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City of Richfield v. Law Enforcement Labor Services, Inc.

Court of Appeals of Minnesota

April 9, 2018

City of Richfield, Appellant,
v.
Law Enforcement Labor Services, Inc., Respondent.

          Hennepin County District Court File No. 27-CV-17-3645

          Marylee Abrams, Tiffany L. Schmidt, Abrams & Schmidt LLC, (for appellant)

          Isaac Kaufman, Kimberley Sobieck, Law Enforcement Labor Services, Inc., (for respondent)

          James P. Michels, Erik Bal, Rice, Michels & Walther LLP, (for amici curiae Police Officers Federation of Minneapolis, Bloomington Police Federation and Duluth Police Union)

          Susan L. Naughton, League of Minnesota Cities, (for amici curiae League of Minnesota Cities and Minnesota Chiefs of Police Association)

          Gregg M. Corwin, Joshua D. Hegarty, Gregg M. Corwin & Associate Law Office, P.C., (for amicus curiae American Federation of State, County, and Municipal Employees, Council 5)

          Teresa L. Joppa, (for amicus curiae American Federation of State, County, and Municipal Employees, Council 65)

          Kevin M. Beck, Joseph A. Kelly, Kelly & Lemmons, P.A., (for amicus curiae Teamsters Local No. 320 and Teamsters Local 346)

          Robert A. Alsop, Kennedy & Graven Chartered, (for amicus curiae Minnesota Chiefs of Police Association)

          Christopher K. Wachtler, Wachtler Law Office, (for amici curiae Minnesota Conservation Officers Association, St. Paul Police Federation, and Woodbury Police Officers Association)

          Timothy J. Louris, M. William O'Brien, Emily L. Marshall, Miller O'Brien Jensen, P.A., (for amici curiae Amalgamated Transit Union, Local 1005, Int'l Brotherhood of Electrical Workers, Local 160, Int'l Brotherhood of Electrical Workers, Local 949, Int'l Union of Operating Engineers, Local 49, Int'l Union of Operating Engineers, Local 70)

          Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and Reilly, Judge.

         SYLLABUS

         To prevent the use of excessive physical force by the police, there is a clear public policy in favor of transparency and proper reporting on the use of force. An arbitrator's decision to reinstate a police officer who was terminated by his municipal employer violates that public policy and will not be enforced where the police officer failed to report his use of force in violation of the employer's policy and had been previously disciplined, trained, and counseled for failing to report prior instances of the use of force.

          OPINION

          CONNOLLY, JUDGE.

         Appellant City of Richfield terminated a police officer after an internal investigation concluded that the officer (1) used excessive force during an encounter on October 3, 2015, (2) failed to report this use of force, and (3) violated his training and the standards of conduct expected of a Richfield police officer. The officer filed a grievance through his union, respondent Law Enforcement Labor Services Inc. (the union), and the matter was submitted to arbitration. The arbitrator found that the officer was fired without cause and directed that he be reinstated to his position and made whole, less three days of unpaid suspension. The city filed a motion to vacate the arbitration award, which the district court denied. The city appeals, arguing that the arbitration award should be vacated based on the public-policy exception. We agree and reverse.

         FACTS

         Nathan Kinsey was hired as a police officer at the Richfield Police Department (RPD) in February 2006. In March 2012, he became one of two canine officers with a new special assignment. On October 3, 2015, at around 6:15 p.m., a Richfield resident reported that "more than 50 Somalis" were gathered in a park and "driving crazy on the roads." Kinsey's K-9 squad and another officer (Officer 2) in a separate squad car were dispatched to the park.

         As Kinsey approached the park, he had to brake sharply to avoid a collision with two vehicles coming from the other direction. Kinsey pulled these vehicles over, and Kinsey's squad video camera and synced microphone automatically activated at 6:30 p.m. The first driver, D1, was a nearly 20-year-old Somali male with three passengers in his vehicle. The second driver, D2, was a nearly 16-year-old Somali male with one passenger in his vehicle. Kinsey told D1 that he had been called because "you guys were driving like idiots." Neither driver was able to produce a driver's license or proof of insurance. D1 claimed that his license was at home, and D2 claimed that he had a permit that was not with him. Kinsey warned the drivers that without proof of insurance, their cars would be towed. Both drivers used their phones to try to find their insurance information.

