Police use of force -training, conduct unbecoming, and progressive discipline

Two recent awards deal with these issues

In Cleveland Police Patrolmen's Association and City of Cleveland Arbitrator Daniel Zeiser sustained a grievance filed on behalf of a Cleveland police officer who had been dismissed for alleged violation of the Department's Use of Force policy.

Grievant responded to a call of a burglary in progress. He and his partner approached the grocery store involved with their guns drawn and their fingers on the trigger. A suspect exited the building and the two officers approached him. Grievant placed his left hand on the suspect's shoulder and ordered him to "drop everything" and put his hands up. The suspect did not comply but, according to grievant, stood up quickly, twisting grievant's body. Grievant testified that the felt he was under attack and "feared for his life." After a brief struggle, during which grievant asserted the suspect reached for his gun, grievant fatally shot him. The facts are set forth in more detail in Arbitrator Zeiser's award.

 After an investigation by the Department, grievant's employment was terminated for claimed use of deadly force "that was not objectively reasonable and not necessary or proportional" and for allegedly not effectively de-escalating the situation. Grievant was also indicted for "criminal negligence." He was acquitted of the criminal charge after a bench trial in which the judge concluded that the shooting "implied an intentional act inconsistent with the charge of criminal negligence."

In his award, Arbitrator Zeiser concluded that the City had failed to establish that grievant's actions were objectively unreasonable. He noted that, regarding both charges, the city appeared to be viewing the incidents through hindsight rather than as reasonably perceived by grievant during the incident. 

 There was considerable testimony about whether grievant should have had his finger on the trigger and the City's claim that insufficient time was given for the suspect to comply. On these points Arbitrator Zeiser observed:

The Employer argues that the Grievant and King should have taken different actions. That is, they should not have approached the building with their fingers on the trigger, i.e., on target, on trigger. [Public Safety Director] McGrath testified they should have used cover, the Grievant should not have had his finger on the trigger because he was the contact officer, and the Grievant should have given [the suspect]  time to react and comply. While these are valid points, they go more to tactics and training, not directly to the issue of the use of deadly force. To the Arbitrator, the Employer has analyzed the issue of reasonableness using hindsight. While this is difficult to avoid, it is not permitted.

The Arbitrator similarly analyzed the City's claim that grievant had not appropriately de-escalated the situation:

McGrath also found the Grievant guilty of Specification 2 for failing to de-escalate the situation by increasing officer presence, or using a less lethal method or an alternative weapon. First, the Grievant and King did attempt to de-escalate. They used verbal persuasion tactics and warnings to gain [the suspect's] cooperation. He did not comply. The Grievant used his left arm to try to hold [the suspect] down. This also did not work. Both are listed as appropriate tactics in paragraph A of Section III, Force Level of the Use of Force policy. Paragraph B continues that officers are to determine the level of force necessary to protect themselves or gain compliance and consider alternative tactics such as concealment, voice commands, use of a Crisis Intervention Team, a show of force, or allowing time for the suspect to regain self-control (JX 9B, pp. 4-5). Thus, it is not so much that the Grievant did not attempt to de-escalate the situation as the Employer disagrees with the de-escalation tactics used. Second, as explained above, at the time the Grievant decided to use deadly force, he did not know whether Jones had a weapon and the encounter only took seconds. Requiring that he decide to use another weapon — his Taser, baton, or pepper spray — against someone who might be armed does not seem reasonable. As we now know, [the suspect] was unarmed. But this was uncertain in the moment the decision was made. Again, it seems clear to the Arbitrator that the Employer is analyzing the incident using hindsight.

In light of his finding that the City failed to establish that grievant's actions were objectively unreasonable, Arbitrator Zeiser ordered grievant's reinstatement with full back pay. 

