Double Jeopardy Results In Reversal Of Suspension For Racial Slur

Double Jeopardy Results In Reversal Of Suspension For Racial Slur

Written on 09/29/2020
Will Aitchison

An unnamed Cincinnati, Ohio police officer (employees are often not named in reported disciplinary arbitration decisions) responded to a call at an apartment complex on September 26, 2018. Identified only as Officer [A], he met the individuals outside the apartment complex and determined that the residents were intoxicated. The officer recognized two of them from working in the community.

After directing two male individuals to leave, the men got into a physical altercation and had to be separated. Officer [A] tased one of the men. After the tasing, Officer [A] said in a loud voice, “This is fuckin’ stupid. I told you to fuckin’ walk home, didn’t I? That goddam alcohol got you niggers out here acting stupid.”

Because the incident involved the use of force, i.e., the tasing, the camera footage was reviewed by a sergeant, who heard the officer’s language, determined that it was inappropriate, and notified his captain. The captain instructed that a written reprimand should be issued. The reprimand was approved by an assistant chief, who forwarded it to the police chief, who also approved the reprimand. The reprimand was served on October 29, 2018.

Two months later, another officer, referred to as Officer [G], responded to a parking complaint call. The individuals involved in that call engaged in a physical altercation. During the incident, [G], a white officer, was struck by one of the individuals, and told a fellow officer, “Nigger slapped me in the face.” Complaints were filed and the incident received media attention. The media also learned about Officer [A]’s incident and wrote about it.

The Chief, who did not recall Officer [A]’s incident, then reviewed the video footage of the incident for the first time and sent it to the Internal Investigations Section for a full investigation. In the end, the Chief imposed a seven-day suspension for Officer [A].

The Arbitrator reversed the suspension. The Arbitrator held that “the concept of just cause includes a number of factors, including timely action, a fair investigation, notice of the grounds for discipline, the employee’s right to be heard, and double jeopardy. Arbitral authority is clear that disciplining an employee twice for the same act constitutes double jeopardy and is a due process basis for invalidating the discipline.

“Here, Officer [A] was issued a written reprimand for the language he used on September 26, 2018. This is a classic double jeopardy situation. In October, Officer [A] was reprimanded for his language under Rule 1.06B. This was approved by the Chief. The Chief acknowledged that he received a memo about the incident but did not read it closely enough. It matters not whether he read the memo carefully enough, he agreed with the reprimand and it was issued.

“The City argues that new information was learned during the investigation, including that the individuals involved in the incident were offended by Officer [A]’s remark. This argument misses the mark. Nothing new about Officer [A]’s misconduct was discovered – the body cameras recorded his comments and these comments were known in October when the written reprimand was issued.

“Even if new information had been discovered, that does not necessarily mean the City could have disciplined Officer [A] based on that information. It is only when an employer’s incomplete knowledge of the facts at the time of the initial discipline was not the employer’s fault that double jeopardy might not occur. For example, if information is intentionally kept from an employer, it may be able to impose additional discipline upon discovering it without causing a double jeopardy situation. That did not happen here.

“Finally, the City submits that double jeopardy applies only when the prior discipline was the result of a full hearing and the employer had full knowledge of the facts. The Arbitrator rejects this argument. First, the City cites no authority that a full hearing must be conducted. Second, as noted above, the City had full knowledge of the facts when it issued the written reprimand. Sergeant [C] had reviewed the video, heard the use of the N word, found it inappropriate, and the reprimand was approved. The City had full knowledge of the comments when it did so. The later suspension was based on the very same full knowledge of the facts – Officer [A]’s comments – and issuing more severe discipline violated the concept of double jeopardy.”

City of Cincinnati, 20-1 ARB ¶ 7549 (Zeiser, 2019).

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