IN THE MATTER OF THE
ARBITRATION BETWEEN

FLORIDA POLICE
BENEVOLENT ASSOCIATION
Association,

and

CITY OF TALLAHASSEE
Employer

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FMCS FILE No. 1910-1 8

GRIEVANCE: Termination

GRIEVANT: DAMIEN PEARSON

FINAL AND BINDING AWARD
ARBITRATOR: DANIEL R. SALING, ESQ
AWARD DATE: May 17, 2019

 APPEARANCES
EMPLOYER:

Jill B. Kowalski, Esq.
Assistant City Attorney
Office of the City Attorney
300 S. Adams Street
Tallahassee, FL 32301-1731

UNION:

WEBSTER & BAPTISTE
Stephen G. Webster, Esq. &
Louis J. Baptiste, Esq.
1615 Village Square Blvd., Suite 5
Tallahassee, FL 32309

WITNESSES:
For the Employer:
Jerritt Federico- Investigator- Internal Affairs Unit- Tallahassee Police Department
James C. Couch - Sergeant - Internal Affairs Unit- Tallahassee Police Department
Tracy Clark - Lieutenant - Field Training - Tallahassee Police Department
Michael DeLeo- Chief- Tallahassee Police Department

For the Union:
James P. Fairfield- Lieutenant- Tallahassee Police Department
Cyrus J. Underwood- Office- Tallahassee Police Department- Firearms Instructor
Damien J. Pearson - Grievant

PROCEDURAL HISTORY
The City of Tallahassee is hereinafter referred to as the "Employer" or the "City." The
Florida Police Benevolent Association is hereinafter referred to as the "Association" or
the "PBA." The Tallahassee Police Department is hereinafter referred to as the

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 "Department." Damien J. Pearson is hereinafter referred to as the "Grievant." The Chief
of Police for the City of Tallahassee is Chief Michael DeLeo, and is hereinafter referred
to as "ChiefDeLeo." The collective bargaining agreement dated October 1, 2017
through September 30, 2020, is hereinafter referred to as the "Agreement." (MX 7) The
term Proper Cause and Just Cause are synonymous and hereinafter referred to as "Just
Cause."
The Grievant was involved in a shooting incident on March 17, 2017. The City issued a
letter to the Grievant on May 30, 2017, informing him that he was under investigation
regarding the circumstances surrounding the discharge of a firearm on March 17, 2017.
(MX 1-28) On May 30, 2017, Chief DeLeo assigned the Department's Internal Affairs
office, hereinafter referred to as the "lA", to investigate the Grievant's actions on March
17, 2017. (MX 1) The Department assigned Investigator Jerritt Federico as the lead
investigator, hereinafter referred to as the "lA Investigator."
After the lA Investigator had completed his investigation, he wrote an investigative
report which was reviewed by his supervisor, Sergeant James Couch who signed off on
the report. The initial report determined that the Grievant's use of force on March 17,
2018, was reasonable. The investigative report was reviewed by Chief DeLeo, who
questioned the investigator's decision because the report did not address the issue of
"imminent danger." The lA Investigator rewrote the report and changed his finding to
indicate the Grievant had violated General Order 60 and had not used reasonable force.
The lA Investigator justified his change in the report based upon him not having initially
considered the issue related to "imminent danger."
On August 2, 2017, following completion of the lA investigation, Chief DeLeo sent the
Grievant a memorandum indicating the investigation had determined that the Grievant's
conduct on March 17, 2017, was not in compliance with either the Response to
Resistance (General Order 60) or Firearms/Less Firearms policies (General Order 70).
(MX 2). ChiefDeLeo's memorandum of August 2, 2017, informed the Grievant that he
could be disciplined by either being suspended or terminated for his violation of
Department policy. Further, the memorandum informed the Grievant that he could meet

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 with Chief DeLeo prior to the final determination regarding what level of corrective
action would be imposed and that he had the right to union representation. A meeting was
scheduled and took place on August 7, 2017, and the Grievant was given the opportunity
to present his positon of what occurred during the March 17, 2017 incident.
On August 15, 2017, Chief DeLeo sent a memorandum to the Grievant indicating that the
Department did not believe the incident on March 17, 2017, imposed an imminent threat
to him or the public and the Department had decided to terminate his employment.
The grievance in question, FMCS File No. 1910-18, was submitted to the Department in
writing and was thereafter processed in accordance with Article 5 of the Agreement,
between the City and the PBA. The parties moved the Grievance to Step 3- Arbitration
and using the services of the Federal Mediation and Conciliation Service, Daniel R.
Saling was appointed as Arbitrator on October 25. 2018.
On February 18 & 19, 2019, an arbitration hearing was held at the Accurate Stenotype
Reporters offices at 2894-A Remington Green Lane, Tallahassee, Florida 32308. During
the course of the hearing, all parties were afforded full opportunity for the presentation of
evidence, examination and cross-examination of witnesses, and oral argument. All
witnesses were duly sworn.
The parties elected to file post-hearing briefs. The Arbitrator received timely post-hearing
briefs from all parties. The last post-hearing brief was received electronically on May 3,
2019. On May 6, 2019, counsel for the City submitted a corrected brief and requested
leave to amend the City's early post hearing brief by making needed corrections and the
request was granted by the Arbitrator.
The parties stipulated that the grievance and arbitration were timely and properly before
the Arbitrator and the Arbitrator had the authority to submit a final and binding decision.
Further, the parties agreed that under the terms of the Agreement the party that does not
prevail in the hearing would be responsible for the payment of the arbitrator' s fees and
expenses.

