Opinion
No. CV 07-4024781 S
December 2, 2008
MEMORANDUM OF DECISION
This case involves an application to vacate an arbitration award. The union and the city entered into a collective bargaining agreement providing for arbitration of all disputes. The dispute between the parties in this case arose out of the termination of a city employee, Policeman, Brian Lawlor, for his alleged violation of police department policy. The dispute was submitted to arbitration and four days of hearings were held. On February 2, 2007 the panel of arbitrators issued a decision which held that: "Just cause is found for the grievant's termination." The appeal raises several grounds that are set forth in the application to vacate the arbitration award:
6. The arbitrators exceeded their authority by refusing to postpone the hearing until after resolution of a related criminal case.
7. The arbitrators improperly refused to accept evidence relevant to the merits of the dispute submitted by reading conclusions wholly devoid of any analysis or consideration of the law under which the conduct in question must be considered.
8. The arbitrators have, within the meaning of Conn. Gen. Stat. 52-418(a)(4), exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
9. The arbitrators exceeded their authority by framing an issue which fails to conform to the arbitration clause in the parties' collective bargaining agreement.
10. The errors as set forth above were obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.
11. The arbitrators' conduct in issues this Award was in manifest disregard of the law.
Very generally speaking Officer Lawlor was terminated because of his actions surrounding his treatment of an individual apprehended after a high speed chase. Both sides filed thorough briefs which were supplemented by them through oral argument. The union attached the panel's arbitration award to its complaint which sets forth the city policy (as set forth in certain regulations) concerning the use of force and discusses the panel's findings upon review of the testimony presented to it. A video of the incident from a camera mounted on a police vehicle was also reviewed by the panel. Attached to its brief the union had three exhibits which included the testimony of an expert that it called at the hearing and a police department investigative report of the incident.
Counsel for the city in addition to the arbitration award, attached several letters on the issue of the union and Lawlor's request for a postponement of the hearing. Also certain testimony of Lawlor was attached and testimony of Chief Cossette of the Meriden police department.
The court will first discuss what it perceives to be the applicable law that defines the ambit of trial court review of appeals from the awards.
In this case the union concedes the dispute was given to the arbitrators on the basis of an unrestricted submission. In Garrity v. McCaskey, 223 Conn. 1, 5 (1992), the court defied an unrestricted submission in the following way: "The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted. Carroll v. Aetna Casualty Surety Co., 189 Conn. 16, 20 . . . (1983)." At page 6 the court went on to say that: "Even in the case of an unrestricted submission, we have however, recognized three grounds for vacating an award: (1) the award relies on the constitutionality of a statute . . . (2) the award violated clear public policy . . . (3) the award contravenes one or more of the statutory prescriptions of 52-418.
Section 52-418 of the general statutes reads as follows:
Sec. 52-418. Vacating award.
(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
It should be noted that "federal courts and some state courts recognize manifest disregard of the law as a basis for vacating an arbitrator's decision," "Alternative Dispute Resolution" 4 Am.Jur.2d, Section 211, page 269. In fact our Appellate Courts have read into subsection (4) of § 52-418 the federal law on manifest disregard adopting the Second Circuit's test set forth in Pierce, Fenner Smith, Inc. v. Bobken, 808 F.2d 930 (CAQ), 1980; Saturn Construction Co. v Premier Roofing, 238 Conn. 293, 304-05 (1996), states the test requires proof of all three of the following elements to establish that an arbitration panel manifestly disregarded the law "(1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable." Saturn Construction cited Garrity v. McCaskey, supra, for its determination that subsection (a)(4) incorporates the second circuit test; also see National Association v. City of Bridgeport, 99 Conn.App. 54, 58-59 (2007).
A dry recitation of the various grounds justifying the overturning of one of these awards is only the beginning of the problem, however. The questions that must be answered are how are each of these grounds proven what deference must be given the panel's decision that would thereby preclude a basis for overturning an award, and what does or should the trial court look to in making its decision.
The applicant's brief is based on three grounds which the court will discuss relying on the general principles just discussed and on the particular case law applicable to each claim. The three grounds raised by the applicants are:
1. The arbitrators exceeded their authority by refusing to postpone the hearing within the meaning of § 52-418(a)(3), until after resolution of a pending related criminal case.
2. The arbitrator's decision was contrary to public policy.
3. Under § 52-418(a)(4) the panel exceeded its powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
I.
The petitioner's first argument is straight forward. Under sec. 52-418(a)(3) an award may be vacated if the arbitrators have committed misconduct by "refusing to postpone the hearing upon sufficient cause shown," by "refusing to hear evidence pertinent and material to the controversy.
