By Jim Cline and Geoff Kiernan
In Dep’t of the Navy,133 LA 1469 (Halter 2014), an Arbitrator Patrick Halter held that there was just cause for the suspension of a Department of the Navy police officer who used excessive force to subdue a civilian off-base.
The Officer responded to an off-base request for assistance from another Naval police officer. When the officer arrived on the scene, he saw a civilian standing outside his truck. When the officer inquired as to why the civilian was outside his truck, the civilian was non-responsive at first and then verbally dismissive toward the officer. The Officer then walked towards him, and a struggle ensued. The officer subdued the civilian causing him swelling and some minor bleeding. After an investigation into the matter, the Officer was suspended for three days for excessive use of force outside his jurisdictional boundaries.
The FOP argued that civilian committed an offence on-base, failure to stop at a stop sign, but refused to heed the Officer’s lights and continued off-base. Thus, according to the FOP, the on-base offence could only be rectified with off-base enforcement. In this situation then, the officer had jurisdiction, including instructing the civilian to get back into the car and use force when those instructions were not obeyed. Furthermore the FOP contends that from time to time other Officers have exercised their Department of Navy jurisdiction off base and had never received discipline.
The Department argued that the grievant exceeded his statutory powers as his authority is restricted to within the military installation. It argued that when a Navy police officer is off the military installation he or she has no law enforcement authority over a civilian and in fact, is expressly forbidden from execution of civilian law. The Department asserted that the officer was not being suspended because he drove off-base in response to the officer’s request. Rather he is being disciplined because “[the] grievant’s police authority did not accompany him off base…since he without arrest authority off base any force he exerted on PT…was improper”. They also claimed that the Officer initiated contact with the civilian and thereby unnecessarily escalated the conflict. The Department conceded that an officer can use force when in pursuit of a violent offender; however this was not the case in this circumstance as this was a minor traffic infraction.
The Arbitrator agreed with the Department finding that the Officer’s authority did not extend off the base in this circumstance. While there were certain circumstances where a Naval police officer’s authority could extend off-base, the Arbitrator found that these situations were exceedingly rare and only for “very serious offences”. The Arbitrator acknowledged that while the Officer believed that a serious situation “like a felony” must have existed for the other Officer to be off-base, he had not observed any behavior once on the scene to substantiate that view. The Arbitrator found that all the Officer had witnessed was an impasse, which did not merit an initiation of contact. The Arbitrator explained:
Given these findings on “off-base circumstances” and the grievant’s response thereto… [there is] no legal basis that insulates grievant from the consequences of his decision to initiate and engage in physical contact with a civilian off base. Thus, grievant’s physical contact with [the civilian] was an improper use of force.
Given that the Department was able to prove that the Officer’s off-base use of force was improper, the Arbitrator held that this provided just cause for the suspension of the Officer.
However, the Arbitrator did acknowledge that were several ambiguities amongst even the Officer’s superiors as to what exactly the jurisdictional limits on the Officers were. There was also evidence which suggested that at the time of incident the Officer’s own supervisor felt that he was acting within his authority. Given this confusion, the Arbitrator held that the grievant was entitled to a reduction of his suspension from three days to two.
It certainly appears that the FOP had colorable arguments to make here, especially given the alleged inconsistencies in how the Department had enforced its standards regarding off-base jurisdiction. It appears that the Arbitrator ultimately concluded that the Officer unnecessarily escalated the situation. This case reflects a common practice, not necessarily expressed by arbitrators, to defer to management’s judgments more when the discipline at issue involves relatively small amounts of time off. Experience indicates that arbirators more closely scrutinize employer decision-making when a termination is at issue.
