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By PORAC | March 1, 1998 | Posted in PORAC LDF News

Arbitrator Overturns Officer’s 10-Day Suspension

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.