Court Upholds Arbitrator’s Opinion Overturning Cincinnati Officer’s Firing

One of the nation’s most controversial police disciplinary cases came to an end when the Ohio Court of Appeals upheld an arbitrator’s opinion overturning the discharge of Cincinnati police officer Patrick Caton. Caton and his partner, Blaine Jorg, were questioning Roger Owensby, who had previously fled from the police. They confronted Owensby outside a convenience store. In the course of questioning, Owensby bolted and ran for a distance of six feet to the parking lot.

Officer Jorg, assisted by Officer Caton, pursued Owensby and took him to the ground. As they struggled on the ground, Caton issued an “officer needs assistance” call on his radio. To avoid a handcuffing, Owensby resisted by placing his hands under his body.

When he could not gain control of Owensby, Caton struck Owensby on his side and in the back with the base of the palm of his hand. A third officer sprayed mace on Owensby. After Caton had handcuffed Owensby’s right wrist with his arm partially behind him, Caton struck Owensby’s right arm two or three times to bring it towards the middle of his back. A fourth officer who arrived on the scene used Caton’s PR-24 baton as a “pry tool” to assist in handcuffing Owensby.

The officers eventually were successful in restraining Owensby facedown on the ground with his hands handcuffed behind him. They lifted him to his feet and placed him in the back of a police car. As the last officer to leave the police car, Caton left Owensby alone in an awkward position in the back seat, with the doors locked and the windows closed.

Because the officers had used mace on Owensby, Caton called a sergeant to the scene. When the sergeant examined Owensby, he noticed that Owensby did not appear to be breathing. Owensby had no pulse and was unresponsive. When the sergeant moved Owensby, blood and saliva came from his mouth. Efforts to revive Owensby were unsuccessful, and he died. The coroner concluded that the cause of Owensby’s death was “mechanical asphyxia and the manner of the death was homicide (police intervention: asphyxiation during restrain attempts).”

Caton was indicted for the crime of assault, and Jorg was indicted for the crimes of involuntary manslaughter and assault. A jury acquitted Jorg of assault, but was unable to reach agreement on the count of involuntary manslaughter. A separate jury acquitted Caton.

The Department began a disciplinary investigation of Caton. A captain sustained six charges against Caton relating to the interaction with Owensby, including excessive force charges and charges relating to the care of Owensby. The captain recommended a ten-day suspension. The Chief of Police forwarded the results of the pre-disciplinary hearing to the City Manager. The City Manager informed the Chief that she was disapproving the recommendation and ordered Caton to be fired “based upon the severity of all the sustained charges, as well as the cumulative effect of the six sustained charges in Officer Caton’s pre-disciplinary hearing.”

Caton’s labor organization, the Fraternal Order of Police, filed a grievance on his behalf. After a two-day hearing, an arbitrator rejected the use-of-force charges, but did sustain charges involving the failure to provide medical care. The Arbitrator reduced Caton’s punishment from termination to a 40-hour suspension. The City then challenged the Arbitrator’s decision in court.

The Ohio Court of Appeals upheld the Arbitrator’s decision. The City argued that once the Arbitrator determined that any of the charges should be sustained, the Arbitrator was obligated to uphold the punishment imposed by the City. The Court rejected the argument, holding that “absent language in a collective bargaining agreement that restricts the Arbitrator’s power to review, if the Arbitrator determines there was just cause to discipline an employee, the Arbitrator is not required to defer to the employer as to the type of discipline imposed. An Arbitrator has broad authority to fashion a remedy, even if the remedy contemplated is not explicitly mentioned in the labor agreement.”

The Court observed that the parties’ collective bargaining agreement did not define “just cause” and included no language that restricted the Arbitrator’s power to review the type of discipline imposed. In the Court’s judgment, “absent explicit instruction from the collective bargaining agreement, the effect of the parties’ agreement was to authorize the Arbitrator to review both just cause for the discharge and the appropriateness of the discipline.”

The Court ended its opinion with the observation that “whether we would have ruled differently than the Arbitrator is immaterial. A reviewing Court cannot substitute its judgment for the Arbitrator’s. An award will not be easily overturned or modified. Only when the Arbitrator has overstepped the bounds of authority, conferred by the parties, may a Court vacate an award. Because the Arbitrator’s award modifying Caton’s dismissal drew its essence from the collective bargaining agreement and was not unlawful, arbitrary, or capricious,” the Court upheld the Arbitrator’s award.

City of Cincinnati v. Queen City Lodge #69, 2005 WL 3117212 (Ohio App. 2005).

NOTE: Owensby’s death and Caton’s acquittal on the criminal charges, were two of a series of events that eventually resulted in riots in Cincinnati in early April 2001.

This article appears in the January 2006 issue