Sunday, April 12, 2015

Police officer, special needs child, use of force and a clash of cultures

Grievant was employed as a police officer by the City of Bloomington, Illinois. He responded to an incident at a local school to address an issue with an out of control student. After that issue was resolved, grievant was talking with one of the teachers when he heard "loud screaming and a thumping sound" coming from the teacher's classroom. The officer entered the classroom where a seven year old was being restrained by the school's psychologist. The psychologist first became aware of the officer's entrance when grievant told the student to be quite, he was giving the officer a headache. Following school protocol, the psychologist relinquished control of the student to the officer. Grievant lifted the student and briefly held him against a wall. There was a dispute about whether he lifted the student by his coat or by his neck. He then "very intently" placed the student in a nearby chair. After the student delayed responding to a direction to go to the principal's office grievant carried him there and "very roughly" placed him in a chair. Acting in part on a complaint from the student's father the City terminated grievant's employment for what was alleged to be his "overly aggressive" handling of the student.

The Policemen's Benevolent and Protective Association arbitrated the termination, and Arbitrator Jeanne Vonhof sustained the grievance. Arbitrator Vonhof concluded that grievant's conduct was "objectively reasonable" and that while it would have made sense in retrospect for grievant to have asked more questions and gathered more information before he entered the classroom [grievant was unaware that the student was a special needs child] he was "following his training and acted quickly and instinctively in taking control" of the student. The arbitrator found insufficient evidence that grievant had lifted the student by his neck or restricted his breathing in any way. She found grievant's actions consistent with a "soft-empty-hand technique" authorized by the Department's use of force guidelines and concluded that the dispute arose from a failure of communication and a "clash of cultures" between that of the school staff and that of the police .  Accordingly she sustained the grievance and ordered grievant's reinstatement. She did conclude that a one day suspension was appropriate for grievant's failure to file a use of force report as required by Department policy.

The City moved to set aside the award. It argued, inter alia, that the award violated a well-defined and dominant public policy of protecting the safety of school age children and preventing use of excessive force by police officers. The trial court vacated the award, finding it violated the public policy of ensuring the welfare and protection of minors and that it effectively condoned the actions taken by grievant and indirectly encouraged similar behavior in the future.

The Appellate Court of Illinois has now reversed that decision, effectively confirming the award. While agreeing that there was a strong public policy concerning the protection and welfare of minors, the court noted that the Arbitrator's found as a fact that no misconduct had occurred. Similarly it rejected the City's claim that the Arbitrator had failed to make any findings that the grievant would not repeat his actions or offer any reassurance that grievant posed no future risk. Given the Arbitrator's factual findings, the Court found the City's argument unpersuasive, noting:

Here, no finding regarding grievant's remorse or likelihood to reoffend could be made because no misconduct was found in the first place. Additionally, the arbitrator found (1) grievant would not have intervened had he known more about N.A.'s needs and behavioral issues; (2) Bloomington police officers would rarely encounter an "out-of-control, combative[seven-year-old]," similar to this child; and (3) this incident was largely the result of a "clash of cultures" where, on one hand, school personnel are trained to passively wait for a student to deescalate and, on the other, police officers are trained to act quickly and efficiently to dispel any possible threat to the safety of others and property. Based on these findings, the arbitrator concluded the staff at Stevenson and the Department should reevaluate their policies to make sure an incident such as this one does not recur. By encouraging the two entities to develop better policies for handling disruptive juveniles, the arbitrator provided the reassurance called for under AFSCME, and we are obliged to affirm the award.

The Court's decision can be found here.

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