City of Boston v. Boston Police Patrolmen's Assoc.

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SJC-12077

CITY OF BOSTON vs. BOSTON POLICE PATROLMEN'S ASSOCIATION.

Suffolk. December 5, 2016. - July 12, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

Arbitration, Confirmation of award, Authority of arbitrator.
Municipal Corporations, Police. Police, Discharge. Public
Employment, Police, Termination. Public Policy.

Civil action commenced in the Superior Court Department on
July 22, 2013.

The case was heard by Dennis J. Curran, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Kay H. Hodge (Geoffrey R. Bok also present) for the
plaintiff.
Alan H. Shapiro (John M. Becker also present) for the
defendant.

HINES, J. This is an appeal from a judgment of the

Superior Court confirming an arbitrator's award reinstating a

Boston police officer terminated for using a choke hold in

arresting an unarmed suspect for disorderly conduct and making
 2

false statements in the ensuing departmental investigation. The

arbitrator found that the officer, David Williams, had applied a

choke hold, but that the choke hold had not actually choked the

citizen, that the force was reasonable in the circumstances, and

that the officer's subsequent characterization of events was

thus truthful. Accordingly, the arbitrator ruled that the city

of Boston (city) lacked just cause to terminate Williams, and

ordered his reinstatement with back pay.

In July, 2013, the city filed a complaint in the Superior

Court to vacate the arbitrator's award. The court dismissed the

complaint in June, 2015, and the city appealed. We granted the

city's application for direct appellate review. Because the

award neither exceeds the arbitrator's authority nor violates

public policy, and because we are not free to vacate it where no

underlying misconduct was found, we affirm.

1. Background. a. Facts. On January 18, 2012, the city

discharged Williams based on specifications arising from a

disorderly conduct arrest on March 16, 2009. The specifications

were use of excessive force, in violation of Boston police

department rule 304 on use of nonlethal force, and

untruthfulness in the subsequent investigation, in violation of

rule 102, § 23, on truthfulness. Chosen by mutual agreement of

the city and the Boston Police Patrolmen's Association (union)

pursuant to a collective bargaining agreement (CBA), an
 3

arbitrator held three days of hearings, concluded that the city

had proved neither charge, and ordered Williams's reinstatement

with back pay. He based his conclusion on the following factual

findings.

In 2009, Boston's Saint Patrick's Day Parade fell on

Sunday, March 15. Among the revelers that day were Michael

O'Brien and his friends Thomas Cincotti and Eric Leverone.

Having consumed some alcohol during the daytime celebrations,

the three proceeded to a Faneuil Hall bar where O'Brien received

free drinks by virtue of knowing the staff and owners. Because

Leverone had recently returned from active military duty,

patrons purchased him many drinks, and he became extremely

intoxicated.

From that bar, the three walked to Cincotti's apartment in

the North End neighborhood of Boston. While his friends waited

on the sidewalk, Cincotti moved his motor vehicle to avoid

getting a parking citation the next day. In doing so, he backed

across a double yellow line and into a double-parked vehicle

occupied by Guy Fils-Aime. Cincotti got out of his vehicle,

asked O'Brien to move it out of the street, and approached Fils-

Aime. O'Brien testified that, before moving the vehicle to a
 4

legal parking space, he heard Fils-Aime say, "I am a federal

agent and you are fucked."1

Fils-Aime called 911 just after midnight to report the

accident. On that recorded call, he can be heard to say, "No,

no, no. Don't worry. I work for Homeland Security. I'm a

Federal agent. You're not going to get in trouble. Relax."

After describing the accident to the dispatcher, Fils-Aime

added, "They're drunk."

Officers Williams and Diep Nguyen arrived on scene at 12:08

A.M. O'Brien described their interaction as immediately hostile

and aggressive, while the officers characterized O'Brien and his

friends as drunk and uncooperative. O'Brien, who with Cincotti

and Leverone is Caucasian, appeared further provoked by the

officers' friendliness with Fils-Aime, who like Williams is

African-American. As the officers spoke with Fils-Aime, O'Brien

approached and demanded that they issue a citation to Fils-Aime

for double-parking, and find out whether he was in fact a

Federal agent. Receiving no answer, O'Brien began to film the

officers with his cellular telephone as he repeated his demands

1
Michael O'Brien was at the time employed as a deputy
sheriff and correction officer, and said that Guy Fils-Aime's
comments made him concerned both for his employment and for his
pending military candidacy.
 5

from the middle of Hanover Street, where he was blocking

traffic.2

After O'Brien failed to heed multiple warnings to get out

of the street, Nguyen decided to arrest him for disorderly

conduct. O'Brien pushed Nguyen away, and the two struggled as

Nguyen attempted to handcuff him; he managed to cuff one wrist.

