By Anthony Rice
In Cuyahoga County Sheriff’s Office, the arbitrator found there was just cause for firing an off duty police officer who fired warning shots during a domestic dispute with her ex-boyfriend. Arbitrator Joseph D’Eletto rejected the claim of the Ohio Patrolmen’s Benevolent Association that her acquittal in Cleveland municipal court on an unlawful discharge charge barred Department discipline. The Arbitrator also sustained the Department charge that she had been untruthful when she described the precursor to the shots to be a “struggle” where no physical contact had actually occurred.
On the night of July 4, 2012, the Grievant was involved in a domestic dispute outside of her residence. In response to being aggressively confronted by her ex-boyfriend the Grievant employed the use of her service certified handgun, and during the confrontation the Grievant fired three warning shots into the air to stop his threatening advance toward her. The next day the Grievant called her Shift Supervisor and reported the incident—asserting self-defense. The Sheriff’s Office soon thereafter terminated her employment.
The Grievant was also given a misdemeanor citation for discharging her firearm in a neighborhood. The Grievant was found not guilty of that charge, however, when the court concluded she acted in self-defense. The union asserted that since the Grievant was found not guilty the arbitrator should reinstate the Grievant. However, the arbitrator declined to do so, stating:
[t]he issue of whether or not [Grievant], acting as an off-duty County Protective Services Officer, violated a work rule promulgated by the Cuyahoga County Sheriff’s Office, controlling the behavior of its officers in any location or jurisdiction, was not before the Court. The determination of that matter is controlled by the parties’ Collective Bargaining Agreement; and is solely within the jurisdiction of the Arbitrator.
The Arbitrator went on to strike down other union arguments questioning her cause for discharging the weapon and determining that her report on the incident was less than fully accurate:
As a result, she was accosted by an ex-boyfriend, or domestic partner, who had a past history of violent behavior, and who was displaying loud, verbally aggressive behavior. Notwithstanding the fact that there was no physical contact, that she was trained to restrain acting out individuals, that she was experiencing and being confronted by an unarmed approach, she resorted to drawing her service weapon. Moreover, while her potential assailant was still several feet [at least five (5) feet] away she fired three (3) shots into the air, as a warning, to defend herself. This type of behavior constitutes the use of deadly force and is specifically, repeatedly proscribed by the policies, procedures and work rules of the Sheriff’s Office.
Cutting to the heart of this issue the record is clear that there was not any physical contact or a “struggle,” but in both Incident Reports the grievant clearly stated that she fired her weapon during a “struggle” when “at one point he saw the opportunity to try to take the gun away from me.”