The original hearing was scheduled for two days in May 2000. The petitioner Lawlor requested 60 days on the grounds that an active criminal investigation was proceeding against him. The continuance was granted to July 10, 2006. On June 19th counsel requested another 60 day continuance since Lawlor had to appear in federal court on July 10th and the criminal investigation was continuing. In fact Mr. Lawlor was arrested on July 7, 2006. The requested continuance was denied and the hearings took place on July 11, 25, September 28, 29, 2008.
The petitioner claims misconduct was committed "by denying (Mr. Lawlor's) request for a continuance pending the criminal investigation and/or resolution of the criminal charges. The error was compounded when the arbitrators elected to receive evidence of the arrest during the evidentiary portion of the hearing. The petitioner further elaborates on his claim of prejudice. At the time of the hearings he was unaware of potential witnesses, statements, and other discoverable materials via the criminal proceedings. This, it is claimed, deprived him a "fundamentally fair hearing." The complaining witness has never been interviewed as part of the city of Meriden's review of whether to terminate Mr. Lawlor. The petitioner faced this witness for the first time at the actual hearing — if the criminal case had been tried first the petitioner would not have been blindsided by testimony from this witness which he had never heard.
Hearing testimony of the arrest had to have prejudiced the arbitrators "leading them to conclude that the petitioner's misconduct was so significant it required the prosecutorial efforts of the state's top prosecutors."
Delay would have caused the respondent city no prejudice. It had fired the petitioner and he could not be reinstated absent agreement or as a result of the arbitrator's award.
The petitioner relies on City of Bridgeport v. The Kasper Group, 278 Conn. 466 (2006). There the plaintiff city sought to vacate an arbitration award in favor of a construction company. The court overturned the award in a situation where an important witness, Pinto, refused to testify at the arbitration hearing. After the conclusion of the hearing the city filed a motion to stay the proceedings pending the conclusion of testimony in former Mayor Ganim's criminal trial — it wanted to supplement the record with the testimony of witnesses in that trial including Mr. Pinto.
The court concluded that the arbitrator's refusal to consider stay the proceedings and consider Pinto's trial testimony constituted misconduct and that the trial court properly vacated the award under Sec. 52-418(a)(3), id. pp. 485-586. But as a predicate to reaching this conclusion, the court said at page 483:
We next must determine whether the plaintiff substantially was prejudiced by the arbitrator's failure to consider Pinto's testimony. We conclude, upon a thorough review of the preferred transcript excerpts of Pinto's testimony, that the plaintiff was substantially prejudiced by the arbitrator's refusal to consider the testimony because it was highly probative and very likely would have altered the outcome of the arbitration had it been introduced.
The court cited Hotels Condado Beach v. Union de Tronquistas Local 901, 763 F.2d 34 (CA1, 1985). There the court, citing 9 U.S.C. Sec. 10(c), said: "A federal court may vacate an arbitrator's award only if the arbitrator's refusal to hear pertinent and material evidence prejudices the rights of the parties to the arbitration proceedings" id., page 40.
There are really two aspects of a claim under Sec. 52-418(a)(3), at least in the court's opinion. One claim could be that the failure to postpone the hearing prevented the losing side from securing and presenting evidence. Another claim that could arise is that failure to grant the continuance did not allow the petitioner to adequately prepare his case; in other words, our court has said that "we have recognized a common law right to fundamental fairness in administrative hearings," Grimes v. Conservation Commission, 266, 273 (1997). An older case said that: "Although proceedings before administrative agencies . . . are informal and are conducted without regard to the strict rules of evidence, the hearing must be conducted so as not to violate the fundamental rules of fairness," Pizzola v. Planning Zoning Commission, 167 Conn. 202, 207 (1974), Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 407-08 (1998). It is difficult to see why such notions should not be imported into hearings before arbitrators especially in light of the limited review available in the courts and the non-record nature of these proceedings.
Applying the foregoing general principles to the facts of this case, the court cannot find that pursuant to Sec. 52-488(a)(3) the decision in this case should be vacated.
What evidence was really kept out? A difficult problem would be presented if failure to grant the second postponement forced Mr. Lawlor into a position where he had to make a choice to claim Fifth Amendment rights or refrain from testifying because of an impending criminal trial in a forum where procedural rights and guarantees were not available. But here the petitioner in fact testified.
Also it is unclear to the court how an opportunity, in later criminal proceedings, to have questioned Hernandes, the individual Lawlor is accused of using excessive force against, would have assisted Lawlor in the arbitration proceedings. The court has reviewed what has been submitted several times. The arbitrators' factual findings do not show any reliance on what Hernandes might have said that the court can identify. The only specific reference in the findings referencing possible input from this individual is a statement that he was bipolar and a statement by him "that he hadn't taken his medication for two weeks."