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 PERTINENT PROVISIONS OF DEPARTMENT RULES:
GENERAL ORDER 60- RESPONSE TO RESISTANCE:

Section I (E):
This written directive is a guide to officers for selecting reasonable and legal
Reponses to Resistance Options of Control/Force during verbal or physical
encounters.

Section III (A):

Officers may use deadly force only when they believe it is objectively reasonable
to defend their life or the life of another person from an imminent threat of great
bodily harm or death.

Submission Statement:
The Association and Department were unable to agree to a submission statement. The
Association and Department agreed to present their case and to allow the Arbitrator to
formulate a submission statement based on the testimony and evidence presented.
The Arbitrator formulated the following submission statement:
1. Was the Grievant terminated for proper cause?

2. If not, what is the appropriate remedy?
FACTUAL BACKGROUND

Set forth in this Background is a summary of undisputed facts and evidence regarding
disputed facts sufficient to understand the parties' positions. Other facts and evidence
may be noted in the Discussion below to the extent knowledge of either is necessary to
understand the Arbitrator's decision.

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 The facts in this case are largely undisputed and are hereinafter summarized. Where,
however, relevant evidence regarding pertinent facts conflicts, the evidence is
summarized.
Tallahassee is the capital city ofthe U.S. state of Florida. It is the county seat and the
only incorporated municipality in Leon County. The population of Tallahassee
metropolitan area in 2018 was 385,245 and is the largest city in the Florida Panhandle
region. The City has a duly elected city council and mayor and provides a number of
services for its residents, including the services of the Tallahassee Police Department.
The Grievant began work as a sworn officer with the Department in 2014. Prior to
becoming a sworn officer, the Grievant served twelve years as a U.S. Marine and had
numerous deployments and overseas duty assignments. Following his employment with
the Department, the Grievant attended and participated in exhaustive training with the
Department on all aspects of police work.
At the time of the alleged incident that gave rise to the Grievant's termination, the
Grievant had been a sworn officer with the Department for approximately three years.
During his tenue with the Department, the Appellant had good evaluations and no
discipline history.
On the shift in question, the Grievant began his shift at 9:15 p.m. on March 16, 2017 and
his shift concluded at 7: 15 a.m. on March 17, 2017. During the shift in question, one of
the Grievant's zone partners was on a call for service at Tallahassee Memorial Hospital
and his other zone partner had taken the weekend off, which required the Grievant to
work the zone without backup.
At approximately 1:40 a.m. on March 17, 2017, the Grievant contacted the Consolidated
Dispatch Agency ("CDA") by radio and advised them of a suspicious vehicle in the
parking lot ofthe Palmer Munroe Teen Center, 1900 Jackson BluffRoad. A short time
after making his initial radio contact, he made a second call to CDA. The Grievant
informed CDA that the suspicious vehicle had hit his patrol vehicle and that shots had
been fired. In his radio transmission with the CDA, the Grievant indicated that the
suspicious vehicle had hit his patrol car and that the patrol call had then struck him. The
Grievant indicated that the vehicle that had struck his vehicle was a white-colored
Chevrolet Impala with two black male occupants.

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 At 1:46 a.m. Kendrick Crawford, ("Mr. Crawford") contacted CDA and reported that his
2013, white Chevrolet Impala, registered to his mother, Brenda Williams, has been stolen
at a gas station a few minutes prior to the incident at the Palmer Munroe Teen Center.
At 1:48 a.m. Leon County Sheriffs Officer Austin Whitley spotted the vehicle in
question and the black male occupants attempted to conceal their faces with their arms.
The Deputy pursued the vehicle and was joined by other Leon County Deputies but after
an 11 mile pursuit, the deputies lost sight of the vehicle and the pursuit was terminated.
Police investigators met with Mr. Crawford, who indicated that he had left the vehicle
with the keys in the ignition and when he returned, the vehicle had been stolen. The
Department' s investigators determined that Mr. Crawford's statements were false, based
on their follow-up investigation and review of the surveillance video at the gas station.
The investigators determined that Mr. Crawford had been at the Palmer Munroe Teen
Center with a Ms. St. Hilaire. When Ms. St. Hilaire was interviewed by the investigators,
she indicated that she had heard gun shots and had observed the white Chevrolet Impala
quickly leave the parking lot. Through their follow up investigation the Police
investigator established that Jontavian Riley ("Mr. Riley") and Byron Wimberly ("Mr.
Wimberly"), both seventeen-year-olds, were the occupants in the vehicle at the time of
the crash and when the shooting had occurred.
On June 11 , 2018, Mr. Crawford was arrested for "Making a False Report- Knowingly
Giving False Information to Law Enforcement" and "Misuse of911." On June 12, 2018,

