ARBITRATION PROCEEDING In the matter of arbitration between:
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CITY OF COLUMBUS, OHIO, DIVISION OF POLICE and FRATERNAL ORDER OF POLICE, CAPITAL CITY LODGE NO. 9
Gr. 23-2017 Officer Zachary Rosen Hearings: November 14, 2017 December 19, 2017 December 20, 2017 Date of Award: March 5, 2018
OPINION AND AWARD Before Mitchell B. Goldberg, Arbitrator Appearances: For the FOP: Robert Byard, Nicole Wannemacher, Russ Carnahan, Gwen Callendar, Mark Fester, Zachary Rosen, Brian Steel, Danielle Dickerson, Darren Stephens, Christopher Farrington, Patrick Vehr, David Freetag,
Attorney Attorney Attorney Attorney Grievance Chair Grievant Grievance Representative Grievance Representative Police Officer Police Officer Defensive Tactics Instructor, Police Academy Police Officer - Training
For the City: Joseph Devine, Alexa Cellier, Ronald Linville, Tim Meyers, Ned Pettus, Jr., Douglas A. Sarff,
Attorney Attorney Attorney Lieutenant, Professional Standards Bureau Director of Public Safety Human Resources Officer 1
Brook Carnevale, Timothy Becker, Thomas Quinlan, Chris Moses, I.
Deputy Director, Human Resources Deputy Chief, Investigations Deputy Chief, Patrol Labor Relations Manager, Human Resources
Introduction and Background.
This is a labor arbitration proceeding conducted under the terms of the parties’ collective bargaining agreement (“CBA”). It involves a timely grievance filed by the FOP on behalf of Patrol Officer Zachary Rosen (“Grievant”) contesting the City’s decision to terminate his employment with the Division. The Director of Public Safety, Ned Petrus, Jr. Ph.D., issued a decision on July 10, 2017 terminating the Grievant's employment by sustaining the charge against the Grievant that he violated Rule of Conduct 1.19, “Use of Force,” which states that “Division personnel shall use force only in accordance with law and Division policy and procedures.” The Director sustained Specification I by finding that on April 8, 2017 the Grievant used unreasonable force when he struck suspect (DA) with his foot during an arrest. The grievance alleges that the City discharged the Grievant without “just cause” in violation of Article 7, Management Rights, Section 7.1 (G). The City denied the grievance at all steps throughout the grievance procedure and the matter proceeded to arbitration on the above dates. A reporter transcribed the proceeding and prepared the official record. The parties presented testimonial evidence, video/audio evidence, and documentary exhibits. Witnesses were examined and cross-examined. Post-hearing briefs were filed after all of the evidence was received. The parties stipulated that all procedural and substantive requirements of the grievance/arbitration procedures and CBA were complied with that are necessary to bring this matter to a final and binding resolution.
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II.
Division Directive 2.01 Section I.A. defines use of force as the exertion of energy or the use of force in the
performance of an officer’s duties. The force is used to direct or control another’s movements or actions. It is used to control resistive or aggressive behavior toward the involved personnel, other personnel, third parties, or property, and results in described Levels of Control. The Grievant is charged with improperly using a Level 4 technique that is described as “Hard empty hand control (strike/punch/kick).” Section II.A.1. permits officers to use force to effect an arrest, to defend themselves, or to defend others. “An officer should not desist from any official duty merely because resistance is offered,” but, they “shall not use more force than is reasonable in a particular incident.” Section 2 sets forth factors to be considered when determining the reasonableness of a use of force. They are (a) the severity of the crime at issue; (b) whether the subject poses an immediate threat to the safety of the officer or others; (c) whether the suspect is actively resisting arrest; and (d) whether the suspect is attempting to evade arrest by flight. Section 3 states: Officers shall use their training to guide them through a use of force incident. The preferred response to resistance and aggression is a trained technique. However, during a situation involving the infliction or threatened infliction of serious physical harm, the use of an untrained response (e.g., neck restraints), while not normally authorized, may be reasonable to end the threat and survive the encounter. The proper exertion of physical force used to control persons shall be consistent with Division policy. III.
