Acquittal In Criminal Case Does Not Mean Firefighter Could Not Be Fired

Robert Howell is a firefighter with the Seattle Fire Department. After an afternoon of off-duty drinking with a firefighter friend and the friend’s girlfriend, Howell and company came across homeless people on the Fallen Firemen Memorial. The Memorial includes several bronze firefighter figures and a series of abstract slabs, one of which is about bench height. It is quite common for park users – tourists, office workers, or homeless – to sit on that part of the Memorial, and not at all uncommon for homeless to sleep on or under the nearly horizontal slab in order to get slightly out of Seattle’s rainy weather.

One of the people on or near the Memorial was a homeless man named Cassidy. Cassidy had just departed a nearby café, where he had consumed beer, wine, and a great deal of food, all without paying. While in the café, Cassidy began yelling things like, “I’m going to kill you,” “I’m going to stab you,” and “I’m going to kill you all.” The manager finally restrained him over the bar while waiting for the police. The police never showed up in response to the manager’s 911 call, and Cassidy was allowed to leave.

Howell took sharp vocal exception to what he saw at the Memorial as he approached. Howell yelled at the group around the Memorial to “knock the fuck off,” and he also yelled something about “my firefighting brothers.” A general altercation followed that was constantly vocal and sometimes physical; neither the vocal nor the physical aspects were continuous but ceased and began again more than once.

By the end of the altercation, Howell, his friend, and at least three homeless people had been struck or kicked and Cassidy had stabbed Howell’s friend. Several passersby made emergency 911 calls once the altercation was underway and a number of police cars eventually responded. Howell and his two companions were arrested for assault.

The County prosecutor declined to prosecute Howell and his companions, in part because Cassidy’s disinclination to testify and in part because Cassidy was a convicted sex offender in Florida, had failed to register as a Washington sex offender, and was the subject of an active warrant in connection with a grand theft charge in San Diego. The other two most likely “homeless victims” of the altercation also had substantial criminal records – one had six prior Washington felony convictions – including a live arrest warrant for one and a recent third degree assault sentence for the other.

After the incident, Howell promptly sought in-patient treatment for his apparent alcohol problem. The Seattle City Attorney nonetheless prosecuted Howell and his companions under the Seattle City Code. After 11 days of trial, a jury found all three defendants not guilty. The Department then fired Howell, and his labor organization, Local 27 of the International Association of Fire Fighters, challenged the termination in arbitration.

Arbitrator Howell Lankford upheld the termination. The Arbitrator immediately rejected the argument that the criminal acquittal prevented the termination: “The City’s failure to get a conviction beyond a reasonable doubt does not show that the City failed to prove its criminal case by clear and convincing evidence. Moreover, as the Department points out, the two proceedings have importantly different standards for admissibility of evidence, and some sorts of evidence which were excluded from the criminal trial are commonly admissible in labor arbitration. Hearsay is the most obvious example; but ‘inflammatory’ evidence is commonly kept from a criminal jury – and was kept from the jury in this case – as a matter of jury protection but is virtually never excluded from the professional factfinder in labor arbitration. The criminal verdict does preclude addressing overlapping factual disputes here and does not prohibit the City from discharging Mr. Howell for the alleged misbehavior.”

Turning to the merits of the case, the Arbitrator concluded that “this record shows clearly and convincingly that Mr. Howell was the aggressor, not the victim, of the initial verbal and of the initial physical altercation. Even his own statement agrees that he took a kick at someone on the Memorial, not in self-defense but as the first attempt at physical assault.

“At hearing, he agreed that if he had walked on by the Memorial none of this would have happened. All of the 911 callers agree that Mr. Howell was the initial aggressor. All of the 911 callers agree that Mr. Howell struck or attempted blows or kicks in addition to his language. None of them support the Union’s claim that Mr. Howell initially acted in a reasonable belief that he was defending himself.

“And they all agree there were opportunities to end the incident, and Mr. Howell and his companions actually walked away but then returned. That much I find to be established by clear and convincing evidence.

“In short, Mr. Howell did what he was disciplined for: He was the instigator, not merely the victim, of a verbal and physical fight in Occidental Park. He did not take advantage of early opportunities to disengage, and he returned to carry on verbally even after he had completely exited the park. He attempted to avoid the consequences of those actions by making a false 911 report and by falsely reporting to the police that he had been a passive victim. Those actions caused substantial damage to the Department’s reputation generally and to its reputation within the homeless community in particular. As far as the record shows, no prior incident of Seattle firefighter misbehavior or discipline is comparable to this one, so the Department’s choice to discharge Mr. Howell was not inconsistent with its choices in the past.”

City of Seattle, Unreported decision (Lankford, 2015).