City of Bos. v. Bos. Police Patrolmen's Ass'n, SJC-12077

• Decision Date: 12 July 2017
• Docket Number: SJC-12077
• Citation: 78 N.E.3d 66,477 Mass. 434
• Parties: CITY OF BOSTON v. BOSTON POLICE PATROLMEN'S ASSOCIATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

477 Mass. 434
78 N.E.3d 66

CITY OF BOSTON
v.
BOSTON POLICE PATROLMEN'S ASSOCIATION.

SJC-12077

Supreme Judicial Court of Massachusetts.

Argued December 5, 2016
Decided July 12, 2017.

Kay H. Hodge (Geoffrey R. Bok also present), Boston, for the plaintiff.

Alan H. Shapiro, Boston, (John M. Becker also present) for the defendant.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

HINES, J.

477 Mass. 435

This is an appeal from a judgment of the Superior Court confirming an arbitrator's award reinstating a Boston police officer terminated for using a choke hold in arresting an unarmed suspect for disorderly conduct and making false statements in the ensuing departmental investigation. The arbitrator found that the officer, David Williams, had applied a choke hold, but that the choke hold had not actually choked the citizen, that the force was reasonable in the circumstances, and that the officer's subsequent characterization of events was thus truthful. Accordingly, the arbitrator ruled that the city of Boston (city) lacked just cause to terminate Williams, and ordered his reinstatement with back pay.

In July, 2013, the city filed a complaint in the Superior Court to vacate the arbitrator's award. The court dismissed the complaint in June, 2015, and the city appealed. We granted the city's application for direct appellate review. Because the award neither exceeds the arbitrator's authority nor violates public policy, and because we are not free to vacate it where no underlying misconduct was found, we affirm.

1. Background . a. Facts . On January 18, 2012, the city discharged Williams based on specifications arising from a disorderly conduct arrest on March 16, 2009. The specifications were use of excessive force, in violation of Boston police department rule 304 on use of nonlethal force, and untruthfulness in the subsequent investigation, in violation of rule 102, § 23, on truthfulness. Chosen by mutual agreement of the city and the Boston Police Patrolmen's Association (union) pursuant to a collective bargaining agreement (CBA), an arbitrator held three days of hearings, concluded that the city had proved neither charge, and ordered Williams's reinstatement with back pay. He based his conclusion on the following factual findings.

In 2009, Boston's Saint Patrick's Day Parade fell on Sunday, March 15. Among the revelers that day were Michael O'Brien and his friends Thomas Cincotti and Eric Leverone. Having consumed some alcohol during the daytime celebrations, the three proceeded to a Faneuil Hall bar where O'Brien received free drinks by virtue of knowing the staff and owners. Because Leverone had recently returned from active military duty, patrons

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477 Mass. 436

purchased him many drinks, and he became extremely intoxicated.

From that bar, the three walked to Cincotti's apartment in the North End neighborhood of Boston. While his friends waited on the sidewalk, Cincotti moved his motor vehicle to avoid getting a parking citation the next day. In doing so, he backed across a double yellow line and into a double-parked vehicle occupied by Guy Fils-Aime. Cincotti got out of his vehicle, asked O'Brien to move it out of the street, and approached Fils-Aime. O'Brien testified that, before moving the vehicle to a legal parking space, he heard Fils-Aime say, "I am a federal agent and you are fucked."¹

Fils-Aime called 911 just after midnight to report the accident. On that recorded call, he can be heard to say, "No, no, no. Don't worry. I work for Homeland Security. I'm a Federal agent. You're not going to get in trouble. Relax." After describing the accident to the dispatcher, Fils-Aime added, "They're drunk."