The Incident. During the morning hours of April 8, 2017, Officer S who was in a one officer patrol car
responded to a call for the provision of service for a citizen at 3177 Maize Road regarding alleged criminal damage to property. A male black was reported to have broken the car window of the citizen’s vehicle. The citizen and the suspect engaged in a verbal altercation. The suspect (DA) allegedly stated to the citizen that he was going home to get his gun, and that he
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was returning to shoot up the citizen’s house and anybody who resided in it. The citizen and his father told Officer S that the suspect possessed a firearm and that he was a known drug dealer. They requested that officers stay in the area for their protection due to their concerns for their safety. Later, S heard another run that was dispatched to 3127 Maize and was informed that a male black person who was dressed in all black clothes was in front of the house with a gun. He was outside arguing with the citizen. The citizen was requesting police help and was afraid someone was going to be shot. While S was responding to this call, he was informed that another caller, a female, stated that the male black person dressed in black was at their door with a gun and was threatening to shoot it. S and two other officers, F and P, responded to the scene. As Officer S was maintaining a visual of the area, he saw a male, later identified as suspect DA, running down the driveway of the apartments. He informed Officer F that he was going in to approach DA. Officer F stated that they would be there shortly. S reported that DA was running as he pulled up to him. DA then stopped when he saw S’s cruiser. S put DA at gunpoint based upon his knowledge about a suspect being armed and brandishing a gun. During the encounter between DA and S, S held DA’s left wrist to restrain him and prevent him from running away. He holstered his service weapon and attempted to grab DA’s other wrist when DA started resisting and fighting to get away. S placed his arms underneath DA’s arm to keep them away from his waistband in order to prevent him from reaching for any weapon. He placed DA on the ground, but DA freed his right arm, elbowed S in the face and fled. S chased after him. S was able to reach DA and he deployed his Taser after warning DA that he was going to use it. The Taser did not work because he could not apply both probes. DA kept running, but when he looked back at S, he tripped and fell across the concrete with his hand out in front. S
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prepared to take DA into custody, but DA flipped over and grabbed at his waistband. S responded by placing his knee in DA’s chest. He deployed his Taser into DA’s upper chest area. He tried to keep DA pinned as they struggled. S reached for his radio and aired his location to receive assistance from the other responding officers. S knew that the other officers were nearby. He removed his handcuffs and was able to cuff DA’s right hand. DA pulled away and put his left arm under his body to avoid being cuffed. S pulled DA’s left hand from underneath him. DA was trying to free his left hand by using a punching motion. S grabbed DA’s left hand while holding on to the handcuff that was on DA’s right wrist. By that time S observed the other officers who were approaching him to provide assistance. S had some difficulty closing the final handcuff because DA’s shirt was preventing the cuff clasp from closing. S stated that he was still in the process of getting DA’s left hand cuffed when the other officers arrived to assist him. S stated in his interview investigation that he did not observe the Grievant’s actions, or his use of force against DA. The Grievant’s statement at his investigative interview was that he spotted S as S was wrestling with DA. He saw S flip DA to his stomach, but DA was arching his back as if he were trying to “buck” S off of him. He observed DA trying to resist S as he got there. S was on DA’s back, trying to gain control of his hands. DA continued to arch his back and was resisting S by not complying with S’s orders to give him his hands so that they would be cuffed. He is certain that DA’s left hand was still free, with his right arm cuffed when he arrived. The Grievant had his weapon out when he approached the scene. He stated that when he got to them “he took his left foot and stomped down on [DA’s] left shoulder area to pin him to the ground” in order to assist S in controlling DA’s movements so that he would not escape. The Grievant stated that he believed his force was necessary at the time because of the information he received that DA was armed, and that shots had been fired before in the area.
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It is the single action of the Grievant using his left foot to stomp down on DA with his foot that is the basis for the charge that he violated the use of force policy, and that his use of force in this instance justified the termination of his employment. IV.
The Grievant’s Use of Force Report. The Grievant, in accordance with policy, completed and signed a Use of Force Report.
He checked the boxes indicating DA’s aggressive/resistive actions as being verbal or physical danger cues, not responding to commands, pushing away from officer, pushing officer and wrestling with an officer. He listed the subject use of force factors for his use of force as being DA’s age, size, and subject skill level. He checked boxes for special circumstances for warranting the use of force as the closeness of DA’s weapon, his exhaustion, being on the ground, his distance from DA, special knowledge, availability of other options and his environmental awareness. He stated in the narrative summary that he ran from the listed location where his cruiser was parked searching for S. He stated that when he reached the intersection he observed S on the ground wrestling with a male black wearing all black on the sidewalk in front of 851 Weldon Ave. V.
The Investigation and Chain of Command Review. Sgt. Caroline Castro conducted an extensive investigation of the incident. She found
that the Grievant upon his approach to the scene, quickly assessed the situation, and began reducing his use of force to a lower level after DA was secured and after ensuring the safety of S and himself. He did not follow up with any additional strikes after gaining control of DA. Video and still pictures show the Grievant striking the left shoulder with his left foot. She found that the video and picture stills were inconclusive as to whether the boot actually made contact with DA’s face. The boot possibly initially struck the shoulder and then glanced off striking the head or face. Because the boot was black, DA’s sweatshirt was black and his hair was black, it
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was impossible to discern if the boot made contact with DA’s face. She found the Grievant’s Level 4 strike was within Division policy. The investigation regarding the Grievant’s actions regarding his use of force on DA was reviewed by his Chain of Command. Sgt. Ramsey, the Grievant’s immediate supervisor, concurred with Sgt. Castro’s findings that the Level 4 strike was to effect the arrest of an armed individual who had recently discharged a firearm into a house, had assaulted a police officer, and who was resisting a lawful arrest. The Grievant and the other officers believed this was a deadly situation. He recommended that the Grievant receive a Documented Constructive Counseling (the lowest form of progressive or constructive discipline) based upon other charges, not for the charge of using excessive force. Lt. Williams reviewed the incident and found that although the Grievant’s use of force is not a trained technique, the Policy allows for the use of an untrained technique in rare circumstances and situations where there is the infliction or threatened infliction of serious physical harm. She found that the officers’ statements were consistent and were corroborated by the video and radio transmissions. She concluded that the Grievant’s use of force was within policy. Moreover, she reviewed the cell phone video footage provided by a witness and was unable to determine if there was any incidental contact to DA’s face when the Grievant stomped on his shoulder. She could see no injury to the left side of DA’s face from the photos. She was critical of the failure of the Grievant to immediately search DA to secure his weapon after he was handcuffed, for which she recommended re-training, and she found some other rule violations. Commander Knight, after her review, concurred and found that the Grievant’s Level 4 use of force in the form of an untrained technique was reasonable and within policy. She also found that the Grievant did not act in a negligent manner relative to any injury to DA.