Seeing this struggle from the cruiser where he had been writing

a citation for Cincotti, Williams came to Nguyen's aid and

tackled O'Brien to the ground; Nguyen was "fighting off"

Cincotti and Leverone. In an effort to extricate O'Brien's

uncuffed hand from underneath O'Brien's body, Williams pressed

his upper left arm and shoulder against the right side of

O'Brien's neck. He characterized this maneuver as a "semi-bear-

hug hold." Nguyen testified that Williams had his arm "around

[O'Brien's] neck" in a "chokehold." O'Brien testified that he

could not breathe and began to lose consciousness.

Williams called for assistance using a police radio

attached to his uniform, and the eight officers who soon arrived

arrested O'Brien. As he was being taken to a police wagon,

O'Brien announced his employment with the sheriff's office and

shouted the names of officers he knew. Once in the wagon, he

realized that he had urinated in his pants.

2
The video recording was not in evidence, as O'Brien
testified that he no longer was in possession of that cellular
telephone.
 6

O'Brien was charged with resisting arrest, assault and

battery on a police officer (Nguyen), and disturbing the peace.

He was booked at 12:40 A.M., with a bruise visible on his left

temple and an abrasion on the right side of his forehead.

Lieutenant James Leary, who was duty supervisor at that time,

examined O'Brien and noted nothing unusual. Twenty minutes

later, O'Brien complained of chest pain and head pressure, and

emergency medical technicians thereafter transported him to

Massachusetts General Hospital. The triage nurse, in notes

recorded at 2:30 A.M., observed O'Brien to be under the

influence of alcohol. At 3:43 A.M., O'Brien reported to the

attending physician, Dr. Andrew Liteplo, that he had been beaten

and choked by police. Liteplo noted petechiae, which are

sometimes associated with choking, on O'Brien's face. O'Brien

was otherwise asymptomatic.

On March 19, 2009, O'Brien filed a complaint with the

internal affairs division (IAD) of the Boston police department

(department). Although IAD assigned the complaint to an

officer, little investigation was done, and O'Brien's counsel

withdrew it in May, 2009. Williams did not learn of the

allegations against him until September 24, 2009, when O'Brien

filed a Federal lawsuit alleging unreasonable use of force,

unconstitutional arrest, and assault and battery. The next day,

counsel filed another IAD complaint; when IAD still had taken no
 7

action in January, 2010, counsel sent a letter demanding that

the matter be investigated. Sergeant Philip Owens conducted

initial interviews of the officers in April, 2010, but not until

February, 2011, was Williams placed on administrative leave.

A second round of IAD interviews occurred in March, 2011.

In June, 2011, the department exonerated Nguyen, but issued two

specifications against Williams: the use of unreasonable force,

in violation of rule 304, § 2,3 and untruthfulness during the IAD

3
Boston police department rule 304, "Use of Non-Lethal
Force," provides in relevant part:

"Because there are an unlimited number of possibilities,
allowing for a wide variety of circumstances, no rule can
offer definitive answers to every situation in which the
use of non-lethal force might be appropriate. Rather, this
rule will set certain specific guidelines and provide
officers with a concrete basis on which to utilize sound
judgment in making reasonable and prudent decisions,
attending to the spirit over the letter of the rule.

"Section 1. Definitions. . . . 1. Reasonable Amount of
Force is the least amount of force that will permit
officers to subdue or arrest a subject while still
maintaining a high level of safety for themselves and the
public.

"Section 2. General Considerations. The policy of the
Boston Police Department is to use only that amount of
force that is reasonably necessary to overcome resistance
in making an arrest or subduing an attacker.

"The right to use non-lethal force is extended to police
officers as an alternative in those situations where the
potential for serious injury to an officer or civilian
exists, but where the application of lethal force would be
extreme."
 8

interview, in violation of rule 102, § 23.4 The departmental

trial board held hearings in November and December, 2011, and

sustained the charges. The city terminated Williams on January

18, 2012, and settled O'Brien's civil lawsuit for $1.4 million

shortly thereafter.

The union filed a grievance, contending that the city

lacked just cause to terminate Williams.5 The case went before

an arbitrator to determine whether the city had just cause to

terminate Williams, and whether the city violated the CBA by

placing Williams on administrative leave in February, 2011. A

hearing was held in September, October, and December, 2012.

b. The arbitrator's award. In June, 2013, the arbitrator

issued his decision based on the premise that Williams had been

terminated for use of excessive force, not for application of a

choke hold ("The Department evidently credited O'Brien's charge

that [Williams] attacked him for no reason, knocked him to the

4
Boston police department rule 102, "Conduct and General
Rights and Responsibilities of Department Personnel," provides
in relevant part:

"Section 23. Truthfulness. . . . Reports submitted by
employees shall be truthful and complete. No employee
shall knowingly enter, or cause to be entered, any
inaccurate, false or improper information."
5
Article V(A), § 1, of the collective bargaining agreement
provides as follows: "No bargaining unit member who has
completed his one-year probationary period shall be disciplined
or discharged without just cause."
 9

ground, grabbed him around the neck, and strangled him almost to

the point of unconsciousness").

