Imagine if, in your role as an employer, you had to explicitly list every potential offense, short of criminal activity, that would result in the firing of an employee. Would putting someone in a choke hold (resulting in a $1.4 million lawsuit) and later calling it a “semi-bear-hug hold” have made your list? This is the position that management in some police departments find themselves in.
In a previous post, I noted that many fired police officers are able to get their jobs back by appealing their termination to independent arbitration. What I wish to emphasize here is that arbitrators involved in these disputes are effectively able to create rules governing law enforcement, including on such crucial matters as the use of force.
The reason for this is that what constitutes a violation of these policies, if an alleged violation results in the termination of a police officer’s employment, is treated as a labor dispute. When labor and management agree to bind themselves to the decisions made by an arbitrator when a dispute arises, courts are hesitant to reverse an arbitrator’s decision unless the latter oversteps his authority or his decision violates “well-established public policy.” Courts are “strictly bound by an arbitrator’s findings and legal conclusions, even if they appear erroneous, inconsistent, or unsupported by the record.”
This deference to arbitrators makes sense when the dispute is between two private parties who previously agreed to be bound by an arbitrator’s decision and when the dispute only involves those parties. If either party can simply appeal an adverse decision to a government court, the system of private arbitration is completely undermined. However, it makes much less sense when what is in dispute is to what degree police officers are allowed to use violence.
In City of Boston v. Boston Police Patrolmen’s Association (2017), Officer David Williams was investigated by internal affairs after a complaint that he used excessive force. His own partner, also involved in the incident, described Williams as using a choke hold despite Boston police officers not being trained to use such a technique. Williams himself reported to internal affairs that he used a “semi-bear-hug hold,” making his use of force sound more affectionate than potentially lethal. The complainant received a $1.4 million settlement for his pain, and Officer Williams was fired for use of excessive force and lying about it.
Through his union’s collective bargaining agreement, Officer Williams appealed and an arbitrator reversed the termination and ordered that Williams be given back pay, deciding that his use of force did not violate policy and that he was truthful with investigators. The City of Boston appealed this decision, claiming that the arbitrator had overstepped his authority. The Supreme Judicial Court of Massachusetts decided that it was not appropriate to vacate the arbitrator’s award to Williams.
Despite affirming the arbitrator’s decision, the court recognized that the public interest was not being represented in the process and that, effectively, the arbitrator rather than police management or courts has the ability to decide what constitutes excessive force. In its decision, the court wrote:
We are troubled by the prospect that any use of force not explicitly prohibited by a rule of conduct is essentially unreviewable. It is difficult to fathom why we elevate the values of “expediency” and “judicial economy” so high as to eclipse the substantive rights of citizens who have no seat at the bargaining table. We recognize, of course, that public employers may or may not choose to adopt rules for the protection of the public from the excessive use of force. Without the benefit of such rules, however, arbitrators remain free to find reasonable any level of force that does not explicitly require termination. Absent legislative authority for a broader review of arbitration decisions, we are constrained in our ability to review the use of excessive force by public safety officials.
In other words, unless some violent act is specifically prohibited by policy, an arbitrator, rather than police management, gets to ultimately decide whether it constitutes excessive force. As the court recognizes, individual citizens have no seat at the bargaining table in this matter.
In the same way that qualified immunity protects officers who do not violate “clearly established” individual rights, in this case the court did not consider the use of a choke hold to violate any “well-established” public policy, meaning that police are allowed to do whatever is not explicitly prohibited. Although the court acknowledged that “a de novo analysis of whether Williams’s actions constituted excessive force in the totality of the circumstances could support a conclusion very different from the one reached by the arbitrator” and that choke holds have an “unpredictably lethal nature,” it treated the issue as a labor dispute between an employee and employer:
Where the city failed to recognize those dangers in any rule, however, we are not free to redefine terms the parties bargained over. Had the city prohibited chokeholds as excessive force, an arbitrator who found a chokehold reasonable would have exceeded his authority.
Also alarming is the extreme deference that some arbitrators display toward police officers’ ability to use force. The arguments made by the arbitrator in Williams’s case would justify the use of deadly force in any circumstance, as the court noted: “It is unreasonable to justify a chokehold—as the arbitrator did—on the grounds that a suspect could always ‘grab’ an officer’s service weapon, because this is true of any civilian interaction with police and would obviate any continuum of force.”
In practice, arbitrators in public sector union disputes form yet another arm of the growing American technocracy. Since they are selected from a list agreed upon by police management and unions, and since the courts’ scope to review their decisions is extremely narrow, arbitrators are unaccountable to the public for their decisions regarding the policies governing police use of force. This is the result when the working conditions of public employees are given precedence over the rights of their supposed customers.