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Deputy Chief Quinlan reviewed the above findings and recommendations, but he disagreed with their conclusions with respect to the findings that the Grievant’s actions were within policy. He is charged with providing his decision on the issue as opposed to recommendations made at the prior levels. He found that the Grievant’s use of force violated Rule of Conduct 1.19 and he returned the matter to the below chain of command for their recommendations for the imposition of discipline. Moreover, he reviewed disciplinary actions taken against other officers who used similar levels of unreasonable force and found that there was justification for deviating from progressive discipline levels. He forwarded the investigation to the Professional Standards Bureau for a Just Cause Review. The points of DC Quinlan’s disagreement with the below level findings focused upon the facts that were actually known to the Grievant prior to resorting to his use of an untrained tactic. Of particular importance to Deputy Chief Quinlan was the delay by any of the officers in searching DA for his weapon, notwithstanding the Grievant’s claimed belief and the belief of the others was that DA was dangerous and still had a firearm in his possession. The Grievant justified his stomp based upon the belief that DA was an imminent threat to the officers, but the basis for this claim was not supported by their actions in not immediately securing DA’s weapon after the arrest and after he was handcuffed. Deputy Chief Quinlan disagreed with prior factual findings, including the contention that handcuffs were not completed at the time the force was used. He believes that both handcuffs were secured when the Grievant arrived and applied his force. He found that the Grievant had every right to use force against DA, but he disputes the need to stomp or kick DA, and that other less severe types of force was more justified. The Grievant used an untrained technique that exceeded the intent of ending the threat and surviving the encounter. Stomps and kicks are used to strike legs or hips, and not to a suspect lying on the ground with
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an officer on top of the suspect applying handcuffs. He further found from the existing evidence that the Grievant did in fact strike DA’s neck, head or face with his stomp or kick. The recommended discipline by the chain after Quinlan’s decision was for a written reprimand. Chief Jacobs conducted a hearing and sustained Deputy Chief Quinlan’s finding that the Grievant violated Rule of Conduct 1.19. She issued the Grievant a 24-hour work suspension without pay. The Chief, at this level, has the authority to offer an officer the ability to convert the suspension involving a loss of pay to a leave forfeiture. The Chief chose in this case not to offer this alternative form of discipline to the Grievant. In other cases, if the officer is offered a leave forfeiture instead of a suspension without pay and accepts the offer, the matter is closed. If the offer is not accepted or if the Chief does not make the offer, the Chief’s determination is considered a recommendation, and the final decision is made by the Safety Director. A hearing is held before the Safety Director. A representative of the Professional Standards Bureau acts as an advocate for the Chief’s recommendation. The Safety Director in this case conducted a hearing and issued a final decision not to accept the Chief’s recommendation, and instead, he raised the discipline level to a discharge. VI.
The Legal Standard. Rule of Conduct 1.19 requires that the use of force must “be in accordance with law.”
The applicable law governing whether a police officer’s use of force is “excessive” in the course of making an arrest or other seizure of his person is set forth by the Supreme Court in Graham v. Conner, 490 U.S. 386 (1989). The claim is properly analyzed under the Fourth Amendment’s “objective reasonableness” standard. This inquiry is whether the officer’s action is objectively reasonable “in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation. The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody 9
an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”1 Graham goes on to elaborate upon the application of the reasonable test under the Fourth Amendment: Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,’ Bell v. Wolfish, 442 U.S. 530, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. . . The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force, nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.2 The decision in this case as to whether the Grievant’s action during a 5 second or less interval, in which he applied his kick or stomp to DA while S was on DA’s back, either while he was attempting to secure a handcuff on DA’s left wrist, or having actually done so at the time the Grievant exercised his force, remains in dispute. The issue is whether such force was excessive under the law, Rule of Conduct, and policy, notwithstanding that these seconds were reviewed, studied and analyzed by Sgt. Castro, who investigated the incident, Sgt. Ramsey, Lt. 1
490 U.S. 396-397. Id. at 397. The Graham standard was recently reaffirmed in a wrongful death civil action against a Cleveland police officer. The substantial damage award was upheld by the 6th Circuit Court of Appeals, finding that the officer’s use of deadly force was objectively “unreasonable” as a matter of law. The officer contended that he was justified in using deadly force in part because the suspect had a gun next to his elbow while the suspect was inside his vehicle. The Court accepted the jury’s factual findings at the District Court trial. The jury did not accept Jones’ version that he saw Smith’s right arm move towards a gun that was next to Smith who was in the passenger seat of the vehicle. Jones testified that he feared that Smith was reaching for the gun, and fired a shot to his head in order to protect himself. The jury found that the evidence showed Smith was actually shot after he was outside of the vehicle. The Court, when reviewing the Graham legal standard, stated that a police officer cannot shoot a person simply because the person is near a gun. Doreen Smith v. Roger Jones, Case No. 15-4101, p.7 (6th Cir., filed January 5, 2018).. 2
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Williams, Commander Knight, Deputy Chief Quinlan, Chief Jacobs, Safety Director Pettus, former Officer and Union Chair Fester, and Police Academy training instructors Vehr and Freetag. These persons, with the exception of Director Pettus, have more than 200 years of actual police officer on the job experience or supervisory experience,3 This experience includes the actual experience of bringing armed and dangerous suspects under control and in custody by making split second decisions as to the type and extent of force that is needed in particular circumstances. VII.
