Minneapolis Police Chief and Union President Agree: Chauvin Rightfully Fired for Killing George Floyd 

On June 22 and 23, the Minneapolis Police Chief Medaria Arradondo and the President of the Police union, Bob Kroll, agreed that the firing of Police Officer Derek Chauvin over the killing of George Floyd was justified.

DerikPolice Chief’s Statement[1]

“In Spring of 2013, the City settled the David Smith lawsuit, agreeing to pay the estate of David Smith $1.1 million and his attorneys $1.975 million. In addition to this payment, the City agreed “to provide additional training to its sworn police officers regarding positional asphyxia in the Minneapolis Police Department’s 2014 training cycle.”

“Today, in response to data requests, the City is releasing data on the training after the Smith settlement.”[2]

“I can confirm that MPD fulfilled the training requirement. 2014 in-service training, which was given to all officers, covered getting an arrestee from a prone position into a recovery position (seated or on the arrestee’s side) where the maximal restraint technique or a neck restraint has been used. The reason for getting an arrestee into a recovery position is to prevent positional asphyxiation, and the training covered situations where positional asphyxiation is of primKARE-11ary concern. This training therefore met the settlement agreement’s requirement of “additional training . . . regarding positional asphyxiation.” I can confirm that Chauvin and Thoa had this training.” (Emphasis added.)

“Additionally, MPD went beyond the requirements of the settlement and enacted policy changes in June 2014. The policy changes explicitly require moving an arrestee from a prone position to a recovery position when the maximal restraint technique is used and require continuous monitoring of an arrestee’s condition.”

“It is important to note that getting an arrestee into a position where he or she can breathe is something that is hammered into all of our officers, and this began even before the Smith settlement’s required 2014 training. Even though the Smith settlement did not require training until 2014, we provided training in 2012 and 2013, and continuing thereafter.”

“In 2012, the department issued an announcement to all sworn officers and posted a video on positional asphyxiation. The announcement stated that the video ‘serves as a reminder that whenever a subject is restrained, there is a direct correlation between their ability to breathe and the position their body is in.’ The announcement required that the video be shown at all roll calls.”

“Additionally, in 2013 in-service MPD trained on the dangers of in-custody deaths. This training covered ‘compressional asphyxia’ as a cause of in-custody deaths.”

“MPD continues to stress training on the risks of in-custody deaths and the importance of putting restrained arrestees into the recovery position as soon as possible. There is simply no way that any competent officer in MPD would be unaware of the need to get an arrestee into a recovery position so that he or she can breathe freely.”

Mr. George Floyd’s tragic death was not due to a lack of training—the training was there. Chauvin knew what he was doing. I agree with Attorney General Ellison: what happened to Mr. Floyd was murder. Chauvin had his knee on Mr. Floyd’s neck for over seven minutes, and for those last minutes he knew that Floyd was non-responsive. Mr. Floyd shouted out that he couldn’t breathe; bystanders shouted out that Mr. Floyd had stopped talking; then they shouted out that Mr. Floyd had become nonresponsive; and finally they shouted out that Mr. Floyd was dying. Further, one of the officers on the scene told Chauvin that Mr. Floyd should be put into a recovery position and he eventually told Chauvin that he could not find Mr. Floyd’s pulse. The officers knew what was happening—one intentionally caused it and the others failed to prevent it. This was murder—it wasn’t a lack of training. This is why I took swift action regarding the involved officers’ employment with MPD.” (Emphasis added.)

Kroll’s Statement[3]

In a June 23 interview on a  local television station, KARE-11, Kroll said Minneapolis police officer Derek Chauvin’s placing his knee near Floyd’s neck for nearly eight minutes “was sickening. It’s something that should never have occurred. No officer can condone that. Ourselves included.” The reporter then asked, “And is what Officer Chauvin did right?” Kroll responded, “Again, no. In my mind, no. I don’t think any officer would say that it’s right. Absolutely not.” Moreover, “We’ve got a pretty good picture of what Chauvin did. It’s easy to form judgment there and terminate, which we were able to make a quick decision that yes, we’re not going to represent [him with respect to the termination of] his employment.”

