Arbitrator Rejects
Citizen's Review Board Finding of Excessive Force and Overturns
Discipline
By: Rockne A. Lucia, Jr.
Arbitrator Christine
Knowlton recently rendered an arbitration award in the disciplinary
appeal of Oakland Police Officer Frank Morrow. Morrow, represented by
this author of the firm of Rains, Lucia & Wilkinson LLP, challenged
the City of Oakland's decision to impose a one-day suspension, based on
allegations of excessive force. The appeal hearing was conducted over
four days, with numerous witnesses called by the parties.
The underlying incident
was videotaped by a civilian witness, where the blows delivered by
Morrow were readily apparent. Immediately after the incident, the
videotape was aired on a local television station and subsequently
became the foundation for the city's assertion that Morrow engaged in
excessive force.
Summary of Facts: The following
summary of facts is merely a verbatim account of the alleged excessive
force as stated by Arbitrator Christine Knowlton in her arbitration
award. The names of the suspect, and involved Oakland officers have been
omitted.
The incident began when
the initial officer at the scene pulled the suspect over for the traffic
violation of running a flashing red light. At the time, many nightclubs
in the area were closing and a large crowd gathered to observe the
police activity. Morrow and the supervisor on the scene indicated there
had been previous police problems in this area when the clubs closed. As
examples, they mentioned crowd control issues, rocks and bottles thrown
at the police, traffic violations, auto burglaries, car racing, gun
shooting, stabbings, fights and strong-arm robberies.
The officer radioed for
back-up, and ultimately 17 to 30 officers responded. The supervisor on
the scene was among the first to arrive and was the incident commander.
He found the initial officer standing next to a vehicle explaining the
reasons for the traffic stop. The suspect, who was the driver, was very
agitated and directed racial slurs and profanity toward the initial
officer at the scene. A crowd, estimated at 30 to 100 people, was
gathering. The supervisor on the scene heard the crowd getting verbally
involved, with such comments as, "Why are you messing with
him," "He didn't do anything," and "He's my
cousin." After about three to five minutes of discussion, the
initial officer asked the suspect and his passenger to step out of the
vehicle. The suspect's passenger emerged and the supervisor at the scene
turned him over to one of the other responding officers. The supervisor
on the scene also confiscated an open quart bottle of gin from the floor
of the car.
The interactions between
the initial officer and the suspect escalated while they were standing
by the vehicle. The suspect continued to shout profanities and racial
slurs at the initial officer at the scene. He protested, "I ain't
done nothing, and I ain't gonna sign nothing." As the crowd grew,
the supervisor on the scene became concerned that the crowd would
agitate the suspect into doing something to the initial officer at the
scene, or otherwise interfere with the police business being conducted.
The supervisor at the
scene tried to calm the suspect, telling him that signing the citation
would not be an admission of guilt or require him to go to jail. The
suspect swore at the supervisor on the scene. He pushed past the
supervisor at the scene, striking him on the shoulder and stepping on
his foot.
Morrow drove up at this
point. He recalled that traffic was gridlocked, with cars passing the
area slowly and "a lot of commotion going on." When he
approached, the initial officer on the scene was readying his oleoresin
capsicum [OC] for spraying at the suspect. The initial officer on the
scene and the supervisor on the scene were instructing the suspect to
put his hands behind his back, and the suspect was not complying. Morrow
observed that the suspect was yelling profanities, acting aggressively,
and interacting with the crowd. Both Morrow and the supervisor on the
scene were aware that someone was videotaping them. Because the
supervisor on the scene felt the use of OC might further enrage the
crowd, he instructed the initial officer on the scene to put it away.
Morrow initially tried
verbal persuasion with the suspect. He asked the suspect to take it
easy, and told him causing a scene would not help his situation. Morrow
reviewed the policy on signing a citation and stated that refusing to
sign would result in the suspect being cited from jail.
The crowd, which
continued to grow and become more vocal, remained a concern for Morrow
and the supervisor on the scene. Morrow recalled comments from the crowd
such as, "They're trying to do him like Rodney King,"
"They're just trying to beat the guy," and "I'm not just
going to stand there and let him beat the brother." The officer’s
priority was to get the suspect in custody and to leave the area before
the situation got out of control. Morrow, hoping the suspect's
resistance to being handcuffed was a matter of saving face, suggested
that the suspect be placed in the car without handcuffs or a complete
search. Morrow made a cursory inspection of the suspect's waistband for
weapons. Then, he and the initial officer on the scene, each holding one
of the suspect's arms, tried to escort him to the back of a patrol car.
The suspect was described
as extremely large and strong. He significantly outweighed Morrow, the
initial officer on the scene and the supervisor on the scene. Initially,
he was cooperative in being escorted to the patrol car. Then the suspect
resisted the initial officer on the scene and Morrow by holding his
hands rigidly in his pockets and twisting his body. When they reached
the car, the suspect said, "I ain't getting in no fucking patrol
car." He jerked away and knocked the initial officer on the scene
in the face or upper body. This caused the initial officer on the scene
to be hurled to the ground in front of on-coming traffic. As the suspect
turned from the initial officer on the scene and moved toward the parked
car with his hands down, Morrow tried to use a control hold to get him
handcuffed. The suspect slapped Morrow's hand and pushed it away.