Analysis and Findings. The Operable Facts And Circumstances Involved In The Grievant’s Thought Processes. The Grievant was receiving information from his cruiser computer that the citizen caller
was requesting immediate help from the police, and that he was worried that someone would be shot by the male suspect who was at his door with a gun. He heard the dispatcher state that shots were fired while he was driving to the scene. He interpreted this statement from the dispatcher as a statement that a police officer had fired a weapon, which in turn indicated to the Grievant that a police officer was involved in a deadly force situation. If that was the case, he believed that the police officer had encountered a deadly threat. He was relying upon the audio transmission of the event, and not the information that was on his computer screen, which indicated that it was the suspect who fired his weapon and not a police officer. Nonetheless, the fact at hand was that one or the other (S or DA) had fired a gun that placed S and/or citizens in danger.
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Director Pettus’ background was as a Fire Division administrator and Fire Chief before he became the Safety Director. Tr. Vol. II, pp. 552-553. He has had supervisory and administrative responsibility as the Safety Director over the police department since August 1, 2016. While his duties since he became the Safety Director require knowledge of the police policies and directives, and the administration of those policies and directives, It is fair to conclude that unlike the above mentioned witnesses, he has not personally executed the use of force policies and directives in making actual arrests and bringing dangerous suspects in custody.
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The Grievant did receive a description of the suspect, and he was on notice that the suspect was armed, based upon the fact that the suspect was involved in an argument with the caller’s son, and the caller’s statement that the police needed to immediately respond “or somebody is going to get shot.” He then heard the audio statement that shots were fired.4 He knew that S was on location, but he lost radio communication with S. He passed S’s empty cruiser. At that point, he had not heard from S and did know know his precise location. His understanding and mindset at that point was that S was involved in a shooting and that he was shot. A lady who was standing next to S’s vacant cruiser pointed the Grievant toward the direction where the dispute was taking place. The Grievant then exited his cruiser, drew his gun, and proceeded to assist S along with officers P and F. The Grievant went on his hand-held radio and requested S’s location as he was running to the scene. Until the point in time when he observed S struggling with DA, because he lost communication with S, he was operating under the assumption that S had been injured or incapacitated.5 The Grievant heard or spotted S and yelled to P and F to follow him in order to assist S. He gained a better view of S and DA as he was running towards them. As he approached them, he heard S yell to DA: “Give me your hands.” The Grievant understood from that demand that DA had not been handcuffed. He saw S trying to gain control of DA. As the Grievant arrived closer, he had his gun out and aimed at DA, who was not complying with S’s commands. He saw S trying to pull DA’s uncuffed left hand back. He believes that S had not secured DA in handcuffs when he approached them and that DA’s arm was out in front of him and not cuffed as the Grievant approached them.6 He saw DA arching his back and looking back at him, and he believed, as was ultimately established, that DA was armed with a gun
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Tr. Vol. III, pp.856-860. Id. at 861-865. Id. at 885-886.
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underneath him while DA was laying stomach down on the ground, but uncuffed. The Grievant was concerned that DA would break free and try to grab for his gun, a situation that would place both the Grievant and S in danger. He also believed that S had been shot.7 He believes that S had not secured DA in cuffs because he could see DA’s uncuffed left wrist as S was still struggling with him. While there is a factual dispute as to whether S had secured DA in cuffs at the exact time the Grievant applied his force, there is no evidence disputing the Grievant’s reasonable thoughts and beliefs. The Graham test requires a review of the “reasonableness” of an officer’s use of force, judged from the perspective of a reasonable officer on the scene. The complete accuracy of the perspective is not required; it may be inaccurate when judged against other evidence that is reviewed later with 20/20 hindsight, but it may nonetheless be a reasonable perspective. The Graham elements for ascertaining a determination of “reasonableness” for the application of force are present in this case: (1) The crimes committed by DA were “severe;” (2) DA posed an immediate threat to the safety of S and the Grievant until he was securely handcuffed; and (3) DA was resisting arrest until he was cuffed.8 There may have been an instant when DA stopped resisting before he was cuffed, when S could not secure his cuff because his sleeve fabric was interfering with the clasp, but this would not have materially altered the Grievant’s perspective. Accordingly, based upon the Grievant’s perspective and the facts under which he was operating, it must be found that there was a need for the application of some force to bring DA under control. This case then must be judged upon the relationship between the need for the application of force and the amount of force that was used. The Force Control Level Directive 2.01, I Definitions states:
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Id. at 888-889. See Graham, p. 390, citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
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A. Use of Force The exertion of energy or the use of force by personnel in the performance of their duties used to direct or control another’s movements or actions. A use of force is used to control resistive or aggressive behavior toward the involved personnel, other personnel, third parties, or property, and results in the following Levels of Control. B. Use of Force Levels of Control 1. A progression of techniques used to control a suspect’s actions. Levels of Control used by the Division of Police are: Level 0: Officer presence, verbal and non-verbal commands, searching, handcuffing, sparking a taser for compliance, use of flashbangs and multiple baton rounds as diversions Level 1: Empty hand control, pressure points, grounding techniques, and joint manipulations Level 2: Use of chemical spray Level 3: Use of electronic device (electronic custody belt or taser) Level 4: Hard empty hand control (strike/punch/kick) Level 5Use of impact weapon (baton/flashlight) Level 6: Police K-9 bite Level 7: Less lethal weapons (beanbag/multiple baton rounds/stinger cartridges) Level 8: Deadly force The Grievant contends that he used a Level 4 action, stating that “I used my foot to stomp, kick, whatever you want to call it.” He used the force created by his kick “to the suspect’s back shoulder to pin him to the ground, to stop him from moving.” After he delivered the blow, he stated that he tried to stop his momentum. He kneeled down to put his body weight on DA. He then holstered his gun and made sure DA’s arms were steady to permit S to secure the handcuffs on DA. The Grievant stated that the force that he was delivering from his kick or stomp was accelerated by his momentum that carried his body and foot forward. The Grievant stated that he could not stop on a dime. He was off balance and he struck DA’s shoulder area, but he could not keep his foot there. He insists that his foot never struck DA’s
