Attorneys say reinstating fired Portland cop would violate Constitution, city charter

From The Oregonian, May 15, 2012

Heeding an arbitrator’s ruling to reinstate fired Portland officer Ronald Frashour, who shot and killed Aaron Campbell in 2010, would violate the U.S. Constitution, Oregon’s Constitution and Portland’s City Charter, attorneys for the city say.

The lawyers deployed their full arsenal of legal arguments for the first time in briefs filed this week. They’re defending Mayor Sam Adams‘ unusual decision — under challenge from the police union — to buck the arbitrator’s reinstatement ruling in March.

Frashour shot Campbell in the back with an AR-15 rifle on Jan. 29, 2010, after Campbell had been struck with multiple beanbag-shotgun rounds and turned to run toward his girlfriend’s apartment building. Campbell was unarmed, but Frashour said he thought Campbell was reaching for a gun.

The mayor and Police Chef Mike Reese fired Frashour. But on March 30, Arbitrator Jane Wilkinson ordered the city to reinstate Frashour with lost wages, saying a reasonable officer could have concluded that Campbell “made motions that appeared to look like he was reaching for a gun.”

Adams decided not to follow the arbitrator’s ruling — a first involving an officer terminated for use of force. The Portland Police Association filed an Unfair Labor Practices complaint on Frashour’s behalf.

Overturning arbitrator rulings is an uphill battle.

The state Employment Relations Board focuses on whether the arbitrator’s decision forces a public employer to violate public policy set out in statutes or judicial decisions, not whether the employee’s conduct violates public policy.

The board uses a three-part test: Did the arbitrator find the employee guilty of misconduct? If so, did the arbitrator relieve the person of responsibility for the misconduct? And lastly, is there a clearly defined public policy that makes the award unenforceable?

Police union attorneys argue that the city will lose outright on the first question because the arbitrator found Frashour acted within bureau policy.

Portland attorneys Howard Rubin and Jennifer Nelson, hired by the city to defend Frashour’s firing, argue that the board’s focus is too narrow and Frashour’s use of deadly force was unreasonable and disproportionate to the circumstances he faced.

Frashour’s reinstatement, they said, would:

  • Violate public policy, as defined in the U.S. Supreme Court case Graham v. Connor. That ruling said an officer’s use of force must be objectively reasonable based upon the totality of the circumstances at the time of the incident.
  • Violate public policy as defined in the U.S. Constitution’s Fourth Amendment and Sec. 9 of the Oregon Constitution, which says no one should be subject to unreasonable arrest or seizure.
  • Violate federal code that makes it unlawful for a government employee to engage in a pattern or practice that deprives persons of rights, privileges or protections under the U.S. Constitution.
  • Conflict with Portland’s City Charter. The charter, the attorneys wrote, “allows the City to enforce through discipline the highest standard of efficiency and safety where use of deadly force is concerned, which is more stringent than the legal standard for criminal or civil liability.”