Mr. Wimberly was arrested for "Aggravated Battery on a Law Enforcement Officer."
The Department terminated the Grievant because it believed that the March 17, 2017,
accident was a serious violation of Department policy. The Department believes, based
on the totality of the evidence, it was not objectively reasonable for the Grievant to have
believed that there was an imminent threat of great bodily harm or death at the time he
fired his weapon.

DEPARTMENT'S POSITION
The Department believes that it has shown by the preponderance of the evidence that on
March 17, 2017, the Grievant was involved in a shooting incident in violation of the

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 Department's General Rules 60. (MX 5) The Department contends that it was not
objectively reasonable for the Grievant to have believed that he was an imminent threat
of great bodily harm or death at the time he fired his weapon. The Department believes
that the shooting was an excessive use of force and that the termination of the Grievant
was justified by the totality of the circumstances surrounding the incident.
The Grievant drove into the parking lot at the Palmer Munroe Teen Center because he
had observed a suspicious vehicle parked in front of the Center in a handicapped parking
spot. The Grievant parked at an angle behind the suspicious vehicle and got out of his
patrol car to investigate. As he stood by his vehicle, the suspicious vehicle was placed in
reverse and struck the Grievant's patrol vehicle and then his patrol vehicle struck him.
The suspicious vehicle drove forward and once the Grievant had acquired his footing, he
pulled his firearm and began to run after the vehicle. The Grievant fired six shots into the
side and back quarter panel on the driver's side of the vehicle.
The Department contends that the Grievant may have been in imminent threat of great
bodily harm when he was struck by his vehicle but the Grievant did not commence to run
after the fleeing vehicle and discharge his weapon until the vehicle was beginning to
drive out of the parking lot. Once the vehicle began to drive away from the Grievant, he
was no longer in imminent threat for his safety and therefore should not have discharged
his weapon. The Grievant testified that at the time of the incident, his brain was telling
him to seek cover, which is contradictory to his actions of running after the fleeing
vehicle.
The Department's investigation into the March 17, 2017, incident concluded that the
Grievant's actions were not in compliance with General Order 60, Response to
Resistance (MX 5) but was in compliance with General Order 70, Firearms/Less Lethal
Firearms. (LX 14)
Lieutenant Tracy Clark, ("Lt. Clark"), testified that in the Department's Interactive Use
of Force Lesson Plan (MX 4), which is used to train sworn officers in the use of deadly
force clearly informs officers that when an imminent threat is no longer present, the

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 officer is not allowed to continue to use deadly force. The Department conditions officers
so they will not get struck in an "OODA" loop, this acronym stands for observe, orient,
decide and act. If and officer does not follow this procedure, they develop tunnel vision
and this can lead them to see only what is in front of them and does not allow them to
process other external factors. The Department believes the Grievant had tunnel vision
during the incident of March 17, 2017, and was not able to stop firing his frrearm after
the vehicle was no longer an imminent danger to him or others.
The Department questioned the testimony of Lieutenant James Fairfield, ("Lt. Fairfield"),
who attempted to explain the Grievant's conduct based upon "force science." The
Department does not believe that "force science" is an established science and does not
believe that Lt. Fairfield, can be considered an expert in the field.
The Association presented two other cases where officers were involved in shooting
incidents but were found not to have violated Department policy. The Department
contends that the Grievant had not seen any of the videos of the police shooting prior to
his shooting on March 17, 2017. The Department believes that the other shooting
incidents are easily distinguishable because the officers feared for their safety, whereas
the Grievant was not in treat of imminent danger.
The Department believes that it has applied the Graham v. Connor, 109 S. Ct. 1865
(1989) case factors correctly. The Department found that the Grievant's actions were not
"objectively reasonable" in light of the facts and circumstances confronting him. The
Department carefully looked at all the facts and circumstances in the Grievant's case and
found that the Grievant's conduct was not objectively reasonable.
The Department has met its burden of proof. The Department has shown by the
preponderance of the evidence that the Grievant's conduct has violated long established
Department rules regarding the use of unnecessary force and/or excessive force and the
Grievant understood that violation of these rules could subject him to an appropriate level
of discipline.
The Department contends that it has terminated the Grievant for just or proper cause.

