has filed to appeal the ruling to the Civil Service Commission, saying the findings were not supported by the evidence. And the contradictory testimony about whether the chief swore in his own staff meeting has prompted a perjury review by the district attorney's office.
So the case against the captain is back to the beginning, even after a lengthy grievance hearing. And it's still unclear which words Aguirre is now on notice not to utter. Snelling herself touched on that in a footnote that reads:
"Except and perhaps, that is, the words 'anus,' 'stomp into pancakes,' or 'grind into dog patties,' although these seemingly non-profane words have been previously categorically denied."