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IN THE MATTER OF THE ARBITRATIONBETWEEN

)

PORTLAND POLICE ASSOCIATION ) )

) OPINION and ) AND

) AWARD CITY OF PORTLAND ) )

Grievants: Sgt. John Birkinbine Sgt. Liani Reyna Officer Ryan Lewton

Janet L. GauntArbitrator

July 15, 2014

APPEARANCES

For the Union: For the City:

Anil S. Karia, Esq. Howard Rubin, Esq.Tedesco Law Group Jennifer A. Nelson, Esq.3021 NE Broadway Ogletree, Deakins, Nash, SmoakPortland, OR 97232 & Stewart, P.C.

222 SW Columbia Street, Suite 1500Portland, OR 97204

Witness / Exhibit List

WITNESS LIST

1. David Virtue, former PPB Lieutenant, Portland Police Bureau2. Robert King, Acting Captain, Portland Police Bureau3. James Ferraris, Deputy Chief of Police, Salem Police Department4. Larry O’Dea, Assistant Chief of Police for Operations, PPB5. Michael Reese, Chief of Police, Portland Police Bureau6. John Birkinbine, Sergeant, Portland Police Bureau7. Liani Reyna, Sergeant, Portland Police Bureau8. Paul Meyer, Officer, Portland Police Bureau9. Ryan Lewton, Officer, Portland Police Bureau

EXHIBIT LIST

Joint 1. Collective Bargaining Agreement between the Portland Police Association

and the City of Portland (July 1, 2010 - June 30, 2013)2. Birkinbine Suspension Letter (11/8/10)3. Reyna Suspension Letter (11/8/10)4. Lewton Suspension Letter (11/8/10)5. Birkinbine Grievance (11/30/10)6. Reyna Grievance (11/30/10)7. Lewton Grievance (11/30/10)8. [not offered]9. Detectives Investigation10. Grand Jury Transcripts11. Internal Affairs Investigation12. Frashour Arbitration Hearing Transcript 13. PPB Directive 1010.20 (ver. 2007)14. PPB Directive 1010.20 (ver. 2010)15. PPB Directive 315.30 (ver. 2010)16. City of Portland Human Resources Administrative Rule 5.01 (Discipline)17. Graham v. Connor, 490 U.S. 386 (1989)


Employer1. PPB Step 1 Response to Birkinbine Grievance (12/8/10)2. PPB Step 2 Response to Birkinbine Grievance (1/16/11)3. PPB Step 1 Response to Lewton Grievance (12/8/10)4. PPB Step 2 Response to Lewton Grievance (1/16/11) 5. PPB Step 1 Response to Reyna Grievance (12/8/10)6. PPB Step 2 Response to Reyna Grievance (1/16/10)7. Birkinbine Training History8. Reyna Training History9. Critical Incident Management Training, Sergeant’s Academy (4/10/06)10. Critical Incident Management PowerPoint Talking Points (undated)11. Less Lethal Operator Course (undated)12. Discipline Memo to Reyna (1/25/05)13. Lewton letter to Chief Reese (10/19/10)14. Birkinbine Deposition, U.S.D.C Cause No. 10-CV-1358-MO (2/10/11)15. Lewton Deposition, U.S.D.C Cause No. 10-CV-1358-MO (3/16/11)16. Reyna Testimony Transcript from Frashour Arbitration17. In-Service Presentation by City Attorney Dave Woboril (2007)18. A Guide for Communicating with the Courts About a Use of Force

(undated)19. Lesson Plan for In-Service 2008 Force Policy Presentation (undated)20. Civil Law Updates 2008 Presentation by City Attorney’s Office (undated)21. PPB Training Division, Patrol Tactics (October 2004-June 2005)22. Rebuttal Report by Dr. Michael Lyman, U.S.D.C Cause No. 10-CV-1358-

MO (7/29/11)

Association1. Arbitrator Jane Wilkinson Frashour Opinion and Award (3/30/12) 2. Birkinbine Commendations3. Birkinbine Probationary Sgt. Evaluation (Jan-Nov. 2006)4. Reyna Police Medal (6/20/07)5. Reyna Commendations6. Reyna Sergeant Evaluations 7. Lewton Commendations 8. PPA Loudermill Presentation Overview (10/19/10)9. PPA Loudermill Presentation for Sgt. Birkinbine (10/28/10)10. Birkinbine Loudermill Statement (10/28/10)11. PPA Loudermill Presentation for Sgt. Reyna (10/28/10)12. Reyna Loudermill Statement (10/28/10)13. PPA Loudermill Presentation for Officer Lewton (10/28/10)14. Lewton Loudermill Statement (10/28/10)15. PPB Training Log for Sgt. Birkinbine (through July 2010)16. PPB Training Log for Sgt. Reyna (through July 2010)17. PPB Training Log for Off. Lewton (through July 2010)


18. [withdrawn]19. PPB Less Lethal Operator Course PowerPoint (undated)20. [Not Offered]21. Picture of Less Lethal Shotgun22. Picture of Less Lethal Bean Bag Round23. Draft of Training Division Report (5/12/10)24. Birkinbine Suspension Letter (1/28/2000)25. Birkinbine Suspension Letter (7/6/01)26. Incident Command Demonstrative Diagram (2013)27. Disk of exhibits from Frashour Arbitration28. Scene Diagram marked by PPA29. [Not offered]30. Expert Report of Major Steve Ijames (6/21/11)31. Use of Force/Performance Review Board Recommendations (9/15/10)32. [Not offered]33. PPB Directive 335.00 (Use of Force Boards)34. Intro to Incident Command System (ICS 100)35. Commander Donna Henderson memo to Chief Sizer (6/9/09)36. Incident Command CCIC Diagram 37. Reyna Memo to Commander Henderson (5/12/09)

Portland Police Association / City of Portland (Birkinbine, Lewton and Reyna Grievances)

Arbitrator’s Opinion and Award, p. 1

PROCEEDINGS

The Portland Police Association (“PPA” or “Association”) represents a

bargaining unit of all police officers, detectives and sergeants working for the

City of Portland Police Bureau (“PPB” or “Bureau”). The PPA initiated this

arbitration pursuant to the terms of a Collective Bargaining Agreement (“CBA” or

“Agreement”) with the City of Portland (“City” or “Employer”). At issue are

suspensions issued to Officer Ryan Lewton, Sergeant John Birkinbine, and

Sergeant Liani Reyna (“Grievants”) for their conduct during a police response that

resulted in the shooting death of Mr. Aaron Campbell on January 29, 2010.

The Arbitrator was selected through mutual consent, and a hearing was

held in Portland, Oregon on January 5-10, 2014. The PPA was represented by

Anil S. Karia of the Tedesco Law Group. Howard Rubin and Jennifer Nelson of

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. represented the City. The parties

stipulated that the Arbitrator had jurisdiction to render a final and binding

decision regarding the issues presented. At the hearing, both sides had an

opportunity to make opening statements, submit documentary evidence, examine

and cross-examine witnesses (who testified under oath), and argue the issues in

dispute. A court reporter transcribed the proceedings and a transcript was

prepared for the Arbitrator’s use.



Two of the children were progeny of Campbell and Jones. 1

STIPULATED STATEMENT OF THE ISSUES

The parties stipulated that the Arbitrator should resolve the followingissues:

(1) Did the City of Portland have just cause to discipline OfficerRyan Lewton? If not, what is the appropriate remedy?

(2) Did the City of Portland have just cause to discipline SergeantJohn Birkinbine? If not, what is the appropriate remedy?

(3) Did the City of Portland have just cause to discipline SergeantLiani Reyna? If not, what is the appropriate remedy?

RELEVANT FACTS

Aaron Campbell’s girlfriend, Angie Jones, lived at the Sandy Terrace

Apartments (“Sandy Terrace”)in Unit 37 with her three young children. The1

apartment complex consisted of multiple two-story buildings. Unit 37 was a

ground floor apartment located in the northernmost building close to NE Sandy

Boulevard. Each apartment was accessed through an alcove that contained a

staircase to the second floor. Unit 37 was located off the third alcove from Sandy

Boulevard. The backside of the apartment faced a parking lot that was accessed

from that street. In a space immediately outside unit 37 there was a parked

Volvo.



Exhibits are referred to as either Joint (“Ex. J- __”), Association (“Ex. A-__”) or2

Employer (Ex. E-__”). The transcript is referred to by page and sometimes line number(“Tr. __:__”). Witnesses are referred to by last name. References to exhibits or testimonyare intended to be illustrative, not all-inclusive, of evidence in the record that supportsa particular statement.

On January 28, 2010, while visiting Ms. Jones, Mr. Campbell became

distraught over the terminal illness of his brother and unsuccessfully tried to

commit suicide with a gun he owned. Jones did not call police because she feared

that in his then state of mind, Mr. Campbell would have forced officers to shoot

him.

January 29, 2010 Timeline

The next day, January 29 , Campbell learned that his brother had passedth

away. Campbell continued to express suicidal thoughts early that day before he,

Jones and the children took a nap. Because family members had been unable to

reach Ms. Jones, her aunt called 911at 1615; asking for a welfare check on Jones

and the children. The aunt reported that Mr. Campbell was suicidal, possessed

a gun, and might be in Ms. Jones’ apt with three children. Ex. J-11 at 561-62.2

Officers are Dispatched: Officer John Boylan was dispatched to this call

shortly before 1622. At that point, the Computer Aided Dispatch (“CAD”) system

advised that Ms. Jones had three children; that Mr. Campbell might be in her

apartment; that he was suicidal, possessed a gun, and had previously tried to kill

himself. Ex. J-9 at 677. Officers were also advised by dispatch that Mr.



Officers access the CAD dispatches via a computer in their vehicles.3

The CAD shows Reyna being on scene at 1722, but CAD entries are not always4

contemporaneous with when events occur. Sergeant Reyna testified that she hadactually arrived before Jones came out of the apartment. Tr. 1108-1109.

Campbell’s brother had died that morning; that Campbell was “very distraught;”

and possibly wanted “suicide by police.” Id; Ex. J-11 at 526. At 1626, Dispatch3

radioed more info, including the fact that Mr. Campbell had a restraining order

against him, had been flagged for domestic violence and resist, and was on the

Domestic Violence Enhanced Response Team (“DVERT”) case load. Ex. J-11 at

527.

Officer Boylan arrived on scene at 1630; followed closely by Officer James

Quackenbush. Over the next fifteen minutes, Officers Ryan Lewton, Joshua

Bocchino and Christopher Gryphon arrived. The latter two officers took up

positions where they could observe the rear entrance to unit 37. Lewton got a key

to unit 37 from the apartment manager, and Lewton and Boylan attempted to

verify the location of Jones and her three children. Then just after 1700, Sergeant

Liani Reyna arrived on scene and became the incident commander. 4

Ms. Jones Emerges From The Apartment: At 1703, Ms. Jones woke up from

her nap and saw a text message saying her father was outside. Jones left the

apartment and spoke with her father, and Officer Boylan in the parking lot.

Sergeant Reyna was present for part of the conversation and heard Ms. Jones say



A custody team is used in high risk situations, and consists of a lethal cover officer,5

an officer armed with a less-lethal weapon, and two “hands-on” officers, who willphysically take a suspect into custody.

that Mr. Campbell was napping on the sofa and the three children were still in the

apartment. Sergeant Reyna turned her attention to delegating tasks and setting

up a loose perimeter after hearing Ms. Jones say that Campbell kept a gun in a

sock in the front pocket of the jacket he was wearing. Tr. 1115 (Reyna). Sergeant

Reyna did not hear Jones tell Officer Boylan that Mr. Campbell’s suicidal behavior

had occurred the night before when he had been drinking and that he was now

doing better. Tr. 1113 (Reyna). Ms. Jones wanted the police to leave; fearing

their presence would only make the situation worse.