The hearing in large part seemed have to have turned on the video of the incident which was available to the board and Mr. Spector, the petitioner's expert, who is an attorney. A claim of fundamental fairness is belied also by not only the availability of the video. Attorney Spector also said prior to testifying he was also handed a notebook containing all the police reports, the internal investigation, the police department policy and he assumed "all of the relevant documents related to this matter." Nowhere is it specified what other information or documentation could or would have been made available if the criminal prosecution were to have proceeded while the arbitration was stayed. Attorney Spector was even able, prior to the arbitration proceedings, to have spoken to Officer Barnes who was a witness to the incident. There is no indication that the petitioner could not have contacted other witnesses, especially officers, prior to the arbitration proceedings.
On the foregoing basis the court cannot find based on the Kasper Group case that evidence was not allowed to be presented to the substantial prejudice of the petitioner and such evidence would have likely altered the outcome of the arbitration proceeding nor can the court conclude that the proceedings were rendered fundamentally unfair because of the failure to grant the postponement. Whether one agrees with Attorney Spector or not, his testimony, which appears to have been the centerpiece of the petitioner's presentation, does not suffer from a lack of preparation or absence of available evidence or information and Spector cites no such absence. Before concluding this section the court will briefly refer to a federal case mentioned by the defendant in its brief.
In its brief the defendant notes that § 52-418(a)(3) is "closely modeled" on 9 USC § 10(a)(3) which states an award may be set aside "where the (arbitrator was) guilty of misconduct in refusing to postpone a hearing upon sufficient cause shown." EL Dorado School District v. Continental Casualty, 247 F.3d 843 (CA 8, 2001), appears to sum up the position of other federal cases, it holds that under 9 USC § 10(1)(3): "Courts will not intervene in an arbitrator's decisions not to postpone a hearing if any reasonable basis for it exists . . . To constitute misconduct requiring vacation of an award, an error in the arbitrator's determination (must be one that is not simply an error of law but which so affects the rights of a party that it may be said that he (sic) was deprived of a fair hearing . . ." The dichotomy is somewhat confusing — what if there was no reasonable basis to deny the continuance but no prejudice was shown and there was no denial of a fair hearing? The latter considerations would rationally seem to trump the former but here the court does not have to address the dichotomy. The incident happened September 15, 2005, one postponement of 60 days had been granted and the petitioner was told no further continuances could be granted and the hearing ran from July 2006 to the end of September 29, 2006; the later date being over a year after the incident. Under the circumstances there seems to have been a valid reason to deny the second continuance and as noted the court cannot identify anything which indicates the petitioner was prejudiced by this decision procedurally or on the merits.
The petitioner also refers to the fact that the board elected to hear testimony that he was being prosecuted by the Chief State's Attorneys' Office. This, it is argued, must have prejudiced the panel. But the petitioner's brief indicates the second continuance was requested by petitioner's counsel "as he was scheduled to be in federal court on July 10, 2006 and the criminal investigation continued against Mr. Lawlor. The defendant argues that this argument should be dismissed out of hand because under § 52-418 the exclusion of evidence is a basis for vacating an award but "the exercise of discretion in allowing evidence in is not one of the basis under § 52-418(a)(3) for vacating an award." The court cannot accept this argument as a general proposition. The petitioner argues "bias" or "prejudice" directly related to his fair hearing rights. Such an argument can comfortably fit under subsection (a)(3). More to the point is the defendant's observation that evidence about his prosecution was a fair response to the petitioner having introduced evidence that Lawlor's colleagues in the Meriden Police Department declined to recommend prosecution of Lawlor. A wise old federal judge once said that just because the door has been opened that does not mean everything comes through the door. But the court cannot conclude the arrest information, standing alone, would warrant vacation of the award and it is difficult to ascertain what it could be said it was compounded with thereby justifying the vacation of the award.
II (a)
The petitioner also claims the award in this case violated a clear public policy of the state apart from § 52-418 and its grounds for vacating an award. This has been defined as a common-law ground for vacating an award.
