Arbitrator tells Portland it must dismiss suspensions of two cops involved in Chasse killing

From the Oregonian, July 12, 2012

An arbitrator has ordered the city of Portland to dismiss two-week suspensions against former Officer Christopher Humphreys and Sgt. Kyle Nice stemming from the death-in-custody of James P. Chasse Jr. in September 2006.


ARBITRATOR: Timothy D.W. Williams 2700 4th Avenue #305 Seattle, WA 98121
REPRESENTING THE EMPLOYER: Stephanie Harper, Deputy City Attorney, Dave Famous, Captain Portland Police Bureau, Mgmt Rep, Darla Collar, Paralegal
REPRESENTING THE UNION: Anil Karia, Attorney, Sergeant Kyle Nice, Grievant, Office Chris Humphreys, Grievant, Office Daryl Turner, President, Portland Police Assoc.
APPEARING AS WITNESSES FOR THE EMPLOYER:, Michael Poorkley, PPB, Internal Affairs Investigator, Tamara Hergert, AMR Paramedic, Rosie Sizer, Former Chief of Police, Dan Saltzman, Former Commissioner of Police Bureau, Dave Famous, Captain Portland Police Bureau, Dwight Pahlke, Sgt. Portland Police Bureau
APPEARING AS WITNESSES FOR THE UNION:, Kyle Nice, Sgt. Portland Police Bureau, Chris Humphreys, Former Office Portland Police Bureau, Bob Brown, Officer Portland Police Bureau, Dan Livingston, Sgt. Portland Police Bureau, W. Ken Katsaris, Police Consultant

“The Arbitrator is certainly aware of the controversy surrounding the James Chasse case,” arbitrator Timothy D.W. Williams wrote in a 60-page ruling. “The viral nature of the events that occurred on Sept. 17, 2006 does not, however, change the standards or protocols that a labor arbitrator uses to resolve a grievance.”

Chasse’s family lawyer Tom Steenson and then-police commissioner Dan Saltzman reacted with disgust Thursday, while police union leaders called the arbitrator’s order a “vindication” for Nice and Humphreys.

Chasse, who suffered from schizophrenia, died in police custody from broad-based blunt force trauma to the chest Sept. 17, 2006, after officers chased him and knocked him to the ground in the Pearl District. Paramedics came to the scene but did not take Chasse, 42, to the hospital. Instead, police drove him to jail, but jail staff refused to book him. Police then drove him in a cruiser to the hospital, but he died on the way.

In February 2010, Saltzman suspended Humphreys and Nice for violating the bureau’s Taser directive. He found they failed to insist that Chasse be taken by ambulance to a hospital after police stunned him with a Taser, and did not brief paramedics fully about the police struggle and use of the stun gun. Humphreys also was cited for not requiring Chasse be taken by ambulance to the hospital after the jail refused to book him.

The arbitrator said the city failed to prove its charges, particularly because “competent medical personnel approved or directed the transportation of Mr. Chasse by police car.”

“While Sergeant Nice and Officer Humphreys could have provided a much more thorough statement of the observed medical problems related to Mr. Chasse, the evidence is compelling and indicates that this information would not have changed paramedic (Tami) Hergert’s conclusion that Mr. Chasse was safe to take to jail,” the arbitrator wrote.

Williams directed the city to pay lost wages to Nice and Humphreys.

The ruling comes on the heels of another arbitrator’s ruling this year that ordered the city to rehire officer Ronald Frashour, who was fired for fatally shooting an unarmed man in 2010. The city is challenging that ruling.

The bureau’s Taser Directive at the time of Chasse’s death said EMS will be summoned when a Taser is used, and “EMS will also transport” a patient to the hospital, if a child, elderly person, someone who is “obviously medically fragile,” suffering from “hyper stimulation” or “agitated delirium” is stunned.

Saltzman testified at arbitration that Chasse, based on the record, appeared hyperstimulated, and the directive should have kicked in. The union countered that the officers did not notice a medical condition that would have required transport and relied on paramedics. Further, the union argued there was no bureau policy on what officers are required to share with medics.

The arbitrator agreed with the union, that there was no evidence Chasse suffered from “hyper stimulation and/or agitated delirium,” as his vital signs showed no elevated heart rate, blood pressure, temperature or respiration.

“I can’t say it surprises me,” said Steenson, who won a $1.6 million settlement against the city in 2010 after filing a federal wrongful death lawsuit. “The city is incapable of having any kind of system in place to control its officers.”