Initial Contact With Mr. Campbell: Sergeant Reyna initially considered

making a surprise entry into the apartment. After Ms. Jones’ report that

Campbell was armed, Sergeant Reyna decided that entering the apartment would

be too risky, so around 1710, she began preparing to contact Mr. Campbell by

phone. Officer Quackenbush was delegated to make the phone call and took up

position in an alcove of the building. Sergeant Reyna formed a custody team that

was initially comprised of Reyna (with a lethal AR-15 rifle), Officer Lewton (with

a less lethal bean bag shotgun), and Officers David Kemple and John Boylan as

hands on officers. Sergeant Reyna also staged arriving officers at the perimeter5

of the scene and directed the positioning of a patrol car in the parking lot to



provide hard cover for the custody team and have its PA system available for a

loud hail of Mr. Campell. At 1719, an AR-15 unit was requested, and Officer Ron

Frashour subsequently responded. After a K9 was requested, Officer Jeffrey Elias

headed to the scene.

At 1724, Mr. Campbell sent Ms. Jones a text message asking what was

going on. Ms. Jones texted back: “IDK, but they want you to come outside.” Ex.

J-9 at 177. Mr. Campbell responded “who” and then “I told [you] not to have

nobody bother me.” Id. In a subsequent text at 1726, Campbell said: “don’t

make me get my gun, I ain’t playing.” Id. Officer Burns learned of these texts and

alerted Officer Boylan, who took Jones’ cellphone back to the alcove that had been

serving as an informal incident command post. Ex. J-9 at 66. At 1726, Burns

advised units to be prepared in case Mr. Campbell came out unexpectedly.

Around this point in time, Mr. Campbell sent another text saying: “don’t make me

get my gun, I ain’t playing.” Ex. J-11 at 542. Two minutes later, Officer Boylan

radioed the text of that message and warned units to be “heads up.” Id.

Officer Frashour arrivef on scene at approximately 1729 and replaced

Sergeant Reyna as the AR-15 operator on the custody team. Officer Willard

replaced Officer Boylan as one of the hands on custody team officers. Frashour,

Willard, Lewton and Kemple remained the custody team for the remainder of the

incident. At this point, one patrol car was positioned diagonally across some



This alcove was twenty to thirty feet away from the custody team’s position in the6

parking lot. Tr. 724 (O’Dea).

A CAD entry indicates that Sergeant Birkinbine was on scene at 1721, but7

Birkinbine testified this is when he was enroute, and did not arrive until just after 1730.

Tr. 916.

parking spaces located three apartments north of Unit 37. A second patrol car

being used as cover by the custody team was positioned diagonally in the middle

of the parking area, roughly 60 feet from a Volvo station wagon parked in front of

unit 37. Sergeant Reyna requested another patrol car to help with containment,

and she and Officer Boylan headed to the alcove where Officer Quackenbush was

located. While dealing with these various matters, Sergeant Reyna received a6

phone call from the pre-relief Sergeant Jan Ellertson, who asked if Reyna needed

help. Sergeant Reyna told Ellertson no supervisory help was needed at point.

Sergeant Birkinbine also asked how he could help when he arrived at the

alcove shortly after 1730. Sergeant Reyna told Birkinbine here was nothing she7

needed at that moment, and returned her attention to directing other officers

already on scene. Sergeant Birkinbine is a member of the Bureau’s Hostage

Negotiation Team (“HNT”), so he decided to assist Officer Quackenbush as the

number two communications person. Quackenbush and Birkinbine remained

the communications team for the rest of the incident.



Ms. Jones and the children were taking to a location away from Sandy Terrace, and8

Officer Burns kept seeking more information from Jones.

The Children Exit From The Apartment: Sergeant Reyna’s plan at this

point was to separate the children from Mr. Campbell, so she directed Officer

Quackenbush to call Campbell and determine his mental state. When Officer

Quackenbush reached Mr. Campbell on the phone at 1732, Quackenbush told

Campbell that he was not in trouble, but that there was concern about his

welfare. It was difficult hearing Mr. Campbell’s comments at times, but he did tell

Officer Quackenbush that he just wanted the police to go away and leave him

alone. Ex. J-11 at 397, 402 (Quackenbush).

Officer Quackenbush told Mr. Campbell that the officers were not opposed

to leaving, but were concerned about the children in the apartment. At that point,

the phone connection went dead, and very soon thereafter, the three children

walked out of the apartment. They were unharmed, and walked directly to police

officers. At 1734:56, Sergeant Reyna broadcast that the children were secure and

that officers should hold their positions. For the next fifteen minutes or so, there8

was no effort to contact Mr. Campbell again. Instead, Sergeant Reyna spent the

time gathering information from various officers, giving directions, and having

discussions with Sergeant Birkinbine and Officer Quackenbush.



About the time that the children were secured, Officer Elias arrived on scene

with his K9. Speaking with Elias in the alcove, Sergeant Reyna decided to use the

K9 as a less lethal weapon if Mr. Campbell came out and tried to run away or run

back into the apartment. Tr. 1144-45 (Reyna); Ex. J-10 at 33 (Elias). Officer Elias

confirmed by phone with his K9 sergeant that using the K9 in this manner was

authorized. He then moved to a position behind some dumpsters east of the

custody team, which offered concealment while allowing him to observe unit 37.

None of the officers on the custody team were told how the K9 would be used if

Mr. Campbell came out. Tr. 1378 (Lewton).

A Tactical Plan Is Adopted: At 1749, Sergeant Reyna broadcast that officers

should be patient while communication with Campbell was attempted by text. Ex.

J-11 at 546. Shortly after this, Lieutenant Derek Rodrigues asked Sergeant Reyna

to call him. Reyna responded that she was busy and would have to call him back.

Tr. 1163 (Reyna). At 1751, Sergeant Reyna broadcast: “On the phone w/susp

now.” Tr. 1163-64 (Reyna).

Prior to this dispatch, Sergeants Reyna and Birkinbine had a disagreement

over how to proceed now that Mr. Campbell was alone in the apartment. Sergeant

Reyna felt the police should withdraw if they got a promise from Mr. Campbell

that he would not hurt himself. In her view, it was problematic to personally

confront a potentially armed suicidal person, who might want to provoke police

into shooting him. Sergeant Birkinbine had a number of concerns about leaving



Mr. Campbell in the apartment, and argued that the most effective way to

determine whether Campbell would hurt himself was through a face to face

encounter. After an extended discussion, Sergeant Reyna directed Officer

Quackenbush to call Mr. Campbell and seek an assurance that Campbell would

not hurt himself. If that assurance was obtained, Reyna indicated that she

intended to withdraw officers from the scene without having Campbell come

outside. This course of action was not broadcast to other officers on scene.

Further Contact with Mr. Campbell: Because of the prior poor phone

reception, Officer Quackenbush used Ms. Jones’ phone to send the following text

at 1755: “Aaron we need to know if you intend on hurting yourself.” Ex. J-9 at

177. Campbell texted back: “Never . . . wow u guys text too . .. u get kudos.”

Id.(“kudos message”) Sergeant Reyna regarded this as a positive message that

suggested Mr. Campbell did not want to hurt himself. At 1757, she dispatched:

“We’re getting some positive texts, feedback from him, we’re still in text communi-

cation with him. . .” Ex. J-11 at 548.

Captain Robert Day arrived on scene around 1751, and spent initial

minutes dealing with perimeter issues. Tr. 788-89 (Reese). At 1756, Captain Day

asked for the locations of Sergeant Reyna and the officer doing the texting.

Shortly thereafter, Lieutenant Rodrigues also arrived on scene. Captain Day

directed Sergeant Reyna to brief him at the north end of the apartment building.



Day wanted a briefing away from the alcove because he did not have a ballistics

vest.

Sergeant Reyna had been discussing with the communications team

whether Mr. Campbell’s “kudos message” was enough reassurance that he would

not hurt himself. Before leaving the alcove around 1759, Reyna told Birkinbine

and Quackenbush to get a clearer promise from Mr. Campbell. Sergeant Reyna

did not transfer incident command to Sergeant Birkinbine. However, Birkinbine

indicated that Sergeant Reyna had better go give the briefing, and he told her:

“I’ve got this.” Tr. 976-77 (Birkinbine).

After Reyna had left the alcove, Officer Quackenbush sent a text at 1803

that said: “Thanks Aaron. I appreciate your help. I am truly sorry about your

Brother. Can u promise me u wont hurt yourself – Jim.” Ex. J-9 at 177.

Campbell texted back: “Ur textin me and not callin me that’s real weird Jimmy.”

Ex. J-9 at 178 (“weird message”). Sergeant Birkinbine viewed this response as an

invitation to call Mr. Campbell. Without advising Sergeant Reyna, or Captain Day,

who he knew was now on scene, Sergeant Birkinbine instructed Officer

Quackenbush to call Campbell and ask if Mr. Campbell was willing to come out

so the police could wrap things up. Tr. 1054-55 (Birkinbine); Ex. J-11 at 329.

Mr. Campbell Exits The Apartment: Officer Quackenbush reached Mr.

Campbell by phone at 1806 or 1807, and Mr. Campbell again said he wanted the



police to go away and leave him alone. Officer Quackenbush indicated the police

would not enter the apartment, but just wanted to make sure Mr. Campbell as

okay and would not hurt himself or other people. Officer Quackenbush did not

“direct” Campbell to leave the apartment, but asked if Mr. Campbell would

consider coming out to talk with the police. Because of a bad connection,

Quackenbush could not hear much of what Mr. Campbell said in response.

Instead, the phone went dead, and at 1807:38 Aaron Campbell came out of the

apartment and walked into the parking lot.

Mr. Campbell’s emergence surprised everyone present. He was wearing

sagging pants, baggy clothes, and a puffy jacket. Mr. Campbell had his hands

behind or at the top of his head and was sidestepping in an easterly direction past

the Volvo parked outside unit 37 and towards the center of the parking lot. As

Mr. Campbell got to the center of the parking lot, Officer Lewton began loudly

shouting commands to Campbell; telling him to walk backwards slowly towards

the sound of Lewton’s voice. Tr. 1343 (Lewton). Facing away from the custody

team, Mr. Campbell walked backwards while keeping his hands on his head. It

was getting dark, so Officer Kemple focused a spotlight on Campbell to better view

his torso and blind him from seeing the officers’ positions if he turned around. No



Absent evidence of material errors of fact, I have adopted findings made in the9

Frashour decision because so much evidence regarding the Sandy Terrace policeresponse was presented to Arbitrator Wilkinson and so fully addressed.

Lewton felt that having Mr. Campbell’s hands up in the air would make it more10

difficult for him to reach for a gun. It would also provide a better view of Campbell’swaistband area, and make it easier to secure him.

officer saw a firearm or a suspicious bulge, but they had a reasonable belief that

Mr. Campbell might be carrying a gun. Ex. A-1 at 59.9

Witnesses vary in their description of the pace at which Mr. Campbell

walked backwards, but it is undisputed that on two occasions, Officer Lewton told

Mr. Campbell to stop. Each time Mr. Campbell did so, and ultimately stopped at

a point that was fifteen to twenty feet from the custody team. Ex. A-1 at 14. At

1807:59, Sgt. Birkinbine broadcast that AC was “compliant so far.” Ex. J-9 at

680; Tr. 998 (Birkinbine).

Less Lethal Force Is Deployed: After Mr. Campbell stopped the second time

as directed, Officer Lewton said “do exactly as I say or you will be shot.” Tr. 1347

(Lewton). Mr. Campbell responded by turning slightly to the left, looking back

over his shoulder, and stating words to the effect of: “Go ahead and shoot me” in

an “I don’t care” tone of voice. Tr. 1348 (Lewton). Mr. Campbell’s hands

remained on his head.

