Fort Pierce police officer fired after fatal shooting of unarmed man ordered to be reinstated

FORT PIERCE — An officer terminated from the city's police force in May after a fatal shooting involving a 21-year-old unarmed man a year earlier, on Tuesday was ordered to be reinstated.

Sgt. Brian MacNaught is expected to go back to work by June 1 with the same pay, seniority and benefits he had before he left. His termination will be replaced with one day of suspension without pay, according to his arbitration award from Arbitrator William Serda.

"I respect the arbitrator’s decision and will meet with Sergeant MacNaught upon his return to duty," Police Chief Diane Hobley-Burney said in an emailed statement Wednesday. She did not indicate when he would return to work.

City Commissioner Tom Perona said it's his guess the commission does not need to take any action on the arbitrator's award.

"The only thing the City Commission may have to do is merely accept the finding," he said.

The Coastal Florida Police Benevolent Association filed a grievance in May on behalf of MacNaught, asking that his termination be reversed. An arbitration hearing was March 20 and 21.

MacNaught and Officer Keith Holmes were fired by City Manager Nicholas Mimms, under the recommendation of Hobley-Burney, for department policy violations uncovered during the investigation into the April 2016 shooting death of Demarcus Semer. A St. Lucie County grand jury had already decided not to indict MacNaught and Holmes on criminal charges.

Holmes, who was found to have violated 12 departmental policies, said he expects to find out from the city at the end of September if he'll get his job back. He declined to comment further Wednesday. An arbitration hearing is scheduled for May, Perona said.

Serda wrote in his award to McNaught: "While minor discipline may be appropriate — it does not justify termination."

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The findings

Investigators determined MacNaught violated three departmental policies during the shooting: insubordination, neglect of duty and code of conduct. It was found he had unauthorized body camera equipment that had been purchased for the department’s SWAT team.

A police body camera was found in the trunk of MacNaught's patrol car, though he had been given instructions in January 2015 to collect the equipment and store it in a storage locker. MacNaught said he was using the camera for demonstration purposes as part of the Citizen Outreach program.

"The whole camera issue was a gigantic misunderstanding, and while minor discipline may be appropriate — it does not justify termination," Serda wrote in his findings.

As for the insubordination violation, Serda wrote: "Rather than a matter of blatant and intentional disregard for authority and the instructions from a supervisor; we have a simple case of a competent and responsible police sergeant, MacNaught, carelessly assuming he understood the instructions concerning the body cameras, and believing his actions to use them for demonstration purposes were completely OK. And so he innocently used them numerous times ..."

And in regard to the shooting, Serda wrote: "There is no clear action by (MacNaught) that would rise to the level of a violation ... There are actions which could have been done differently and a lot of 'ifs'— 'if' not done or 'if' done differently ..."

MacNaught could not be reached Wednesday for comment.

More: Fort Pierce Police Department internal investigation reveals more details

The shooting

About 11:15 p.m. April 23, 2016, Semer was driving to his friend's home in the 500 block of North 19th Street in Fort Pierce when Officer Holmes attempted to stop him for a traffic violation, according to a 22-page report detailed by a grand jury in September 2016.

When Semer didn't stop, Holmes activated his siren.

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Holmes continued following Semer as he turned north on 19th Street and pulled over.

Semer initially refused to give Holmes his license. Holmes said he smelled marijuana and saw pieces of the drug on the instrument panel, according to the report.

When MacNaught arrived on scene, he said he heard Semer refusing Holmes' commands to exit the car. MacNaught went to the passenger's side to check for any other vehicle occupants while Holmes attempted to remove Semer by reaching into the car.

Holmes hadn't ordered Semer to turn off his vehicle or remove the keys, according to the report.

As Semer reached for the gear shift, MacNaught hopped into the car in fear of being crushed if Semer reversed. Holmes ended up on the ground after the car accelerated forward, the report stated.

Holmes began firing at the vehicle as it sped forward, but MacNaught mistook Holmes' gunfire for shots fired by Semer, according to the report.

