Sunday, October 2, 2016

Officer involved shooting - Arbitrator orders "second chance" for dismissed officer

On March 7, 2013 El Paso police received a call about a domestic disturbance. The individual who was the subject of the call (Daniel S.) was no longer on the scene but witnesses reported that he had burned his mother's dogs, cut another one and threatened to kill his brother. A few hours later he was the subject of another call when he was reported to be violently menacing staff and customers at a local convenience store. Police arrived on the scene and transported his to a nearby hospital where he assaulted several staff and patients, and punched an El Paso police officer in the face. The officer fired five Taser cycles with little effect. Eventually he was subdued with the assistance of hospital personal. He was then transported to the police substation.

Grievant was coming on duty at the substation and volunteered to take the individual to the County Jail. According to grievant and others, Daniel S. had the physique of a professional body builder and appeared to be "on something." Grievant was assisted with the transport by a civilian employee of a contractor. This was pursuant to a new program designed to free police officers for other assignments. During the transport Daniel S. would cycle between periods of docility and combativeness. He would go limp, requiring Grievant and the contractor to carry him for significant distances. Upon the approach to the jail, Daniel S. deliberately smacked his head against the door causing a bloody wound. Because of the wound, jail personnel refused to accept him, requiring grievant to take the prisoner to another facility for treatment. The prisoner became combative again as they were exiting the jail. The departure was recorded on the jail's video, but the interpretation of the events was subject to dispute. What was undisputed was that the officer and the contractor struggled with the prisoner, with the officer ultimately pulling his weapon. While there was some uncertainty concerning whether the officer intended to shoot or whether his hand was struck causing an accidental discharge, the prisoner was fatally shot. An investigation ensued, and the officer's employment was ultimately terminated. The Notice of Termination contained two primary allegations. The first alleged that the officer had violated the Department's policy with respect to the use and application of deadly force, and the second alleged that he had misrepresented the facts concerning whether the shooting was accidental or intentional.

After a criminal investigation resulted in no charges being filed, the grievance proceeded to arbitration before Arbitrator Mark Sherman.

After a detailed review of the evidence, and the conflicting positions of the parties, Arbitrator Sherman ordered the grievant reinstated without back pay. While noting the severity of law enforcement's excessive use of force, and his own prior cases generally upholding termination where excessive use of force was involved, Arbitrator Sherman found several mitigating factors in this case.

Initially, the Arbitrator found that the City had not established that grievant intended to deceive. Rather, he concluded that any discrepancies in his account resulted from the initial shock of the incident and gradual but incomplete efforts to recall details. He also found that deficiencies in the investigation of the incident led to a disjointed effort to gather a complete statement from grievant.

Turning to the use of force issue, Arbitrator Sherman noted that a lack of coordination between the City, the Union and the District Attorney's office led to grievant's actions being portrayed "in the worst possible light by the media." He also found that the newly instituted policy of civilian transport of prisoner exacerbated the situation, noting:

[Grievant] was assigned to transport a violent and highly dangerous prisoner with only a 23-year-old, unarmed security guard to assist him. While his contracted “off -sider”certainly did his valiant best to assist [Grievant], the unarmed young man had never been through any police academy nor was he physically or mentally equipped to deal with the dangerous situation that confronted him on the day in question. For all intents and purposes, therefore, the Grievant was pretty much on his own in his effort to transport a powerful and seriously deranged hulk of a man.

Nevertheless, Arbitrator Sherman found that grievant was not without fault:

In the final analysis, there were a couple of key opportunities for the Grievant to seek help before things got out of hand while he was on his way out of the sally port. Ultimately, he should  have never put himself in the position where he had to draw his gun in an effort to intimidate Mr.S[...]. He should have never put himself in the position where he had to breach the Use of Force policy in a last desperate attempt to control the situation. But most critically, he should have never drawn his weapon in such close proximity to Mr. S[...], knowing intuitively and through training that an unexpected and violent movement could cause his gun to accidentally discharge. (After viewing the sally port video nearly 50 times the Arbitrator reached the firm conclusion that this is precisely what happened.) In summary, despite the fact he was let down by both the Department and the County Jail staff, he still bears the brunt of the responsibility for the accidental death of Mr. S[...].

Accordingly, Arbitrator Sherman concluded  that he would serve "his customary role of scapegoat and reviled 'decider' of the controversial, by choosing to give an officer a second chance." He ordered the City to reinstate grievant, without back pay, and subject to a fitness for duty exam and whatever additional training the Chief might require. 

Arbitrator Sherman's award can be found here.

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