         Instead of responding to Kinsey about his license and proof of insurance, D2 was argumentative about whether he was driving too fast or following too closely. After talking with D2 and the passenger in his vehicle for about six minutes, Kinsey said, "Jesus Christ, you guys ever tell the f---ing truth one day in your life . . . if you can't prove the insurance, I'm towing the car, ok, so f---ing find it."

         Kinsey returned to D1 and asked him, as well as his vehicle passengers, who had been in the park. They responded that none of them had been in the park, and Kinsey said, "Jesus Christ you guys are so full of s--t I can't believe it." Kinsey called dispatch to get the drivers' licenses and to report the driving violations. Kinsey told dispatch, "they are all lying" about why they are here and whether they were in the park. Kinsey learned that D2's permit had been revoked. He returned to D2 and told him that he could not be driving and he needed to find a licensed driver.

         Kinsey returned to D1 and gave him a careless driving ticket "for nearly causing an accident." When D1 said he was concerned this would go on his license, Kinsey said, "don't drive like an idiot." D1 responded, "I wasn't driving like an idiot." Kinsey said,

I watched you nearly cause an accident because you were speeding around a corner. The time for arguing is done. You want to take it to court and we can talk about it in front of a judge . . . but we are not going to discuss it anymore. You can carefully drive away from here ok I don't want to see you back in the [c]ity again. I should be towing your car.

         D1 argued about being excluded from the city, and Kinsey replied, "not tonight." D1 said he had cousins who lived there, and Kinsey told him and his passengers to get out of the car because it was going to be towed. D1 argued again, and Kinsey said:

For careless driving I can tow your car[.] I am giving you a break[.] I'm saying I don't want to see you again tonight driving around my [c]ity like an idiot. OK, it does not require an argument it requires a yes sir and drive away carefully. Can you do that?

         Kinsey returned to D2 to get his mother's name for the ticket. D2 again asked why he was pulled over. While Kinsey was trying to get information from D2, D2 was talking to his mother on the phone, giving her directions to come get him. D2 said one of the three young men sitting on the curb, monitored by Officer 2, was a licensed driver who could drive his car. D2 said he could not get his insurance information because his internet was too slow. Kinsey told him to figure it out or the car would be towed.

         At this point, two and a half minutes had passed since Kinsey told D1 to drive away, but D1 had not moved. Kinsey returned to D1 and said, "You need to leave now ok, drive around my squad car, it's time to go." The vehicle moved away, and Kinsey put his squad car closer to D2. Kinsey exited his car and saw D1 and his passengers approaching on foot. As Kinsey walked toward D2's vehicle, Kinsey said, "Hey I thought that you weren't coming to the park . . . you didn't know anything about the park." Kinsey then muttered, "You guys never told the f---ing truth ever in your life, none of you f---ers." Kinsey then asked D2 for proof of insurance, asked how long until his mother would arrive, and asked which guy on the curb was a licensed driver.

         Kinsey then started walking the approximately 50-foot distance to where D1 and his passengers were, about 15 feet from Kinsey's squad car. The following conversation ensued:

Kinsey: Thought you didn't know anything about the park and were just driving around.
D1: Well you just gave me a ticket that is going to go on my license.
Kinsey: Oh I'm sorry. Don't drive like an a--hole and you won't get tickets.
D1: (unintelligible).
Kinsey: Don't blame me, blame yourself.
D1: I'm not blaming you, I'm just saying (unintelligible).
Kinsey: Oh you gave me a ticket and it's going on my insurance. Tough s--t. Don't drive like an a--hole.
D1: I am just saying that you gave me a ticket (unintelligible).
Kinsey: You're right I did. You're lucky I didn't tow your car too.
D1: What are you going to tow my car for? What did I do, man?
Kinsey: Careless driving. Do I need to explain it again?

         At this point, D2 began to record the exchange on his cellphone. This 36-second video shows Kinsey and D1 on the grass near the street. D1 is several feet behind his group with a cellphone to his left ear as the group is headed down the path toward the park. D1 is facing the path. Kinsey is facing D1's right side. The video shows Kinsey and D1 talking and Kinsey pointing down the street toward the corner where D1's car had gone.

D1: Where is my car now?
Kinsey: I'm guessing around the corner. It's not going to take that ...

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