Officer Lewton reacted by telling Mr. Campbell to raise his hands in the

air. When Campbell did not comply after two to three seconds, Lewton repeated10



the command. After waiting another two or three seconds without any sign of

compliance by Campbell, Lewton fired a round from the beanbag shotgun.

Sergeant Birkinbine radioed “Bean bag deployed” at 1808:07. Ex. J-9 at 680; Tr.

1004 (Birkinbine). The less lethal round hit Mr. Campbell somewhere between his

buttocks area and his knee. As Mr. Campbell leaned forward and then straight-

ened up, Officer Lewton shot another beanbag round, at which point Mr. Campbell

began to run back towards his apartment and the Volvo parked in front of it. As

Campbell started running, Officer Elias deployed his K9, and Officer Lewton fired

four more less lethal rounds. Tr. 1360-1364 (Lewton) It is unclear how many of

those rounds hit Mr. Campbell, but Campbell did not slow down.

Mr. Campbell Is Fatally Shot: Just before Mr. Campbell reached the corner

of the parked Volvo, where he could potentially take cover and fire at officers if he

was armed, Officer Frashour fired one lethal round with his AR-15 rifle, hitting

Mr. Campbell in the back. A radio broadcast at 1808:16 said: “Shots fired, lethal

force, he’s down.” Ex. J-9 at 680. Mr. Campbell fell prone and did not move

again. He was later pronounced dead at the scene.

Subsequent Investigations

After the Campbell shooting, there were numerous reviews that began with

a criminal investigation by the Bureau’s Detective Division. A Grand Jury was

convened, and declined to indict any of the involved officers. The Bureau’s



The Use of Force Review Board has eight (8) voting members: three command11

officers, two peer officers, two civilian members, and an RU manager. There are also sixadvisory members, who represent Internal Affairs, the City Attorney’s office, HumanResources, and the Independent Police Review Director. Ex. A-33.

Internal Affairs Division (“IAD”) then conducted an internal investigation into

whether the conduct of involved officers complied with applicable Bureau policies.

The incident was also reviewed by the Bureau’s Training Division to determine

whether involved officers’ conduct was consistent with Bureau training. The final

Training Division report by Lieutenants Robert King and David Virtue found the

actions of Officers Frashour and Lewton, and Sergeants Birkinbine and Reyna

were not consistent with their training and PPB policy. Ex. J-11 at 89-158.

North Precinct Commander James Ferraris reviewed all the information

gathered through the various investigations and prepared Commander’s Findings

and Recommendations. Ex. J-11 at 8-27. Commander Ferraris found the

conduct of the Officers Frashour, Lewton and Sergeants Birkinbine and Reyna

had been out of Bureau policy. The next proceeding was a Use of Force Review

Board, which makes recommendations for the Chief of Police to consider,

including corrective action. The Board unanimously found that the conduct of11

Officer Frashour, Officer Lewton, Sergeant Birkinbine and Sergeant Reyna had

been out of policy. The Board recommended discipline but had wide ranging views

regarding the length of suspensions appropriate for each Grievant. Ex. A-31.



The Discipline Decision

Michael Reese is the Bureau’s Chief of Police, who has final authority

regarding disciplinary action. Chief Reese reviewed all the investigation reports,

and conducted a hearing at which each officer and their PPA representative had

an opportunity to respond to a notice of proposed discipline and offer information

they wanted Reese to consider when making a final decision. Chief Reese

ultimately decided to discharge Officer Frashour, who fired the lethal shot. Officer

Lewton, Sergeant Reyna and Sergeant Birkinbine were each suspended for 80

hours without pay.

The disciplinary action taken against all four officers was grieved by the

PPA. A grievance on behalf of Officer Frashour was litigated first, and ultimately

sustained by Arbitrator Jane Wilkinson. In a decision issued on March 30, 2012,

Arbitrator Wilkinson concluded that Officer Frashour had an objectively

reasonable basis for deploying lethal force, and the City therefore lacked just

cause for any disciplinary action. Ex. A-1 at 73. The parties then agreed to

litigate the Lewton, Birkinbine and Reyna suspensions in a single hearing before

this Arbitrator. The relevant facts and considerations differ somewhat for each of

those Grievants.



RELEVANT CONTRACT LANGUAGE

ARTICLE 2 - MANAGEMENT RIGHTS

2.1 The City shall retain the exclusive right to exercise the customary functionsof management including, but not limited to, directing the activities of the Bureau,determining the levels of service and methods of operation including subcontract-ing and the introduction of new equipment; the right to hire, lay off, transfer andpromote; to discipline or discharge for cause, to determine work schedules andassign work and any other such rights not specifically referred to in this Contract.Management rights, except where abridged by specific provisions of this Contractor general law, are not subject to the Grievance Procedure.

ARTICLE 20 - DISCIPLINE

20.1 Disciplinary action or measures shall include only the following: writtenreprimand, suspension, or in lieu thereof, with the officer’s concurrence, loss ofvacation or non-FLSA compensatory time. Disciplinary action shall be for justcause and will be subject to the following grievance procedure. This section shallnot apply to counseling and instruction. Verbal reprimands will not be used as thebasis for subsequent disciplinary action unless the officer is notified at the timeof reprimand, and if notified, the matter will be subject to the grievance procedure.

ARTICLE 22 - GRIEVANCE AND ARBITRATION PROCEDURE

* * * *22.5 . . . The arbitrator’s decision shall be final and binding, but the arbitratorshall have no power to alter, modify, amend, add to or detract from the terms ofthe contract. The arbitrator’s decision shall be within the scope and terms of theContract and in writing.

22.5.1 The arbitrator shall be asked to submit an award within thirty (30)days from the date of the hearing. The decision may also provide retroactiv-ity not exceeding sixty (60) days prior to the date the grievance was firstfiled with the Chief and shall state the effective date.



OPINION

In Article 20 of the CBA, the parties have agreed that just cause is required

for any disciplinary action. What constitutes “just cause” has not been defined

in the labor contract, but its meaning has been well established through years of

labor-management jurisprudence. As this Arbitrator has noted in decisions

issued over the last three decades, just cause is a broad and elastic standard

involving a balancing of interests and notions of fundamental fairness. Described

in very general terms, the applicable standard is one of reasonableness:

. . . whether a reasonable [person] taking into account all relevantcircumstances would find sufficient justification in the conduct of theemployee to warrant discharge [or discipline].

RCA Communications, Inc., 29 LA 567, 571 (Harris, 1961); Riley Stoker Corp., 7

LA 764, 767 (Platt, 1947).

As traditionally applied, the just cause standard requires an initial

determination of whether an accused employee is in fact guilty of the misconduct

alleged by an employer. However, the existence of just cause entails more than

just proof of wrongdoing. It also involves consideration of procedural fairness, the

presence of mitigating circumstances, and the severity of the penalty imposed. It

is by now axiomatic that the burden of proving “just cause” rests with the

employer imposing discipline. The standard of proof normally required in labor

arbitrations is a preponderance of the evidence. For some types of misconduct, a



higher burden of proof may be deemed reasonable, but in the Frashour case,

Arbitrator Wilkinson concluded that the appropriate quantum of proof to require

was a preponderance of the evidence. Ex. A-1 at 33.

As a matter of law, arbitrators are free to attach to prior arbitration awards

whatever precedential value they deem appropriate, but prior arbitration awards

are frequently given deference. I can see no justification for applying a different

burden of proof when judging the merits of discipline imposed on the Grievants

than the City was required to satisfy for the merits of discipline imposed on

another officer for conduct occurring during the same police response.

The disciplinary actions before me all arose from conduct occurring during

the same incident, but the conduct alleged to have been out of policy differs in

each case. Each of the Grievants received the same 80 hour suspension, but the

merits of each suspension must be judged in light of each Grievant’s individual

knowledge and training. It was the City’s burden to convince this Arbitrator that

more likely than not each Grievant violated applicable policies and training in

ways that merited the discipline imposed.

I. THE CITY PROVED THAT OFFICER LEWTON DID VIOLATE THEBUREAU’S USE OF FORCE POLICY (DIRECTIVE 1010.20).

It is undisputed that Officer Lewton shot Aaron Campbell with a non lethal

beanbag because Mr. Campbell did not comply with Officer Lewton’s directive to



raise his hands in the air. The nonlethal weapon was first deployed at a time

when Campbell was standing still, fifteen to twenty feet away with his back turned

to Lewton, and his hands together behind his head. Since the first two shots fired

by Officer Lewton seemed the most problematic to this Arbitrator, the parties were

directed to focus their arguments on the justification of those shots.

In the letter of suspension, Chief Reese described the reason for disciplinary

action as follows:

Your use of less lethal force against Aaron Campbell was notauthorized by Bureau policy or training and did not meet theperformance expectations for a City of Portland police officer. Inorder for your use of force to have been appropriate in this circum-stance, Campbell must have displayed at the very least indications ofaggressive physical resistance (in other words, violent behavior) andin addition, your use of force must have been reasonable under thetotality of the circumstances. Neither element was met in this case.

Ex. J-4.

The less lethal beanbag shotgun is designed to allow officers to address

dangerous situations through pain compliance without having to resort to higher

levels of force. Officer Lewton was certified to carry the less lethal beanbag

weapon in April 2005. During a 40-hour certification course that included

classroom and scenario-based training, Officer Lewton was trained in the

appropriate use of less lethal shotguns, as well as the Bureau’s use of force policy

then in effect. He was taught that an “armed, suicidal person who may force

officers into shooting to achieve suicide by cop,” was one of the situations that



might call for the use of “speciality” ammunition. Ex. E-11 at 33. Officer Lewton

was also trained that use of less lethal force was not a replacement for using

“time, talk and tactics” to gain a subject’s compliance. Ex. E-11 at 7; Tr. 1379

(Lewton).

When Officer Lewton took the certification course, the Bureau’s force policy

utilized a “Levels of Control” model that identified categories of subject behavior

and authorized certain tactical or force response to those behaviors. Applicable

subject behavior for use of less lethal speciality munitions included:

• Aggressive physical resistance• Indicates intent to engage in aggressive physical resistance• Armed or potentially armed, capable of causing serious

physical injury of death.

Ex. J-13 at 5-6; Ex. A-19 at 8. If any one of these subject behaviors was

displayed, a less lethal beanbag could be deployed. Tr. 1279-80 (Meyer).

In Graham v. Connor, 490 U.S. 386 (1989)(“Graham”), the U.S. Supreme

Court established the basic framework for determining whether the use of force

by law enforcement is excessive. Graham held that an officer’s use of force is

permissible if it is “objectively reasonable” based upon the totality of the

circumstances confronting an officer. Graham at 397. Whether the use of force



Graham and its progeny is described in greater detail in the Frashour decision by12

Arbitrator Wilkinson. Ex. A-1 at 34-43.

was objectively reasonable is judged from the perspective of a reasonable officer

on the scene, not with 20/20 hindsight. Id. at 396. 12

In light of Graham, the Bureau changed its use of force policy in 2008 to

require consideration of the “totality of the circumstances at a scene,” instead of

mechanically following the Levels of Control model. The revised policy also

emphasized the use of “de-escalation tools,” and the need to resolve confrontations

without resorting to higher levels of allowable force when practical. At the time

of the Campbell shooting, the Bureau’s use of force policy read as follows:

DIRECTIVE 1010.20 - PHYSICAL FORCE

The Portland Police Bureau recognizes that duty may requiremembers to use force. The Bureau requires that members be capableof using effective force when appropriate. It is the policy of the Bureauto accomplish its mission as effectively as possible with as little relianceon force as practical.