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neck or head.9 Nevertheless, the Grievant acknowledges that his stomp or kick was forceful enough to cause DA’s head to strike the ground. He testified that he did not see this happen because he was not paying attention to it, but he acknowledges that the video evidence shows DA’s head striking the ground. He explained that this occurred because his foot slipped off “a little bit,” which caused DA’s collision with the ground.10 The Grievant points out the downward slope of the driveway, which according to the Union, caused the force of the stomp/kick to accelerate when the Grievan’t foot glanced off DA’s shoulder towards his neck/head area. I find, however, that the video and photographic evidence shows DA’s head severely bouncing off the concrete pavement due to the strength, force and leverage of the Grievant’s kick or stomp, regardless of whether the Grievant’s foot originally was aimed at the shoulder area and slipped off DA’s shoulder, either by the angle of the kick, or the downward slope of the ground, or both. This was the finding by Chief Jacobs, and Deputy Chief Quinlan. Chief Jacobs described the collision as DA’s head “bouncing quite severely off the pavement in a very distinct movement.11 Deputy Chief Quinlan described DA’s head as “catapult(ing) back up”, and his hair “flying up” with some force, clearly indicating that the Grievant’s leg and boot made contact with DA’s head, neck or face.12 Regardless, of whether DA’s neck bounced off the pavement because the boot made contact with his face, neck or head, or whether the severe collision was caused entirely by the force of the blow to the upper body shoulder area, the level of force delivered was severe. The force of the blow, however, did not produce a material injury to DA. Nevertheless, the level of force delivered by the Grievant presented a high risk of injury, leaving
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Tr. Vol. III, pp. 889-891. Id. at 891-892. 11 Tr. Vol II, p.477 12 Tr. Vo. I, pp.310-311. 10
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the issue of whether the kick or stomp was unnecessarily excessive to the point of finding a policy, directive or legal violation. While there was much discussion at the hearing as to whether a kick or stomp of the type administered by the Grievant to DA was a “trained” technique, or an “untrained technique,” the trainers were clear that the officers are expected to “use the least amount of force reasonable to accomplish the objective,” which in this case was to bring DA under control by taking him to the ground and applying handcuffs.13 The Availability Of More Reasonable Options. Officer Freetage, a defensive tactics instructor at the training facility, testified about the effective training techniques that are used by two officers who are involved in bringing a suspect under control, and getting that suspect handcuffed. The first officer is trying to control the suspect by securing the cuffs. A second officer who arrives has the primary responsibility of keeping the first officer safe. This is accomplished by the use of a trained technique referred to as “a knee ride-type position.” The second officer’s shin is placed on the suspect’s lower back. This is used when the suspect is on his stomach with his hands buried underneath him in an attempt to resist being cuffed. The second officer is trained to react in “different scenarios” and has “different options” involving “different stabilization techniques” to get the resisting suspect under control and in cuffs. One such option is to “[grab] ahold of the suspect’s leg, basically attaching [his] knees together so they couldn’t roll, preventing [flight] and flee.” Another option is to “cross the suspect’s feet and pin them up to the suspect’s butt, so he’s basically proned out. The hands are still buried, but his knees are bent, and the heels are to his butt.” Another option is for the second officer to focus on the suspect’s “upper torso, with the officer coming up and trying to control the arms using stabilization techniques.” The second officer uses a “pry
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Vehr, Tr. Vol. III, p.800.
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bar” technique” where he “pops the arm out” behind the suspect “in a chicken-wing position to the lower back, which would aid in the cuffing.” Level 4 striking can be used to the “suprascapula” area in what is referred to as a “lateral head restraint.” These are all scenarios that are to be used when the suspect hands are underneath his stomach in a manner where he is resisting being cuffed.14 In a situation, as in this case, where the second officer can see both of the suspect’s hands, whether one hand is cuffed but the other is free and avoiding a cuff, or where both hands are in back of the suspect but one hand remains uncuffed, there are other stabilization techniques that can be used. One option is to “drop a knee on the shoulder area” to hold the suspect down by using the palms or your hands. This would first require that the second officer holster his gun. You could also apply Level 1 force by holding the suspect down with your foot. One can use a push down by the foot upon the shoulder area to keep the suspect down while his hands are in back of him as the first officer is attempting to secure the final cuff. This could be a Level 1 use of force or a Level 4 use of force depending upon the length of time the pressure is on the suspect or the propulsion or strength of the force that is used. Another type of stabilization technique is merely using one’s body weight on the suspect’s back to hold him down.15 It is clear, however, that the Grievant’s stomp or kick to the upper shoulder area with sufficient force to cause the momentum of the leg or foot to contact the suspect’s neck and head area is an untrained technique. Moreover, I find from the evidence, that because the Grievant had other less-excessive force options available to him, his use of an untrained technique amounted to excessive force that was a violation of policy, directives and the law.