The supervisor on the
scene was behind the suspect and tried to place him in a carotid
restraint. This restraint is designed to stop a subject who is violently
resisting by cutting off the flow of blood to the brain and causing the
subject to pass out. The carotid restraint is distinguishable from the
"choke hold," which applies pressure to the windpipe and is
not permitted by the department. Effective use of the carotid technique
depends on position. One needs to be behind the subject to apply
pressure to the dies of the neck with the biceps and forearm. It may be
necessary to have the subject's head tilted back to administer the
restraint. The supervisor on the scene said he never effectively applied
the carotid restraint on the suspect.
While the supervisor on
the scene was struggling with the suspect, Morrow delivered two blows to
the suspect's solar plexus with a closed fist. The city found these
blows to be excessive force and they are the sole basis for the
suspension at issue here.
Morrow explained that the
purpose of the blows was to distract the suspect and cause him to cease
resisting. The blows were ineffective and the suspect continued to
struggle as the supervisor on the scene dragged him backward. The
suspect fell to the ground and the supervisor on the scene released him.
The supervisor on the scene stepped back and began managing the entire
scene and giving direction to newly arrived officers. Because the
suspect was still not contained, Morrow tried another control hold on
his arm. The initial officer on the scene drew his short baton and
attempted to strike the suspect, but hit Morrow instead. Ultimately,
Morrow raised the suspect and placed him in an effective carotid
restraint. The suspect ceased resisting and it took several officers,
using three sets of handcuffs in a daisy chain, to handcuff the suspect.
The suspect was arrested
for violations of Penal Code Sections 243(b) [battery on a police
officer], 148 [resisting or delaying an officer], and Vehicle Code
Sections 21457(a) [running a flashing red light], and 27315(d) [no seat
belt] and 16028(a) [no insurance]. The passenger in the suspect vehicle
was charged with Vehicle Code Sections 23223 [open container], 31 [false
information to a police officer], and 27315 [no seat belt]. At the jail,
the suspect was offered and declined medical attention.
Oakland PD and
Citizen's Review Board Investigations: The
suspect filed a complaint with the Oakland Police Department concerning
the conduct of Morrow and other officers at the scene. The Oakland
Police Department Professional Standards Division (Internal Affairs)
conducted a detailed and thorough investigation into the events. As a
result of the investigation, and efforts of numerous investigative
personnel, Morrow was "exonerated" as to all allegations of
excessive force. The final investigation report, conclusions, and
recommendations were reviewed by the chain of command, and ultimately by
the chief of police. No discipline was recommended, as no policy
violations had been sustained.
Subsequent to the
investigation and findings of the Bureau of Professional Standards, the
Oakland Citizen's Police Review Board (CPRB) took jurisdiction over the
matter and conducted its own investigation. The CPRB conducted a public
hearing on the suspect's complaints in April 1998. After hearing
testimony, the CPRB concluded that Morrow had engaged in excessive force
and recommended that the City of Oakland impose a one-day suspension.
Curiously, the only testimony and evidence provided at the CPRB hearing
which corroborated the claim that Morrow engaged in excessive force, was
that of the suspect.
In response to the
recommendation, the city chose to impose the one-day suspension as
recommended by the CPRB, and the suspension was challenged by Morrow.
Evidence Produced at
the Appeal Hearing: Neither the
suspect, nor any civilian witnesses, nor any member of the CPRB, were
called in support of the allegations. In defense of Morrow, the
departmental use of force expert, an Internal Affairs lieutenant, the
supervisor on the scene, and Morrow himself, all testified concerning
Morrow's use of force and propriety of the same.
Arbitration Award: After
consideration of the evidence presented and careful analysis of the
relevant departmental use of force policies and training practices, the
arbitrator determined that the "level of force used by Morrow was
necessary and proportionate to the circumstances." In addition, the
arbitrator commented that her conclusion was based on the fact that
there was an "angry and growing crowd at the scene, actively
expressing anti-police sentiment"; it was imperative that the
officers get control of the suspect before the crowd became directly
involved and the incident escalated; the number of officers at the scene
did not impact the proportionate response by Morrow and other officers;
the suspect continued to actively resist, both verbally and physically;
at the time Morrow struck the suspect, the suspect was not under control
by any of the officers at the scene; Morrow and other officers had
unsuccessfully tried to utilize lower levels of force and verbal
persuasion; and, the city offered no convincing evidence that Morrow
approached the situation unprofessionally or reacted with anger or
intended to punish the suspect or retaliate against him.
Finally, the arbitrator
determined that the "closed fist punch is an acceptable second
level tactic and does not violate departmental policy, even though
specific training is not provided in this technique."
Conclusion: The
arbitrator's decision in the Morrow appeal was the first appeal of
discipline where the Oakland Police Department had exonerated the
officer, yet the CPRB and the City of Oakland chose to completely
disregard the findings and recommendations of Internal Affairs. Clearly,
the independent review and exercise of the power to discipline by a
citizen's review board was squarely tested and, fortunately, the trained
professionals and endorsement of the police department in the end
carried the day. One would hope that the lessons learned in the Morrow
case would deter citizen's review boards from second guessing and
imposing their political will on the trained professionals whose
livelihood depends on effective law enforcement practices.
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