Kroll also said he would not be resigning as president of the union after consulting with union members and Chief Arradondo, all of whom suggested that Kroll stay in his position. Kroll added, “The chief and I have always had a very good working relationship. Better than any of his (predecessors). He’s an honest, truly nice man. I consider him a friend… I’ve socialized with him more than any other chief.”

Police Union Officials’ Statements[4]

Earlier that same day (June 23)  Kroll was interviewed by Gayle King on “CBS This Morning.” He said the lengthy “social-media” video of the Floyd killing that was taken by a 17-year-old bystander “does look and sound horrible,” but that he needs to see the officers’ body-worn camera footage, which the union is entitled to under its contract with the Department, before making a judgment on the criminal charges against the four officers. “We will be on the right side of history.”

Kroll also said that members of his union are being unfairly “scapegoated by political leaders in our city and our state, and they have shifted their incompetent leadership, failed leadership onto us and our membership, and it is simply unjust.”

Also interviewed by Gayle King were three other union officers. Its Vice President Sherral Schmidt, who is Kroll’s designated successor, said, “I’m not one that likes to Monday morning quarterback things. If I was there, I probably would have put him on his side in a recovery position once he went unconscious.”

Rich Walker, an African-American member of the union board, added, “”The narrative that is being pushed in the media is that white police officers are out on these streets just to kill black men, and this is absolutely farthest from the truth. Police officers are not out here just randomly hunting black people to kill them. That’s just terrible.”

In another segment on “CBS This Morning,” Brian Peters, the Executive Director of the Minnesota Police and Peace Officers Association (MPPOA), which is paying for the legal defense of the four officers in the Floyd case, said Chauvin’s action during the Floyd arrest “betrayed the badge. And there’s no excuse for it.”

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[1] Minneapolis Police Dep’t, Statement of Chief Medaria Arradondo (June 22, 2020); Bjorhus, Police chief: George Floyd’s death was a ‘murder,’ not about lack of training, StarTribune (June 23, 2020).

[2] On September 9,  2010, David Smith, who was mentally ill, was acting bizarrely at the downtown Minneapolis YMCA. Two Minneapolis policeman, responding to a 911 call, approached Smith and after he “grew fierce” stunned him with a Taser and forced him to the floor. The officers then held him face down while one placed a knee in his back and held him down for about four minutes, which made it impossible for Smith to breathe. After he had stopped breathing, one of the officers tried CPR before the paramedics arrived. Smith died in hospital about a week later. The Smith family subsequently filed a lawsuit for damages that resulted in a $3.075 million settlement. After the recent killing of George Floyd, the Smith family submitted a data practices act request to the Police Department for information on whether it had fulfilled its commitment to require all officers to obtain the previously mentioned training. (Furst, May 25: Minneapolis pays $3 million in police misconduct case, StarTribune (June 1, 2013); Bjorhus & Sawyer, Family of man who suffocated in police custody in 2010 asks whether police received training promised in settlement, StarTribune (June 10, 2020)..)

[3] Walsh, Minneapolis police union head says Chauvin firing is justified but rank and file officers being scapegoated, StarTribune (June 24, 2020); Thiede & Raguse, Police union president Bob Kroll says he will not resign, kare-11.com (June 23, 2020) (includes video of interview).

[4] Walsh, Kroll: Floyd video did ‘look and sound horrible,’ but says union being scapegoated by ‘failed’ leaders, StarTribune (June 23, 2020) (includes the video of the CBS interview).

 

Dispute About Arbitration for Terminated Cops

As former Minneapolis mayor, R. T. Rybak, persuasively has argued, police unions frequently undermine efforts to reform policing here and elsewhere.[1]

Now a dispute has emerged about arbitrators decisions about police officers who had been terminated for misconduct.

A StarTribune journalist examined the record of terminated Minnesota police officers getting their jobs back in arbitration.[2] “More than 80 po­lice of­fic­ers across Min­ne­so­ta were fired and fought their dis­charge in ar­bi­tra­tion over the past 20 years. A­bout half got their jobs back,” and “the true figure could be slightly higher” because “Min­ne­so­ta’s pub­lic re­cords laws pro­hib­it re­leas­ing any in­for­ma­tion at all when ar­bi­tra­tors o­ver­turn a de­ci­sion to fire a cop with­out im­pos­ing any type of dis­ci­pline. Such total ex­on­era­tions, while un­com­mon, are erased from pub­lic re­cord.”