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 The Grievant was aware of the Department's rules, had received training and had
acknowledged his awareness of the rules. Further, the evidence clearly showed that the
Grievant' s actions on the morning of March 17, 2017, violated these Department policies.
The Department fully investigated the March 17, 2017, incident and issued discipline that
was commensurate with the seriousness of the Grievant's misconduct.
While the Association may argue that the Department was obligated to follow
progressive discipline, this argument must fail. While progressive discipline is to be used
to rehabilitate an employee, some employee offenses are so series as to warrant
termination for a first offense violation. The use of deadly force is a very serious concern
for any police department and when an officer uses excessive force, the only appropriate
discipline is termination.
The Department requests that the Arbitrator find that the Grievant's termination was
appropriate and that it was based on just cause.
ASSOCIATION'S POSITION
The Association contends that the primary issue that must be addressed is whether or not
the Grievant believes it was objectively reasonable to use deadly force to defend his life
or the life of another person from an imminent threat of great bodily harm or death.
The Association does not believe that the Department had just cause to terminate him for
the alleged violation of General Order 60.
The Association contends that the just cause standards must be followed by the
Department when disciplining an employee. Just cause includes a determination that
sufficient evidence exists to substantiate the allegations as set forth in the notice of
discipline and, if that determination is reached, it also includes a determination that the
penalty imposed is just and appropriate. The City must prove its accusation by the
preponderance of the evidence and also has the burden to prove that the discipline
administered was appropriate.

For the Department to establish whether a police officer's use of force is appropriate or

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 excessive, it requires a careful consideration of the "nature and quality of the intrusion of
the [suspects] Fourth Amendment interest against the countervailing governmental
interest at stake." Graham (supra) The U.S. Supreme Court in Graham (supra)
established that "reasonableness" is not amenable to a precise definition or mechanical
application. Reasonableness can only be determined by examining the totality of the
circumstances and cannot be determined upon perfect clarity of hindsight. When the
Department is analyzing a use of force incident for reasonableness, it must review the
matter from the perspective of a reasonable office and must include a recognition that
officers are often required to make split-second judgments in circumstances that are
tense, uncertain and rapidly evolving when determining the amount of force that is
necessary in a particular situation.
In evaluating just cause, labor arbitrators have long relied upon the seven tests of just
cause that was introduced by Professor Carol Daughtery in 1966. The seven factors are :
1. The employee knew of the company' s policy.
2. The company's policy was reasonable.
3. The company investigated to determine that the employee violated the policy.
4. The investigation was fair and objective.
5. Substantial evidence existed of the employee's violation of the policy.
6. The company's policy was consistently applied.
7. The discipline was reasonable and proportional (the punishment fit the crime).
The Association contends that the Department failed to prove that the Grievant had an
understood General Order 60 as it was applied by the Department in his case. Even the
lA Investigator in his initial investigative report did not understand the rule as interpreted
and applied by Chief DeLeo. Based on the testimony of the lA Investigator, Lieutenant
Fairfield (LT. Fairfield) and Officer Underwood, the Grievance conduct on March 17,
2017, was in compliance with Department General Order 60. The Association believes
that Chief DeLeo' s interpretation of General Order 60 is novel and is inconsistent with
the common understanding of its strictures. Furthermore, the testimony of officers
charged with training other officers, clearly established that the training given to officers

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 with regard to use of force is inconsistent with General Order 60 as it has been interpreted
and applied by Chief DeLeo.
The Department's application of General Order 60 is unreasonable and places officers in
the field in a positon of not knowing when they have the right to use any level of force.
The Department's interpretation of General Order 60 requires officers to act contrary to
their natural instincts and training. In the early hours of March 17, 2017, the Grievant was
working alone and without backup, when he approached a suspicious vehicle in a parking
lot in front of a City building that was not open. The Grievant pulled up behind the
suspicious vehicle and stepped out of his marked patrol vehicle, when the suspicious
vehicle quickly backed into the Grievant's patrol vehicle and his vehicle then hit him and
caused injuries that he was later treated for and then released.
General Order 60 contains an admonishment that officers are strongly discouraged from
discharging a firearm from a moving vehicle or at a moving vehicle. The IA Investigator
testified that the language of General Order 60 does not absolutely prohibit but "strongly
discourages" the discharging of a firearm from a moving vehicle or at a moving vehicle.
The lA Investigator testified that he knew of two separate shooting incidents where
officers had fired into a moving vehicle and they were not disciplined.
The IA Investigator testified that he had incorporated several of the Graham (supra)
factors in his initial investigative report. The IA Investigator further testified that he
originally concluded that the Grievant did face an "immediate" threat and that this
finding supported his original finding that the Grievant had not violated the provisions of
General Order 60. Additionally, the IA Investigator cited the following Graham factors in
support of his original fmding: (1) the Grievant's use of force was in response to a violent
felony offense, (2) the level of resistance was sufficiently violent to warrant the use of
deadly force, (3) the Grievant was alone, (4) the Grievant was forced to make a splitsecond decision to use deadly force, (5) the suspects' proximity to weapons, and (5) the
Grievant's perceptions at the time the decision to used force was made.

