SUSPENSION
FOR EXCESSIVE FORCE OVERTURNED
By:
Dieter C. Dammeier
Lackie & Dammeier LLP
Claremont Police Officer Chris Fenner made a split second decision that
was viewed as unreasonable from behind the desks of police
administration. Fortunately,
an arbitrator in this matter overturned the suspension of Officer Fenner,
finding the force used not to be in violation of department policy.
Fenner
arrested a subject on an outstanding warrant and was booking him in the
city jail when the incident began.
After searching the suspect and removing a tablet, which looked
to be ecstasy, from a cigarette pack, Fenner began processing the
suspect for booking. The
suspect, from the locked cell was able to reach his property on a nearby
counter and pull the ecstasy pill into the cell, where it landed on the
floor. At this point Fenner
was alone and did not have the immediate ability to unlock the cell
door. He immediately
ordered the suspect to drop the pill without compliance.
The suspect was crouched over in an apparent effort to bring the
pill to his mouth and ingest it. Fenner
without any other available options, sprayed pepper spray toward the
suspect in an effort to gain compliance.
Unfortunately, the suspect was able to ingest the pill and
received little or no effect by the pepper spray.
To the surprise of many, Fenner was charged with excessive force
and given a one-day suspension. As
many realize, having a sustained allegation of excessive force in
one’s personnel file is not beneficial to career advancement or Pitchess
motions. Therefore,
Fenner decided to vigorously appeal this action. Represented by Lackie & Dammeier, this matter was
submitted to arbitration.
The
department’s case consisted of a sergeant, lieutenant, captain, and
the chief of police explaining how in their view Fenner’s actions were
not “reasonable force” under the department’s policy.
Not surprisingly, all four of the department’s witnesses had
various and contradicting views on what the department’s use of force
policy allowed in similar circumstances. In fact, the arbitrator, in her decision, questioned how
Fenner could be held liable for violating the department policy when
department supervisors were not even clear as to its meaning. The most confusing testimony came from Captain Paul Cooper,
who testified that he felt Fenner’s actions were “unreasonable”
and thus in violation of department policy.
Brought out in cross examination, Cooper admitted to dealing with
an incident in his earlier years in which he applied a c-clamp to the
throat of a suspect who was attempting to ingest narcotics.
He reasoned in his testimony that since he had a better chance to
keep his suspect from ingesting the narcotics with his use of force, it
was more reasonable than Fenner’s actions.
This, coupled with the testimony of the police chief that the use
of pepper spray was less severe than a c-clamp or choke hold, clearly
painted the picture of the department’s mixed messages in regard to
what force is appropriate in attempting to keep a suspect from ingesting
narcotics.
The
police administrators’ testimony expressed that they would have liked
Fenner to sit on his hands and do nothing, while the suspect was
destroying evidence (a felony), and potentially killing himself with an
uncontrolled narcotic. The
department provided no use of force expert to support its conclusions.
To the contrary, Lackie & Dammeier presented three certified
use of force experts, Joe Flannagan, Ken Impellizeri, and one of
Claremont’s own two trainers in use of force, Ken Franklin.
All of these experts agreed that Fenner’s actions were not only
reasonable, but in fact the only available option Fenner had under the
circumstances. The experts
went further to testify that had Fenner been able to access the suspect,
he would have been justified in taking physical action to prevent the
suspect from destroying evidence an ingesting the narcotic.
With
the department witnesses’ varying views of the use of force policy
against the clear and concise testimony of the expert witnesses, it was
not surprising that the arbitrator ruled in Fenner’s favor,
overturning the suspension and removing any reference thereto from his
personnel file. With the
overturning of the suspension, Fenner was able to successfully lateral
to a neighboring agency. Fenner
was, of course, thankful to his attorneys at Lackie & Dammeier and
the Legal Defense Fund for vigorously defending him in this case.
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