The Bureau places a high value on resolving confrontations, whenpractical, with less force than the maximum that may be allowed bylaw. The Bureau also places a high value on the use of de-escalationtools that minimize the need to use force.

The Bureau is dedicated to providing the training, resources andmanagement that help members safely and effectively resolveconfrontations through the application of de-escalation tools andlower levels of force.



It is the policy of the Bureau that members use only the forcereasonably necessary under the totality of circumstances to performtheir duties and resolve confrontations effectively and safely. TheBureau expects members to develop and display, over the course oftheir practice of law enforcement, the skills and abilities that allow themto regularly resolve confrontations without resorting to the higher levelsof allowable force.

Such force may be used to accomplish the following purposes:

a. Prevent or terminate the commission or attempted commis-sion of an offense.

b. Lawfully take a person into custody, make an arrest, orprevent an escape.

c. Prevent a suicide or serious self-inflicted injury.

d. Defend the member or other person from the use of physicalforce.

e. Accomplish some official purpose or duty that is authorizedby law or judicial decree.

When determining if a member has used only the force reasonablynecessary to perform their duties and resolve confrontationseffectively and safely, the Bureau will consider the totality ofcircumstances faced by the member, including the following:

a. The severity of the crime.

b. The impact of the person’s behavior on the public.

c. The extent to which the person posed an immediate threatto the safety of officers, self or others.

d. The extent to which the person actively resisted efforts atcontrol.

e. Whether the person attempted to avoid control by flight.



f. The time, tactics and resources available.

g. Any circumstance that affects the balance of interestsbetween the government and the person.

The Bureau’s Levels of Control model describes a range of effectivetactical options and identifies an upper limit on the force that maypotentially be used given a particular level of threat. However,authority to use force under this policy is determined by the totality ofcircumstances at a scene rather than any mechanical model.

Ex. J-14 at 2-3 (emphasis added by italics).

The first sentence of the Directive’s fourth paragraph adopted the Graham

totality of the circumstances standard. As indicated by the provisions I have

italicized, the revised policy also made clear that officers should use less force

than the maximum that might be permitted by law, when practical and safe to do

so. At a one hour in service training in 2008, a City attorney explained the policy

revision and the totality of the circumstances considerations to all PPB officers.

Officer Lewton has acknowledged that he was familiar with the policy change. Tr.

1310.

The City contends that Officer Lewton’s use of the less lethal beanbag was

unreasonable in light of the following circumstances:

1. Mr. Campbell had not committed any crime or been violent;

2. He was suicidal and distraught over his brother’s death;

3. He had never threatened officers or anyone besides himself;



4. The children had been released;

5. Communications between Mr. Campbell and Officer Quacken-bush had been positive;

6. Mr. Campbell had walked backward toward officers with hishands on his head, and had slowed down and stopped twice incompliance with Lewton’s commands;

7. Officers had cover, numerical superiority, and alternativeresources;

8. No officer had seen any weapon;

9. Mr. Campbell had made no movement toward officers; and wasnot an immediate threat;

10. Mr. Campbell was standing still with hands remaining on hishead when Officer Lewton decided to use the less lethal.

The PPA disagrees; arguing that Officer Lewton reasonably believed he was

facing a noncompliant subject who was potentially armed and capable of causing

serious physical injury or death, and his training conditioned him to deploy the

less lethal in that situation. In the Association’s view, the Bureau failed to

adequately train its officers on the new force policy. Even under that revised

policy, the PPA contends that the following circumstances made deployment of the

less lethal beanbags reasonable:

1. Mr. Campbell was said to be armed and contemplating suicideby cop;

2. He was doing more than passively surrendering;



3. He had become an immediate threat upon non-compliance withcommands to raise his hands in the air;

4. Mr. Campbell was in the process of running when some of thebeanbags were deployed;

5. Words had stopped working so transitioning to the use of forcewas reasonable;

6. Not using other options did not make Officer Lewton’s use ofthe less lethal weapon unreasonable.

Whether the use of force is reasonable depends on what an officer knows at

the time that force is deployed. My first consideration has therefore been what

information was known to Officer Lewton, when he made the decision to deploy

the less lethal. Having arbitrated police cases for over thirty years, I am well

aware that sometimes police officers have to make quick decision in unpredictable

situations. They are “forced to make split-second judgments - - in circumstances

that are tense, uncertain, and rapidly evolving.” Graham at 397. Use of force

decisions are not judged against speculative “what-if” possibilities but against

objectively reasonable beliefs from the officer’s perspective.

As events unfolded at the Sandy Terrace Apartments, Officer Lewton knew

that: the call was for a welfare check on Angie Jones; Mr. Campbell had a “violent

history” that included prior gun charges; that Campbell reportedly had a weapon

and had sent a text message saying “Don’t make me get my gun, I ain’t playin;”

Mr. Campbell was reported to be suicidal and had threatened suicide by police;



A CAD dispatch at 1624:31 indicated that the subject’s brother had died that13

morning and the subject was very distraught. Ex. J-9 at 677. Officer Lewton knew Mr.Campbell was reportedly suicidal, but testified that he did not know C was distraughtbecause his brother had died that day. Tr. 1388.

and Ms. Jones said Campbell had calmed down that morning. Tr. 1314-1330;

1387-88 (Lewton). Officer Lewton Lewton did NOT know Mr. Campbell was

distraught because his brother had died that day; or that Campbell sent the13

children out of the apartment at the suggestion of Officer Quackenbush, or that

Mr. Campbell had exited the apartment after another such suggestion. Tr. 1388,

1408-09 (Lewton).

Once the custody team was formed, its officers were not given any specific

instruction from Sergeant Reyna, nor discussed among themselves what rules of

engagement to follow if Mr. Campbell came out of the apartment. Sergeant Reyna

had told Officer Lewton Lewton to get his less lethal in case it would be needed

should Campbell come out of the apartment. Tr. 1321, 1325 (Lewton). At Officer

Lewton’s suggestion, a K9 officer had also been dispatched, and Lewton knew that

Officer Elias was positioned near the custody team with his K9. Tr.1325, 1331.

Before the children emerged, Officer Lewton thought that if Mr. Campbell

exited the apartment, he would be taken into custody for a mental hold. Tr. 1326-

27 (Lewton). After the children exited and Campbell was alone in the apartment,

Officer Lewton believed the police would likely end up leaving, since Ms. Jones



The patrol car provided some cover, but not the hard cover others had behind the14

car’s engine block.

and the children were safe. Tr. 1330-31. Officer Lewton was never specifically

informed of the outcome Sergeant Reyna was pursuing.

When Mr. Campbell unexpectedly emerged from the apartment, witness

descriptions of how Campbell proceeded into the parking lot differ. As Mr.

Campbell reached the center of the parking lot and Officer Lewton instructed

Campbell to walk back slowly, Lewton perceived Mr. Campbell’s movement to be

quick, giant steps even after Officer Lewton yelled that Campbell should slow

down. Officer Lewton felt Mr. Campbell was not displaying classic surrender

behavior, but when Lewton yelled at Campbell to stop, Mr. Campbell did so at a

point still well away from the patrol car behind which Officer Lewton was

positioned. During his testimony, Officer Lewton described Mr. Campbell’s14

behavior upon exiting the apartment as follows:

It appeared to me that he has been arrested before, and he was doing whathe thought he should be doing rather than doing what we were telling himto be doing.

Tr. 1342:11-14.

Arbitrator Wilkinson found in the Frashour decision that during the period

leading up to Mr. Campbell’s shooting, there were indisputably circumstances

that indicated Campbell was not a threat. She concluded there were also



Doing so would move Campbell’s hands further away from his waistband where15

subjects commonly carry weapons; would expose Mr. Campbell’s palms to ensure therewas no weapon hidden there; would better expose the front, back, and sides of Mr.Campbell’s belt line; and would be preliminary to getting Campbell in a prone position

indisputable facts that would justifiably cause an objectively reasonable officer to

be wary of Mr. Campbell and worry about what he had in mind. Ex. A-1 at 53-54.

I fully concur, and credit Officer Lewton’s assertion that he believed Campbell was

actually (not just potentially) armed with a gun. Tr. 1343. Officer Lewton

acknowledges, however, that Mr. Campbell did not display any intent to engage

in physical resistance before Officer Lewton fired the less lethal weapon. Tr. 1383.

The pace at which Mr. Campbell moved backward may not have been what

Officer Lewton was directing, but each time Campbell was told to stop, he

complied with that command. Mr. Campbell may not have been displaying what

Officer Lewton considered classic surrender behavior, but he was standing still in

what is commonly known as the surrender position. Tr. 370-71 (King). Mr.

Campbell was not engaging in any aggressive physical resistance. Tr. 1298

(Meyer). Chief Reese viewed Mr. Campbell’s resistance to be passive in nature,

and felt that given the surrounding circumstances, Officer Lewton should have

tried other measures to gain Mr. Campbell’s compliance with his last command.

The record fully supports that judgment.

Officer Lewton had legitimate reasons for wanting Mr. Campbell’s hands

raised above the subject’s head. The critical issue, though, is how quickly15



that would be safer for officers approaching him.

Lewton resorted to the beanbag to gain compliance. Even before the Bureau’s use

of force policy changed, Officer Lewton had been taught that using a less lethal

tool like the bean bag gun should not be a replacement for using time, talk and

tactics to achieve a subject’s cooperation or custody. Tr. 1296 (Meyers).

According to Officer Paul Meyer, the Bureau’s lead beanbag training officer,

officers are taught that if there is time, the goal is to talk someone into custody

rather than have to use force. Tr. 1296.

At the arbitration, Officer Lewton acknowledged knowing that using a less

lethal was not a substitute for time, talk and tactics, but he attempted no other

tactic to gain compliance besides saying “Do as I say or you’ll be shot” and twice

saying “put your hands in the air.” Before shooting Mr. Campbell with the less

lethal weapon, Officer Lewton had not tried to reason with Mr. Campbell; all

Lewton had done was bark orders at him.

Communication is a de-escalation tool commonly used by Bureau officers

to gain compliance from subjects. Tr. 376-377 (King). Officers use verbal

conversation all the time, even humor to defuse a situation, when subjects do not

do exactly as they are told. Tr. 378-79. Making more of an effort to talk Mr.

Campbell into compliance was especially important given his known emotional

state. Officer Lewton may not have known that Mr. Campbell’s brother had



In Deorle v. Rutherford, 272 F.3d 1272 (2001), the Ninth Circuit Court of Appeals16

addressed a police officer’s use of less lethal force when confronting a mentally unstablesubject. The court ruled that even though the subject was walking steadily in theofficer’s direction, use of less lethal force was not reasonably justified, because thesubject had not committed a serious offense, was generally compliant, was mentally oremotionally disturbed, and had not displayed a weapon. 272 F.3d at 1281. In thecourt’s view, the officer had less dangerous options available that he had failed toconsider. Id. at 1283.

This training had been required for Bureau officers after the death of a mentally17

ill person while in Portland police custody. Ex. J-4 at 2.

passed away that morning, but he did know that Campbell was distraught enough

to be described as suicidal. The fact that Mr. Campbell was emotionally disturbed

does not seem to have led Officer Lewton to consider the benefit of trying to reason

with Mr. Campbell rather than just shouting commands. Officer Lewton had16

nine years of experience with subjects as a patrol officer. In addition to the less

lethal certification course, and other training courses, Officer Lewton had received

40 hours of crisis intervention training that taught officers to recognize that a

person’s mental illness may affect the person’s behavior and ability to respond or

interact with police. 17

When asked why he did not make more of an attempt to talk Mr. Campbell

into compliance, Officer Lewton said he was focused on gaining complete control

of Campbell, and “I didn’t necessarily think we had a lot of time to sit there and

talk to him.” Tr. 1416:22-23. Officer Lewton was not trained to wait any specific

amount of time between providing a verbal warning and deploying the less lethal



beanbag. That does not mean use of the beanbag so quickly was reasonable.