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“Given the fact that it would have been inconceivable to (MacNaught) that (Holmes) would have been firing at Mr. Semer’s car with a fellow law enforcement officer inside the vehicle, we find it reasonable that (MacNaught) concluded that it was Mr. Semer who had fired the gun,” the report said.

MacNaught attempted to use his Taser after Semer slammed the brakes, but one of the probes missed the man's body.

When both MacNaught and Semer exited the vehicle, the officer said he saw Semer turn toward him while raising his hand.

"Based upon his struggle with Mr. Semer within the car and the sound of gunshots, (MacNaught) was convinced that this object was a firearm and that Mr. Semer was about to shoot him,” the report said.

MacNaught fired at Semer several times as the man ran around the corner of a home. MacNaught followed and found Semer with empty hands and a cellphone was on the ground nearby, according to the report.

The officer performed CPR on Semer, but the man died shortly after from a gunshot wound to the lower back.

Police found a bag of marijuana nearby and a marijuana grinder in Semer's vehicle.

Family responds

Semer's grandfather, Elijah Smith, Wednesday said he heard MacNaught got his job back.

“I don’t think it’s fair,” Smith, 80, said.

Smith, who said he's lived in Fort Pierce for 60 years, said he wasn’t surprised MacNaught was reinstated.

“I was expecting something like this to come forth anyway because of the system and how it’s run,” Smith said. “You have a deep feeling that you see the end before the end comes, I’ll put it that way, and I just didn't have much faith in the system.”

Smith said after the firing, the community pulled together.

There was cooperation with the Police Department, and he thought Chief Diane Hobley-Burney was taking some steps in the right direction.

“I can see a difference,” Smith said. “It’s not where it should be between the officers and the community, but it’s getting better.”

Smith said he and his wife raised Semer since Semer was about 8 or 9, saying he was taught to respect others.

“What happened that night is beyond me,” Smith said.

Lorenzo Williams, an attorney representing Semer’s family, said the fact that MacNaught got his job back “doesn’t change the facts of the case, that Mr. Semer was gunned down, unarmed.”

Williams said an $8 million to $10 million lawsuit is in the works to be filed against the department and officers.

“He got his job back, but there is nothing about him getting his job that will prevent us from moving forward with filing the lawsuit … for violation of this man’s constitutional rights,” Williams said.

City commissioner weighs in

Fort Pierce City Commissioner Tom Perona said he has no issues with the arbitrator’s order or his reasoning.

“I will say that I have full confidence in the process that reviewed the information and the facts,” Perona said. “I had read though all of the statements. I think there was a fair hearing on it. I’m satisfied with that.”

Perona conceded the city may have been wrong to fire MacNaught.

“These things happen very quickly, sometimes emotions may play a part in it,” Perona said. “And so in re-examination we give the ability for that employee to have a second shot at it, to be able to look and see if we did our job right. And at times, it’s going to happen that we didn’t.”

Perona said he does not expect MacNaught’s return to the Police Department to spur unrest.

“I hope that the community will stand behind the decisions that have happened through this process,” Perona said.

“Realistically I’m sure there are going to be some emotional outbursts. I have a lot of faith in the people of Fort Pierce and hope they understand that sometimes things happen that aren’t going to make them very happy.”

Reporters George Andreassi and Laurie K. Blandford contributed to this article.

Statement from Police Chief Diane Hobley-Burney

"We cannot undo the tragic consequence of April 23, 2016, but we are doing everything in our power to prevent the series of unfortunate events that lead to the death of Demarcus Semer from being repeated. Every officer has completed de-escalation, non-escalation, scenario-based, and detailed traffic stop trainings to enhance his or her skills and help ensure that history is not replicated. We have also instituted body worn cameras.

The process of taking disciplinary action against an employee is difficult. As such, the recommendation to terminate Sergeant Brian MacNaught was never entered lightly. I respect the arbitrator’s decision and will meet with Sergeant MacNaught upon his return to duty to establish a plan to restore the community’s confidence in his ability to continue to serve our citizens.

Today, the Fort Pierce Police Department is better and stronger. We will continue to hold our officers to the highest standards of conduct and professionalism because that is the right thing to do for our City, Agency, and Citizens."