Throwing Official Weight Around in a Private Encounter Leads to Removal

An ICE Officer, removed for misuse of his position and agency resources stemming from a personal traffic encounter, tried to win his job back in the appeals court.

In Martin v Department of Homeland Security (CAFC No. 2020-1810 (nonprecedential) 5/5/2021), the federal appeals court addresses a former ICE (Immigration and Customs Enforcement) employee’s appeal from an arbitrator’s decision that upheld his removal by the Department of Homeland Security (DHS).

According the facts in the court’s decision, Mr. Martin, a 10-year ICE Deportation Officer, had a private traffic encounter with another driver who merged in front of Martin’s car in what Martin apparently deemed a dangerous maneuver. Martin’s child was in his private vehicle with him at the time of the incident. At this point the facts are disputed.

Traffic cam footage shows Martin following the other driver into his driveway and blocking his car. But the rest of the encounter becomes a “he said/he said” situation. Eventually, when the case went to arbitration, the arbitrator credited the other driver’s account. In that account, Martin supposedly pushed the driver back into his car when he was trying to exit it, and called 911. Martin claims that while waiting for the police, he called an agency attorney and his boss at DHS. He claims the attorney told him to identify the other driver. Martin, therefore, accessed an agency database to “run” the tag of the other car. The attorney, however, denied okaying Martin using agency systems to identify the man. (Opinion pp. 2-4)

When the police arrived, body cam footage shows Martin explaining to them what had happened, that he had grabbed the other driver and forced him back into his car, had asked for his ID, and that the driver smelled of alcohol. Martin had some words with the officers, referencing the federal investigation of the other driver that had been opened up. They asked him numerous times to return to his car and he would not.

The next day Martin used another federal database to get information on the other driver apparently believing he was the lead on the DHS investigation into the man. Martin complained to the Sheriff’s office about the content of the incident report, again referring to an ongoing federal investigation.

The incident and Martin’s actions led to an agency investigation. In the course of the investigation Martin made several statements that concerned the agency. He disagreed with the other driver that Martin had followed him into his driveway, saying instead his car had slid into the driveway.

He also claimed he had not pushed the other driver back into his car although as their body cams showed he admitted otherwise to the investigating sheriff’s deputies. He claimed the agency attorney he called that night authorized him to use the agency database to identify the other driver; the agency attorney said he did not authorize this. And so forth. DHS eventually removed Martin based on four charges: conduct unbecoming, misuse of a government database, unauthorized use of an agency resource, and lack of candor. 

Martin’s union sought arbitration. Confronted with the disputed facts, the arbitrator ended up concluding that the other driver’s testimony was more credible than Martin’s. The arbitrator sustained the four reasons as having been supported by the evidence. He found that there was nexus between Martin’s off-duty conduct and the efficiency of the service, and he sustained the agency’s decision to remove him. Martin appealed to federal court.

The court carefully weighed the matter, expounded on many of the disputed facts, and concluded that the arbitrator had not erred in finding that Martin’s removal was justified. The court quoted Martin’s boss as to why he had lost confidence in Martin: “Because of his lack of judgment, poor judgment he used in bringing his child into this dangerous situation, because he tried to curry favor from a law enforcement officer because of his position as a law enforcement officer, because he lied to me, because he lied to the …Sheriff’s Department, because he thinks it’s okay to break the rules if you don’t have a body camera. He doesn’t have honesty. He doesn’t have integrity. I can’t trust him, and he can’t work for ICE.” (p. 15)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.