Officer Lewton was trained that when the less lethal weapon should be deployed

depended on an event’s particular circumstances. In some circumstances,

deployment might be necessary without warning; in others, it may be reasonable

to wait twenty minutes before deployment. Tr. 1280-81 (Meyer).

The Association argues that words had stopped working so transition to

force was reasonable. That assertion was not persuasive in light of how little time

Officer Lewton took to seek compliance. Mr. Campbell was shot after he had twice

complied with commands to slow down and stop; was standing still with hands

behind his head; and had simply failed to move his hands from behind his head

to above his head in response to two commands that were only 2-3 seconds apart.

Mr. Campbell was shot only 8 seconds after a broadcast saying he was “compliant

so far.” Ex. J-9 at 680.

A conclusion that Officer Lewton deployed force far too quickly is reinforced

by how quickly he fired the second shot. Officer Lewton testified at the arbitration

that he shot Mr. Campbell strictly to gain compliance with his command. Tr.

1388. After Mr. Campbell leaned forward in reaction to being hit, and then

straightened back up, Officer Lewton fired a second shot in anticipation that

Campbell was “getting ready to run.” Tr. 1362-63 (Lewton). Without waiting to



see whether the first shot would gain the compliance he wanted, Officer Lewton

fired a second shot very soon after the first one.

Campbell was standing still with his hands behind his head. Since Officer

Lewton’s primary worry was whether Mr. Campbell might have a weapon hidden

in his pocket or waistband area, there were obvious reasons to try talking

Campbell into compliance before using the less lethal weapon. Using the less

lethal is a pain compliance tool precisely because the rounds fired will probably

hurt. Beanbag rounds have the velocity of a hundred mile an hour fastball.

Officers are taught that shooting the rounds can enrage subjects and cause them

to charge an officer. They are also likely to reach for the impacted area, and

officers are trained to aim at lower extremities when a subject is inside thirty feet.

Thus shooting Mr. Campbell below the waist was likely to cause a lowering of

Campbell’s hands, instead of getting them in the air as Lewton wanted.

Officer Lewton knew that where possible, the Bureau expects its officers to

use de-escalation tools to avoid the use of force. Officer Lewton testified that he

felt use of the beanbag rifle was a de-escalation. I cannot agree that this is what

a reasonable officer would have believed. Deployment may have represented a de-

escalation from what Officer Lewton thought could conceivably happen (the need

for a lethal shooting), but it was certainly not a de-escalation from the existing

situation, i.e., a subject standing passively with his hands on his head. The threat



level was not changing so long as Mr. Campbell remained in that position. Tr. 375

(King).

I have considered Officer Lewton Lewton’s assertion that Campbell appeared

to have “total control” over the situation and Lewton wanted to get that control.

Tr. 1355. I fully appreciate the action/reaction principle that has been well

described in the Frashour decision. Ex. A-1 at 71. Interactions with subjects can

escalate quickly, even when they are initially compliant. However, as Arbitrator

Wilkinson noted, an officer is not free to shoot any person whom he/she believes

might possibly shoot first. There has to be a reasonable basis for believing the

suspect poses an immediate threat. An officer need not wait to actually see a

weapon, but must reasonably believe that the person shot was reaching for a

firearm that he or she intended to use against others. Ex. A-1 at 37. The

action/reaction principle was one factor to consider, but so was the fact that Mr.

Campbell was in a surrender stance displaying no intent to engage in physical

resistance.

Officer Lewton appears to have given too little consideration to the totality

of the circumstances, including the fact that he was not encountering Campbell

on his own. Officer Lewton knew there were numerous other officers watching

Campbell, and that Officer Frashour had a lethal weapon trained on the subject.



Mr. Campbell was being illuminated by a spotlight being used in part to make it

difficult for him to see if he were to turn in the officers’ direction. Officer Lewton

Lewton’s testimony left this Arbitrator with the impression that his impatience

resulted not from a lack of time or an immediate threat, but from annoyance that

Mr. Campbell was doing what he wanted to do rather than exactly what Officer

Lewton Lewton was telling him to do. Tr. 1359. Officer Lewton’s own testimony

was quite convincing that he acted prematurely when deciding to deploy the less

lethal beanbag.

An officer’s training is a key element in determining whether he/she acted

reasonably under the circumstances. I have therefore considered whether Officer

Lewton had too little training on application of the Bureau’s use of force policy

after it was revised in 2008. More training might well have been beneficial, but

the clear wording of Directive 1010.20, and the in-service that Officer Lewton did

receive, appear sufficient to have provided fair notice that in a situation like that

faced by Officer Lewton, greater effort to talk a subject into compliance should

occur before deploying a less lethal weapon.

Officer Ron Frashour had to make a quick decision when faced with a

potentially armed subject, who was fleeing toward a location that could be used

for cover. Officer Lewton faced no such exigent circumstances. Mr. Campbell’s

passive resistance did not require an immediate response with the less lethal



Directive 315.30 reads in relevant part: “Members shall maintain sufficient18

competency to properly perform their duties and assume the responsibilities of theirpositions. Members shall perform their duties in a manner that will maintain the higheststandards of efficiency in carrying out the functions and objectives of the Bureau.Unsatisfactory performance may be demonstrated by a lack of knowledge of theapplication of laws required to be enforced; an unwillingness or inability to performassigned tasks; the failure to conform to work standards established for the rank, gradeor position; the failure to take appropriate action on the occasion of a crime, disorder, orother condition deserving police attention; or absence without leave.” Ex. J-15. Theviolation of Bureau directives is considered unsatisfactory performance. Id.

weapon. A “reasonable” police officer with the same knowledge, training and

experience as Officer Lewton would not have deployed less lethal force so quickly.

The City met its burden of proving that Officer Lewton violated Directive 1010.20

and thus also violated Directive 315.30 regarding unsatisfactory performance.18

II. THE CITY PROVED THAT SERGEANT REYNA ENGAGED IN UNSATIS-FACTORY PERFORMANCE THAT VIOLATED DIRECTIVE 315.30.

Sergeant Liani Reyna was the first sergeant to respond to the Sandy Terrace

call, and became the incident commander upon her arrival. As Chief Reese noted

in the letter of discipline, Sergeant Reyna did many things right while managing

the incident. Discipline was imposed, however, because her performance allegedly

did not meet expectations in the following respects: (1) deciding she did not need

the assistance of other supervisors; (2) not ensuring sufficient communication and

coordination among the various elements of the police response; (3) not utilizing



Since then Sergeant Reyna has also received periodic Incident Command inservice19

training and taken on-line Incident Command System (“ICS”) courses. Exs. A-16; A-34.

other available resources; and (4) failing to communicate who was in charge when

leaving the alcove to meet with command. Ex. J-3. The City persuasively

established that some significant departures from Sergeant Reyna’s training did

occur.

A. Sergeant Reyna Did Fail To Delegate Properly.

As part of a Sergeants Academy she attended in April 2006, Sergeant Reyna

received Critical Incident Management Training (“CIMT”) from the Bureau’s

current Assistant Chief Larry O’Dea. Chief O’Dea described this training at19

length at the arbitration. He convincingly described how the training emphasized

points of particular relevance to the Campbell shooting:

• Only one individual should be in charge of a critical incident,and a sergeant serving as the incident commander should nottry to control every element of a scene;

• Additional sergeants are an important tool in scene manage-ment, and those sergeants should be delegated supervisoryresponsibilities for elements of the call whenever possible;

• Key supervisory roles that can be delegated include ensuringthe perimeter is secure; taking charge of the custody team; andsupervising the communication team;

• A lieutenant or other supervisor officer should be used as aresource when sergeants are at an impasse or in disagreementas to how to move forward with a particular call;



• So that officers on scene have a shared situational awarenessit is critical to keep officers at the scene informed, providingregular succinct updates regarding how events are developing,the overall plan for resolution of a call, and the desiredresponse to a subject’s behavior;

• Use of a two person communications team is preferable withone individual designated to handle contact with a subject andthe second person disseminating critical information to officersat the scene;

• When communication will be attempted with a subject, officersat the scene should be informed of the planned attempt andthe intended goal of the communication; if communicationcannot be made before the occurrence of an action, it shouldcertainly be made after the action occurs;

• Officers on a custody team should be given incident-specificrules of engagement and the incident commander’s expecta-tions regarding the use of force;

• If a superior officer seeks a briefing at an inopportune timeduring a call, the incident commander may tell the superiorofficer that they need to delay the briefing;

• When the incident commander feels a briefing is possible,she/he should not leave the scene without putting someoneelse in charge, and that delegation should be made clear to allother officers at the scene.

Exs. E-9, E-10; Tr. 586, 613-15, 623-627, 633-635, 654-659, 669-672, 678-681.

When Sgt Reyna arrived on scene, five other officers were already there, but

officers had not yet attempted contact with anyone in the apartment. Consistent

with her training, Reyna began gathering intelligence and coordinating resources.

Until she got a sense of what the call was going to involve, it is understandable



why Reyna did not call for other sergeants to help her out. However, as events

unfolded, Sergeant Reyna was clearly dealing with a critical incident. Tr. 595

(O’Dea).

Part of CIMT training is how to have multiple sergeants working together

with one (the incident commander) in overall charge. Tr. 698 (O’Dea). The critical

role of the incident commander is to chart out a clear course of direction and then

making sure everyone’s working off the same information. The goal is to achieve

a shared situational awareness. Tr. 587, 612 (O’Dea). Bureau sergeants are

taught to delegate the supervision of important elements to additional supervisors

so the incident commander does not become overwhelmed by tasks.

. . . it simply doesn’t matter how good you are at this stuff, there’s toomany things to do, and you cannot do it all yourself. You’ll getovertasked, oversaturated, you’ll miss other things that you shouldbe doing.

Tr. 635:9-13 (O’Dea). Other officers can be given supervisory assignments, but

O’Dea stresses the value of using other sergeants because they have gone through

the same training. Tr. 628 (O’Dea); Ex. E-9 at 3.

Sergeant Reyna had been taught about to the number of individuals or

resources that one supervisor can manage effectively during an incident. This is

called “span of control.” Maintaining an effective span of control at incidents

where safety and accountability are a top priority is important.” Exx. A-34 at 9.

Sergeant Reyna had been taught that “. . . the span of control of any individual



The type of incident, nature of necessary tasks, safety factors, and distances20

between personnel and resources all influence span-of-control considerations. Id.

with incident management supervisory responsibility should range from 3 to 7

subordinates, with 5 being optimal.” Ex. A-34 at 14. Despite this training,20

Sergeant Reyna declined available help from other sergeants who could have

assumed supervision of important missions.

Shortly after Sergeant Reyna arrived on scene around 1700, she received a

call from Sergeant Ellertson, who asked if Reyna needed any help. Sergeant

Reyna was still in the process of gathering information and assessing the

situation. She not yet think the call involved a barricaded subject or hostage

situation. Ex. J-11 at 290. During his Internal Affairs interview, Captain Robert

Day acknowledged that responding to calls about people in crisis, including

threatened suicidal behavior, was a routine call. Ex. J-11 at 345. I can therefore

understand why Sergeant Reyna may have initially felt that Sergeant Ellertson’s

assistance at the scene was not yet necessary.

As more officers arrived on scene, and Sergeant Reyna called for more

resources, the situation changed. As many as seventeen officers ultimately

responded, and Sergeant Reyna called for lethal, less lethal and K9 resources,

Once Sergeant Birkinbine arrived at the alcove around 1730 and asked what he

could do, it is particularly hard to understand why Sergeant Reyna chose not to



delegate a formal supervisory role to Sergeant Birkinbine. Sergeant Reyna seemed

to feel she had things under control, but she had been trained that when a

sergeant is available, she should delegate to them. Tr. 223 (Virtue).