Groton v. United Steal Workers, 254 Conn. 35, 45, 46 (2000), defines the principles governing application of the public policy exception which the court will paraphrase and quote; the Groton case itself quotes several prior cases. This exception applies only when the award is "clearly illegal and clearly violative of a strong public policy." Quoting Stamford v. Stamford Police Ass'n., 14 Conn.App. 257, 259 (1988); " Groton referred to the often repeated principle that the public policy exception "is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them." This exception is "narrowly construed" — the public policy exception must be explicit ". . . that is well defined and dominant and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." For this latter proposition the court cites United Paperworkers v. Misco, 484 U.S. 29, 43 (1983), (Also see South Windsor v. South Windsor Police Union, 41 Conn.App. 649, 654 (1996), where the court said that "our statutes and case law are sources of public policy . . ."). In State v. Conn. State Employees Assoc., 287 Conn. 258, 275 (2008), the court did suggest that might not always be required that sources of public policy be founded in statutes, city charters, etc., as long as a public policy is clearly discernable in the preferred source.
Groton goes on to say the public policy exception has a "narrow scope" and, quoting from Watertown Police Union v. Watertown, 210 Conn. 333, 339-40 (1989), Groton goes on to say that: "the party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated." Other cases setting forth some or all of these general principles are State v. FASCME Council 4, 252 Conn. 467, 474-75 (2000), New Haven v. AFSCME Council 15, 208 Conn. 411, 416-17 (1988).
The case of Schoonmaker v. Cummings Lockwood, 252 Conn. 416, 429 (2000), adds an additional layer of complexity as far as the application of the public policy exception is concerned. There the court said . . . "where a party challenges a consensual arbitration award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy." It is not clear whether this case does nor even means to change prior law as to the application of the public policy exception. But at footnote 7 at page 429 of Schoonmaker, it says if a "Challenge truly raises a legitimate and colorable claim of violation of public policy" de novo review should be afforded. If it does not ". . . the normal deferential scope of review should apply."
The problem of what is meant by de novo review and its ambit and the applicability of the deferential scope of review of the arbitrator's decision is discussed in Schoonmaker at 252 Conn. page 432, also see footnote 8 at same page. Deferential treatment is still given to the arbitrators' factual findings. But referring to the issue before it the court said: "We conclude only that as a reviewing court, we must determine pursuant to our plenary authority and appropriate deference to the arbitrator's factual conclusions, whether, the forfeiture provision in question violates those policies" (public polices found by court). In footnote 8 the court says "in undertaking de novo review of the defendant's public policy claim we defer to the arbitrator's interpretation of the agreements" (i.e., factual determinations). Or to set the necessary analysis in context the court said at 252 Conn. page 430 . . . "given that it is the role of a reviewing court to articulate the actual policy objectives that emanate from a particular rule of conduct, so too is a reviewing court suited to evaluate whether certain facts, as found by the arbitrator, comport with the specific public policy at issue," id., (emphasis by this court).
The court's comments on de novo review by the appellate courts as to public policy claims and the deferential treatment of the award would govern the conduct of trial courts in the first instance reviewing these awards. See last paragraph before section II of Schoonmaker, 252 Conn. at page 436, which assumes as much.
See HH East Parcel v. Handy Harman, 287 Conn. 189 (2009), where court explicitly rejected that in these consensual arbitration cases the trial court "should review the arbitrator's findings of fact to determine that they are supported by substantial evidence," id., p. 202; a trial court is "bound by the arbitrator's factual findings when reviewing a claim that an award violated public policy," id., p. 204.
(b)
Trying to apply the foregoing, what is the petitioner's argument for the proposition that the public policy exception should apply? In addressing this issue the petitioner summarized its version of the relevant facts:
In this case, the arbitrators have effectively rewarded a fleeing felon by upholding the dismissal of a police officer for using force, even deadly force, to bring the man into custody. The panel heard extensive testimony about the complaining witness's matching the description of a suspect who earlier in the evening had threatened another motorist with a gun. The panel also heard testimony about the complaining witnesses flight from police officers. When ordered to stop, the witness fled, engaging in a high speed chase. When his car was once forced to the side of the road, the witness again escaped, careening down residential streets at a high rate of speed and engaging officers in a high speed chase. When stopped by another officer who shot at the witness's tires, the witness again sped away. He was stopped only when his car was rammed by the petitioner's. The testimony at the hearing was divided on whether the witness tried to surrender. The panel resolved this division by adopting a rose-tinted and naive view of the evidence that our courts have explicitly held is to be avoided when evaluation the tense and uncertain circumstances facing a police officer when confronting a fleeing felon.
The petitioner also refers to the recent Supreme Court case of Scott v. Harris, 127 S.Ct 1769 (2007). In that case a deputy terminated a high speed chase by applying his bumper to the rear of the Harris vehicle. The Harris vehicle went off the road and crashed and Harris was rendered a quadriplegic. Harris sued the deputy, lower courts denied the latter's motions for summary judgment, the Federal Supreme Court held that it should have been granted. A video tape of the chase was available which the court reviewed and based on that review it concluded the deputy did not violate the Fourth Amendment. The court reasoned that despite the fact that bumping the Harris vehicle posed a high risk of death or serious injury to Harris, given the threat Harris posed to other motorists, any pedestrians and the officers due to his own conduct — individuals who were entirely innocent — the actions of the police were justified.
