When he completely overturned a 10-day suspension
imposed on San Rafael Police Officer James Strong, Arbitrator Leo
Kanowitz acknowledged that off-duty officers are sometimes compelled to
make arrests for the safety of the community; even though they are out
of their jurisdiction and even though it would have been easier to
ignore the situation.
The arbitrator also found that a simple use of
off-duty profanity in a public location was not sufficient to support
discipline. Officer Strong achieved this successful result through the
representation provided by the PORAC Legal Defense Fund and Carroll,
Burdick & McDonough partner, Alison Berry-Wilkinson.
Strong, vice-president of the San Rafael Police
Association, was suspended for 10 days after two separate off-duty
incidents. The first incident occurred when, on July 19, 1995, Strong's
neighbor informed him that there was a suspicious man in a white Camero
watching Strong's house.
At the time, Strong was relaxing at home
watching television with his girlfriend. Strong decided to go outside
and see what was going on, because he was aware that his girlfriend had
a Temporary Restraining Order against her violent ex-husband, who drove
a white car.
Strong was not able to see and identify that the car
was occupied by his girlfriend's ex-husband until he got within 20 yards
of the vehicle. As Strong continued to approach the car, he tried to
resolve the matter informally by requesting several times that the man
leave, even though he knew that a violation of the Temporary Restraining
Order had occurred. Despite being asked, the man refused to leave.
As Strong continued to approach the car, it was
obvious that the man had been drinking. The man was belligerent, was
slurring his words, and had watery eyes.
With those objective signs of intoxication, Strong
concluded that he could not simply let the man leave because the
neighborhood would be in jeopardy if the man was allowed to drive while
drunk. Consequently, Strong removed the ex-husband from the car and
placed him under arrest.
After the ex-husband was under control, Strong asked
his neighbor to bring his handcuffs and call 911. Because Strong lived
in the jurisdiction of the Marin County Sheriffs Department, a deputy
arrived and took the man into custody.
After the incident was over, Strong advised the San
Rafael Police Department of the off-duty arrest. Strong's girlfriend's
ex-husband was prosecuted and convicted of a TRO violation.
Although the city's investigation agreed that the
arrest was lawful and that the force used was reasonable and
appropriate, the city nonetheless suspended Strong based upon its
conclusion that the arrest was "unsafe."
Essentially the city argued that Strong should have
called 911 immediately upon having been informed that there was a
suspicious man watching his house, or retreated once he identified the
driver as his girlfriend's ex-husband. The city's investigator went so
far as to claim that Strong should have allowed the obviously
intoxicated man to drive away rather than to arrest him for a TRO
violation.
Persuaded by the evidence, the arbitrator concluded
that Strong completed a reasonable and appropriate off-duty arrest. The
arbitrator agreed that it was not imprudent of Strong to continue to
approach the car once he identified the occupant as his girlfriend's
ex-husband in order to politely and calmly ask the man to leave.
The arbitrator agreed that the arrest was not
motivated by Strong's relationship with his girlfriend, but rather
because Strong legitimately felt that he was duty-bound to protect the
community from allowing the man to drive while under the influence of
alcohol.
The arbitrator also found that the second incident
upon which the city imposed the 10-day suspension -an alleged use of
profanity during a public argument with his girlfriend's 18-year old
daughter was not misconduct.
Several weeks after the girlfriend's ex-husband was
arrested, the daughter confronted Strong and his girlfriend while they
were socializing at a local drive-in restaurant. The daughter yelled
profanities at the mother and accused her of leaving her minor brother
at home "starving" while she "went out drinking."
Strong's girlfriend was so upset by this
confrontation that she left the restaurant. Strong then went up to the
daughter, who was ordering a soda, and asked her, "who the
hell" she thought she was talking to her mother like that and told
the daughter to leave.
The daughter responded with profanity, telling
Strong, among other things, to "get the f- out of here" and,
stay the f- away from me."
Immediately after this encounter, the daughter filed
a citizen's complaint with the San Rafael Police Department and accused
Strong of calling her a "f-ing bitch." During the arbitration,
Strong testified that he did not recall using that term toward the
daughter, but also stated "that means I could have [but] I just
don't recall."
Because the city failed to produce the daughter as a
witness, the arbitrator concluded that there was insufficient proof that
Strong had used the alleged profanity.
The arbitrator further concluded that even if it had
been proved that Strong used the alleged profanity, "I would
be constrained to hold that any discipline imposed upon [Strong]
for that incident, under the circumstances, would be unwarranted."
The arbitrator specifically rejected the city's
argument that the use of the term "f-ing bitch" was a per
se violation of Penal Code Section 415(3), and therefore, amounted
to conduct inherently unbecoming to a police officer.
The arbitrator disagreed and ruled that a violation
of 415(3) was dependent upon not simply the words used, but more
importantly the context of the communication.
The arbitrator agreed that "the mere use of a
vulgar profane, indecorous, scurrilous, opprobrious epithet cannot alone
be grounds for prosecution.."
In overturning the discipline imposed and ordering
that all record of the previous suspension be expunged from Strong's
personnel file, the San Rafael Police Association, with the assistance
of CB&M partner Alison Berry-Wilkinson, achieved a complete victory.
