On June 30, 2020, Antavione Ferguson, then a lieutenant with the Montgomery Police Department in Alabama, approached a suspect that had been involved in a car chase. Ferguson had just observed the suspect ram his car twice into a car he was chasing. After the second collision, the suspect exited the car and began to flee. Ferguson ordered him to stop, and he did not. During a subsequent physical altercation, Ferguson subdued the suspect by using a chokehold. The chokehold lasted for approximately 54 seconds, and after the suspect was taken to the ground and handcuffed, another officer at the scene told Ferguson to “let him go.” During the chokehold, the suspect said that he could not breathe, and at the conclusion of the chokehold, he stated: “I couldn’t breathe.”
Since 2016, the Department had a policy regarding chokeholds which provided that “substantiated Use of Force cases involving any form of choking of a subject will be considered a major violation and will result in disciplinary action up to and including termination.” The policy required officers to submit a “Defensive Action Form Report” whenever an action resulted in, or was alleged to have resulted in, death or injury to another person, or whenever one applied “weaponless physical force at a level above empty hand control that results in, or is alleged to have resulted in, injury or death of another person.” Ferguson did submit a report to his captain about the incident, but ultimately decided not to submit a Defensive Action Form Report, having concluded that the chokehold did not injure the suspect.
Department officials did not agree with the decision and recommended a 20-day suspension for Ferguson. After an investigation and hearing, a former judge recommended to Mayor Steven Reed that the suspension be upheld. Reed rejected the recommendation; instead, pursuant to his personal “zero-tolerance” policy regarding chokeholds, terminated Ferguson on October 20, 2020. Reed testified that he had directed the police chief to notify officers of his policy in writing, but this never occurred. Ferguson appealed his termination.
The Montgomery City-County Personnel Board affirmed the termination, and Ferguson appealed again. The circuit court overturned the Board’s decision, ordering that Ferguson’s employment be reinstated with back pay, subject to a punishment of suspension for 20 days without pay. The Board decided to appeal, and the City of Montgomery itself intervened.
The Court of Civil Appeals of Alabama reversed the circuit court’s reversal and reinstated the termination of Ferguson’s employment. After dispensing with a procedural issue, the Court found that the Board’s decision to uphold Reed’s decision had not been arbitrary and capricious. The circuit court’s decision, in the eyes of the Court, had been to impermissibly substitute its own judgment of the merits of Ferguson’s case for that of the Board.
“From some of the testimony, the Board could have reasonably found that the 2016 policy prohibited the use of chokeholds at the time of the chokehold incident and that, despite the captain’s opinion, Ferguson was required to file a defensive-action report based on the suspect’s claim that Ferguson was restricting his ability to breathe during the prohibited use of force. Although this Court may not have reached the same determinations as the Board, its findings were based on legitimate inferences from the legal evidence.”
City of Montgomery v. Ferguson, 2024 WL 4312133 (Ala. Civ. App. Sept. 27, 2024).