In addition to the foregoing the petitioner presented the testimony of Attorney Elliot Spector at the arbitration hearing. He is a former police officer specializing in law enforcement litigation and has represented police officers, police departments, and municipal agencies. He has trained officers for over twenty years and has developed recruit training programs in excessive force, false arrest, illegal search and seizure, failure to protect and supervisory issues. He also trains management as to the use of force and his training programs review the current law on excessive force. He testified at length as to reasonableness of Lawlor's actions.
A public policy exception to the general rule of judicial deference to arbitration awards must be the strong public interest in ensuring the safety of pedestrians and the motoring public on our highways which requires that police officers not be exposed to physical danger when trying to enforce that public policy. For example over a dozen cases have repeated the formula that "our legislature has promulgated an unambiguous policy aimed at answering that are highways are safe from the carriage associated with drunk drivers," Cornier v. Comm. of Motor Vehicles, 105 Conn.App. 558, 564 (2008), Bengston v. Comm. of Motor Vehicles, 86 Conn.App. 51, 60-61 (2005), also see State v. Stevens, 224 Conn. 730, 740 (1993). When fleeing drivers engage the police in high speed chases over some distance, the possibility of carnage in the form of physical danger to innocent civilians is certainly just as great as that posed by drunk drivers. In fact the danger to police officers having to engage in these pursuits is always present in these cases while that might not be so where the apprehension of a drunk driver is a police officer's objective. The legislature has passed a series of statutes underlying the state's policy against dangerous use of the highways § 14-222 "reckless Driving" provides for a fine and some imprisonment even for a first offense, § 14-223. Failure to bring motor vehicle to a stop when signaled" provides for treatment of the offense as a Class A misdemeanor with subsequent offenses warranting a Class D felony change.
In the factual context of this case another related public policy interest is the obvious public interest in ensuring that police are not exposed to unwarranted physical danger in enforcing laws designed to encourage the apprehension of individuals involved in violating laws including motor vehicle statutes especially where the violation exposes the public to danger. Criminal statutes such as § 53a-167a and § 53a-167c provide penalties for interfering with an officer or assaulting an officer; the penalties are misdemeanor and Class C felony convictions.
Section 53a-22(b) of the general statutes sanctions the use of using reasonable physical force when and to the extent that (the officer) reasonably believes (it) to be necessary to effect an arrest or to "defend himself or herself"; subsection (c) sanctions the use of deadly force by the officer where it is reasonably believed necessary under certain circumstances involving self defense, defense of others or the need to arrest someone or prevent their escape.
In the court's opinion, at least, a clear and dominant public policy interest has been identified by the petitioner related to the propriety of this or any other officer apprehending Hernandes, ending the high speed chase, and affecting the arrest of this individual by a reasonable sue of force.
(c)
But the mere establishment that a well-defined and dominant public policy has been set forth only provides the framework for deciding whether an arbitration award must be set aside. As said in "Alternate Dispute Resolution" Am.Jur.2d at § 216, page 276.
Determining whether a violation of public policy allows the vacation of an arbitration award requires a two step analysis:
(1) whether a well defined and dominant public policy has been identified; and
(2) if so, whether the arbitrator's award violates that policy.
In other words, with reference to the second prong, "the public policy exception applies only when the award is . . . clearly violative of a strong public policy," Town of Enfield v. AFSCME Council, 100 Conn.App. 470, 474 (2007). Our court explicitly adopts the Am.Jur. two-prong test for deciding whether the award should be vacated. State v. Conn. State Employees Assoc., 287 Conn. 258, 273 (2008), which relies on the earlier case of State v. AFSCME Council 4, 252 Conn. 467, 476 (2000).
Applying the foregoing general principles to the facts of this case, testimony established that in fact there was a high speed chase; there seems little question and it does not appear to be contested that given the facts of this case the petitioner and the other officers were justified in pursuing the Hernandes vehicle and the manner in which the vehicle was brought to a stop were justified. As noted, Scott v. Harris, 127 S.Ct. 1769 (2007), involved a case where the injured plaintiff brought a section 1983 action against a deputy alleging the use of excessive force resulting in an unreasonable seizure under the Fourth Amendment. The court held that the deputy did not sue excessive force in terminating the high speed chase of the plaintiff's vehicle by ramming it in a case where the plaintiff suffered severe injury, id., pp. 1778-79. The court's discussion of whether the officer used reasonable force to stop the fleeing car does not appear to raise different considerations from the Meriden policy of the reasonable use of force by the police.
