 |
Suspension For Excessive Force Set Aside
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.
Officer
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
Officer 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 which landed on the floor. At
this point Officer 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. Officer
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, Officer 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. As such,
Officer 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 Officer 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
expressed that how should Officer Fenner 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 Officer Fenner’s actions were
“unreasonable” and thus in violation of Department Policy. Brought out
in cross examination, Captain Cooper admitted to dealing with an
incident in his earlier years in which he applied a c-clamp to the
throat of a suspect that 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 Officer 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 Officer 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 than take any action. 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 Officer Fenner’s actions were not only reasonable but in
fact the only available option Officer Fenner had under the
circumstances. The experts went further to testify that had Officer
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 Officer Fenner’s favor
overturning the suspension and removing any reference thereto from his
personnel file. With the overturning of the suspension, Officer Fenner
was able to successfully lateral to a neighboring agency. Officer
Fenner was, of course, thankful to his attorneys at Lackie & Dammeier
and the Legal Defense Fund for vigorously defending him in this case. |
