Bullets for blanks negligent, but rounds not put into guns during police training, attorney says

KNOXVILLE—The Oak Ridge police lieutenant who sent deactivated .38-caliber pistol ammunition and live .223-caliber rifle rounds rather than blanks for use in a training session three years ago was negligent, an attorney said Thursday.

But the mistake was detected before the live rounds were put into guns, and there was no imminent danger or harm to anyone, said Benjamin K. Lauderback, who represented the City of Oak Ridge in oral arguments before the Tennessee Court of Appeals in Knoxville on Thursday.

The police officer who detected the error, former Oak Ridge Police Department Sgt. Mark Coffey, filed a formal complaint two days after the August 20, 2011, training session, known as an “active shooter” response. He resigned a few months later in October, and in August 2012, he filed a lawsuit in Anderson County Circuit Court alleging retaliation and wrongful discharge.

In the lawsuit, Coffey said other ORPD employees retaliated against him after he filed the complaint against Lt. Brad Jenkins, who supplied the ammunition. Coffey said he had been forced to resign and was “constructively discharged.” Before he left the job, Coffey said, he had been re-assigned to work under Jenkins, and he resigned because of the alleged retaliation and fears for his personal safety. He sought $600,000 in compensatory and punitive damages.

The city won a summary judgement, which is like a dismissal, in August 2013. Anderson County Circuit Court Judge Don Elledge did not find that Coffey’s working conditions were bad enough that an ordinary person couldn’t tolerate them, Lauderback said.

But the case was appealed to the Tennessee Court of Appeals, where a three-judge panel heard 15-minute oral arguments on Thursday.

“He was not discharged,” Lauderback said of Coffey during the city’s argument. “He was not terminated.”

Coffey’s attorney, Thomas Leveille of Knoxville, said his client and Jenkins had a “long history” and hadn’t worked together for about a decade. Among other things, Coffey couldn’t take part in SWAT activities and hadn’t been promoted because of that relationship, Leveille said.

He said several things happened after Coffey filed his complaint against Jenkins in August 2011: Coffey was investigated in a case involving a damaged shotgun, he was assigned to work under Jenkins, and a less-qualified officer was put in his position. Leveille said Coffey’s work conditions had become so intolerable that a reasonable person would resign, and his resignation met the standard for “constructive discharge.”

The attorney also said Jenkins’ act of sending live rounds for blanks during the August 2011 training met the standard for reckless endangerment.

Lauderback disputed Leveille’s allegations.

“They simply cannot prove these elements of this case,” Lauderback said.

The live rounds were detected, and the August 2011 training session, which was organized by Coffey, went on as planned with no incidents.

“What happened here is a negligent act,” Lauderback said, suggesting that it did not meet the standard of reckless endangerment. “There were never any live rounds put into guns,” Lauderback said. The mistake had been admitted, he said.

Lauderback said Coffey had testified that Jenkins treated him the same as other officers.

He said the police department’s drug unit, where Coffey had worked, was temporarily disbanded by then-new police chief Jim Akagi, and he explained why another officer, Matthew Tedford, took over that unit, which also works on other special projects such as combating prostitution.

It’s not clear when the Tennessee Court of Appeals will issue an opinion in the case. There is no deadline for a decision.

The case was heard by Court of Appeals judges John W. McClarty, D. Michael Swiney, and Charles D. Susano Jr.