But at least in the court's opinion Scott v. Harris, does not address the central issue that must be discussed in this case.
The question here is whether, under city policy, once the stop was affected the petitioner Lawlor used excessive force after the car was approached by Lawlor and prior to Hernandes being removed from the vehicle, while he was being escorted to a police vehicle and during the handcuffing process.
In other words the issue before the court is whether, given the public policy interests in the police being allowed to perform their duties as previously discussed, did the use of excessive force by Officer Lawlor foreclose him from resorting to the public policy argument discussed earlier in this opinion. The use of force by agents of the state in a democratic or any civilized state always has to be tempered by the observation that the use of force not exceed the boundaries of what is reasonable to accomplish the public policy objective.
How to define reasonable? The court will first look at the Milford regulations on police use of force and certain federal case law brought to the court's attention.
In large part this issue turned on what the arbitrators observed in a video of this incident after the stop and the conclusions they knew from those observations which led to their decision. Attorney Spector in turn testified at length why he believed under the case law he discussed and his experience involving the training of officers there was no use of excessive force by the petitioner Lawlor. If excessive force by the standard set forth in Meriden policy was used then the termination was justified. First the court will set forth the policy of the City of Meriden.
CITY POLICY RE: USE OF FORCE
Policy: It is our policy of the Meriden Police Department, that officers will use only that force that is reasonably necessary to effectively bring an incident under control, effect an arrest, and protect officers and others.
. . .
1.3.1
Members of the Department are authorized to sue only the force necessary to accomplish a lawful objective, including . . . the use of physical force will end when resistance ceases and/or the officer has accomplished the purposes necessitating the use of force. Justification for the use of force is limited to what reasonably appears to be the facts known or perceived by the officer at the time he/she decides to use such force. This includes officer-subjective factors, levels of resistance, suspects' behavioral clues, number of officers and/or defenders present, and the availability of other options.
1.3.2 Use of Lethal force
Lethal force may be used to defend an officer or third person from the use of imminent use of lethal physical force, or to effect an arrest or prevent the escape from custody of a person whom the officer reasonably believe has committed to commit a felony which requires the infliction or threatened infliction of serious physical injury, and, if when feasible, the officer has identified his/herself as a police officer, instructs the suspect to cease or stop whatever action the suspect is doing, and has given warning of his/her intent to use lethal physical force . . .
1.3.4 Use of less-than-lethal force
Officers shall only use less-than-lethal weapons and control techniques that are issued and/or approved for use by the department. The use of less-than-lethal force shall be limited to defensive and control purposes and officers will use only the reasonable amount of force necessary to overcome resistance or accomplish the police task. The use of less-than-lethal force shall conform to applicable departmental Standards of Conduct, policies, procedures and training.
If Attorney Spector's testimony is read carefully, his discussion of what is the reasonable use of force closely parallel's the reasoning of the court in Graham v. Connor, 490 U.S. 386 (1989). That case was a § 1983 action wherein the plaintiff as part of his claim stated the officers used excessive force when apprehending him which caused physical injury. The court held that excessive force claims in the course of an arrest or investigatory stop are properly analyzed under the objective reasonableness standard of the Fourth Amendment id., pp. 395-97. Defining reasonableness under that standard the court said at these pages:
Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests" against the countervailing governmental interests at stake. Id., at 8, quoting . . . Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to affect it. See Terry v. Ohio, 392 U.S. . at 22-27. Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v. Wolfish, 441 U.S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S. at 8-9 (the question is "whether the totality of the circumstances justifie[s] a particular sort of . . . seizure").
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested . . . nor by the mistaken execution of a valid search warrant on the wrong premises . . . With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," . . . violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.
As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation . . . see also Terry v. Ohio, supra, at 21 (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be judged against an objective standard"). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional."
True, this matter was decided by the arbitrator's application of the Meriden policy regarding the use of force and Graham involves a Fourth Amendment application but it is difficult, for the court at least, to articulate even for itself why the same standards set forth in Graham should not be relevant to interpret the appropriate interpretation of the Meriden policy. The Graham discussion assumes as its predicate that the police have an interest in carrying through a particular law enforcement action (see public policy discussion) but it also takes into account the nature of the intrusion into the rights of the individual subject to that action. The Meriden policy just as the Fourth Amendment analysis requires an inquiry into the circumstances of an entire incident to determine whether the law enforcement "intrusion" was reasonable in light of the public policy objectives in behalf of which the police officer acted. If the officer's actions were unreasonable under a Fourth Amendment analysis, the officer may run into civil problems under § 1983 of the Federal Civil Rights Statute despite the fact that the law enforcement action was otherwise appropriate. If the officer's actions were unreasonable under the Meriden policy that policy will have been violated leading to the possibility that the officer could be terminated and some arbitrator would uphold the termination.
