Department Cannot Fire Officer Who Followed Training

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This article appears in the May issue of our monthly newsletter, Public Safety Labor News.

On January 29, 2010, Portland, Oregon police officer Ron Frashour was one of approximately 15 officers responding to a call that an armed man, Aaron Campbell, was threatening suicide by police. Because he was certified in the AR-15 rifle, Frashour was assigned as “lethal cover” for a custody team that set up in a parking lot adjacent to the apartment where Campbell was located. During the next hour and a half, Campbell’s girlfriend left the apartment, and reported that he had a handgun, and customarily carried it in his jacket. Eventually, Campbell left the apartment, and approached the custody team at a rapid pace. The custody team was unaware that another officer in telephone communication with Campbell may have suggested that he leave the apartment.

When Campbell refused to comply with instructions given by the custody team and told the custody team to “go ahead and f*** shoot him,” a member of the custody team fired several beanbag rounds at Campbell. Campbell began running directly towards a car that would have provided him hard cover, and reached into his waistband as he approached the car. Frashour fired one round from his AR-15, killing Campbell. Campbell turned out to be unarmed; he had left his gun in the apartment.

The case immediately drew much public attention. Reverend Jesse Jackson came to Portland, and pronounced Frashour an “executioner.” A public march demanded that Frashour be fired, and Portland’s mayor demanded that Frashour be removed from law enforcement duties. The matter was referred to a grand jury, which ended up clearing Frashour, finding that Campbell’s death occurred as a result of communications difficulties at the scene, not because Frashour did anything wrong. Oregon’s Department of Public Safety Standards and Training evaluated the case, and concluded that Frashour had done nothing to warrant decertification.

Political changes then happened in the City. The Mayor removed the Police Commissioner, and assigned himself to the position. The Mayor then fired the police chief and, without conducting a candidate search, immediately appointed a captain to become the new police chief. When the new police chief fired Frashour, the Portland Police Association challenged the decision in arbitration.

After an 18-day trial, an arbitrator reinstated Frashour, and ordered that he be made whole with back pay. The Arbitrator began by noting that “use of deadly force can be justified only if Frashour reasonably believed Campbell posed an immediate threat of death or serious injury to others. The reasonableness of his belief is an objective one and it is evaluated in the context of all the facts and circumstances of the situation as it was unfolding.” The Arbitrator quoted approvingly from a court decision that “we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.”

The core of the Arbitrator’s analysis was as follows: “This was a very tragic case, one where the Monday-morning quarterback has the clear advantage when divining what went wrong. The case law regarding the Constitutional use of deadly force has been particularly instructive. Although it turned out that Mr. Campbell did not have a gun with him in the parking lot, Graham v. Connor, 490 U.S. 386 (1989) and its progeny consistently emphasize that ‘20-20 hindsight’ must be avoided. Further, as the recitation of cases showed, those adjudicators have had little difficulty concluding that if a subject appears to be reaching for what could reasonably be considered a gun, deadly force is justified, even though no weapon has been observed. The courts have not said that every reaching motion justifies lethal force, but where the circumstances indicate that the subject could be armed and has indicated possible intent to use the weapon, then deadly force will survive the Constitutional test. The Portland Police Bureau directives on lethal force essentially mirror the Constitutional standard articulated by the courts. The courts are not willing to require law enforcement officers to take risks to themselves or to the safety of others. Further, as the courts have instructed, the determination of reasonableness must make allowances for the split-second decision making that is required of police officers. Although the events here unfolded over a period of time, the critical period was during the few seconds between the time Officer Lewton shot the initial beanbag rounds and the time that Mr. Campbell neared the Volvo. The situation with Mr. Campbell changed very rapidly, forcing the Grievant to make a quick decision.

“In the instant case, although Mr. Campbell had not committed a crime and displayed some behavior showing surrender and compliance (although this behavior was inconsistent), the Arbitrator concludes that it was reasonable to believe that he could be armed, and that when he ran, there was sufficient evidence for a finding that Mr. Campbell made motions that appeared to look like he was reaching for a gun. The Arbitrator also finds that the reasonable police officer could conclude that had Mr. Campbell pulled a gun, he would have fired it – possibly at others, or perhaps at himself. The case law points to the conclusion that this is a sufficient basis for finding that there was an objectively reasonable basis for believing that Mr. Campbell posed an immediate risk of serious injury or death to others.”

The Arbitrator commented at length on the impact that Frashour’s training had both on his decisionmaking and her decision: “The Association’s case focused extensively on the specifics of the Grievant’s training. The Association went to considerable effort to show that the Grievant’s decision to use lethal force was consistent with this training. He had received approximately 1400 hours of training on such things as defensive and patrol tactics as well as on the Graham use of force standard. Specific training topics included the action/reaction principle, the speed at which subjects can fire handguns, even while running away, the fact that everyday encounters can rapidly escalate, and the fact that handguns are often concealed in waistbands without a visible bulge.

“The training given the Grievant is an important consideration. It is axiomatic that an employee should not be disciplined for behavior consistent with his or her training.”

City of Portland and Portland Police Association, Frashour grievance (Wilkinson, 2012).

Notes: LRIS Director Will Aitchison, assisted by Portland attorney Anil Karia, represented the Portland Police Association in the case. The Mayor has recently announced that he will not comply with the Arbitrator’s decision, and the matter is presently before Oregon’s Employment Relations Board on whether the non-compliance amounts to an unfair labor practice.

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