Officers Williams and Diep Nguyen arrived on scene at 12:08 A.M. O'Brien described their interaction as immediately hostile and aggressive, while the officers characterized O'Brien and his friends as drunk and uncooperative. O'Brien, who with Cincotti and Leverone is Caucasian, appeared further provoked by the officers' friendliness with Fils-Aime, who like Williams is African-American. As the officers spoke with Fils-Aime, O'Brien approached and demanded that they issue a citation to Fils-Aime for double-parking, and find out whether he was in fact a Federal agent. Receiving no answer, O'Brien began to film the officers with his cellular telephone as he repeated his demands from the middle of Hanover Street, where he was blocking traffic.²

After O'Brien failed to heed multiple warnings to get out of the street, Nguyen decided to arrest him for disorderly conduct. O'Brien pushed Nguyen away, and the two struggled as Nguyen attempted to handcuff him; he managed to cuff one wrist. Seeing this struggle from the cruiser where he had been writing a citation for Cincotti, Williams came to Nguyen's aid and tackled O'Brien to the ground; Nguyen was "fighting off" Cincotti and Leverone. In an effort to extricate O'Brien's uncuffed hand from underneath

477 Mass. 437

O'Brien's body, Williams pressed his upper left arm and shoulder against the right side of O'Brien's neck. He characterized this maneuver as a "semi-bear-hug hold." Nguyen testified that Williams had his arm "around [O'Brien's] neck" in a "chokehold." O'Brien testified that he could not breathe and began to lose consciousness.

Williams called for assistance using a police radio attached to his uniform, and the eight officers who soon arrived arrested O'Brien. As he was being taken to a police wagon, O'Brien announced his employment with the sheriff's office and shouted the names of officers he knew. Once in the wagon, he realized that he had urinated in his pants.

O'Brien was charged with resisting arrest, assault and battery on a police officer (Nguyen), and disturbing the peace. He was booked at 12:40 A.M. , with a bruise visible on his left temple and an abrasion on the right side of his forehead. Lieutenant James Leary, who was duty supervisor at that time, examined O'Brien and noted

78 N.E.3d 70

nothing unusual. Twenty minutes later, O'Brien complained of chest pain and head pressure, and emergency medical technicians thereafter transported him to Massachusetts General Hospital. The triage nurse, in notes recorded at 2:30 A.M. , observed O'Brien to be under the influence of alcohol. At 3:43 A.M. , O'Brien reported to the attending physician, Dr. Andrew Liteplo, that he had been beaten and choked by police. Liteplo noted petechiae, which are sometimes associated with choking, on O'Brien's face. O'Brien was otherwise asymptomatic.

On March 19, 2009, O'Brien filed a complaint with the internal affairs division (IAD) of the Boston police department (department). Although IAD assigned the complaint to an officer, little investigation was done, and O'Brien's counsel withdrew it in May, 2009. Williams did not learn of the allegations against him until September 24, 2009, when O'Brien filed a Federal lawsuit alleging unreasonable use of force, unconstitutional arrest, and assault and battery. The next day, counsel filed another IAD complaint; when IAD still had taken no action in January, 2010, counsel sent a letter demanding that the matter be investigated. Sergeant Philip Owens conducted initial interviews of the officers in April, 2010, but not until February, 2011, was Williams placed on administrative leave.

A second round of IAD interviews occurred in March, 2011. In June, 2011, the department exonerated Nguyen, but issued two specifications against Williams: the use of unreasonable force, in

477 Mass. 438

violation of rule 304, § 2,³ and untruthfulness during the IAD interview, in violation of rule 102, § 23.⁴ The departmental trial board held hearings in November and December, 2011, and sustained the charges. The city terminated Williams on January 18, 2012, and settled O'Brien's civil lawsuit for $1.4 million shortly thereafter.

The union filed a grievance, contending that the city lacked just cause to terminate Williams.⁵ The case went before an arbitrator to determine whether the city had just cause to terminate Williams, and

78 N.E.3d 71

whether the city violated the CBA by placing Williams on administrative leave in February, 2011. A hearing was held in September, October, and December, 2012.

b. The arbitrator's award . In June, 2013, the arbitrator issued his decision based on the premise that Williams had been terminated for use of excessive force, not for application of a choke hold ("The Department evidently credited O'Brien's charge that [Williams] attacked him for no reason, knocked him to the

477 Mass. 439

ground, grabbed him around the neck, and strangled him almost to the point of unconsciousness").

Characterizing the case as contingent on a credibility determination, the arbitrator rejected O'Brien's account of the incident as "not truthful," and concluded that Williams used only the amount of force reasonably necessary to...