Termination of Sergeant for Use of TASER Revered at Arbitration

Posted on Friday, April 01, 2005 at 12:00PM
Posted by Tawni Olson Parr

Following three days of hearing, Arbitrator Richard C. Anthony concluded that Tehama County Sheriff’s Department lacked justification for the termination Jon Meek from his position as sergeant. Meek was represented by this author, an LDF panel attorney with Goyette & Associates, Inc.

In February 2004, Meek was terminated upon allegations that he violated Tehama County’s “Use of Force” policy by using a taser on a non-violent, handcuffed arrestee at the Tehama County Jail. The county alleged that Meek falsified his report to justify the use of the taser and then lied to his superiors when reciting his account of the incident during the investigation. As further justification for termination, the department alleged that progressive discipline was not applicable due to Meek’s work history and performance evaluations.

I argued that Meek had not used excessive force, had acted consistent with policy, and that he did not falsify any of his statements in the reports or to his superiors.

The incident concerned the booking of a subject during graveyard shift at the Tehama County Jail. Subject William Veaver had been taken into custody pursuant to a citizen’s arrest following a fight where Veaver knocked a bar patron to the ground, got on top of him with a choke hold, and repeatedly pummeled him in the head. At arbitration, evidence was produced showing that during transport to the jail, Veaver was agitated, screaming and kicking the back seat of the patrol car to the point where the transport deputy requested assistance. Meek heard via radio that Veaver was being brought to the jail and saw on the “alert” screen he was described as “unstable, hostile toward law enforcement”, and required a minimum of two deputies. Meek noted Veaver’s substantial size of 6’2″ tall, and 270 pounds, nearly 100 pounds heavier than himself.

With this in mind, Meek went to his office, retrieved his taser, and with the assistance of a correctional officer, met the transporting deputy at the sally port. Meek attempted to converse with Veaver, who replied that he was going to “kick his ass, and the arresting deputy’s too.” Veaver, handcuffed from behind, was escorted from the sally port to the pre-booking area of the jail and told to kneel on a bench and face the wall due to his continued verbal and physical agitation. Meek and a correctional officer commenced a pre-booking search. The arresting deputy and a third correctional officer were in the same area, observing. During the search the inmate continued to make verbal statements and was described by those present as being “loud”, “uncooperative” and “screaming and yelling”, “thrashing about” and acting “bizarre”.

Meek stated in his reports and interview that despite repeated commands to stay against the wall, the subject continued to move and this caused him to feel the subject was attempting to carry out his threat. Meek pulled the taser from his pocket and showed it briefly to Veaver as a warning. Veaver continued to move about, Meek delivered a 1-2 second taser blast in the “stun” mode to his upper shoulder area. Meek explained that facts such as Veaver’s size, level of intensity and resistance, his own capabilities and the small size of the room factored into his decision. Meek felt he had to make a quick decision between a “take down” or taser and chose the latter to avoid injury to the subject, the other officers and himself.

The search was captured on silent video. The department took the position that the video showed a non-violent, physically agitated but compliant individual. At arbitration, the department argued that Meek became angry and used the taser as retaliation for a profane statement Veaver allegedly said immediately prior to its use. The department also argued that use of the taser was inappropriate because the taser is supposed to be used only in “dart mode”.

Whether the video showed actions that warranted the use of force was debated, even among management. For example, Captain Rabalais felt the video did not show “any action or movements by Veaver that would lead me to believe he (Veaver) was uncooperative, resistive, combative or attempting to “break free”.., or that there was “any situation or condition that would cause Meek or any other officer to fear for his or her safety” and the search should have been continued without any force. In contrast, Captain Dodd testified that given the actions of the subject, force would have been reasonable. Upon questioning at hearing, Sheriff Parker acknowledged that Meek’s increased concern was not unreasonable based on the information he’d received. Parker agreed that the subject’s behavior warranted some force such as a take down. He felt however, that the video showed no need for a “split-second” decision and that Meek’s assessment of the level of threat did not support the level of force used.

After considering the videotape, evidence and testimony, the arbitrator found that the department had not produced any credible evidence that Meek acted out of anger or in retaliation, or that he misused the taser by discharging it in the stun mode. Further, the arbitrator rejected Rabalais’ assertion that no force was necessary, or that Meek lacked reason to be concerned for his or others safety. However, he agreed with Parker that while Meek had reasonable justification for some force against the subject he found the situation had not yet reached the point where the use of “intermediate force” in the form of a taser was appropriate. The arbitrator concluded that under Tehama’s policy, “compliance techniques,” such as joint manipulations, placement of hands upon the subject and takedown techniques should have been attempted before resorting to the taser.

On the allegations of dishonesty, the arbitrator found the department failed to carry its burden on any of the allegations. Rabalais had concluded that Meek was untruthful in six areas of his report and testimony. The arbitrator disagreed with Rabalais. Noting Veaver’s assaultive conduct that night and agreeing that the videotape showed Veaver “continually moving and pulling away from Meek’s control”, he concluded Meek’s perception and recitation of the incident was reasonable and his statements that he was unable to persuade the subject to cooperate, that the subject cursed him and attempted to “break free of his control”, and that due to Veaver’s size, strength advantage and threats, Meek’s fear for his safety was not untruthful. The arbitrator further concluded that it was presumptuous of Rabalais to say that Meek could not have been fearful of some kind of adverse physical consequence in light of Veaver’s size and what others described as wild and bizarre activity.

On the issue of progressive discipline, the department relied upon adverse comments and unrelated incidents culled from Meek’s record and placed into the notice of discipline by lead investigator Rabalais. Upon examination, it became evident that the prior history relied upon consisted of, almost exclusively, subjective conclusions written in Meek’s performance evaluations by Rabalais two years prior to the incident at issue. In addition to the isolated nature of the incident, the arbitrator noted that the evidence supported that Rabalais held a bias against Meek prior to and during the investigation, observing that Parker conceded upon cross examination that Rabalais had long regarded Meek to be a “problem child”.

In sum, Anthony concluded that Meek’s conduct warranted discipline in the form of a suspension, but that termination was excessive. The arbitrator ordered reinstatement of Meek to his rank of sergeant, together with back pay and benefits.

ABOUT THE AUTHOR: Tawni Olson Parr is an attorney with Goyette & Associates, Inc. representing officers throughout northern and central California.

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