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DEPARTMENT OF Memorandum
VETERANS AFFAIRS
Date: 02/15/2024

From: David L. Hart

Subj: Request for Inquiry into Phoenix VA Police Arrest & Post Arrest Procedure – As a result
of an Improper Arrest that Violated Federal Laws and VA Handbook Procedures

To: VA Office of Security & Law Enforcement (OS&LE)

REQUEST FOR FORMAL INQUIRY

I am writing to request a formal inquiry into the actions and procedures followed by the
Phoenix VA Police Department (PHXVAPD) during an incident that resulted in my arrest
on December 7, 2021, at the Southeast Community Based Outpatient Clinic (SE CBOC).
I believe an in-depth investigation is warranted into the arrest and post-arrest procedures
of PHXVAPD; which, based on my experience and information that has come to my
attention, appear to be inconsistent with both the Federal Rules of Criminal Procedure
and VA Handbook 0730.
BASIS FOR REQUEST
I, David L. Hart, a VA employee, was improperly arrested and charged with "Simple
Assault" under 18 U.S.C. § 113(5). This federal statute necessitates the element of
exclusive or concurrent jurisdiction as defined by 18 U.S.C. § 7 i, Special Maritime and
Territorial Jurisdiction of the United States. It is my understanding that the SE CBOC,
where the alleged offense occurred, is under proprietorial jurisdiction and does not meet
the criteria for such jurisdiction; thus, raising concerns about the validity of the charges
brought against me.
The charge was subsequently dropped, presumably due to matters concerning
jurisdiction.

Note: In the case of McCulley v. United States of America et al (Case No. 2:22-cv-01940-DWL-
MTM), the defendant, McCulley, originally faced charges under 18 U.S.C. § 113(4-5) for events
that occurred on September 16, 2021, at the SE CBOC. The charge was later altered to 38 CFR
1.218(a)(5) by the Office of the U.S. Attorney (presumably), leading to a trial in which McCulley
was ultimately found not guilty and acquitted.

i18 U.S.C. § 7(3): “Any lands reserved or acquired for the use of the United States, and under the
exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United
States by consent of the legislature of the State in which the same shall be, for the erection of a fort,
magazine, arsenal, dockyard, or other needful building.”
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Additionally, I was charged under 38 CFR 1.218(a)(5), despite the arresting officer not
being present to witness the alleged offense, which constitutes a direct violation of VA
Police policy as outlined in VA Handbook 0730, 7(b)2(b)ii.
CONCERNS REGARDING RULE 4 AND 5 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE
In addition to the aforementioned jurisdictional issue, I wish to highlight my concerns
specifically related to Rule 4 and Rule 5 of the Federal Rules of Criminal Procedure:

• Rule 4: This rule details the procedure for issuing a complaint and obtaining an arrest
warrant. The Phoenix VA Police officer who arrested me did so without a warrant, despite
no offense being committed in his presence, contravening VA Handbook 0730 under
section 7(b)(2)(b), which states that an officer may only effect an arrest without a warrant
if the misdemeanor or infraction is committed in the officer's presence.

• Rule 5: This rule dictates that an individual who has been arrested must be promptly
brought before a magistrate judge for an initial appearance. My rights to a timely
presentment were not honored, as I was not brought before a magistrate in accordance
with the law. This delay in presentment represents a failure to follow both the Federal
Rules of Criminal Procedure and VA Handbook 0730, section 7(e)8(a), and infringes upon
my Fifth Amendment right to due process.

IMPROPER USE OF THE USDCVN AND DISREGARDMENT OF VA DIRECTIVE 0730

The presentmentiii issue, along with other procedural discrepancies, such as the
inappropriate use of a United States District Court Violation Notice and the failure to
consult with the U.S. Attorney as per VA Police policies, sections 7(d)(6) and (e)8(c),
suggests systemic issues that may affect not only my case but potentially others detained
and arrested by PHXVAPD. It is my contention that the issuance of the USDCVNs, as
described in section 7(d)6iv of VA Handbook 0730, was not properly utilized in this
instance. According to VA Handbook 0730, such a notice is equivalent to an arrest action
and should be used in lieu of a physical arrest, depending on the circumstances.
CONCERNS REGARDING ARREST PRACTICES AND STANDARD PROCEDURES
It has come to my attention that there is a normal practice whereby officers conduct
arrests by physically taking the person into custody, searching them, conducting a

iiVA Handbook 0730, 7(b)2(b): “The offense is a misdemeanor or infraction and is committed in the
officer's presence. If the misdemeanor is not committed in the officer's presence, the known facts of the
incident will be communicated to the U.S. Attorney for guidance and instructions for the appropriate action
to be taken.”
A "Violation of Presentment" in the context of law enforcement failure refers to the breach of the legal
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requirement to promptly bring an arrested individual before a judicial officer, such as a magistrate or judge,
after their arrest. This is to ensure that the individual's rights are protected, including the right to be informed
of the charges against them, the right to an attorney, and the right to have a judicial officer review the
grounds for their arrest and continued detention. The mandate for prompt presentment is designed to
prevent unlawful or prolonged detention without judicial oversight.
VA Handbook 0730, 7(d)6: “The issuance of a United States District Court Violation Notice is the same as
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an arrest action and is used in lieu of a physical arrest.”

