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Arbitrator Rejects Citizen’s Review Board Finding of Excessive Force and Overturns Discipline

Posted on Saturday, December 01, 2001 at 12:00PM
Posted 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.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.