Sergeant Birkinbine arrived at a time when Sergeant Reyna was juggling

multiple tasks and had just learned of a text sent by Mr. Campbell saying “don’t

make me get my gun, I ain’t playing.” Sergeant Reyna was calling for more help

with the perimeter, positioning a custody team, and preparing to attempt direct

communication with Mr. Campbell. Sergeant Reyna knew Birkinbine was a

member of the Hostage Negotiation Team (“HNT”) and thus was particularly

experienced in communicating with a subject. He was an obvious resource to

delegate supervision of the communications team, yet Sergeant Reyna acknowl-

edges she never delegated any specific mission to Sergeant Birkinbine.

By her own admission, Sergeant Reyna retained direct supervision of the

communications team, the custody team, and the inner and outer perimeters

while serving as the Sandy Terrace incident commander. Retaining supervision

of all the incident elements is completely contrary to what she had been taught.

Tr. 700-701 (O’Dea). I have considered Sergeant Reyna’s various explanations for

why she chose not to delegate any of the key missions to available sergeants, and

find that decision inexplicable. Because she chose to maintain direct supervisory

control over all elements at the scene, Sergeant Reyna did become overtasked.



Because she was overtasked, clear directions that should have been given to

others on scene did not occur.

B. Sergeant Reyna Did Fail To Ensure Sufficient Communicationsand Coordination.

Sergeant Reyna had been trained that use of a two person communications

team is preferable with one individual designated to handle contact with a subject

and the second person helping to formulate a strategy for subject contact,

monitoring what occurs, and relaying to the incident commander (or whoever is

placed in charge of the communications team) summaries of what occurred during

conversations with a subject. Sergeant Reyna assigned Officer Quackenbush to

handle direct communications with Campbell, but did not expressly delegate the

traditional number two communications role to Sergeant Birkinbine. Ex. J-11 at

297.

Once she saw Birkinbine move to assist Officer Quackenbush, Sergeant

Reyna never gave clear directions regarding what information she wanted

Sergeant Birkinbine to ensure she received. Without expressing saying so,

Sergeant Reyna assumed Sergeant Birkinbine would let her know what was going

to be communicated to Mr. Campbell before contact was made, let her know when

communications had occurred, and keep her informed of the substance of

contacts with Mr. Campbell. Tr. 1221.



During much of the incident, Sergeant Reyna was in the same alcove as the

communications team, but that alcove was twelve to fifteen feet deep. While the

communications team was at one end of the alcove, Sergeant Reyna was

sometimes out of hearing range dealing with other matters, so she was not always

focused on the communications team discussions. “. . . I was distracted, why I

didn’t hear all of the conversations, while I’m there, I was receiving a lot of phone

calls.” Ex. J-11 at 303. Because of Sergeant Reyna’s distraction with other tasks,

and the lack of clear direction to Sergeant Birkinbine regarding the role she

expected him to serve, important aspects of the communication team’s contacts

with Mr. Campbell were not communicated to other officers, who therefore lacked

a shared situational awareness.

During the CIMT training, a lot of time is spent talking about communica-

tion and updates, and creating that situational awareness. Tr. 681 (O’Dea).

Sergeants are trained that it is important to relay a subject’s demeanor “and

anything they say that might be helpful for officers to know.” Ex. E-9 at 16-17.

A. . . . one of the critical pieces that we talk about is letting folksknow, hey, we want to contact someone. So we specificallytrain , we specifically spend a lot of time, you know, in oursergeant critical incident management training talking aboutmaking it clear to everyone, if we’re getting ready to make thecall, we’re going to make the call, here’s what we’re going to do,here’s what we’re going to ask, so people know, help them tostart – create this situational awareness. No. 1, what is ourplan. As the incident commander of this call, what’s my plan,where are we going with this. And now what are we starting to



cause. We’re going to ask this. We’re going to call him. So youdon’t just say, well, we’re on the phone. . . .

Tr. 586:9-24.

Sergeant Reyna did convey information at various times but it was cursory

in nature. Informational broadcasts by Sergeant Reyna included:

• “We got the three children secured.” .

• “. . . just for all the officers standing by we’re going to becommunicating to him with text via so, just keep holding, bepatient thanks.”

• “FYI we are on the phone with him now.”

• “We’re getting some positive texts, feedback from him, we’restill in text communication with him.”

Ex. J-11 at 543-548. Broadcasting that you are in contact with a subject is not

the same as providing information about what was going to be discussed and how

the subject responded. Saying you are having “positive” communication with a

subject is not the same as stating why the communications are perceived to be

positive. There was a lot more detail and context that should have been provided.

Tr. 310 (Virtue).

Sergeant Reyna clearly failed to keep officers on scene informed of her plans

for resolving the call. She did not broadcast her initial plan to separate the

children from Mr. Campbell; or her plan to use the K9 as less lethal force if he can

out of the apartment and ran; or her eventual plan to withdraw from the scene



and avoid having Mr. Campbell come outside, if he would promise not to hurt

himself. After Sergeant Reyna left the custody team and was replaced by Officer

Frashour, members of the team were never told that Sergeant Reyna intended to

return to the team’s location and lead its operations if Mr. Campbell exited the

apartment. Plans can obviously change during a tactical event, but that does not

mean officers on scene should be kept in the dark. Sergeant Reyna was making

some good plans, but she was not communicating them to officers who should

have been informed.

Some information was not broadcast because Sergeant Reyna was not

aware of it. Officer Boylan thought Sergeant Reyna had heard Ms. Jones tell him

that Campbell’s suicidal behavior had occurred the night before, and she thought

he was doing better at the moment. I credit Sergeant Reyna’s insistence that she

did not hear this information because she had turned her attention to discussing

with other officers ways to separate Campbell and the children . The information

about Campbell’s improved state of mind was therefore never broadcast to other

officers. Neither was the fact that Mr. Campbell had been saying he wanted the

police to go away and just leave him alone, or that he had sent the children out

following a suggestion from Officer Quackenbush. While I credit Sergeant

Reyna’s assertion that she was unaware of this and other significant information,

that is why she should not have tried to maintained supervision of all elements of



SERT is an acronym for the Bureau’s Special Emergency Reaction Team.21

the scene. Sergeant Reyna lacked information that clearly should have been

conveyed to her, but she bears responsibility for not establishing clear lines of

communications.

Sergeant Reyna testified that she did not feel any need to give members of

the custody team specific direction regarding their roles or tactics, because they

had all been trained in the different roles when taking a subject into custody.

Sergeant Reyna seemed to feel that specifying “rules of engagement” was unique

to SERT. The phrase does have special meaning for SERT teams, but during the21

CIMT, sergeants are also taught to use rules of engagement in order to make clear

what they expect officers to do when working as a custody team compared to what

they would just be doing in their individual roles.

Chief O’Dea testified that during CIMT training, he talks about the need to

clearly tell officers your expectations for use of the different force tools (lethal, less

lethal, K9) and not just assume officers will follow standard rules of engagement.

Tr. 613-616. “We teach them specifically that it's their responsibility to establish

those rules of engagement, and be very specific about what your expectations are.”

Tr. 769 (O’Dea). It was not consistent with Sergeant Reyna’s training to just

assume officers would follow standard rules of engagement. Tr. 615 (O’Dea).



The custody team needed to know Sergeant Reyna’s expectations regarding

what force should be used and when, but once assembled, that team of officers

did not receive instructions from Sergeant Reyna regarding the best way to

respond to contingencies that might occur. Sergeant Reyna told Officer Lewton

to have his less lethal bean bag as an “option” for use if Campbell exited the

apartment. Sergeant Reyna had also told Officer Elias she wanted him to use the

K9 as less lethal force if Campbell exited and tried to run away. Which of these

less lethal options should be used first was never communicated to the entire

custody team. Sergeant Reyna “assumed” Elias would convey her instruction to

the custody team when he took up position near them, but she never directed him

to do so.

Sergeant Reyna was also taught in the CIMT to have someone visually

inspecting the perimeter of a scene. Reyna seemed to feel that Dispatch was in

charge of the perimeter, but Dispatch was only sending resources. Tr. 1160

(Reyna). Because no one had been assigned supervision of the perimeter, and

Sergeant Reyna became too busy dealing with other matters, she was not

completely aware of the location of all officers on scene, and unaware of crowd

control issues on NE Sandy that Captain Day found when he arrived.

Because Sergeant became task saturated, inadequate communication and

coordination resulted. Failure to delegate supervision of the communications



team to Sergeant Birkinbine or discuss Sergeant Reyna’s expectations regarding

information obtained by that team resulted in critical information not reaching

other officers on scene and a lack of shared situational awareness. Failing to

place someone else in charge of the custody team left those officers without any

direction as to specific rules of engagement. Lack of a designated perimeter

supervisor resulted in gaps that Captain Day discovered when he arrived at the

scene.

C. Sergeant Reyna’s Decision Not To Consult with Off SceneResources Did Not Merit Discipline.

Chief Reese additionally faulted Sergeant Reyna for not consulting with

Lieutenant Rodrigues, with SERT, or “adequately” consult with Sergeant

Birkinbine. Ex. J-3. This seems the kind of hindsight criticism that does not

justify disciplinary action. Sergeant Reyna had been trained to consider

consulting with other resources such as lieutenants, SERT or HNT when faced

with difficult decisions and unsure how to proceed. Tr. 245-46 (Virtue); 729

(O’Dea). Sergeant Reyna did not feel it was necessary to consult with Lieutenant

Rodrigues because she felt she had an appropriate plan to resolve the Sandy

Terrace welfare check.

Once Mr. Campbell was alone in the apartment, Sergeants Reyna and

Birkinbine clearly disagreed over whether it was necessary to have a face to face

conversation with him. Because of the report that Mr. Campbell might want



Sergeant Birkinbine was also concerned about whether leaving Campbell in the22

apartment would be okay with Ms. Jones and whether she and the children would havesome other place to stay. These concerns were addressed with Ms. Jones, who had beensaying she wanted the police to leave, and verified that she would stay somewhere elseif the police left.

“suicide by cop,” Sergeant Reyna wanted to avoid having Campbell emerge so

there would be no possibility of a violent confrontation with officers who were

present. She was therefore willing to withdraw the police presence in return for

a promise from Mr. Campbell that he would not hurt himself if the police left.

Sergeant Birkinbine felt that the police presence should not be withdrawn before

Campbell came out of the apartment for a face to face assessment of his mental

state. At the end of an extended discussion, Sergeant Reyna decided to22

withdraw if she could get a promise that Mr. Campbell would not hurt himself.

Tr. 1151. Sergeant Birkinbine knew this was the ultimate resolution Reyna

wanted to achieve, and testified that he supported it. Tr. 962, 1053. Reyna

therefore had no reason to feel the sergeants were at an impasse that should be

discussed with Lieutenant Rodrigues.

The post-incident Training Review acknowledged that avoiding a police

confrontation with a person who may want to commit “suicide by police,” was

consistent with Sergeant Reyna’s training. Ex. J-11 at 111. Sergeant Reyna felt

confident she was adopting the right plan, and seems to have reasonably

concluded there was no need to immediately consult with Lieutenant Rodrigues.



Later in the incident, she did brief Rodrigues, who did not take issue with how

Sergeant Reyna planned to proceed. Tr. 1164 (Reyna).

Sergeant Reyna also appears to have had an understandable reason not to

call the SERT or HNT for consultation. There is no dispute that a SERT callout

was not required per Bureau policy. The situation was a significant tactical

incident, but Sergeant Reyna had decided against attempting entry into the

apartment, and the children and Jones were safe. Consultation can always be

beneficial, but Sergeant Reyna had been a member of SERT, and knew Sergeant

Birkinbine was an HNT member. Because that experience was already present,

Chief O’Dea did not fault Sergeant Reyna for not consulting with SERT or HNT.

