On June 20, highly respected Arbitrator Michael Ryan issued a decision overturning the discharge of Boston Police Officer David Williams. All of the facts are meticulously set out in the decision’s 44 pages but are briefly summarized here.
On March 16, 2009, Michael O’Brien was a Middlesex Deputy Sheriff/Corrections Officer coming off his Providence bachelor party and St. Patrick’s Day celebrations. After spending up to five hours at the Black Rose, a noted Fanueil Hall bar, he and two buddies headed to the North End, where one of them lived. While trying to back his car down Hanover Street (the major two-way thoroughfare through the densely populated commercial area), his friend crossed the double-yellow line into a double-parked BMW. The BMW owner called 911 as he saw O’Brien drive off in the car that had just struck his. His recorded 911 comments included observations that O’Brien’s group were “drunk” and that although he was a “federal agent,” they were not in any trouble.
When Officers David Williams and Diep Nguyen responded to the call, their efforts to simply have the parties exchange papers were met by the seeming drunken hostility of O’Brien and his friends. O’Brien held out his cell phone while yelling at the officers to do their jobs. Inexplicably, he insisted the officers investigate the struck driver’s claims of federal agency. Told that he could record them all he wanted but not in the middle of Hanover Street, O’Brien continued standing in the busy street. When Officer Nguyen attempted to place him under arrest, O’Brien’s resistance caused Officer Williams, across the street writing a citation in his parked cruiser, to come to his fellow officer’s assistance. Surrounded by O’Brien’s two friends, one of whom had to be physically pushed away from the officers, Williams made an “officer in trouble” call just as Nguyen was about to do the same. Other officers arrived and O’Brien was placed under arrest.
The next business day, O’Brien, charged with disorderly conduct, resisting arrest, and assault and battery on a police officer (Nguyen), appeared in the Boston Municipal Court without notice to any of the arresting officers. He plead not guilty and all charges were dismissed a month later after he performed 50 hours of community service.
O’Brien eventually filed a lawsuit against the officers and the city, claiming, among other allegations, that he had been nearly choked to death that night by Officer Williams. That night, he had made no complaint of having been choked to the lieutenant who carefully inspected him at booking nor to the EMT’s who transferred him to the hospital. Early on, he retained prominent civil rights attorney Howard Friedman. As it turned out, for him, that was his best decision of all.
Three days after the incident, O’Brien filed an on-line complaint against the officers who arrested and subdued him. The BPD’s vaunted Internal Affairs Division (“IAD”) conducted no investigation. In September 2009, Atty. Friedman filed a complaint in Federal District Court against the City, Nguyen, Williams, and four other officers. Friedman also initiated a second Internal Affairs complaint with the same allegations. Still no investigation by the crack IAD unit. In January, 2010, Friedman wrote a letter to Internal Affairs castigating them for failing to investigate the complaint. In April 2010, IAD sprang into action, interviewing Williams and Nguyen for the first time about the incident that had occurred over a year earlier. Shortly after receiving another irate letter from Atty. Friedman, BPD placed Williams on paid administrative leave. IAD reassigned the case to another Lt. Det., who re-interviewed the officers, spent 20 minutes with BPD Dr. Kristian Arnold, and concluded that (a) Williams had choked O’Brien and (b) Williams had lied about it.
Following internal hearings before a Deputy Superintendent appointed by Commissioner Davis at which O’Brien, Williams, and Nguyen testified, Davis fired Williams in January 2012. Shortly thereafter, the City paid O’Brien $1.4 million. Williams had received unwanted notoriety after his discharge in the celebrated beating of Police Officer Michael Cox had been overturned by a different arbitrator in 2005.[1]
After hearing three days of testimony from all of the key witnesses, including O’Brien, Williams, and Nguyen, Arbitrator Ryan concluded:
After examining all of the evidence with great care, it is clear to me that O’Brien’s account of the incident was not truthful. If the officers became aggressive, and there is no doubt that they did, it was because the behavior of O’Brien and his friends warranted it. I do not believe that the grievant used excessive force, or that he choked or strangled O’Brien. He fully complied with Department Rule 304, Section 2, by using only the amount of force that was reasonably necessary to overcome O’Brien’s resistance to arrest.
He found further:
Since the grievant handled the incident of March 16, 2009, appropriately and did not use excessive force on O’Brien, it follows that he was not guilty of untruthfulness during the IAD investigation. There was no just cause for his termination.
The Arbitrator ordered Williams reinstated with back pay. In addition, finding no explanation from the BPD for placing Williams on administrative leave 17 months after the incident, and relying on arbitration precedents between the parties, he ordered that Williams be made whole for the extra work (paid details and overtime) he was not allowed to earn while he had been on administrative leave.
The decision itself was not surprising. Arbitrators, especially experienced and nationally prominent ones such as Michael Ryan, decide the cases based on the evidence before them, not on how they will be received by police commissioners or their friends in the media. For that matter, Arbitrator Ryan, who has been hearing cases between the Boston Police Patrolmen’s Association and the City/BPD for more than 15 years, has decided many cases against the BPPA, including terminations and major suspensions. He does his job: he calls them as he sees them.
What followed this decision is unfortunate, if predictable. To Commissioner Davis, who attended none of the hearings, either at the BPD or the arbitration, the decision was “outrageous.” Boston Globe editorial writer and columnist Lawrence Harmon chimed in with his column entitled, “Do arbitrators give violent cops a pass?” I spent more than a few hours on the phone with Mr. Harmon trying to educate him with facts and analysis about the vagaries, biases, and shortcomings of the BPD internal affairs process. When he called me just before submitting his story for a final quote and I asked him why the information I had given him was largely omitted from his analysis, he replied that what I gave him was “inside baseball” that nobody cared about. I was reminded of the adage, “Never let the truth get in the way of a good story.”
The real story, largely ignored by the press, is why did the City pay $1.4 million to someone a neutral factfinder, after hearing all the evidence, pronounced “untruthful.” The Police Commissioner likes to trumpet his campaign of intolerance for untruthfulness among police officers. No one disagrees; police officers charged with the power to deny people their liberty must be truthful. But what about civilians who lie in order to line their pockets with enormous sums of money from the City?
Continuing its insistence on ignoring reality, the City/BPD has now filed an appeal of the arbitration decision in the Superior Court. Its court complaint cloaks its disagreement with the arbitration decision in the dross of “contravening the City’s inherent and non-delegable authority, the Police Commissioner’s statutory right to manage and administer the Police Department…and a clearly established and defined public policy.” Although unstated, the “clearly established and defined public policy” being violated is apparently that whatever Commissioner Davis says, goes. The complaint flaunts black letter law. Arbitration awards are appealable on very narrow grounds; disagreement with the arbitrator’s factual findings is decidedly not one of them.
This case could not have proceeded this far without the unflinching support of the Boston Police Patrolmen’s Association, and in particular its President Tom Nee and Vice President Ron MacGillivray. In addition to my work in the case, Attorney Kenneth Anderson of Byrne & Drechsler, LLP, represented Officer Williams from the initial internal affairs interviews through the last day of arbitration and assisted in the Union’s arbitration brief with his usual combination of astute preparation, dogged litigation skills, and unfailingly gentlemanly demeanor.
I, at least, hold out hope that someone in authority will see the futility of ignoring the obvious, return Officer Williams to his rightful place on the police force, and allow him to finish his career with the dignity and respect he deserves.
[1] I also served as counsel for the BPPA in that arbitration case, written by a different, but equally prominent, arbitrator, Lawrence Holden.
