Phoenix officer fired for excessive force is reinstated

A Phoenix police officer fired after an arrest that knocked out three of a suspect's teeth is now back on the agency's payroll.

On Aug. 13, the city's Civil Service Board voted to reinstate Officer Kevin McGowan four months after he was fired by Phoenix police Chief Joe Yahner. McGowan was reassigned to the patrol division the following day.

Shortly after McGowan's termination, Phoenix police released surveillance footage from a convenience store featuring the 17-year veteran in one of the agency's more brazen use-of-force encounters caught on film to date.

The video captures a December incident in which McGowan is seen stomping on the back of a teenage suspect who had surrendered and was in the process of lowering himself to a push-up position. The blow drove 18-year-old Patrick D'Labik's face into the floor, dislodging three of his teeth in the process.

But McGowan's supporters say the video paints an incomplete picture of the incident, and say the Civil Service Board was right to consider all the case's elements, beyond the 43 seconds of footage.

"There are a lot of moving factors in police work," McGowan's attorney Steve Serbalik said. "Which is why it's important that any review of a police officer actions recognizes that 20/20 hindsight may not be the best presentation for considering disciplinary actions."

The incident highlights one of the emerging issues facing officers in a profession increasingly scrutinized via smartphones, body cameras and security videos.

Recordings can provide an impartial depiction of use-of-force incidents, often muddied by opposing accounts. But cases such as McGowan's prove that even those accompanied by dramatic video footage can still be subject to interpretation.

On Dec. 23, McGowan was working a homicide case and attempted to approach D'Labik after witnessing him walking with a potential suspect. D'Labik ran from the detective, and later admitted he did so because he was carrying a small amount of marijuana, according to records from the Arizona Peace Officer Standards and Training Board.

Though he admitted to tossing a prescription bottle while he fled, the bottle found found by officers had recently been chewed on by a dog and only contained marijuana residue, records show. Subsequently, no criminal charges were filed, according to Serbalik.

McGowan chased D'Labik into a convenience store, where the video begins. D'Labik is seen raising both arms as to surrender as McGowan approaches at gunpoint. D'Labik lowers himself to the floor, but McGowan stomps on what appears to be the nape of D'Labik's neck before he can get there.

Physical evidence that is undisputed between an internal investigation, McGowan's attorney and the civil service board shows that the blow was actually to D'Labik's back, though AZPOST records state it was on the head.

McGowan is soon seen leading D'Labik out the store in handcuffs.

Even at the beginning of the case, experts disagreed on the merits of McGowan's use of force.

While McGowan's coworkers at the Phoenix Police Tactical Training Unit found the use of force unreasonable given the circumstances, an independent expert from the Chandler Police Department disagreed.

McGowan was fired, and a criminal report alleging aggravated assault was submitted to the Maricopa County Attorney's Office. But prosecutors declined to file charges, reasoning that no crime was committed.

McGowan appealed his dismissal to the city's Civil Service Board, who voted to reinstate.

Board member Robert Lord declined to comment on the specifics of the case but said the board reviews the recommendations of the individual's hearing officer before making a determination.

Yahner declined to comment for this article.

It is not uncommon for the Civil Service Board to reverse or alter a disciplinary action imposed by the Phoenix police chief. The clash served as one of former Chief David Garcia's talking points in a speech that would ultimately result in his own termination.

Serbalik, McGowan's attorney, said his client never meant to injure D'Labik and intended only to push him to the ground.

"He obviously wishes that things happened differently, but the reality is that Mr. D'Labik was hanging out with a potential homicide suspect and ran," he said.

Serbalik said McGowan's accomplishments in the department and clean disciplinary record prior to Dec. 23 incident should be, and were, taken into account by the Civil Service Board.

The attorney stressed that they never argued that McGowan shouldn't be disciplined at all, but that termination was excessive. The Civil Service Board instead gave the officer six weeks of unpaid suspension with no back pay, he said.

And there is still a chance that McGowan's employment could be short-lived. An officer's termination automatically sets in motion a proceedings before the Arizona Peace Officer Standards and Training Board, the entity that certifies and decertifies all officers in the state.

On Wednesday, the board initiated proceedings against his certification. Lyle Mann, executive director for AZPOST, said McGowan will be offered the opportunity to have a hearing before an administrative-law judge before the decision is made.