Tr. 654. Sergeants Reyna and Birkinbine do not appear to have worked very well

together, but the record does not support a finding that his views were not

adequately considered during the incident.

D. Sergeant Reyna Did Fail To Communicate Who Was In ChargeWhen Leaving The Alcove To Brief Captain Day.

The final performance deficiency described by Chief Reese is based upon

Sergeant Reyna’s own admission that she left the alcove to brief Captain Day

without designating someone else as in charge of the custody team. The record

does indicate that the way in which Sergeant Reyna departed was out of policy

and a significant enough lapse to merit discipline.



Just before 1800, Sergeant Reyna was with the communications team when

she instructed Officer Quackenbush to seek a clear promise that Campbell would

not hurt himself. With Sergeant Reyna still present, Quackenbush sent Campbell

a text saying: “Aaron we need to know if you intend on hurting yourself.”

Campbell texted back: “Never . . . wow u guys text too . .. U get kudos.” J9 at

177. Sergeant Reyna directed Officer Quackenbush to get a more complete

promise from Mr. Campbell than just the word “never.” She then left the alcove to

brief Captain Day.

When he requested the briefing, Captain Day did not know that critical

communications were in progress with Mr. Campbell. Sergeant Reyna had reason

to believe Day had “ordered” the briefing, but sergeants are trained that they can

refuse a briefing request if they are making tactical decisions, or it is otherwise ill

advised to give a briefing at that time. Tr. 657-659 (O’Dea). Earlier in the

incident, Sergeant Reyna had not hesitated to delay talking with Lieutenant

Rodrigues when he wanted to speak with her at a busy time.

Sergeant Reyna knew, or certainly should have known that it was a bad

time for her to leave the alcove. She had just directed that Mr. Campbell be

contacted to get an assurance that would potentially resolve the whole incident.

An earlier response from Campbell had been considered ambiguous, so staying



with the communications team in order to judge whether any subsequent

response would be sufficient should have been given higher priority.

As Sergeant Reyna was deciding whether to leave the alcove, Sergeant

Birkinbine told Reyna she had better go give the briefing, and added “I’ve got this.”

Tr. 976-77 (Birkinbine). Sergeant Reyna felt this exchange meant Birkinbine was

assuming direct supervision of the custody team. Tr. 1250-51 (Reyna). This is

another example of Sergeant Reyna relying upon assumptions instead of clearly

articulating the transfer of responsibility. It turns out the two sergeants did have

a common understanding that supervision of the custody team would be assumed

by Sergeant Birkinbine. Tr. 976-77 (Birkinbine). This transfer of supervision was

never announced over the air, however.

The fact that Sergeant Birkinbine would now be in charge of the custody

team is the kind of information that is supposed to be broadcast to other officers

on scene. Sergeants are trained to clearly communicate who is in charge of the

various elements of an incident. This kind of broadcast was admittedly not done

when Sergeant Reyna left the informal command post to brief Captain Day. The

omission was a serious departure from training.

Tactical events are very dynamic, requiring numerous decisions that are not

always going to be correct. As the Training Division Review noted: “. . . by nature,

tactical incidents are imperfect, and lessons can be drawn from each incident to



assist in improving future training and practices.” Ex. J-11 at 89. The Training

Division Review and Commander’s Report took issue with actions by many other

individuals besides the Grievants. Not every perceived performance deficiency

results in disciplinary action. However, the departures from Sergeant Reyna’s

training were so significant that they did constitute unsatisfactory performance

in violation of Directive 315.30.

III. SERGEANT BIRKINBINE DID ENGAGE IN UNSATISFACTORY PERFOR-MANCE THAT VIOLATED DIRECTIVE 315.30.

Based upon radio traffic he was hearing, Sergeant Birkinbine took the

initiative to self-dispatch to Sandy Terrace. He was not the incident commander,

but upon arrival took on the role of assisting Officer Quackenbush, who had been

designated the communications officer. The discipline at issue was imposed

because of: (1) an alleged failure to communicate critical information to other

officers on-scene; (2) failure to coordinate effectively with Sergeant Reyna; and (3)

failure to make a command notification to Lieutenant Rodrigues. Ex. J-2.

Sergeant Birkinbine had received the same CIMT training as had Sergeant Reyna.

The City persuasively established that significant departures from this training did

occur.



The only time Sergeant Reyna delegated to Sergeant Birkinbine supervisory23

responsibility for managing any element of the scene was late in the incident when sheleft the alcove to brief Captain Day.

Officer Quackenbush understood that Sergeant Birkinbine was serving as his #2,24

and never made a phone call or sent a text until he was directed to do so by eitherSergeant Reyna or Sergeant Birkinbine. Ex. J-11 at 399.

A. Sergeant Birkinbine Did Fail to Communicate Critical Informa-tion To Others On-Scene.

Sergeant Birkinbine arrived on scene after Angie Jones had exited her

apartment. It is undisputed that when Birkinbine contacted Sergeant Reyna and

asked what he could do, Reyna said there was nothing she needed at that moment

and returned her attention to directing other officers already on scene. Because23

of his HNT experience and training, Sergeant Birkinbine decided to assist

Quackenbush by taking on the number two communications position. Having

assumed that role, Sergeant Birkinbine had a responsibility to perform it

competently. 24

The traditional role of the number two communications person is to help

formulate questions, monitor contacts with the subject, and convey succinct

summaries of those contacts to the incident commander or designated communi-

cations team supervisor. As discussed earlier, Sergeant Birkinbine’s training had

emphasized the importance of ensuring that an incident commander is aware of

what the communications team plans to ask a subject, of when contact is made,

the subject’s reaction, and the result of the conversation. Sergeant Reyna needed



this information for updates to other officers on scene that would provide a shared

situational awareness. If something happens so suddenly that there is not time

to broadcast the information, then sergeants are taught that it is important to use

later opportunities to explain what led to an unexpected event. Tr. 736 (O’Dea).

Sergeant Birkinbine seems to have assumed that because Sergeant Reyna’s

incident command post was eventually in the alcove where the communications

team set up, she would have been aware of the conversations Officer

Quackenbush was having with Mr. Campbell. It was clearly a breach of training

to have made that assumption. Sergeant Reyna was not always within earshot of

the communications team. Even if she had been, it would have been apparent

that Sergeant Reyna was dealing with other matters. She was not always able to

pay full attention to discussions Sergeant Birkinbine and Officer Quackenbush

were having with each other and with Mr. Campbell. When she was occupied with

other matters, or away from the alcove during critical contacts at the end of the

incident, there was clearly a need to keep Sergeant Reyna informed as the incident

commander.

The record indicates there were critical facts which Sergeant Birkinbine

knew and failed to communicate to Sergeant Reyna or other officers. What

triggered the children’s sudden exit from the apartment is one example. Sergeant

Birkinbine could only hear Officer Quackenbush’s side of phone conversations



Sergeant Birkinbine has acknowledged it was possible he suggested things Officer25

Quackenbush might say to Mr. Campbell regarding the children. Tr. 1034.

Because they were unaware of what had triggered release of the children, officers26

on scene had differing reactions. Some viewed the release as a positive sign. Otherswere concerned that Mr. Campbell might be getting the children out of harm’s way so hecould provoke the police or fire shots at them. Ex. A-1 at 10.

with Mr. Campbell, and contends mention of the children was a spontaneous

reaction by Officer Quackenbush in response to something Mr. Campbell said

during a very short phone conversation. Very soon thereafter, Sergeant

Birkinbine heard officers yelling that children had come out of the apartment.

I understand that Sergeant Birkinbine could not give advance notice that

Mr. Campbell would be asked to send the children out, if he did not have advance

knowledge that Officer Quackenbush was going to make that suggestion.25

Nevertheless, during a subsequent period when no communication with Campbell

was occurring, there was plenty of time to explain what led to the children

emerging. Neither Sergeant Reyna nor the custody team were told that the

children were sent out after Officer Quackenbush told Mr. Campbell that the

police wanted to make sure the children were okay. Tr. 1222 (Reyna).26

Once the children emerged, Sergeant Birkinbine did know that sending

them out was a cooperative act by Mr. Campbell in response to something Officer

Quackenbush had said. Sergeant Birkinbine heard Quackenbush say something

about being concerned about the children. Tr. 932 (Birkinbine). During a civil



Deposition references are to the deposition’s page number, not the page number27

of the exhibit.

deposition, Sergeant Birkinbine acknowledged that when the children emerged so

quickly, he did form the opinion that Mr. Campbell had sent the children out

because of the phone conversation with Officer Quackenbush. Ex. E-14 at 66-

67. There was plenty of time thereafter to let everyone know the children’s27

emergence was an act of cooperation by Mr. Campbell. Sergeant Birkinbine’s only

explanation for not doing so is that he simply forgot. Tr. 940-41.

Another instance of failing to communicate critical information occurred

when Sergeant Birkinbine failed to broadcast that Mr. Campbell had emerged from

the apartment after the communications team asked if he would come out to talk.

I understand that Sergeant Birkinbine and Officer Quackenbush did not direct

Mr. Campbell to immediately come out of the apartment. If he was agreeable, they

had planned to give Campbell further instruction regarding how to do so. What

I find completely unpersuasive is the contention that Sergeant Birkinbine did not

know why Mr. Campbell had come out, and had no time to announce the reason

to officers on scene.

Campbell’s sudden emergence without saying anything first did surprise

Officer Quackenbush and Sergeant Birkinbine, but Sergeant Birkinbine could

then have broadcast that Campbell’s emergence had been at the communication



team’s suggestion. There were twenty-one seconds between a broadcast that Mr.

Campbell was walking out and a broadcast by Sergeant Birkinbine that Campbell

was “compliant so far.” It would have taken only an additional second to add:

“we asked for a face to face” or something to that effect. Sergeant Birkinbine

contends he was busy moving out to a position in the parking lot where he could

supervise the custody team, but proper supervision certainly includes letting the

officers know what had triggered Campbell’s emergence.

When Mr. Campbell suddenly exited the apartment, the custody team had

a heightened sense of alarm because they had been told that the subject had

voiced a desire to commit suicide by cop. Both Sergeant Birkinbine and Officer

Quackenbush knew that during their communications, Mr. Campbell had been

asking to be left alone and have the police go away. Ex. E-14 at 62. That request

suggests Mr. Campbell was no longer seeking suicide by cop, but the custody

team was unaware of this development. Sergeant Birkinbine knew this was

important information about Mr. Campbell’s mental state and the kind of

information that should be relayed to other officers. Tr. 1072 (Birkinbine). Yet

Sergeant Birkinbine did not ensure that this information was broadcast earlier in

the incident.



B. Sergeant Birkinbine Should Have Made Command Notification.

Once Campbell was alone in the apartment, and Sergeant Reyna broadcast

that the children were secure, there was a period of time when Sergeant

Birkinbine sought information from Sergeant Reyna to get updated on the

situation. He questioned various aspects of decisions Reyna was making, and

debated what should suffice to withdraw from the scene. The two sergeants had

a clear disagreement that has been described earlier in this decision, but Sergeant

Birkinbine says he felt his views were heard and he supported a decision Sergeant

Reyna ultimately reached. Tr. 962. If that was true, then I can understand why

Sergeant Birkinbine did not call Lieutenant Rodrigues at this point. Eventually,

though, command notification should have been made based upon Sergeant

Birkinbine’s knowledge of how busy Sergeant Reyna had become.