The $1.6 million settlement was the city’s largest payout stemming from a wrongful death lawsuit. But the city admitted no wrongdoing.

“Obviously I feel my decision was the right one,” Saltzman said. “This is another example of arbitrators gone wild.”

Nice now works in the Telephone Reporting Unit and serves as a firearms instructor. Humphreys was medically laid off from the bureau Nov. 23, 2010, because of the time he missed work collecting disability payments. But he’s now considered fit for duty and is running for sheriff in Wheeler County.

Police union leaders hope the arbitrator’s ruling would amount to a “name clearing.”

“Sergeant Nice and Officer Humphreys were trained to police. They are not paramedics or nurses,” union president Daryl Turner said. “It was a tragedy what occurred. These are not victories for us. There’s some vindication for the officers involved.”

Humphreys, in a written statement, noted that his actions were scrutinized by a grand jury, the bureau’s Use of Force Review Board and now an arbitrator. “In all cases I have been cleared,” he wrote, adding that he looks forward to serving as the next Wheeler County sheriff.

The arbitrator said a key question was: What difference would it have made if Nice or Humphreys had given more information to the paramedic at the scene?

Hergert testified in a deposition that she wished she had known Chasse had been Tased, but it wouldn’t have changed “the vital signs or exam I had done on Mr. Chasse.”

“Overall and in hindsight, the Arbitrator finds much that could have been done differently,” Williams wrote. “However, based on the training that Sergeant Nice and Officer Humphreys received and on the conclusions reached by the lead paramedic, the Arbitrator does not find evidence that the failure of Sergeant Nice to have Mr. Chasse medically transported to the hospital an offense that should be subjected to discipline.”

Chasse’s death led to new policies. Since March 2009, Portland arresting officers are required to provide “complete and thorough” information on any use of force used to EMS personnel, and says EMS personnel will make a final decision on whether to transport someone to a hospital. Ambulances now must be called to transport suspects whom the jail refuses to book for medical concerns to a hospital.

Arbitrator Overturns Suspensions for Cops in Chasse Death

From the Portland Mercury, July 12, 2012

An arbitrator has told the Portland Police Bureau it must overturn two-week suspensions handed out to two police officers—Sergeant Kyle Nice and Officer Christopher Humphreys—who were involved in the fatal 2006 beating of James Chasse Jr.

The decision was confirmed by Dan Saltzman’s office, which has so far just seen an email synopsis of the finding and declined to comment without reviewing the full ruling. Saltzman, as police commissioner in 2009, suspended both officers because he thought they botched the medical care of Chasse, a man suffering from schizophrenia who was tackled, Tasered, and pummeled by officers who incorrectly accused of him of public urination and carrying drugs

Saltzman argued that the officers should have insisted that an ambulance take Chasse to a hospital, not drive him in their patrol car. And he also said, after the seriously injured Chasse passed out at the jail for the second time, that the officers again should have called an ambulance.

Here’s Saltzman testifying about his decision:

To me it’s really quite clear. It says if the Taser is used and one of certain circumstances apply to the individual, then EMS transport, that that person shall be transported by EMS. And there are two circumstances under which I felt that applied; one was sort of the excited delirium. The other was potentially the hyperstimulation. So there was two paragraphs in there as part of the directive that says EMS will transport. And I felt that both of those applied.

And just their [Nice and Humphreys] observations, too, that not only did they think he was high on drugs but they felt he had mental issues too, and I think that that’s also cited under rule 1051 as a basis for requiring EMS transport….

I felt that 80 hours was a minimally appropriate amount of suspension, and that’s what I went with.

The city attorney’s office says it doesn’t have a copy of the ruling it can send out, but the Oregonian, in a post this morning, quoted from a copy it obtained, presumably from the Portland Police Association. According to the paper and others familiar with the ruling, the arbitrator decided that even if Humphreys and Nice had more forcefully argued for an ambulance, that paramedics still would have made the call to let the police try to take Chasse to jail.

Here’s the arbitrator, Timothy Williams, explaining his thinking. He relies on the testimony of lead paramedic Tamara Hergert—but not as much from the arbitration hearing as from her deposition in a civil case filed over Chasse’s death:

There is no dispute between the Parties that Sergeant Nice and Officer Humphreys could have provided substantially more information to the paramedics. Moreover, in this Arbitrator’s view, the efforts by the City, since the Chasse incident, to require better communication between officers and paramedics is prudent and reasonable. Dotting all the i’s and crossing all the t’s makes good sense when dealing with medical emergencies and certainly is essential regarding risk management and the potential for civil liability.

