City will appeal reinstatement of police officer dismissed for improper use of force

The City of Duluth, Minnesota has declared its intention to seek to vacate an award of Arbitrator Mario Bognanno reinstating a City police officer who had been dismissed after an incident in which he was alleged to have dragged an uncooperative subject. The facts of the case were largely undisputed. The incident was recorded on several officers' body cameras. (At least one of the videos was publicly released after the award and is available at Video shows Duluth police officer dragging handcuffed man, slamming head into door)

The officers had been dispatched to the scene on a report of trespassers near Duluth's skywalk system. Upon arrival, they met two apparently intoxicated individuals. After some interaction, grievant advised one of the subjects that he would be issued a ticket for trespassing. After some further interaction, the subject stated "I want to be arrested right ... now." The subject was handcuffed and grievant and another officer began walking him out. The subject fell to the floor, saying he wouldn't make it easy for them. Grievant reached down, grabbed the handcuff chains and began dragging the subject away. While being dragged, the subject hit his head on a doorway.

An investigation was subsequently conducted by the Department, and grievant's employment was terminated. The termination was based on the Chief's conclusion that the use of force was contrary to Department policy, grievant's prior history of excessive use of force (a one day suspension for punching another subject several times in the head), and the Chief's belief that it was likely that grievant would, in the future, engage in similar conduct.

The termination was grieved and submitted to Arbitrator Bognanno for resolution.

Applying the "Seven Tests" of just cause, Arbitrator Bognanno found that discipline was warranted. He concluded:

At the time of the Houle Incident, the prevailing circumstances were as follows: Mr. Houle was intoxicated; Mr. Houle did not pose a threat to either the officers or to himself; Mr. Houle’s size and weight relative to that of the police officers was such that he could have been picked up and walked or drag-walked to the parking ramp; there were no prevailing exigent concerns; the circumstances were not rapidly changing, obviating the need for split-second decision making; and it was not shown, by credible evidence, that PO Huot and his fellow officers needed to immediately respond to or assist with any other officers 911 calls.

Based on this discussion, PO Huot’s dragging of Mr. Houle constituted an unreasonable use of force in violation of Policy...

While recognizing that "in this day and age, such conduct can evoke public tumult, which is a major concern to the public employer and rightly so," he concluded that termination was too severe a penalty.

He noted that grievant's prior use of force incident (the punching incident) was more severe and grievant received only a one day suspension. He also pointed to two other incidents, not rising to the level of discipline, in which grievant's use of force was questioned. Arbitrator Bognanno observed:

The departmental coaching that followed these events was dearly warranted and doubled as a “heads-up,” if you will. [Grievant]missed this “heads-up” or signal because shortly after the Dunphy Incident, he decided to recklessly drag Mr. Houle, and by doing so he crossed the unreasonable use of force demarcation line.
The foregoing “heads up” remarks lead to the answer to the Issue Statement’s second question, namely: “If not, what is an appropriate remedy?” The “heads up” signals, an arms-length of training and coaching about the use of force, and the fact that [Grievant] cross [sic]the use of force demarcation line in 2015 and then again in 2017 combined to cause his command staff to speculate, if reinstated, he will cross the line again and, perhaps, with far more damaging and serious consequence. The Arbitrator cannot find fault with this speculation. [Grievant] and his career as a police officer is at a crossroad: Either he takes control of his penchant for misusing vocal and physical force or he will be fired: A third use of force violation would be his last.

The Arbitrator ordered grievant's reinstatement without back pay. His award is available here.

In a press release (here) the City has announced its intent to seek to vacate the award. The release quotes the Mayor as saying:

It is critical to me that we maintain that trust in the relationship between our police department and the community, and that we do everything in our power to build and create better and stronger relationships. This incident is an example of completely unacceptable behavior that as Mayor, I cannot and will not support. I, Chief Administrative Officer, David Montgomery, and Chief Tusken stand together in supporting the decision to terminate this officer as a consequence for his egregious actions. The decision to terminate the officer was made in concert between myself, CAO Montgomery, and Chief Tusken after a careful review of the incident and subsequent investigation.
We will continue to do everything in our power to sustain this termination by pursuing all appropriate legal remedies in response to the arbitrator’s ruling. We remain committed to building an organization that views its roles and responsibilities as a service to the community

Update: The court has denied the City's request to vacate the award. Judge: Duluth police officer to keep job. The Court's order can be found here. The Court of Appeals affirmed that decision here.