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Tr. Vol. III, pp.837-841. Id. at 842-845.
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The Union contends that the Grievant was “trying” to use the minimum amount of force to accomplish his objective of bringing DA under control so that he could be cuffed, or finished being cuffed by S. The Grievant believed that he needed to maintain the “deadly force alternative” of protecting S and himself from harm in the event DA broke free with his uncuffed hand and accessed the gun that the Grievant believed was on his person, which was in fact true. However, I find that the Grievant had the above less excessive force trained techniques available to him, and that his decision to avoid any of these other more reasonable options was a act of negligence, or an act that bordered on being reckless as found by the Chief.16 He could have kept his gun out for his protection and for S’s protection if he observed DA going for his gun, but he also could have secured DA by using one or more of the abovementioned training techniques, that if used would have lessened DA’s exposure to a serious head injury. The Union also believes that consideration should be afforded the Grievant in his decision-making process, due to his “adrenalin high” and “combat stressors.” These existing factors could cause one to lose their peripheral vision and suffer physical limitations due to a high heart rate, a loss of motor skills, and auditory exclusion. These stressors affect one’s memory and one’s perception. One’s memory or understanding of the stressful event may blend in with other received facts and information, that cause one’s perception of the event to actually vary from later more accurate facts that are obtained through an investigation.17
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A high degree of negligence may not reach the legal definition of reckless misconduct. These descriptive variations of negligence categories are difficult to navigate through because they judge the actor’s state of mind. Negligence is the failure to exercise the standard of care of a reasonably prudent police officer in the Grievant’s situation. It is conduct that falls below the legal standard established to protect others against unreasonable risks of harm. It is the absence of ordinary care and diligence. Gross negligence is defined as the lack of even slight or scant care; the failure to exercise even that care which a careless person would use. Recklessness is defined as the creation of a substantial and unjustifiable risk of harm to others by a conscious (and sometimes deliberate) disregard for or indifference to that risk. Black’s Law Dictionary, 8th Ed., pp.1061-1063, 1298 (2004). I interpret the Chief’s conclusion of the Grievant’s actions as being in the gross negligence category, but not the reckless category. 17 Vehr testimony, Tr. Vol III, pp. 764-768.
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I find, however, that the Division accepts and understands these conditions. It is spending much time, effort and money with its training investments so that its officers will make better split second decisions that would result in less harm to both the officers and the suspects. The Grievant was required in this situation to take some part of his split second reaction time to better access his situation, by communicating with S to find out the state of his condition, and to make a better analysis of the type of force that was necessary to protect S, himself, and the level type that would provide the least amount of force necessary to bring DA under control. This is the overall requirement and standard of the policies, directives, training objectives and the law. In summary, I find that the Grievant was subject to the precise holding by the Supreme Court in Graham that the Grievant’s good intentions did not make an objectively unreasonable use of force constitutional or reasonable under the Division’s policies and directives. VIII.
The Penalty Assessment The arbitration/legal principle of just cause requires: (1) the finding that the employee
engaged in the charged misconduct, or otherwise violated the existing rule, policy or directive: and (2) that the employer’s penalty was also justified. A given “cause” may justify some types of discipline, but not others. The discipline must be proportional with the offense. Progressive or corrective discipline must be imposed for all but the most serious offenses, because the primary object of discipline is to correct rather than to punish. Warnings should be issued before suspensions, and suspensions should be issued before discharge. Some offenses, sometimes referred to as “capital offenses” may justify serious discipline and even a discharge for the first offense. These could include intentional physical attacks by officers upon suspects and other significant violations of law. A CBA may govern the employer’s disciplinary discretion and the factors that must be applied to impose the employer’s authority. The specific CBA provisions have control over the
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general arbitral or legal principles. In this case, the parties’ CBA nearly mirrors every applicable just cause principle. Specifically, Section 10.3 authorizes the Chief or Safety Director to use their discretion as to the level of progressive discipline to be used in any given case. They may determine that a different sequence is required depending upon the situation and circumstances and by considering the nature and severity of the misconduct. They must consider the member’s work record in making their decisions. They must consider the member’s “culpable mental state.” Mere inadvertence or negligence could be considered to mitigate a penalty, but “deliberate intention” may constitute an aggravating factor. The ultimate decision must be a reasonable one or a reasonable exercise of discretion. It cannot be arbitrary, or one without a rational basis. It cannot be capricious or one made in bad faith, and it cannot be discriminatory or one that violates well accepted disparate treatment principles that authorize only consistent applications of the same or similar penalties for similar types of misconduct. The Grievant’s Mental State I cannot find, as the Safety Director did, that the Grievant was intentionally dishonest. He found, as the Chief did, that the Grievant’s misconduct was severe based upon his act of exposing DA to serious physical injury. However, unlike the Chief, he believes that the Grievant engaged in intentional dishonesty by attempting to cover up his misconduct. The Safety Director was persuaded by the Grievant’s failure to accept responsibility for his actions, and his “complete” lack of remorse. The Safety Director believes that the Grievant would respond to a similar situation in the future in the same out of policy manner such that he would not benefit from further training and rehabilitative efforts. I disagree with these findings for the following reasons.
