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In re
Warren County
Sheriff’s Office
and
122 LA (BNA) 1451
AAA Case No. 52-390-00229-06
August 23, 2006
Harold G. Wren, Arbitrator.
The Sheriff’s Office of Warren County, Ohio, provides an escort service for “Rent-To-Own (RTO)” employees who repossess items from persons in default of their payments on personal property. The RTO organization advises the Sheriff’s Office when they wish to have an escort to locations where the property is to be repossessed. The Sheriff’s Office then assigns one or more deputies to accompany the RTO employees to provide protection for any individual, whether an RTO employee or a consumer involved in the repossession. On the morning of January 29, 2005, at about 10:00 a.m., Deputy C__, Grievant, escorted Eric Frazier and Billy Joe Frame, two RTO employees, to 3443 Shawhan Road, Lebanon, Ohio, to recover some items of personal property. Grievant knocked on the door, [1] but there was no response. There was no car in the driveway, and no activity was observed inside the house.
When Grievant learned that he would have to return in the afternoon of January 29, to the residence on 3443 Shawhan Road, he became noticeably agitated. Before he left the Squad Room that afternoon, several deputies heard Grievant say, “I’m going to shoot that fucking dog.” Upon arriving at the residence, Grievant was met by Frazier and Frame, who informed him that there were persons inside the house; but there had been no answer to knocks on the door. Frazier informed Grievant that when he had gone through the gate to the backyard, he noted that the two Labrador retrievers were friendly and tame. Grievant decided to go through the gate to the backyard and try the back door.
When Grievant entered the backyard through the gate, the Labrador retrievers were friendly and allowed Grievant to pet them. But as Grievant approached the back door, the larger of the two dogs began to growl and, according to Grievant, bit the pants of Grievant’s left leg. [2] Thinking that the dog might try to bite him again, Grievant pulled out his mace spray to defend himself, but was unable to operate it successfully. Grievant then pulled his gun from its holster, and shot the dog’s left rear thigh. Grievant’s supervisor, Sergeant Tony Workman, arrived on the scene. So also did the Labrador’s owner, D__. When D__ learned that her dog had been shot, she yelled at Workman, and ordered the deputies off the property.
On February 23, 2005, the Shooting Review Board found that Grievant’s shooting of the dog was not justified. Later, on April 11, Grievant was charged with violating several Rules and Regulations, and on May 12, he was issued a five-day suspension. Grievant’s grievance appealing the suspension was denied at all levels, and the Union ultimately filed a demand for arbitration.
Did the Employer, the Warren County Sheriff’s Office, act with just cause when it suspended Grievant, Deputy C__, for five days for shooting a Labrador retriever in the left rear thigh? The answer must be in the affirmative. The Sheriff acted reasonably and with just cause in ordering the suspension.
Article 10 of both collective bargaining agreements [3] provides for progressive discipline (oral reprimand, written reprimand, suspension, demotion, and discharge). The Sheriff did not apply progressive discipline in the instant case because of the language of Section 10.2:
Section 10.2. Except in instances where an employee is charged with a serious offense, discipline will be applied in a progressive and uniform manner. Progressive discipline shall take into account the nature of the violation, the employee’s record of performance and conduct (emphasis supplied).
Grievant’s offense was serious in that he drew his weapon precipitously without considering the potential harm to himself or others. Every law enforcement officer must act with extreme care whenever he chooses to use deadly force. See discussion, infra.
In 2004, Deputy M__ fired four shots to put down a sick raccoon. One of the four shots ricocheted and put a hole in an above ground swimming pool. M__ was given a written reprimand and ordered to undergo some remedial training. The Association argues that the punishment given Grievant (five-day suspension) should have been comparable to that given M__ (written reprimand). But M__’s conduct was negligent in nature, while Grievant acted intentionally. The Sheriff administered appropriate punishment in each of the two cases, and his judgment should be sustained. Once just cause has been established, arbitrators are reluctant to substitute their judgment for that of management. See Marion Composites, 115 LA (BNA) 1203, 1205 (Wren, 2001) (arbitrator will not normally upset a punishment, which is in the sound business judgment of management). The five-day suspension was appropriate in view of the risk created by Deputy C__.
