In City of Boston v. Boston Police Patrolmen’s Association (SJC Docket 12077) (July 12, 2017), the Supreme Judicial Court denied the City’s motion to vacate an arbitrator’s award reinstating Boston police officer David Williams.
In March 2009, Williams applied a chokehold to arrest an unarmed intoxicated suspect, Michael O’Brien, for disorderly conduct, without any prior verbal commands, and without attempting any of the methods of non-lethal force in which he was trained (none of which included applying a chokehold). After a nearly two-year delay in investigating the incident (and settling O’Brien’s civil suit), the Department determined that Williams had used excessive force and discharged him from employment. The union challenged the City’s decision.
An arbitrator determined that the City lacked just cause to dismiss Williams for excessive force and for making false statements during the Police Department investigation, finding that the victim was not credible. He agreed with the union that the force used was reasonable. The police department had policies against the use of excessive force, but no specific policy banning chokeholds – even though it was undisputed that this was not a technique that was part of a police officer’s training.
On appeal, the Supreme Judicial Court found no grounds to vacate the arbitrator’s decision under the public policy exception, because the arbitrator found no underlying misconduct. The Court distinguished between the non-delegable discretion of the police commissioner in administrative matters from the apparently more delegable realm of employee discipline, finding that its cases have not supplied commissioners with non-delegable authority in discipline cases. Yet, the SJC criticized the arbitrator’s award, suggesting that it might have reached a different conclusion based on the facts of record, had it been permitted by the applicable law to employ a more robust standard of review of police discipline cases.
The SJC then provided “prospective guidance” to municipalities to address excessive force complaints. It suggested that police agencies clarify excessive force policies, in particular to prohibit chokeholds if the employer does not want to cede interpretation of excessive force to an arbitrator. It also admonished departments to investigate police misconduct quicker if you want anyone to believe that the misconduct is serious enough to warrant discharge. Finally, the Court called for legislative authority to permit broader review of arbitration in police misconduct cases rather than elevate judicial economy over protection of the public from excessive force. This is ironic since the limitations on the Court’s ability to review such cases have been judicially created, and the Court could presumably find that public policy requires it to protect the public from harm.
In any case, the absence of an awakening by the Court or legislative action, Police Departments should review their excessive force policies and make them as specific as possible. Consult experienced labor counsel if you have questions about how best to “arbitrator-proof” your policies.