These factual or circumstantial differences have nothing to do analytically with changing the definition of "reasonableness" as used in either context. The court will now try to apply the foregoing to the critical time frame in this case surrounding the apprehension of Hernandes.
(d)
As noted, this case really turns on whether excessive force was used on Mr. Hernandes after his vehicle was stopped or more exactly whether the strong public policy issues surrounding the force used to take Hernandes into custody were violated by the arbitrator's decision.
The arbitrators articulated an appreciation of the standards that should be applied in a case like this if the public policy at issues in this case is to be effectuated in a way that is reasonable from the public's point of view and that of a police officer and the arrestee.
Their opinion noted that "In general it is recognized that the police officer on the scene is frequently required to make split second decisions affecting not only his own safety but that of citizens, his fellow officers as well as the suspect. It is further recognized that any agency reviewing the officer's conduct must, to the extent possible, put itself in the position of the officer assessing the various factors involved."
The arbitrators already had observed that "The key word in all of this is reasonable." The city's regulations permitted use of force, even lethal force. It was noted that the degree of force "depends on the circumstances" and "depends to a large degree on the officer's perception of what's necessary to prevent injury, escape, etc."
If read closely the arbitrators recognized and understood the public policy requiring the apprehension of people who had engaged in the conduct attributed to Hernandes and the bearing of the fact that a suspect such as this being armed would have on the appropriate force to accomplish an apprehension. The hypothesis that someone such as Hernandes may have shot at a fellow officer or resisted arrest factored in their evaluation of the appropriate level of force and the officer's perception of what force was necessary. This is implicit in their rejection of the factual premises on which the petitioner relied to make his violation of public policy argument.
The arbitrators in the Discussion section of their decision point to three factors relied on by Lawlor to justify his actions (1) the chase (2) report of road rage and a gun being involved (3) a belief that a fellow officer, Slipski, had been shot. All of this according to Lawlor, required him to "subdue Hernandes as quickly and absolutely as possible." The court will review the arbitrators' handling of these claims.
The excessive force claim really involves events after the Hernandes' vehicle was brought to a stop by the petitioner ramming it. There is no indication that the arbitrators were critical of the manner in which the vehicle was brought to a stop or considered that as a factor in their decision upholding the termination.
As to the need to exercise quick and absolute control the arbitrators, who had the video of the events to examine, noted that Lawlor "pistol whipped (Hernandes) repeatedly, kicked and kneed and punched him, despite the fact that Hernandes made no visible attempt to resist" and Lawlor was assisted by two other officers. In the background section of the report the arbitrators had already noted that Lawlor claimed "he twice ordered Hernandes to show his hands and get out of the car. The testimony is not supported by the video which instead, shows (Lawlor) moving quickly to Hernandes and proceeding to strike him repeatedly with his weapon, a maneuver called a (pistol punch)." Lawlor "punched Hernandes ten to twelve times . . ." An officer Hoff was noted as saying Hernandes at the end of this process "had steam, geysers of steam coming out of his skull from the cracks in his skull and it appeared as though the guy was on fire. In the Discussion section the arbitrators also having viewed the video, rejected Lawlor's testimony that Hernandes reached for a gun.
In any event the arbitrators stated once the pistol whipping was over and Hernandes was pulled out of his car, "Hernandes attempts at resistance, if there were any, were over."
Yet the arbitrators went on to note even then with Sergeant Barnes on the scene Lawlor slammed "Hernandes first on the hood of his car and then into the back of his cruiser." Hernandes was slammed so forcefully on the cruiser it visibly rocked and blood splattered on the windshield.
While much of this was going on the arbitrators noted a stream of invective was used by Lawlor which is noted in their decision. As Graham notes in the Fourth Amendment context an officer's evil intentions if there be any will not make a violation out of an objectively reasonable use of force. Vituperation in these excited situations cannot be used to uphold a termination but a string of such hostile comments can at least to some extent impeach an officer's factual assertions as to why his or her use of force was appropriate. As the arbitrators in effect noted, even in light of the strong public policy goals an officer in Lawlor's position should be able to rely on, his conduct and "the stream of invective coming from his mouth" indicated Lawlor "was no longer interested in effecting an arrest and protecting fellow officers, or any other lawful purpose."