On January 27, 2002, Sheriff Tom Ariss issued a General Order which provided guidelines for the use of deadly force. The fundamental policy was stated as follows:
Officers must not use excessive force. The privilege to use control and defensive measures extends to the amount reasonably necessary to enable them to perform their duties.
This policy was amplified by procedural rules with reference to self defense:
Self defense: A deputy is authorized to use deadly force when it becomes reasonably necessary to protect him/herself or others from death or serious physical harm at the hands of another.
a. There must be an apprehension (clear indication) of real or immediate danger based upon an overt or specific act by another. This indication must be based on the deputy’s own observations and not merely on “third-party” information (example: from dispatchers or other persons).
b. Warning shots are NOT permitted.
General Order, effective January 27, 2002, (emphasis supplied).
The language of the general order presupposes an attack by another human being, rather than an animal. But if we assume arguendo that the word “another” might also be applied to a dog, the situation in the present case would not rise to a level to justify deadly force. In City of Delaware, 109 LA (BNA) 713 (Sugarman, 1997), a city police officer was dispatched to a residence to investigate a report of a large brown dog chasing people. When the officer arrived at the address, he found a large brown dog lying down in the yard behind the house. The officer called to the dog, with a view to placing him in his cruiser. The dog ran toward him, barking and growling, and the officer felt certain that he was going to bite him. He thereupon withdrew his sidearm from its holster, and fired one shot. The dog fell to the ground, but after a moment, got up and ran back into the yard.
Arbitrator Sugarman ruled that the officer in City of Delaware, like Grievant, must determine (1) whether the dog is vicious or dangerous, and (2) whether he is facing serious bodily harm. He answered both of these questions in the negative:
Assuming for the moment that the dog was dangerous (although I find it was not), the second prong of the test—that the officer reasonably believes he is facing serious bodily harm—cannot be met either. This anticipates something more than, “I might be hurt” (or in this case bitten). The series of conditions spelled out in the Use of Deadly Force Policy covers substantial risk of death, permanent incapacity or disfigurement, or temporary, substantial incapacity or serious disfigurement. A dog bite is hardly trivial. But it does not meet the threshold of serious bodily harm as that term is used in the policy. Id. at 717.
We believe that Grievant was in much the same situation as the police officer in City of Delaware. Grievant sought to explain his drawing his sidearm by claiming that he had acted in the manner in which he had been trained. At the pre-disciplinary hearing, he stated: “it was just a conditioned response to draw my weapon and shoot the animal.” It was just this conditioned response which Grievant must avoid. In his training, he must learn how to control his responses so that no person or property will be placed in danger.
Did management act with just cause when it suspended Grievant for five days? We think it did. The National Academy of Arbitrators has provided the arbitration community with a succinct statement of what constitutes just cause:
The essence of the just cause principle is the requirement that an employer must have some demonstrable reason for imposing discipline. The reason must concern the employer’s ability, work performance, or conduct, or the employer’s legitimate business needs. NAA, The Common Law of the Workplace: The Views of Arbitrators, (St. Antoine, 1998), p. 164.
Judged by most of these criteria, the Sheriff had just cause to suspend Grievant. Although relatively inexperienced, Grievant had the ability to perform as a deputy. Despite Grievant’s lack of experience, the Sheriff could expect that he would perform as a professional in a difficult situation. But in the case before us, Grievant’s work performance did not rise to the level of a professional. Grievant’s training emphasized the importance of a measured response to different forms of aggressive behavior. If we accept the Labrador’s behavior as being comparable to that of a human assailant, at most it would be described as “intensive,” and not “life threatening.” The proper response for intensive behavior is “strikes, blows, kicks and impact weapons.”
