SHOOT FIRST, ASK QUESTIONS LATER: COURTS AND ARBITRATORS JUSTIFY POLICE USE OF DEADLY FORCE

 

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Lately the issue of police brutality has been high in the nation’s consciousness, especially when it concerns minority citizens.  Around the country there have been both peaceful protests of police–involved shooting deaths involving unarmed black men, and shocking premeditated criminal acts that targeted and killed law enforcement officers who were just going about the ordinary business of community policing.

In the heat of the night or of the moment, anything can happen. Sometimes it seems those in law enforcement charged with holding the thin blue line against lawlessness and disorder step over it. However, police department efforts to hold officers accountable for their actions can clash with the protections afforded to them under collective-bargaining agreements, and courts and labor arbitrators have grappled with the question of how to protect both the rights of police officers and the public.

Got Just Cause? Neutral Arbitrators Must Say Yes or No.

Just cause is an amorphous concept. It can provide an employee powerful protection from job loss due to discipline. Labor contracts often contain provisions that require public employers to show they have just cause to discharge law enforcement officers who engage in challenged conduct toward the public.  This is particularly true with regard to the use of lethal force, and the question comes more often than you might expect in labor arbitration.

The just cause analysis undertaken by labor arbitrators assessing discipline meted out  in police-involved shootings that lead to injuries or fatalities is highly fact-sensitive. The arbitrator must determine whether the officer’s actions were reasonable under all the circumstances he or she faced.  There are, more or less, seven tests of just cause---adequate warning, reasonableness, complete and objective investigation, proof of infraction, uniformity of application of rules, and reasonableness of discipline.

Clearly, Not Every Sheriff Patrols An Idyllic Town Called Mayberry.

“Sacrificing [the grievant] on the altar of public opinion will not bring back [shooting victims] or the trust of the people of Oakland,” an arbitrator said, in City of Oakland, 128 LA 1217 (2011), speaking of the community’s lack of confidence in its police department.

Considering the evidence in a discharge grievance, a neutral arbitrator concluded that Oakland, California did not have just cause to fire a police officer who shot and killed a civilian during a traffic stop, even though the citizen did not have a weapon.  When he met his untimely demise, the young, fit suspect was running towards the officer’s partner, ignoring police commands to show his hands, and trying hard to evade arrest. The arbitrator considered it reasonable for the police officer involved to assume that the high-risk suspect was armed.

Buckle Up or Put ‘Em Up.

On the other hand, another labor arbitrator found that Houston, Texas did have just cause to fire a police officer who shot and killed an individual he stopped for failure to wear a seat belt. City of Houston, 95 LA 1193 (1990).

The Texas officer fired a total of eight shots, and he continued to fire at a fleeing, falling individual who was unarmed.  The officer admitted that he had enough time to take cover and to assess whether the suspect was carrying a weapon, but he failed to do it.

The arbitrator thought the officer’s actions showed a lack of sound judgment. The remaining facts did not support reinstatement. The discharged officer had been involved in three prior fatal shooting incidents, and the arbitrator reasoned his history demonstrated an unacceptable propensity to shoot.

Unpopular Decision Binds Portland, Oregon Police Chief.

More recently, Portland, Oregon made news when the city refused to comply with an arbitration award that reinstated a police officer who was fired by Portland’s chief of police for violating its policies on the use of deadly force. Portland Police Ass’n v. City of Portland, 205 LRRM 3186, 2015 BL 430162 (Or. Ct. App. 2015).

Sustaining the grievance, the arbitrator ruled that the city lacked just cause to terminate the officer. A determination of reasonableness must make allowances for the split-second decision-making that is required of police officers, the arbitrator observed.

The arbitrator acknowledged that the suspect had not committed a crime, and may even have been trying to surrender and comply, but he still concluded that it was reasonable to believe that the suspect was armed and posed an immediate threat to others or perhaps even himself.  The arbitrator found sufficient evidence to support the allegation that the suspect made motions that looked like he was reaching for a gun, before he was fatally wounded by a police officer.

“[I]f a subject appears to be reaching for a what could reasonably be considered a gun, deadly force is justified, even though no weapon has been observed,” the arbitrator said, in a lengthy award that determined that there was  “no misconduct” by the discharged officer. 

Portland officials challenged the award as unenforceable under an Oregon law addressing public policy requirements for reinstatement of employees who are discharged for “unjustified” or “egregious” use of deadly force.  The city argued that a determination by its chief of police that the officer’s use of deadly force violated Portland’s policies on excessive use of force was entitled to deference.  

Finding no unjustified or egregious use of force supported a public policy exception, the Oregon Court of Appeals held that the city committed an unfair labor practice by refusing to comply with the arbitration award, and that the Oregon Employment Relations Board did not err in upholding the award ordering reinstatement of an officer who employed lethal force against an unarmed civilian.

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