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I believe the Grievant when he testified that he was genuinely concerned about S’s condition, and that S might have been injured or shot after his struggles with DA. I believe the Grievant did observe DA struggling with S and resisting S’s efforts to handcuff him. He believed that the application of force was required due to the fact that DA was armed with a deadly weapon and that he needed to be cuffed to prevent any harm to S or the Grievant. The fact that DA was not immediately searched after he was cuffed in order to remove his weapon was not entirely the Grievant’s fault. The other officers took charge of DA and led him away. He erred in delivering much more force than was necessary to provide this protection, but the evidence is inadequate to prove a mental state of intended injury to DA. He aimed for his shoulder area and not DA’s neck/head area. He would have accomplished this technique if he had used less force than a stomp or kick. The Grievant did not engage in any deception or cover-up of his conduct. Instead, he chose to stand by his original, but later established misguided and misjudged response to his perception. A stubborn adherence to one’s genuine but mistaken belief, and one’s unwillingness to accept responsibility notwithstanding conflicting evidence to the contrary is not evidence of intentional dishonesty. Confidence in one’s own judgment and execution of that type of purposefulness in the dedicated performance of one’s duties and responsibilities can also be excellent traits for a police officer facing the everyday challenges of law enforcement. Those traits and characteristics are good qualities when directed properly through training and education. Remorse is defined as a deep and painful regret for wrongdoing.18 One needs to be convinced that he committed a wrongful act before one can start on the road of becoming remorseful. This process takes longer for some persons. The Chief found that the Grievant
18
Webster’s Encyclopedic Unabridged Dictionary of the English Language, dilithium Press Ltd., p.708 (1989).
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was arrogant in his defense of his actions. However, she decided that a work suspension without pay was the proper corrective approach for addressing what she perceived as the Grievant’s arrogant manner. The more important consideration is whether the Grievant would be amenable or receptive to further training and education such that he would likely react within policy when addressing similar situations involving the bringing of resistive subjects under control. When asked at the end of this proceeding whether he would be amenable to any type of training should training be appropriate, he stated: Yeah. I would take any training that was made available to me. I think what I’ve learned the most in this -- my 6 ½ years, is that if we don’t debrief our successes as well as our failures, we’re not going to learn anything. Just because I may have done something right, there is still something I can learn from the situation. If I did something wrong, there’s something I can learn from the situation. So any training or opportunity to grow and do a better job, I’m absolutely open to.19 There is further evidence from the Grievant’s past service record that indicates that the Grievant would be subject to corrective discipline instead of a penalty that effectively ends or severely damages his law enforcement career. He is a highly educated officer with a degree in criminology. He has served for nearly seven years with an unblemished service record. While the Chief ultimately had serious questions about the Grievant’s judgment with respect to his use of force in this case, she noted that there was “nothing notable” or negative regarding the Grievant’s disciplinary record.20 On the other hand, the Grievant’s past performance record shows that he received the Medal of Valor Award, which is the highest award presented by the Division for exceptional performance. The Chief considered this performance award in making her decision to issue the Grievant a work suspension of 24 hours instead of some higher level of discipline amounting to
19 20
Tr. Vol. III, pp. 899-900. Tr. Vol. II, pp. 494-495.
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more suspension time or a termination. The Safety Director had the same evidence, but found that the Grievant’s lack of remorse and unwillingness to accept this failure of performance as found by the Deputy Chief and Chief justified the highest form of penalty, that of a discharge. I find that the Grievant’s past good work record, and his performance at the highest rewarded level, combined with his intelligence level, is persuasive evidence that he has the ability to adjust his actions to conform with policies and directives in the future as they relate to his use of force in bringing dangerous suspects under control. I agree with the Chief’s finding that his use of an untrained level of force in this situation justified serious discipline that warranted an out of sequence penalty, but not the most severe penalty of a termination from his employment. The Disparate Treatment Issue The just cause principle embodies the requirement that the employer’s enforcement of rules and its assessment of discipline must be exercised in a consistent manner. Employees who engage in the same type of misconduct must be treated essentially in the same manner unless there is a reasonable basis for varying the level of discipline. Aggravating and mitigating factors may be used to justify different treatment. The FOP must show the existence of different treatment and that the circumstances surrounding the Grievant’s offense were substantially like the offenses committed by other employees who received more moderate penalties. There is no showing of a departure from consistent or uniform treatment of employees if the variations in discipline are reasonably appropriate to the variations in circumstances.21 The Chief, when cross-examined, testified that during her tenure, the Division’s practice in excessive force findings has been to issue penalties in the range from written reprimands up to 160-hour suspensions. The importance of this testimony is that notwithstanding the wide
See, e.g. Pepsi Cola Bottling Co. of Canton, Ohio, 78 LA 516,527 (Keenan, 1982); Alan Wood Steel Co., 21 LA 843,849 (Short, 1954) (Like treatment is required for like circumstances). 21
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variations that depended upon the circumstances in each case, no officer was terminated for an excessive use of force finding.22 The Union submitted many of these other cases to justify its position that not only was a discharge penalty unjustified for the Grievant in this case, but a much lesser penalty should have been issued, similar to the penalties in the other cases involving use of excessive force issues. The parties discussed some of these cases in their briefs where findings of excessive force produced various penalties. One case involved two officers who were trying to apprehend and arrest a burglary suspect. Officer B encountered the suspect and had him on the ground, but the suspect was not giving up his hands. Officer Sebastiano ran to assist B and administered a forward kick to the left shoulder area, but the suspect moved his head and the kick struck his left jaw, causing a minor injury. He was released from the hospital with no broken bones or fractures and later jailed. That suspect was not armed, but a pair of pliers was removed from his pants pocket. However, the officers reasonably believed that the suspect was armed and that he was resisting and refusing to give up his hands. There was no finding of negligence and the suspect sustained a minor injury when he was not complying with the officer’s orders. The Commander found that the kick to the suspect’s jaw was outside of training and policy. Nevertheless, he found that only a documented constructive counseling was the appropriate penalty for this 1.19 violation. This differs somewhat from the Grievant’s circumstances in this case because the Grievant caused no injury to the suspect and DA was armed. The major difference between these cases is that DA’s hands were not underneath him at the time the Grievant delivered his force, but were at least in the process of being cuffed, to the extent that other more moderate
22
Tr. Vo.II, p.524.