Sergeant Birkinbine did not know precisely how many officers were

eventually on scene, but he did observe that Sergeant was very busy and dealing

with lots of activity and outside calls. Sergeant Birkinbine also knew that while

serving as incident commander, Reyna was trying to manage all elements of the

call. Once he was at the scene for awhile, Sergeant Birkinbine knew or certainly

should have known that Sergeant Reyna’s unwillingness to delegate supervisory

authority to an available sergeant was inconsistent with the CIMT training they



had both received. Sergeant Reyna may have been too overtasked to recognize

this, but that does not appear to have been true for Sergeant Birkinbine.

C. Sergeant Birkinbine Did Not Coordinate Effectively WithSergeant Reyna.

There are a number of ways the Sergeant Birkinbine does not appear to

have worked very well in support of Sergeant Reyna. What I found particularly

disturbing is the way Sergeant Birkinbine admittedly initiated action that was

inconsistent with Sergeant Reyna’s plan for resolving the incident. When Sergeant

Reyna left the alcove to brief Captain Day, Sergeant Birkinbine said “I got it” to

indicate he would assume supervision of the communications and custody teams.

That did not give him authority to countermand directions of the incident

commander.

Before leaving the alcove, Sergeant Reyna had said she would withdraw the

police presence if Officer Quackenbush replied to a text message from Mr.

Campbell and got a more specific promise that Campbell would not hurt himself.

I credit Sergeant Reyna’s contention that she had clearly indicated a desire to

avoid having Campbell some outside. Sergeant Reyna had directed that contact

be made and a promise sought, but she reasonably expected to be told how Mr.

Campbell responded before any other steps were taken. Tr. 1239-40 (Reyna).

Sergeant Birkinbine has acknowledged that Reyna did not lead him to believe she



wanted the communications team to get Mr. Campbell out of the apartment. Ex.

E-14 at 103 (Birkinbine).

At 1803, Officer Quackenbush sent a text that said: “Thanks Aaron. I

appreciate your help. I am truly sorry about your Brother. Can u promise me u

wont hurt yourself – Jim.” Campbell texted back: “Ur textin me and not callin me

that’s real weird Jimmy.” Sergeant Birkinbine viewed this response as an

invitation to call Mr. Campbell. Sergeant Reyna had not specified whether the

promise she wanted could be obtained by phone or text, so I can understand why

Sergeant Birkinbine could have felt that calling Mr. Campbell was not inconsistent

with any prior instruction from Sergeant Reyna. It is the substance of what was

then said to Mr. Campbell that is objectionable.

Without advising Sergeant Reyna, or Captain Day, who he knew was now

on scene, Sergeant Birkinbine instructed Officer Quackenbush to call Mr. Camp-

bell and say something to the effect that they would like Campbell to come out

and talk with them; that everything could then be wrapped up. Ex. J-11 at 329;

Tr. 1054 (Birkinbine). Proceeding as he did with no forewarning to Sergeant

Reyna was completely contrary to Sergeant Birkinbine’s CIMT training.

Sergeant Birkinbine admitted at the arbitration that Sergeant Reyna had

never authorized asking Mr. Campbell to come out. During his Internal Affairs

interview, Sergeant Birkinbine said he felt that asking Mr. Campbell to come out



Sergeant Birkinbine believed the Bureau should attempt to provide mental health28

service options to Mr. Campbell in light of the brother’s death and Campbell’s suicideattempt. Since it was Ms. Jones’ apartment, Sergeant Birkinbine felt possession of theapartment should be returned to Jones. Birkinbine also felt leaving Campbell in theapartment with a handgun could put other residents at risk. Finally, SergeantBirkinbine felt having Mr. Campbell come out for a face to face discussion would give

insight into his mental state. Ex. A-10 at 1.

was consistent with Sergeant Reyna’s goal to make sure the subject was okay

before she withdrew the police presence. Ex. J-11 at 331. I found that assertion

disingenuous. Based upon their earlier discussion, Sergeant Birkinbine knew

Sergeant Reyna’s plan was to avoid having Campbell come out in the presence of

officers if an assurance that he would not hurt himself could be obtained some

other way.

Sergeant Birkinbine did not control the words that Officer Quackenbush

used during his ensuing conversation with Mr. Campbell, but Sergeant Birkinbine

acknowledges it was his decision to ask if Campbell would come out. Tr. 1073.

The directive given to Officer Quackenbush to “float” the idea of coming out was

in knowing conflict with the course of action Reyna had said she wanted to follow.

Chief Reese was especially troubled by Sergeant Birkinbine conduct in this

respect. I found it particularly egregious.

Sergeant Birkinbine raised a number of valid considerations during the

extended debate he and Sergeant Reyna had earlier in the incident. That does28

not mean Sergeant Reyna’s decision to try to avoid a face to face encounter was



wrong or ill-conceived. Sergeant Birkinbine felt it was standard HNT procedure

for officers to meet the subject face-to-face and assess his/her mental status, but

that was not the course of action Reyna decided to pursue. Because Captain Day

had been his HNT Commander for a number of years, Sergeant Birkinbine says

he felt confident that Day would want to know if Mr. Campbell had been asked

to come out. Tr. 987. Even assuming that was Sergeant Birkinbine’s genuine

belief, it did not justify unilaterally changing the plan Sergeant Reyna had

adopted. Sergeant Birkinbine’s own testimony left this Arbitrator convinced he

acted unilaterally without notice to the incident commander because he simply felt

a face to face with Mr. Campbell was better strategy and took advantage of

Sergeant Reyna’s absence to pursue his preferred strategy.

Sergeant Birkinbine admits he could have waited to ask Mr. Campbell to

come out. Tr. 1058-1060. There was no need for an immediate call to Campbell

after the “textin me not callin me” text was received. Birkinbine knew command

officers Rodrigues and Day were on scene at this point. If Sergeant Birkinbine felt

Sergeant Reyna was making the wrong tactical decision, then he should have

notified command instead of acting without authorization. Instead, Sergeant

Birkinbine gave a directive that directly contradicted Reyna’s last instruction.

Birkinbine’s contradictory directive led to the very situation Reyna was trying to

avoid and had tragic consequences.



The Association contends the tipping point in the incident was Captain Day

calling Reyna away from the alcove. Ex. A-8 at 18. The conclusion I draw from

the record is that the tipping point was when Sergeant Birkinbine chose to deviate

from the incident commander’s last instruction and had Officer Quackenbush

suggest that Mr. Campbell come out to talk with officers. The Association

contends Sergeant Birkinbine actions should be judged against his training, not

by the tragic outcome of the events. I completely agree. It is precisely because of

that training that I find Sergeant Birkinbine’s actions clearly constituted

unsatisfactory performance in violation of Directive 315.30.

IV. THE PENALTIES IMPOSED WERE NOT TOO SEVERE.

Since unsatisfactory performance was proven for all three Grievants, a final

consideration is whether the imposed suspensions reasonably related to the

seriousness of their offenses and prior records. It is well established that an

arbitrator has the authority to reduce a penalty imposed by management.

Arbitrators vary, however, in their descriptions of the circumstances under which

they can properly do so.

This Arbitrator, like most others, will change a penalty if the facts and

circumstances of a case indicate that the discipline imposed is clearly out of line

with generally accepted standards of discipline. I also agree with the arbitral view



that deciding officials should be given some latitude for the reasonable exercise

of discretion, since the minds of equally reasonable men or women can differ.

A consideration which would weigh heavily with one man will seemof less importance to another. A circumstance which highly aggra-vates an offense in one man's eyes may be only slight aggravation toanother. If an arbitrator could substitute his judgment and discre-tion for the judgment and discretion honestly exercised by manage-ment, then the functions of management would have been abdicated,and unions would take every case to arbitration. The result would beas intolerable to employees as to management.

Stockham Pipe Fittings Co., 1 LA 160, 162 (1945). In recognition of this, some

arbitrators have developed the concept of a range of reasonableness.

Within a reasonable range of penalties the Company may exercisediscretion as to the particular one to be selected. ... If the penalty fora particular violation may reasonably range from one week to onemonth's layoff, for example, two different persons might very wellchoose two different penalties; ... [the arbitrator's] power is only tomodify penalties which are beyond the range of reasonableness, andare unduly severe.

St. Clair County, 80 LA 516, 519 (Roumell, 1983)(emphasis added by italics). This

range of reasonable penalties has been referred to as the “manager’s margin.”

City administrative rule 5.01 states that discipline will normally progress

from oral or written notice to suspension, demotion or discharge. Ex. J-16. That

same rule also makes clear that the penalty imposed in a particular case will

depend on the seriousness of the offense committed. Chief Reese made the

decision to impose an 80 hour suspension on each Grievant, because he felt

serious lapses by each had contributed equally to the loss of Mr. Campbell’s life.



This is not a case where the failure to conduct an IAD investigation led to a fatal29

gap in the information on which disciplinary action was based. Portland PoliceAssociation and City of Portland, Grievance No. 03-17 (Arb. Truesdale, 2006)

He made that decision after reviewing a number of thorough investigations and

reviews. The City convincingly established that a fair investigation was29

conducted; that each Grievant engaged in unsatisfactory performance serious

enough to justify discipline; and that a penalty was selected in good faith. The

burden therefore shifted to the PPA to persuade this Arbitrator that the penalty

imposed was too severe.

Just cause requires an individualized assessment of fault and mitigating

circumstances. I have therefore considered various arguments raised by the PPA

for each Grievant, their respective tenure with the Bureau, and prior performance

records. However, the more serious an offense, the less protection long tenure

and a prior good record will provide an offending employee. See, e.g., Piedmont

Publishing Co., 97 LA 739, 741 (1991). I found the record persuasive that the

departure from policy and training engaged in by each Grievant was serious

enough to merit a suspension.

I have considered the length of the suspensions and whether the same

length was too severe for any one of the Grievants. If this Arbitrator been the one

making the initial decision regarding disciplinary action, I might have drawn some

distinctions between the length of suspension each Grievant received. I



considered the fact that members of the Use of Force Review Board did

recommend differing length suspensions. However, after thinking long and hard

about this case, I do not think it is fair to say that the level of discipline Chief

Reese chose to impose was arbitrary or exceeded a reasonable range of penalties

for any of the Grievants. The Review Board’s range of recommended suspensions

was the least for Sergeant Birkinbine, but in many ways I shared Chief Reese’s

conclusion that Sergeant Birkinbine’s behavior was the most disturbing.

The PPA contends the tragic outcome at Sandy Terrace cannot be attributed

to any failure by Sergeant Birkinbine, Sergeant Reyna, or Officer Leyton. I cannot

agree. Significant deviations from their prior training and Bureau policy by each

of the Grievants contributed to Mr. Campbell’s fatal shooting. Whether there was

a breach of Bureau policy should not be determined by the ultimate outcome of

police contact. However, once a policy breach is shown to have occurred, then the

resulting outcome is a reasonable circumstance to consider when determining an

appropriate penalty for that breach. That is why it is not at all unusual for

arbitrators to affirm more severe penalties when performance lapses have safety

implications.

Lengthy suspension were not too severe in light of the fact that

unsatisfactory performance by each of the Grievants played a significant role in

the loss of Mr. Campbell’s life, and led to years of expensive litigation. For all of



the reasons described herein, I find the City met its burden of proving departures

from training and Bureau policy that merited discipline. Just cause existed for

the 80 hour suspension that each Grievant received.

AWARD

After careful consideration of all oral and written arguments and evidence,

and for the reasons set forth in the foregoing Opinion, it is awarded that:

(1) The City of Portland did have just cause to discipline OfficerRyan Lewton.

(2) The City of Portland have just cause to discipline SergeantJohn Birkinbine.

(3) The City of Portland have just cause to discipline SergeantLiani Reyna.

The grievances are therefore denied.

Dated this 15 day of July, 2014 byth

____________________________

Janet L. Gaunt

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