The lA Investigator testified that his original report contained findings and not opinions.

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 The IA Investigator agreed that the Grievant was justified in using deadly force for
approximately three (3) seconds prior to the time that the Grievant discharged his firearm
for the first time. Additionally, the report indicated that the Grievant had not fired any
shots into the rear or back of the suspicious vehicle and that all of the rounds had been
fired into the driver's side of the suspicious vehicle.
The Grievant discharged his firearm due to his perception that the suspects posed a great
risk of bodily harm and/or death. The suspects sitting in the suspicious vehicle used the
vehicle as a deadly weapon against the Grievant and subsequently led Leon County
Sheriff deputies on an 11 mile pursuit but were able to escape the pursuit. The
investigative report stated that the passenger in the suspicious vehicle admitted that both
he and the driver knew that the vehicle that had pulled up behind them was a marked
patrol vehicle prior to ramming into the patrol vehicle.
The IA Investigator testified that a time span of approximately ten (1 0) seconds occurred
from the time the Grievant arrived at the scene until the suspects left the scene. Within
the ten ( 10) second time period the Grievant arrived at the scene of the incident, got out
of his patrol vehicle, his patrol vehicle was rammed by the suspect' s vehicle, the
Grievant' s patrol vehicle hit him and knocked him offbalance, he recovered his balance,
realized he was in imminent danger, drew his fire arm, began running toward the
suspect' s vehicle and discharged his weapon into the side of the suspect' s vehicle.
The Union does believe that the Department' s internal investigation was fair and
objective. The initial IA Investigative report found that the Grievant' s discharging of his
firearm was within Department policy. It was only after Chief DeLeo became involved in
the post investigative report did the IA Investigator find that the Grievant's conduct on
the morning of March 17, 2017 was not within Department guidelines as outlined in
General Order 60. The Association contends that the IA Investigator's decision to change
his conclusion in his original investigative report was reached at the behest of Chief
DeLeo and was not the product of an objective investigation. The Department ignored the
holding of Graham (supra) and failed to understand the significance of an "imminent
threat." Therefore, the second finding ofthe IA Investigator' s report was biased and was

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 not consistent with the objective findings reported in the initial investigative report.
The numerous conflicting opinions and conflicting investigative fmdings rebuts a
conclusion that substantial evidence supports the determination that the Grievant violated
General Order 60. The Department has failed to meet its burden of proof and the
evidence and testimony presented by the Department has not established by the
preponderance of the evidence that the Grievant violated General Order 60.
The Association provided a number of cases where officers had shot at a moving vehicle
and were not disciplined for having violated General Order 60. The IA Investigator
testified that approximately two months prior to the Grievant's March 17, 2017, incident,
two officers, Investigator Campbell and Office Reeder, were involved in a shooting
incident with a fleeing vehicle. (LX 1) Investigator Campbell had been struck by the
vehicle and both he and Officer Reed discharged their firearms at the vehicle as it fled
away from the scene. The two officers discharged fourteen rounds into the back of the
fleeing vehicle. The Department applied the same version of General Order 60 on this
case as it had in the Grievant's case but found that Campbell and Reeder had not violated
Department policy when shooting at a fleeing suspect's vehicle.

In 2013 Officer Schulze fired into the truck of a fleeing suspect's vehicle but did not
receive any form of discipline. In Officer Schulze's case, Chief DeLeo reviewed and
approved that his use of force was reasonable. The Association contends that other
officers have shot into the back of fleeing suspect's vehicle and yet their actions were not
disciplined even though the vehicle was moving away from the officers and that they
were no longer were in "imminent" threat of great bodily harm or death. Yet, in the
Grievant's case, Chief DeLeo subjectively determined that the Grievant should not have
considered himself in imminent threat of great bodily harm or death - even though in a
(10) ten second time frame and in the heat of the moment, the Grievant was struck by his
patrol car. The Department's decision that the Grievant's decision to use deadly force
was not objectively reasonable for him because he was not in imminent danger of being
harmed or being killed is not supported by the evidence. The conduct of the Department
shows that it has taken action that can only be considered to be disparate treatment when

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 compared to the discipline of other officers charged with the same alleged conduct that
resulted in the Grievant's termination. The Department has not treated employees who
have allegedly committed the same alleged act similarly.
Even if the Grievant's conduct justified discipline, ChiefDeLeo admitted that he did not
give any weight to the Grievant's stellar service with the Department. Further, the
Department did not follow progressive discipline. Even if the Grievant was found to be
out of compliance with General Order 60, termination was an unjust form of punishment.
The Association believes that the Department has failed to prove that just cause existed
for the discipline in this matter. The preponderance ofthe evidence does not support the
finding that the Grievant violated General Order 60. The Grievant's use of deadly force
was justified and lawful. The Association requests that the Arbitrator sustain the
grievance and provide an award which includes immediate reinstatement with full back
pay, restoration of seniority and benefits.
DISCUSSION

