On April 8 2017 Grievant arrived on the scene of another officer attempting to subdue a fleeing subject. According to the grievant, he observed the officer "wrestling" with the subject, flipping him on to his stomach and attempting to handcuff him. Grievant stated that one of the subject's hands was cuffed, but the other was free and the subject was continuing to resist. Coming to the aid of the officer, grievant "took his left foot and stomped down on [the subject's] left shoulder area to pin him to the ground." Grievant subsequently stated the he believed his actions were necessary because of the information he had received that the subject was armed and that shots had been fired in the area. The subject was arrested and, pursuant to Department policy, grievant filed a Use of Force Report. A Department Sergeant conducted an investigation, which including viewing a video that had been taken of the incident She found grievant's actions within Department policy. She noted that once the subject was secured grievant did not followup with any additional strikes. She also noted that the video was inconclusive as to whether grievant's boot actually made contact with grievants face. Grievant's Sergeant, Lieutenant and a Commander also concluded that, while there may have been other issues which should be reviewed with grievant he had not used excessive force. Review continued up the chain of command, with the Deputy Chief disagreeing with the conclusion that grievant's actions were within policy. The matter moved to the Chief who held a hearing, affirmed the Deputy Chief's conclusion that grievant had used excessive force, and determined that a 24 hour (three day) suspension was warranted. A further hearing was then held before the Director of Public Safety who issued a final decision, not accepting the Chief's recommendation concerning a suspension but raising the discipline to termination.
The termination was grieved, and the matter was submitted to Arbitrator Mitchell Goldberg.
Arbitrator Goldberg sustained the grievance in part. He found grievant used excessive force:
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.
However, Arbitrator Goldberg also found termination too severe a penalty. He found that the grievant had been genuinely concerned about the other officer's safety and that grievant believed that the application of force was required because the subject was armed and needed to be cuffed to prevent harm to others. He concluded that while grievant used more force than was necessary he had no intent to injure the subject. Contrary to the Director of Public Safety, Arbitrator Goldberg further found no evidence that grievant had engaged in any deliberate deception or coverup about his use of force. He noted that grievant "chose to stand by his original, but later established misguided and misjudged response to his perception." Finding termination unwarranted, Arbitrator Goldberg observed:
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.
Accordingly he reduced the termination to a three day suspension, the penalty initially considered appropriate by the Chief.
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