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“detention search,” placing them in a holding cell, releasing them on a payable United
States District Court Violation Notice (USDCVN) and/or then escorting them off the
property. This practice starkly contrasts with the procedures outlined in the Federal Rules
of Criminal Procedure, as well as VA Handbook 0730, sections 7(e)8(a)v which governs
the conduct of VA police officers when conducting lawful arrest.

Specifically, this practice seems to circumvent the procedural safeguards meant to protect
the rights of individuals during the arrest process, such as the requirement for a “prompt
presentment”vi before a magistrate judge as stipulated in Rules 4 and 5 of the Federal
Rules of Criminal Procedure. These rules are designed to ensure that individuals are not
subject to unlawful detention and to uphold due process.

The post-arrest procedures for federal offenses, particularly those stipulated in VA

Handbook 0730 sections (e)8(a) and 8(c), seem to have been disregarded in my case.
Additionally, upon further discussions with individuals who have insight to the procedures
of the PHXVAPD, it appears that all warrantless arrests conducted by PHXVAPD
(excluding those arrests made on a warrant) are improperly and/or unlawfully carried out.
In my case, I was not transported without unnecessary delay to a detention facility or to
the appropriate judicial authority for an initial appearance. This delay in presentment
violated both law and established instructions intended to protect the rights and privileges
guaranteed by the Constitution.
IMPACT ON EMPLOYMENT, REPUTATION, AND PERSONAL LIFE
The arrest procedures carried out by the PHXVAPD had severe consequences for me,
as it led to my termination from employment. Fortunately, my termination was ultimately
overturned and I was reinstated. However, the initial actions taken by the PHXVAPD have
caused irreparable harm to my professional standing and emotional well-being. These
actions, which also constituted a “de facto arrest”vii - involving custodial detention,
transportation to another location, followed by the issuance of a United States District
Court Violation Notice and physical release – all occurring without following the Federal
Rules of Criminal Procedure. These actions have significantly affected my employment,
social standing, and personal reputation.
RACIAL BIAS AND DISCRIMINATION CONCERNS
My own personal experience reflects this concerning pattern. I found myself facing
charges solely based on the testimony of a White female employee, without being given

v VA Handbook 0730, 7(d)8(a): “An arrestee will be transported without unnecessary delay to a detention facility or to
the appropriate judicial authority (U.S. magistrate, local magistrate or local judge) for an initial appearance, in
accordance with law and established instructions.”

viPrompt Presentment refers to the requirement under Rule 5 of the Federal Rules of Criminal Procedure, which
mandates that an individual who has been arrested or detained must be promptly taken before a magistrate judge,
without unnecessary delay. This is to ensure that the suspect's rights under the law are protected, including the right to
be informed of the charges against them and to obtain legal representation if desired.

A “De Facto Arrest” occurs when an individual is effectively restrained from moving freely or is compelled to move
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to a different location, simulating the conditions of a formal arrest, despite not being officially arrested by law
enforcement.
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the opportunity to present my side of the story. It is disheartening to witness that the
charging officer, who happened to be White, did not show any interest in hearing my
perspective. This suggests a biased approach to law enforcement within the department,
which is troubling. This incident highlights a deeper issue of racial prejudice that
contradicts the recent efforts of the department to create a more diverse leadership and
management.

As an African American (“Black”) man, I have become aware of allegations within the
department, particularly toward management, regarding numerous instances of
harassment targeting minority officers, including individuals of Black and Hispanic
descent. It is distressing to discover that such a vital institution responsible for upholding
the law might foster a culture that permits discrimination and unequal treatment based on
race.

If it is indeed true, such practices are not only morally reprehensible but also undermine
the fundamental principles of equality and justice that the department is meant to uphold.
It is crucial that these allegations be taken seriously and that a thorough investigation be
conducted to ensure that all employees, regardless of their race, are afforded fairness
and respect. Additionally, I have heard that an allegation has been substantiated by the
VA Office of Employment Discrimination Complaint Adjudication (OEDCA), further
validating the seriousness of the situation.
REQUEST FOR INVESTIGATION INTO PHOENIX VA POLICE PROCEDURES
I request that the VA OS&LE urgently expand its probe to scrutinize the Phoenix VA
Police’s arrest protocols and subsequent processes to ensure strict adherence to both
the Federal Rules of Criminal Procedure and VA regulations. This examination should not
only scrutinize the recent arrest incidents but also include a review of departmental
procedures to root out any practices of discrimination or misconduct, ensuring swift
corrective action is taken to prevent such issues in the future.
I stand ready to provide exhaustive details and engage fully with the investigation, as it is
imperative that we confront any procedural lapses to preserve confidence in our legality
system and shield others from similar mistreatment.

Your prompt and decisive action on these pressing concerns is highly valued, and I have
faith in your resolve to maintain legal order within the ranks of VA law enforcement.

Please accept my thanks for your unwavering commitment to justice and equitable
treatment under the VA's purview.

Warm regards,

Sincerely,

David LaDon Hart

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