However, the Arbitrator emphasizes the fact that in the instant case Sergeant Nice and Officer Humphreys are not being disciplined for their poor communication. The City is emphasizing the communication deficiency as a way of disarming the fact that the lead paramedic twice indicated that it was safe to transport Mr. Chasse to jail. The basic question the Arbitrator asks is what difference would it have made if Sergeant Nice and/or Officer Humphreys had given more information to paramedic Hergert. A quick review of Hergert’s testimony at the arbitration hearing provides the following:

Q. BY [DEPUTY CITY ATTORNEY STEPHANIE] HARPER: I know it’s a hypothetical question, but if you had been told that the Taser had been used, what, if any, different steps would you have taken?

A. I’m not sure, quite honestly. There is the, if they had been tasered and they’re acting completely abnormal to the situation, you transport them in case they have or develop the excited delirium stuff. But other than refusing to talk to us much of what Mr. Chasse did was seemingly appropriate. He saw people standing around him. He saw what he thought was his backpack. He yelled when people picked him up. I would like to say positively I would have transported him, but honestly, I can’t say that for sure. I wish I had known so we could have added in. It may have made a difference. It may not I wish I had known.

Q BY MS. HARPER: Do you wish you had known that he had fallen to the ground hard?

A. Yes. (Tr 165, 166)

Paramedic Hergert is more specific in her deposition given for the civil litigation. There she provides the following statement:

Q: And what was the conversation that you had at the scene when you were clearing the scene?

A: After we had left the scene he mentioned one of the officers told him that Mr. Chasse had been Tased. And when I asked him about what do you mean Tased, he says, well, no, they said he – they tried to Tase him but it hadn’t taken.

Q: And did that cause you to change anything that you had thought about in terms of your care and treatment of the patient?

A: No. It was a piece of information I would have liked to have at the – at the time, but it didn’t change the vital signs or exam I had done on Mr. Chasse [emphasis added by arbitrator]. (J 24, P 10)

The suspensions, coming more than three years after Chasse’s September 2006 death, were controversial both because they were handed down so long after the incident and because Saltzman overruled then-Police Chief Rosie Sizer, who initially proposed just a one-week suspension, for Nice. The arbitration hearing came earlier this year and was still listed as unsettled this spring, back when the Mercury reviewed 10 years of police grievances. Humphreys was also suspended for bean-bagging a 12-year-old girl at a MAX stop, and Nice was found “out of policy” after pulling out his gun during an off-duty road-rage incident. He was then suspended.

One question now is whether the city will fight the ruling, just as it’s fighting an arbitrator’s order to reinstate Ron Frashour, the officer who shot and killed Aaron Campbell in the back in 2010. I’ve not heard back from Mayor Sam Adams’ office in regards to that question, but sources say Saltzman, for one, isn’t planning on pushing this to the state Employment Relations Board.

In both the Chasse and the Campbell death, the city agreed to pay out large settlements in federal court, $1.6 million and $1.2 million, respectively.

Police union praises Chasse case discipline reversal

From the Portland Tribune, July 13, 2012

Arbitrator overrules suspension of sergeant and officer involved in controversial 2012 death

The Portland Police Association is praising a state arbitrator’s decision reversing the suspensions of Sergeant Kyle Nice and Office Chris Humphreys for their actions related to the death of James Chasse, a mentally ill man who died after being arrested in September 2006.

In a Thursday afternoon press release, the union representing the police bureau’s rank-and-file employees said the decision was based on “facts, not media supposition or rumors.”

Former Police Commissioner Dan Saltzman and former Police Chief Rosie Sizer suspended Nice and Humphries without pay for not providing proper medical care to Chasse, who died after being injured while struggling during an arrest in the Pearl District. The city settled a civil lawsuit filed by Chasse’s family in 2012 for $1.6 million, the largest settlement ever paid in a case related to an in-custody death.

The Oregon State Medical Examinber ruled Chasse died from blunt-force trauma.

In its release, the PPA said the arbitrator reached the ruling after five days of hearings, taking the testimony of several witness and reviewing thousands of page of documents.