Finally as to the claim that there was a belief a fellow officer had been shot at a point prior to Lawlor's rushing the Hernandes car, the Board observed . . . "if the grievant had heard a shot, it is remarkable that he (Lawlor) didn't immediately notify dispatch and call for back up and particularly if he thought (Officer Slipski) might have been shot. He made no such call." In a fast moving, dangerous situation this observation does not appear to take account of the excited and dangerous situation an officer would be in with perhaps little time to make calls for back up. More to the point is the decision's immediately following observation that right after the purported shot "within a matter of seconds or possible a minute or two, Slipski is seen walking slowly by (Lawlor's) cruiser." Slipski is noted to then have helped grab Hernandes' arm after the pistol punching while Lawlor continued to pummel and knee "the now helpless Hernandes."
From all of this the arbitrators concluded "that there was no reasonable or justifiable cause to inflict on Mr. Hernandes the physical punishment established by the record."
The articulated factual basis for this conclusion by arbitrators, who seemed aware of the public policy considerations indicates, at least to the court, that the award here did not violate that public policy.
The expert Spector in offering his opinions did not appear to rely on his observations of the video on the important points at issue. He relied on Officer Lawlor's testimony to the effect that because of movements Hernandes was making inside the car he, Lawlor, had reason to believe Hernandes was reaching for a gun. That was Lawlor's justification for the pistol punches. (And, as an aside, although Spector said pistol punches would be permissible if Lawlor's fears were justified were a dozen of them necessary?)
Returning to the issue at hand Spector, who was a straightforward and knowledgeable witness, explicitly stated he could not see resistance by Hernandes on the video which was the justification for the continued pummeling by Lawlor after Lawlor was removed from the car. Spector relied on statements by Lawlor and Officer Barnes.
But even in cases of compulsory arbitration provided for in state statutes where there must be substantial evidence to support the arbitrators' decision, a reviewing court "must defer" to an agency's or arbitrators' right to believe or disbelieve a witness's testimony. Chunielewski v. Aetna Casualty Surety Co., 218 Conn. 646, 660-61, see sep fn.15 (1991) (compulsory arbitration under § 38-175c), General Motors Corp. v. Dohmann, 247 Conn. 274, 282 (1998) (lemon law arbitration pursuant to §§ 42-179 though 42-186). This certainly must be true in cases of consensual arbitration where cases, previously discussed, talk about the need for a reviewing court to accept the arbitrators' factual findings.
III
The claim is also made that the arbitrators displayed a manifest disregard of the law. This ground was recognized in Garrity v. McCaskey, supra, 223 Conn. pp. 6-11, as part of a claim that may be made under subsection (4) of § 52-418. Citing federal case law Garrity said manifest disregard means more than error or misunderstanding of the law. The error must have been obvious and "`disregard' implies the arbitrator appreciates the existence of a clearly governing principle but decides to ignore or pay no attention to it," id., p. 9, Pierce, Fenner Smith, Inc. v. Bobker, 808 F.2d 930, 933-34 (CA2, 1986). The Garrity court said review under manifest regard is "extremely limited" — an award cannot be set aside "because of an arguable difference regarding the meaning or applicability of laws urged upon it," id. An award must be "irrational," citing a Massachusetts case, certainly an arbitrator cannot consult a ouija board in making a decision, see Garrity at 223 Conn. pp. 8-9.
It is true that Harty v. Cantor Fitzgerald Co., 275 Conn. 72 (2005), recognized this ground for vacation of an award. It analyzed subsection (4) of § 52-418(a)(4) as arbitrators exceeded their power which could included a claim that the (1) the award fails to conform to the submission or (2) the arbitrators manifestly disregarded the law. Harty dealt with a claim that the award fails to conform to the submission. In such a case a de novo review is required but all this apparently means is that the court must decide "whether the parties have vested the arbitrators to decide the issue presented or to award the relief conferred," — i.e. was the award consistent with the agreement, id., pp. 85-86.
But in the manifest disregard area there is no indication that even if a de novo review is required the factual findings of the arbitrator are not controlling.
In any event manifest disregard appears to best fit the situation where an applicable statute was completely ignored, the decision was totally irrational, see Garrity, Bobker and Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 305-09 (1996). None of this appears to be the case here. In the discussion of the violation of public policy claim the court reviewed the applicable public policy, the Meriden regulations were the test they sought to apply and there was an understanding of the need for an objectively reasonable standard for reviewing the officer's actions. As discussed, the arbitrators found just cause for the termination because of their factual determination that the excessive force used barred this officer's reliance on the protections offered an officer in these situations; the decision was not based on a disregard of the public policy itself. Given the factual findings of excessive force, the court cannot say the arbitrators acted irrationally.
All of these cases are difficult because someone is losing their job but the court believes in this case the application to vacate the arbitration award should be denied.