The facts of this case are clear and unambiguous. On March 17, 2017, the Grievant was
checking on a suspicious vehicle in a parking lot in front of a city owned building.
When the Grievant got out of his marked patrol vehicle to speak with the occupant in the
suspicious vehicle, the suspicious vehicle was placed in reverse and struck the Grievant' s
patrol vehicle, which then stuck the Grievant. The Grievant was without backup in a
deserted parking lot and he drew his firearm and fired six shots into the driver side of the
suspect's vehicle.
The Department investigated the shooting incident and initially determined that the
Grievant had discharged his firearm within the provisions of General Order 60. Later,
Chief DeLeo spoke with the IA Investigator and indicated that he did not believe the
Grievant was in "imminent" threat of great bodily harm or death. Therefore, it was not
objectively reasonable for him to use deadly force to defend his life or the life of another
person from an imminent threat of great bodily harm or death.

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 The Grievant was terminated for violation of General Order 60. The Grievant filed a
grievance and has requested reinstatement based on the provisions of the Graham (supra)
holdings and the violation of the Grievant rights under just cause.
"Just cause" consists of a number of substantive and procedural elements. Primary
among its substantive elements is the existence of sufficient proof that the employee
engaged in the conduct for which he or she was discharged or disciplined. Other elements
include a requirement that an employee know or be expected to know ahead of time that
engaging in a particular type of behavior will likely result in discipline or discharge; that
there is the existence of a reasonable relationship between an employee's misconduct and
the punishment imposed; that a fair and objective investigation was conducted; and that
discipline be administered even-handedly, that is, that similarly situated employees be
treated similarly and disparate treatment be avoided.
The Grievant had been employed as a sworn officer with the Department for
approximately three (3) years, as of the date of the incident on March 17, 2017, the
evidence established that the Grievant was aware of the Department's General Order 60,
with regard to the use of deadly force. The Grievant had received training on General
Order 60 and was aware that violations of the established rule could result in discipline
up to and including termination. The Department has the right to develop and implement
reasonable policies that provide for a smooth and effective operation of the Department
and therefore had the right to establish General Order 60.
The key issue in this case is whether or not the Grievant's conduct in the early morning
of March 17, 2017, was in fact a violation of General Order 60. General Rule provides
that, "Officers may use deadly force only when they believe it is objectively reasonable
to defend their life or the life of another person from an imminent threat of great bodily
harm or death." (Emphasis added) General Order 60 follows the mandates found in the
Graham (supra)_case. Further, General Order 60 states that it is a "guide to officers" for

selecting reasonable and legal Reponses to Resistance Options of Control/Force during
verbal or physical encounters and is not a mandated set of rules that must be followed.

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 (Emphasis added)
One ofthe elements of just cause is that there must be a fair and objective investigation
conducted to determine if allegations filed against an employee are in fact true. In this
case the IA Investigator began his investigation on May 30, 2018, by collecting evidence,
reviewing relevant documents and conducting interviews. Once the investigation was
completed a report was signed by the IA Investigator that determined that the Grievant's
use of force was justified and was in compliance with General Order 60. The
investigative report was sent to Chief DeLeo for his review and signature. Instead of
concurring with the investigative report, Chief DeLeo met with the IA Investigator and
informed him that he did not believe that after the time the Grievant and his patrol vehicle
were stuck by the suspect's vehicle, the Grievant was in imminent danger and therefore
the shooting was not in compliance with General Order 60. After the meeting with Chief
DeLeo, the IA Investigator changed his fmdings to state that the Grievant was not in
imminent danger and therefore was not in compliance with General Order 60. It appears
that Chief DeLeo was not pleased with the IA Investigator's finding and directed that the
findings be change.
There was evidence presented by the Grievant that established that other employees had
been involved in discharging their firearms at a suspect's vehicle that was driving away
from the scene of an incident but these individuals had not received any form of
discipline. Chief DeLeo stated in his testimony that once the vehicle had pulled away
from the Grievant that he was no longer in imminent danger and therefore any discharge
ofhis firearm thereafter was a violation of General Order 60. Yet, the two cases
presented by the Association clearly established that the suspect's vehicle in those
incident were departing the scene of the incident and they continued to fire into the back
of the vehicle. Why were these individuals not found to have violated General Order 60,
because under Chief DeLeo's interpretation of General Order 60, once the vehicle moves
away from the scene of the incident the officers are no longer in "imminent" danger of
being physically harmed or killed and should not have fired at the vehicle. The
Department has treated similar incidents substantially differently and has excused the