The current Minneapolis Police Chief, Medaria Arradondo, shares this view of arbitration. He said, ““There is noth­ing more de­bili­tat­ing to a chief from an em­ploy­ment mat­ter per­spec­tive, than when you have grounds to ter­mi­nate an of­fi­cer for mis­con­duct, and you’re deal­ing with a third-par­ty mech­a­nism that al­lows for that em­ploy­ee to not only be back on your de­part­ment, but to be pa­trol­ling in your com­mu­ni­ties.” This is why he has withdrawn from further contract negotiations with the union and why he wants the Minnesota Legislature to pass legislation to reduce the scope for arbitration of terminated officers.

This harsh judgment of such arbitrations needs qualification, said the StarTribune journalist. “Some [termination] cases nev­er go to ar­bi­tra­tion, and some are ne­go­ti­ated and clas­si­fied as res­ig­na­tions or re­tire­ments.”

A stronger defense of labor arbitration was provided by Stephen F. Befort, a professor at the University of Minnesota Law School and a part-time labor arbitrator. He starts by explaining that labor arbitration is “a due process review of discipline and discharge decisions. The process entails an informal evidentiary hearing before a neutral decision maker. Minnesota law currently requires that all public sector collective bargaining agreements provide for the binding arbitration of disciplinary disputes. The arbitrator’s task is to determine whether the employer had just cause to support the discipline or discharge decision.”[3]

In this process arbitrators “are individuals who have developed expertise in labor relations and personnel matters. Federal and state agencies maintain rosters of arbitrators who meet certain qualifications. Arbitrators are not appointed by these agencies, but instead the parties to the dispute (i.e. municipalities and unions) mutually select one or three arbitrators from a roster to hear and resolve the dispute.”

Befort then reports that Minnesota arbitrators upheld discharge decisions by all kinds of employers (not just police) in 52 percent of over 2,000 such cases over 20 years while employees won reinstatement and full back pay in only 20 percent of the cases. The other 28 percent of the cases were “’split’ decisions in which discharges were reduced to some lesser form of discipline such as suspension without pay.” These statistics came from a 2015 book by Befort and two faculty colleagues which was “the largest empirical study of arbitration outcomes ever undertaken.”

Moreover, Befort claims that the above statistics are similar to those for police arbitration over a four-year period according to an article by one of his University of Minnesota Law School students that was published in an American Bar Association journal. These statistics were upholding police officers terminations, 53%; overturning such terminations, 23%; and split outcomes, 24%.

Finally Befort points out that if there were no labor arbitrations, the alternatives are leaving the employers’ decisions unreviewable or the more expensive and slower court litigation, neither of which is desirable.

Conclusion

As a retired attorney who specialized in business litigation, I was intimately familiar with the costs (beneficial to law firms and lawyers) and delays in resolution in such court litigation. Moreover, I became aware of the frequent adverse psychological impact of such litigation on the parties to the disputes. Therefore, I became an advocate for alternative dispute resolution (ADR), especially mediation but also arbitration, and served as Chair of the Minnesota State Bar Association’s Alternative Dispute Resolution Section.[4]

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[1] See Former Minneapolis Mayor Discusses Police Reform Problems, dwkcommentaries.com (June 21, 2020).

[2] Bjorhus, Fired Minnesota officers have a proven career saver: arbitration, StarTribune (June 21, 2020).

[3] Befort, Counterpoint: In defense of arbitration, StarTribune (June 19, 2020).

[4] See these posts to dwkcommentaries.com: Ruminations on Lawyering (April 20, 2011)(interest in ADR and chairing ADR Section); My First Ten Years of Retirement (April 23, 2011)(service as arbitrator); International Commercial Dispute Resolution (Aug. 11, 2011)(arbitration); Intraocular Lenses Litigation (Aug. 18, 2011) (litigation against ex-employees); Employers’’ Lawsuits Against Former Employees (Aug. 25, 2011); List of Posts to dwkcommentaries—Topical: LAWYERING.