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options to bring DA under control were available to the Grievant. The failure to apply the least amount of necessary force to avoid the risk of injury to the suspect is present whether or not there is actual injury. The suspect in Sebastiano’s case was more of a threat, but admittedly, these facts are very similar. I disagree with the City that Sebastiano’s immediate admission that his kick was an inadvertent mistake because the suspect had moved is somehow less egregious than the Grievant’s explanation of his actions. The Grievant also explained that he was not aiming for DA’s head or neck area with his kick or stomp. Nevertheless, it is difficult to judge the comparative level of delivered force as between these cases. While I cannot reconcile the two different penalty levels administered in these two cases, it is clear that a discharge for the Grievant was not justified. The case involving officer Baldwin is on the other side of the penalty spectrum. He was suspended for 16 hours for using excessive force and for failing to immediately report his use of force. He was suspended for 80 hours for kicking the suspect in the face, and he was terminated for being untruthful in his administrative interview. It is difficult to reconcile the different levels of discipline chosen in the other cases that were supplied by the parties, as well as the various levels that were either recommended or decided upon by the chain of command in each case. Reasonable arguments can be made as to the consistency or lack thereof in these various discipline levels that were applied by the Division when comparing those cases with the Grievant’s conduct. The Chief, however, has reasonable discretion in deciding the appropriate level within the CBA progressive discipline spectrum. Her decision to issue a suspension instead of some lower level in this spectrum was substantially based upon the high level of force used by the Grievant that exposed DA to a high risk of a serious injury, when other more reasonable options should have been considered.
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It is important to note that the Chief, as an executive and chief administrator of the Division, has other factors and concerns to consider when deciding upon the discipline level. She must consider the best interests of the Division and the City. A penalty that involves a unpaid suspension from work could serve as both a corrective action for the Grievant as well as a message to the force that the policy of using only reasonable force and not excessive force is a very important policy that when ignored will produce citizen complaints, liability for injuries to suspects, higher insurance rates, and a loss of trust and confidence by the public that citizens who are served by the force will be properly restrained and controlled when they are arrested in accordance with existing laws and policies. In particular terms, a mere placement of foot pressure on DA’s shoulder that would keep him pinned to the ground when it was clear that the Grievant could observe both of DA’s arms and hands would have better served the interests of the Division and the City. This would have assisted S in securing the handcuffs. Both were expecting further assistance from the other two officers who were soon to arrive. Instead, the Grievant’s forceful and excessive kick or stomp immediately was circulated throughout the internet and social media from the videos and photographs that were taken by witnesses to the event. The City, Division and all of the officers and staff, including the Grievant, were recipients of this negative fall-out, that could have been avoided if the Grievant had responded in accordance with the law, policy and directives. IX.
Award. The grievance is sustained to the extent that the discharge is without just cause. It shall
be vacated and removed from the Grievant’s record. The penalty is reduced to a suspension of 24 work hours as issued by Chief with no leave forfeiture. The Grievant shall be reinstated to his former position with the full restoration of his lost seniority. He shall recover all lost pay and benefits, except for the 24-hour suspension, and less any received unemployment
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compensation benefits and interim earnings. Jurisdiction is reserved to resolve any issues that may arise between the parties with respect to the implementation of this remedy.
/s/ Mitchell G. Goldberg Mitchell B. Goldberg, Arbitrator
Date of Award: March 5, 2018
CERTIFICATE OF SERVICE This Opinion and Award was served upon the following persons/parties by electronic mail on the 5th day of March, 2018: Alexa E. Cellier, acellier@bakerlaw.com Joseph DeVine, JDevine@bakerlaw.com Ronald Linville, rlinville@bakerlaw.com Robert Bayard, rbyard@hcands.com Russell Carnahan, rcarnahan@hcands.com Nicole Wannemacher, nwannemacher@hcands.com /s/ Mitchell B. Goldberg Mitchell B. Goldberg
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