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 conduct of a number of officer but has determined that the Grievant must be terminated
for the same conduct.
Unless otherwise provided for in the Collective Bargaining Agreement, discipline for all
but the most serious offenses must be imposed in gradually increasing levels. This
incremental dispensing of discipline is most often referred to as "Progressive Disciple."
The primary objective of discipline is to correct rather than punish. Thus, for most
offenses, employers should use one or more warnings before suspensions, and
suspensions before discharge. Yet, some offenses are sufficiently serious to justify
serious discipline for a first offense. These include theft, physical attacks, willful and
serious safety breaches, gross insubordination, and significant violations of law on the
employer's time or premises.
The Grievant contends that the Department has not established by the preponderance of
the evidence that the incident of March 17, 2017, was a violation of General Order 60.
The Grievant contends that he reasonably believed that he was in imminent danger and
that he was justified in the discharging of his firearm. Therefore, he should not have been
terminated. Even ifthere was a finding that the Grievant had violated General Order 60,
the Grievant believes his stellar service to the Department and absent of any discipline
history should have been considered mitigating factors. Further, because of the fact that
other officers have been investigated for having discharged their weapon at a fleeing
vehicle without the consequence of termination, the Grievant believes that he should not
have been terminated but given a lessor form of discipline.
Arbitrators may not substitute their judgement for that of an employer with regard to the
appropriateness of a penalty, when the misconduct of an employee has been established.
Yet, if an arbitrator finds that the employer has engaged in issuing discipline that is
excessive, unreasonable or that management has abused its discretion, the arbitrator may
exercise his judgment as to the appropriateness of the proposed discipline.

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 CONCLUSION

The Department must administer discipline to an employee by following certain
prescribed rules, regulations and procedures. The Department must establish that it had a
rational and legal basis for the administration of discipline against an employee. In the
furtherance of the goal of improving employee performance and taking appropriate
disciplinary action, the Department is obligated to use "just cause" in the administration
of discipline of an employee.
The Supreme Court cautioned that in examining excessive force claims that "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." Graham (supra) The Court also stated that the use of force
should be measured by what the officer knew at the scene, not by the "20/20 vision
of hindsight" by a Monday-morning quarterback. In sum, the Court fashioned a
realistically generous test for use of force lawsuits.
In the nearly three decade history of Graham (supra), courts have refined the threeprong Graham test and applied a number of additional factors. For example, courts
consider the degree of threat posed by the suspect to officers or the public in light of
relative numbers and strength. When officers are outnumbered or confronted with
particularly powerful suspects, additional force may be justified. Sharrar v. Felsing,
128 F.3d 810 (3rd Cir. 1997). Courts may also consider the immediate availability of
less-lethal tools. Tom v. Voida, 963 F.2d 952 (7th Cir. 1992). The suspect's history
of mental illness, or level of impairment from alcohol or drugs, also contributes to
the analysis of the threat posed by the suspect. Krueger v. Fuhr, 991 F.2d 435 (8th
Cir.), cert. denied, 510 U.S. 946 (1993).
The facts of this case are clear and unambiguous. In the early morning of March 17,
2017, the Grievant without backup, saw a suspicious vehicle parked in front of the City
owned Palmer Munroe Teen Center. The suspicious vehicle was parked in a handicapped

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 parking spot in from of the closed city owned building. The Grievant drove up behind the
vehicle and got out of his patrol vehicle to check on the occupants of the vehicle. As the
Grievant moved toward the front of his vehicle the suspicious vehicle immediately
backed into the patrol vehicle and the patrol vehicle then struck the Grievant causing him
physical harm. The Grievant was thrown off balance and had to regain his balance. Once
the Grievant recovered from being struck by his patrol vehicle he unholstered his firearm
and began to run after the vehicle. The Grievant discharged his firearm and six shots
struck the vehicle on the driver side but no shots were fired into the back or trunk of the
vehicle.
The occupants in the suspicious vehicle were aware that the vehicle parked behind them
was a marked patrol vehicle, yet they intentionally decided to place their vehicle in
reverse and willfully and maliciously crashed into the patrol vehicle. The suspect's
vehicle was a dangerous offensive object that could have seriously injured or killed the
Grievant. The Grievant found himself in "imminent" danger of being physically harmed
or killed and took action as provided for in General Order 60. The Court in Graham
(supra) established that the uses of deadly force standard is whether the use of force is
reasonable and the use of force must be measured by what the officer knew at the scene,
not by the "20/20 vision of hindsight" by a Monday-morning quarterback. The evidence
and testimony established that the initial fmding of the IA Investigator was that the
Grievant had not used unreasonable force but it was only after Chief DeLeo had reviewed
the case did the IA Investigator decide to change his finding and find that the Grievant
had not used reasonable force. This is a prime example of what the Court in Graham
(supra) stated was the "20/20 vision of hindsight" by a Monday-morning quarterback.
On March 17, 201 7, the Grievant was confronted with two suspects that were willing to
use their vehicle as a weapon against a sworn officer. The two suspects knew the vehicle
behind them was a marked patrol vehicle but decided to assault the lone officer, without
regards for the officer's safety. The entire time span from when the Grievant arrived at
the scene of the incident and when the last shot was fired was approximately ten seconds.
Assuming that the Grievant exited his vehicle and was then struck by the suspect's
vehicle, there would have been a lapse of two or three seconds of time. When the

