Court Upholds Arbitrator’s Opinion In Deadly Force Case

On January 29, 2010, while on duty, Portland Police Officer Ron Frashour shot and killed Aaron Campbell, who was unarmed. The incident began as a welfare check. Police had received a call that Campbell, who possessed a gun and was distraught over the recent death of his brother, might be in a certain apartment, might be suicidal, and might be threatening to commit “suicide by police.” The situation escalated after Campbell unexpectedly came out of the apartment and did not respond to repeated police instructions to put his hands in the air.

Frashour was the AR-15 operator on the custody team deployed for the incident. An officer fired a bean-bag round that hit Campbell, who stumbled and began to run away. The officer fired five more bean-bag rounds at Campbell, who continued running. The evidence showed that Campbell brought his left hand behind his back and reached into his waistband as he was heading towards a car that could provide him with “cover.” Approximately three seconds after Campbell began running, and when Campbell was about to round the front of the car, Frashour fired his rifle, fatally shooting Campbell.

When the City terminated Frashour for violating its deadly force policies, the Portland Police Association challenged the termination in arbitration. After 16 days of hearing, during which the Arbitrator heard from 31 witnesses and received approximately 115 exhibits, the Arbitrator issued a lengthy opinion and award, in which she concluded that the City lacked just cause to terminate Frashour. The Arbitrator concluded that “it was reasonable to believe that Campbell could be armed, and that when he ran, there was sufficient evidence for a finding that Campbell made motions that appeared to look like he was reaching for a gun. The Arbitrator also finds that a reasonable police officer could conclude that had 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 City refused to comply with the Arbitrator’s decision to reinstate Frashour, and the Association filed an unfair labor practice complaint with Oregon’s Employment Relations Board, seeking an order requiring the City to reinstate Frashour. When the Board ruled in the Association’s favor, the City challenged the decision in the Oregon Court of Appeals.

The City’s core argument was that the Arbitrator’s decision violated public policy because it did not give “deference to the determination by the Chief of Police of the City of Portland that Frashour’s use of deadly force violated the City’s policies.” The Court disagreed, and upheld the Arbitrator’s decision.

The Court found that “the City’s argument essentially reduces to the proposition that Frashour’s reinstatement contravenes public policy because Frashour used unjustified and egregious physical force against Campbell. In other words, Frashour should not be reinstated because his conduct violated public policy regarding use of force. That approach, with its focus on the officer’s conduct rather than on the Arbitrator’s award has been soundly rejected.

“Because the arbitration award did not order the reinstatement of an officer who had committed the misconduct for which he had been discharged, the public-policy exception to the enforceability of an arbitration award did not come into play, and the Board correctly determined that it was an unfair labor practice for the City to refuse to comply with the award. Furthermore, even if we were to accept the City’s argument that the Board was required to review the Arbitrator’s conclusion regarding misconduct to determine whether it complies with clearly defined public policy, the City’s challenge to the enforceability of the award still would fail. That is so because the City has failed to identify statutes or judicial decisions clearly defining a public policy requiring deference to a police chief’s determination regarding whether an officer has violated a city’s use-of-force policies.

“The City also argues that the Arbitrator, in concluding that Frashour’s use of force did not violate the City’s use-of-force policies, essentially adopted a use-of-force policy that is inconsistent with that established by the City, thus violating the public policy expressed in Oregon Law. That argument essentially reduces to an assertion that the Arbitrator made a legal error in interpreting the City’s use-of-force policies. However, as the City acknowledges, the fact that the Arbitrator made a mistake of law or fact is not a basis to refuse to enforce an arbitration award that the parties otherwise agreed would be final and binding. Thus, that argument also lacks merit.”

Portland Police Association v. City of Portland, 2015 WL 9488299 (Or. App. 2015).