• Delaware Superior Court
  • D66378
  • Jun 30 2014 (Date Decided)


Haden v. Bethany Beach Police Dep't, DeFAX Case No. D66378 (Del. Super. June 30, 2014) Stokes, J. (20 pages).

Superior Court lacked jurisdiction to hear police officer's appeal from disciplinary decision of board of officers, and officer's motion to amend appeal to writ of certiorari had to be dismissed where review would have been futile. Defendant's motion to dismiss granted; plaintiff's motion to amend denied.

Plaintiff Richard Haden worked was as police officer for defendant Bethany Beach Police Department. Haden responded to a call to assist another officer in a traffic stop that resulted in the arrest of the driver, Joseph Burke. According to Haden, Burke threatened him. Burke was taken to the station for booking. A camera captured video but no audio. In the tape, Haden rushed in while Burke was being questioned and grabbed Burke by the throat. Burke lifted his arms and pushed Haden back. The other officer and Haden attempted to subdue him.

The BBPD brought several charges against Haden, including a charge of excessive force against Haden based on the initial physical contact, when Haden grabbed Burke's throat.

In later written reports, Haden claimed that he was disturbed by Burke's remarks and that he approached Burke to ask if he meant to threaten Haden or his family. Burke stood up, causing Haden to touch Burke's throat in an effort to subdue him.

Defendant Criminal Justice Council convened a board to hear the charges. The board found that the video contradicted Haden's version of the story, and that his explanation was not credible. The board determined that Haden grabbed Burke in anger and that Burke did not pose an imminent threat. The board considered Haden's use of force punitive, rather than for the use of subduing Burke, and found that Haden's statements in his reports were false.

Haden pleaded guilty to two of the charged violations. The board found three remaining charges substantiated by evidence. These three charges involved use of excessive, unnecessary, or unreasonable, yet non-lethal force, and knowingly making a false official report or causing to be entered into a book or record inaccurate, false, or improper entries or misrepresentation of facts.

Haden appealed to the Superior Court. Defendant CJC moved to dismiss the appeal, claiming that the court lacked subject matter jurisdiction. Haden responded to the merits of the motion to dismiss, and requested that if the court found that it lacked jurisdiction over his appeal, he be given leave to amend the notice of appeal to a writ of certiorari in order to establish jurisdiction in the court. The court granted CJC's motion to dismiss for lack of jurisdiction and denied Haden's motion to amend.

CJC pointed out that neither the Law-Enforcement Officers' Bill of Rights nor the Administrative Procedures Act renders appellate rights to law enforcement officers under LEOBOR's purview. Haden countered that he had a right to appeal under the APA because, even though the CJC is not listed under 29 Del. C. §10161(a) as an administrative agency to whom the APA applies, §10145's reference to appeals in general permitted the court to hear appeals from all agencies, regardless of whether they were listed in §10161(a).

The court sided with CJC, finding no ambiguity in any of the APA's provisions relating to appellate rights. The APA does not provide appellate rights to an appellant of a case decision rendered by a body not listed in §10161(a).

As to Haden's motion to amend, the court noted that the record reviewable by the Superior Court on a common law writ of certiorari consists only of the complaint initiating the proceeding, any written answer or response, and the docket entries. In this case, the board's decision was not yet final. Even assuming it was final, the board had video evidence before it and Haden's guilty plea to two charges. Certiorari review would be fruitless.