In City of Euclid, Ohio and FOP, Ohio Labor Council, Inc., Arbitrator Gregory Szuter upheld two of three grievance filed on behalf Euclid police officer Michael Amiott.  Two of the grievances  arose from a  grievant's actions in connection with the traffic stop and arrest of a suspect. (The dash cam video of the stop is available here.)  During the course of the traffic stop grievant instructed the driver to step out of the car and turn away.  As described by the Arbitrator, the driver exited the car but did not turn away, despite a second instruction to do so. An altercation ensued during which grievant's partner used a Taser (which also struck the grievant) in an effort to subdue the driver. The struggle continued and is described by the arbitrator:

Ofc. Amiott was holding Hubbard on the ground. He was saying, "get off me." He repeatedly used racial invectives towards the officers. Ofc. Amiott ordered Hubbard to give him his hands which he did not. Ofc. Amiott delivered three quick punches with his right. Ofc. Gilmer ordered Hubbard to turn over. He did not. Ofc. Amiott said Hubbard was reaching towards his waist and may have a gun. The female [passenger] said "he does not have a gun." Hubbard called back to her to get the cell phone which she did. She returned to the middle of the street to video the incident.
Ofc. Amiott located the Taser and threw it out of the area. Ofc Gilmer attempted to roll Hubbard on his stomach. Hubbard resisted being rolled by repeatedly extending an arm or leg. He stayed on his back. Most of the time Ofc. Gilmer stood over the men giving verbal commands to stop resisting.
While Ofc. Amiott and Hubbard were on the ground Ofc. Amiott was able to take a mounted position over Hubbard's chest and stgraddling [sic] him with Hubbard lying on his back. Ofc. Amiott was exhausted and weak from being tased. He again closed fist strikes to Hubbard's head, five in secession alternating hands while straddling Hubbard's chest. EX Z; TX 508. Ofc. Amiott testified that most strikes did not land. Of about eight he thought half or less landed. He testified that he knew that such blows were not the most effective tactics, but he was limited in his choices. Ofc. Amiott testified that he knew that deadly force could have been justified but he did not wish to draw his weapon while Hubbard was still close in and grappling with him. That is why he used his fists.

An internal disciplinary hearing was conducted on charges that grievant had violated Department rules on Unbecoming Conduct, Unsatisfactory Performance, Insubordination and Improper Use of Force. After the hearing the Chief upheld each of the charges except that of Improper Use of Force. He concluded, according to the Arbitrator, that "a determination on excessive force would be better suited for a trier of fact and not in a discipline setting... ." Accordingly, grievant was found not guilty of Improper Use of Force as a disciplinary violation. Nevertheless the Chief found that the Use of Force charge was "merged" into the Conduct Unbecoming and Unsatisfactory Performance allegations. He suspended grievant for 15 days (apparently the limits of his disciplinary authority) and recommend that the Mayor review the case and add an additional 30 days. The Mayor did so, and during grievant's suspension she also investigated earlier actions of grievant which she said she had not previously been aware of. Just prior to grievant's return from the initial suspension he was dismissed for his actions, including those earlier events not previously the basis for discipline. 

In his award, Arbitrator Szuter denied the grievance regarding the initial 15 day suspension. He concluded that grievant failed to "verbalize" that he was placing the driver under arrest, and that "this failure to verbalize the authority and purpose of the arrest constituted unsatisfactory performance and failure to conform to work standards." He also noted that the charge against grievant was not use of excessive force but failure to conform with standards. He upheld the Chief's decision that the second set of closed fist strikes was ineffective and that:

The Chief is the decider/interpreter of what the highest standards may be. He testified that the Department has been downplaying such strikes finding them generally to be ineffective. The necessity to use them needs to be at a "pretty high level." No testimony disputes that was the standard that the City was seeking. Given the charge made, 10.14 Unsatisfactory Performance, the Arbitrator is convinced that a violation of the standard was proven.

The arbitrator overturned the Mayor's additional suspension and the termination. He found the additional 30 day suspension disproportionate, and suggested the penalty was punitive rather than corrective. Similarly, he concluded the termination was inconsistent with the principle of progressive discipline which the parties had incorporated into their agreement since it provided grievant with no ability to correct his behavior.  

Similar issues are addressed in Oakland Police SWAT arbitration award - Just Cause not determined by reference to "Best Practices" and Reaction to police discipline award highlights mixed expectations about the issue to be decided