Choke holds, use of force, public policy and arbitration

The Massachusetts Supreme Judicial Court has rejected an effort by the City of Boston to set aside an arbitrator's award reinstating a police officer who had been dismissed for allegedly using excessive force and then lying about it during an internal investigation.  City of Boston v. Boston Police Patrolmen's Association

On March 16, 2009, Officers David Williams and Diep Nguyen were dispatched to a the scene of a minor accident. While the officers were dealing with the situation, Michael O'Brien, one of the individuals involved, began filming the interaction and allegedly refused instructions to get out of the street. Officer Nguyen decided to arrest O'Brien who struggled and resisted efforts to handcuff him. Officer Williams came to the aid of his partner and "tackled" O'Brien, forcing  him to the ground using what he described as a "semi-bear hold." Officer Nguyen described the method used as a "choke hold." O'Brien was charged with resisting arrest, disturbing the peace and assault and battery on a police officer.

On March 19, 2009 O'Brien filed a complaint with the internal affairs division. The complaint was assigned to an officer but little investigation was done and, in May, O'Brien's counsel withdrew the complaint. O'Brien filed a lawsuit in September alleging unreasonable use of force, unconstitutional arrest and assault and battery. The following day counsel filed another internal affairs complaint. In January of 2010, O'Brien's counsel complained of inaction on the complaint and in April 2010, an initial interview of the officers involved took place. In February 2011Williams was placed on administrative leave. A second round of IAD interviews took place in March 2011, and in June 2011. Nguyen was exonerated but two specifications were issued against Williams. The specification alleged that Williams had engaged in the unreasonable use of force and was untruthful during the internal affairs investigation. Trial board hearings were held in November and December 2011 and on January 18, 2012 Willams' employment with the Department was terminated.  The  termination was grieved and on June 20, 2013 Arbitrator Michael Ryan issued an award upholding the grievance. (here)

Arbitrator Ryan, observing that the case ultimately turned primarily on credibility issues, found that the City had not established that Williams had used excessive force, even if he had used a choke hold. He found several factors undermined O'Brien's credibility, i.e. his intoxication, his concern for the impact of the incident on his future employment prospects, and the absence of objective physical evidence supporting his version of events.

Arbitrator Ryan noted further that "choke holds" were not specifically prohibited by the Department's use of force policy. While finding Williams conduct aggressive, he concluded that it was warranted by the circumstances. Accordingly, he concluded that the City had establish neither that Williams had not used excessive force nor that he had been untruthful during the investigation.

The City sought to set aside the award, but the Superior Court rejected this effort. The Mass. Supreme Judicial Court granted direct review and affirmed.

The Court held first that the arbitrator had not exceeded his authority by intruding on the nondelegable powers of the police commissioner to discipline officers. It found no precedent suggesting that  nondelegable matters extended to "core matters of discipline and discharge" and that the parties agreement to arbitrate disputes concerning discipline left the issue squarely within the arbitrator's authority. It next rejected the City's claim that the award was contrary to public policy. While recognizing that public policy clearly prohibited police use of excessive force, the Court noted that, in light of the facts as found by the arbitrator, there was no violation of public policy in this case. Given the deferential standard of review of arbitration awards, the arbitrator's findings that choke holds were not specifically prohibited by the Department's policies, and his conclusion that Officer Williams use of force was reasonable in the circumstances, the Court concluded that the award must be upheld. It noted, however, that "[h]ad the city prohibited choke holds as excessive force, an arbitrator who found a choke hold reasonable would have exceeded his authority." The Court also noted that the extended delay in the Department's investigation of O'Brien's claim of excessive force undermined the City's claim that public policy compelled termination.

In a concluding section describing what it called "prospective guidance," the Court observed:

First, it is incumbent on the city to clarify its own policies with respect to excessive force and specifically choke holds if it does not wish in the future to relinquish interpretive control of that term.
***Second, the city must investigate allegations of excessive force with substantially more alacrity than was evidenced here. Pursuant to its own existing rules, the department owes a duty, both to the public and to its own officers, to investigate allegations of excessive force thoroughly and promptly. As with the tension between a choke hold's dangerousness and the commissioner's desire to retain discretionary review of their use, it is difficult to reconcile the department's position that an officer's use of a choke hold requires termination with its protracted inaction in this case. [footnote omitted]

The Court also expressed concern about the impact of its decision, but ultimately suggested that any solution was a legislative one:

Last, we are troubled by the prospect that any use of force not explicitly prohibited by a rule of conduct is essentially unreviewable. It is difficult to fathom why we elevate the values of "expediency" and "judicial economy" so high as to eclipse the substantive rights of citizens who have no seat at the bargaining table. We recognize, of course, that public employers may or may not choose to adopt rules for the protection of the public from the excessive use of force. Without the benefit of such rules, however, arbitrators remain free to find reasonable any level of force that does not explicitly require termination. Absent legislative authority for a broader review of arbitration decisions, we are constrained in our ability to review the use of excessive force by public safety officials.