Grievant’s conduct was likewise unwarranted. In the first place, as an escort, Grievant had no reason to enter the backyard at 3443 Strawhan Road. Common sense would have told him that one must proceed cautiously. Even the most gentle dogs exhibit a natural territorial sense vis a vis a stranger. As Grievant approached the Labrador, he could see that the Labrador was defending his turf. Grievant might have easily retreated at this point. His conduct was simply inappropriate under the circumstances.
The principal “legitimate business need” of the Sheriff is the reputation of his office and himself in the community of Warren County. Both the Sheriff and his office must protect the general public and maintain the goodwill of all residents of the County. Deputies who use deadly force unnecessarily place this reputation in jeopardy. The Sheriff had just cause to discipline Grievant for this reason. See, generally, Federal Mogul Corporation and United Steelworkers of America, Local 4863, FMCS Case No. 06-52631 (Wren, 2006).
In his General Order of January 27, 2002, as part of his discussion of the “Use of Control and Defensive Measures—Use of Deadly Force,” the Sheriff inserted a specific provision with respect to “shots fired at animals:”
Deputies may be required to use deadly force to destroy a wounded, ill, or aggressive animal. Deputies will bear in mind that firing shots at animals may sometimes create a more dangerous situation than the presence or actions of the animal alone. The use of chemical security repellent (CS/OC) on aggressive animals may be considered before resorting to deadly force.
Up to this point, we have approached the problem from the perspective of self-defense. For the “shots fired at animals” rule to apply, it would have to be shown that the Labrador was “aggressive.” As applied to dogs, the provision connotes an animal, such as a pit bull, who is aggressive by nature. [4] But a Labrador retriever is normally quite gentle. He becomes aggressive only when mistreated or when, as here, he is defending his turf against strangers. He certainly did not exhibit such aggression as would justify the use of deadly force. Grievant tried to use mace, but his equipment did not function properly. Grievant had alternatives to the use of deadly force, such as his hands, his voice, or his baton, to place the Labrador under his control.
Shortly before Grievant departed for 3443 Strawhan Road the second time, several deputies in the squad room overheard him say, “I am going to shoot that fucking dog.” Although Grievant admitted that he made this statement, he later claimed that he made it in a joking fashion. Indeed, in his opening statement, counsel for the Association quoted Grievant as saying, “I guess she’s going to sic that poodle on me.” Quite obviously, the latter statement is a far cry from what the deputies heard in the squad room. If Grievant actually said, “I am going to shoot that fucking dog,” this statement would indicate a deliberate intention to shoot the Labrador. But we need not be concerned with any statement that Grievant might have made, as we are satisfied that his behavior in the backyard at 3443 Strawhan Road was sufficient to give the Sheriff just cause to suspend him for five days.
In sum, Grievant used unnecessary deadly force in violation of the Rules and Regulations of the Warren County Sheriff’s Office to control a dog that was allegedly attacking him. The Sheriff clearly had just cause to discipline him, and the Sheriff acted reasonably in suspending him for five days. His grievance must be denied.
Notes:
1. It would have been more appropriate for one of the RTO employees to knock on the door, since the role of Grievant was strictly as an escort for the RTO employees. We do not believe, however, that this fact is particularly significant in view of the other facts in this case.
2. Subsequent examination of Grievant’s pants and left leg revealed no indication of an attempted bite by the Labrador.
3. The incident herein occurred during the interim between the 2002 and 2005 bargaining agreements. Article 10 is the same in both agreements. We shall refer to them collectively as the “Contract.”
4. Some communities have considered the enactment of ordinances to place restraints on pit bulls and their owners. See, e.g. “Proposed dog law aims at pit bulls,” The Courier-Journal, Louisville, Kentucky, August 22, 2006, pp. A1, B1, B4.