20

 Grievant was stuck and knocked off balance the time lapsed for him to recover would
have been approximately one to two seconds. After having recovered his balance, the
Grievant, then had to unholster his firearm and this would have taken approximately two
to three seconds. Then the Grievant would have fired his weapon over a three or four
second period of time. From the time the Grievant determined that the suspect's vehicle
was leaving the parking lot and until his brain sent the message to his muscles to stop
shooting, there would have been a two to three seconds time lag.
The timeframe clearly established that the Grievant objectively and reasonably believed
that he was in imminent danger of great bodily harm or death. When the vehicle did not
make aU-tum and attempt to further harm the Grievant but departed the parking lot, the
Grievant realized he was no long in imminent danger and immediately stopped
discharging his firearm. The evidence and testimony clearly established that the Grievant
was in compliance with General Order 60 throughout the timeframe of the incident.
The Department's contention that the Grievant was only in imminent danger for the three
seconds it took for the suspect's vehicle to strike the marked patrol vehicle is
unreasonable and not supported by credible evidence. It was objectively reasonable for
the Grievant to believe he was in imminent danger of being injured or killed. The video
shows that once the suspect's vehicle had crashed into the patrol vehicle, the vehicle
began to move in a forward direction and its left front wheel was turned left. It was
objectively reasonable for the Grievant to be concerned that the vehicle might make aUtum and attempt to hit him.

The Department's contention that the suspects did not have any weapons in the vehicle
when the suspect's vehicle was searched does not establish that the suspects did not have
weapons at the time they struck the Grievant's patrol vehicle. The suspects were pursued
by the Leon County Sheriffs Department for approximately eleven (11) miles and it is
very possible that any weapons or contraband that the suspects may have had could have
been disposed of by the suspects during the pursuit or after the pursuit was ended. The
Grievant was alone and without backup when he was battered and it was reasonably
objective for the Grievant to believe that the suspects that were willing to assault a police

21

 could have had weapons in the vehicle.
The Department contends that the Grievant had testified that at the time of the incident
his brain was telling him to seek cover, which was contradictory to his actions of running
after the fleeing vehicle. The Department gave no consideration to the fact that the
Department trains its officers to discharge their firearms while running toward an object.
Further, the Department did not give any consideration to the Grievant's 12 years of
military training that conditions U.S. Marines to aggressively move toward an object.
Certainly, the Grievant may have felt that he should take cover but his training,
conditioning and experience had him evaluate the fight or flight options and he choose
the fight option.
In evaluating the testimony and the evidence submitted in this hearing, I find that the
Grievant was not terminated for just cause. The testimony established that the Grievant
did not violate General Order 60, because he reasonably and objectively determined that
he was in imminent danger of great bodily harm or death.
The investigation by the lA Investigator was completed and there was a decision that the
Grievant's conduct on the date of the incident, was within the provision of General Order
60, but the decision was changed when Chief DeLeo met with the lA Investigator and
indicated that he subjectively did not believe the Grievant was in imminent danger. Chief
DeLeo subjective evaluation of the incident is not supported by an objective analysis of
the facts surrounding the incident.
The evidence that was presented clearly established that other officers have been
investigated for shooting at a fleeing vehicle but none of them have been terminated or
disciplined. Just cause requires that an employer administer discipline evenhandedly.
The evidence shows the Grievance discharge constitutes disparate treatment. The essence
of disparate treatment is differently disciplining similarly situated employees. The facts
of the Grievant' s case, when compared to the other shooting incident case, is
substantially similar but only the Grievant was singled out for termination. While the
Association attempted to establish that the Department' s decision to terminate the

22

 I
Grievant was based on racial discrimination, the testimony and evidence did not establish
that the decision to terminate was racially motivated.
Based upon the testimony and the evidence presented during the hearing, I believe that
the Grievant did not violate General Order 60. Further, the Grievant was not terminated
for just cause. The Department's conclusion that the Grievant did not have an objectively
reasonable belief that he was in imminent danger is not supported by the evidence.
Additionally, the Department did not follow the provision of Graham (supra), in reaching
its decision to terminate the Grievant.

BINDING A WARD

For the reasons hereto stated, I, Daniel R. Saling, the duly appointed impartial Arbitrator
in this matter, issue the following fmal and binding decision:

1. The Grievance is sustained.
2. The Grievant is to be returned to work and made whole.
3. The City having not prevailed in the hearing shall be responsible
for the arbitrator' s fees and expenses.

~
Arbitrator

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May 17,2019
Date