Characterizing the case as contingent on a credibility

determination, the arbitrator rejected O'Brien's account of the

incident as "not truthful," and concluded that Williams used

only the amount of force reasonably necessary to overcome

O'Brien's resistance to arrest. In support of his finding that

"O'Brien was not a credible witness about any of the events of

March 16," the arbitrator cited several factors. First, the

arbitrator found that O'Brien had been drunk; as a result, the

accuracy of O'Brien's memory was diminished, and the likelihood

that he had displayed the conduct Williams and Nguyen described

increased. Second, the arbitrator found that the professional

repercussions potentially facing O'Brien for his drunk and

disorderly conduct provided a motive to fabricate these

allegations against the officers. Third, he found the objective

physical evidence of choking scant. Finally, he noted as

further reasons to discredit O'Brien that the cellular telephone

video recording was unavailable, and that neither Cincotti nor

Leverone came forward to corroborate O'Brien's account.

As to Williams, the arbitrator found that he had "knock[ed]

O'Brien to the ground and tightly gripp[ed] him in a manner that

placed [Williams's] upper right arm and shoulder against the

right side of O'Brien's neck. It would be accurate to call this
 10

a chokehold." Nguyen, who the arbitrator credited as a

"conscientious and credible witness," agreed that Williams had

used a choke hold and explained that police were not trained in

this maneuver. Nonetheless, Nguyen opined that Williams had not

choked O'Brien and had used reasonable force in the

circumstances, and the arbitrator agreed. Accordingly, the

arbitrator concluded that Williams's IAD interviews had been

truthful, and that there was no just cause for termination. He

ordered Williams reinstated with back pay.

2. Discussion. a. Standard of review. "A matter

submitted to arbitration is subject to a very narrow scope of

review." Plymouth-Carver Regional Sch. Dist. v. J. Farmer &

Co., 407 Mass. 1006, 1007 (1990). Especially where parties have

elected to arbitrate disputes as part of a CBA, School Dist. of

Beverly v. Geller, 435 Mass. 223, 229 (2001) (Cordy, J.,

concurring), we defer to that election and are "strictly bound

by an arbitrator's findings and legal conclusions, even if they

appear erroneous, inconsistent, or unsupported by the record."

Lynn v. Thompson, 435 Mass. 54, 61 (2001), cert. denied, 534

U.S. 1131 (2002) (Thompson).

In arbitrations pursuant to collective bargaining

agreements, awards may be vacated only on statutorily enumerated

grounds. G. L. c. 150C, § 11 (a) (3) ("superior court shall

vacate an award if . . . the arbitrators exceeded their powers
 11

or rendered an award requiring a person to commit an act or

engage in conduct prohibited by state or federal law"). The

city argues both grounds exist here, and we address each in

turn.

b. Nondelegability of police commissioner's powers and

scope of arbitrator's authority. The city argues that the award

must be vacated because the arbitrator exceeded his authority by

intruding on the nondelegable powers of the Boston police

commissioner (commissioner) to discipline officers. The union

counters that discharge and discipline are at the heart of

collective bargaining, and the arbitrator merely interpreted the

relevant terms of the parties' agreement.

Some powers may not be delegated, even with the consent of

the parties. Boston v. Boston Police Superior Officers Fed'n,

466 Mass. 210, 216 (2013). "An arbitrator exceeds his authority

when he intrudes upon decisions . . . left by statute to the

exclusive managerial control of designated public officials."

Massachusetts Bd. of Higher Educ./Holyoke Community College v.

Massachusetts Teachers Ass'n/Mass. Community College

Council/Nat'l Educ. Ass'n, 79 Mass. App. Ct. 27, 32 (2011).

The city asserts that the so-called "police commissioner's

statute" leaves discipline and discharge of officers for

excessive force or untruthfulness to the commissioner's

exclusive managerial control. St. 1906, c. 291, as appearing in
 12

St. 1962, c. 322, § 11 ("police commissioner shall have

cognizance and control of the government, administration,

disposition and discipline of the department, and of the police

force of the department and shall make all needful rules and

regulations for the efficiency of said police"). This argument

fails for three related reasons.

First, the terms of a CBA trump any authority enumerated

under the State's collective bargaining law. G. L. c. 150E,

§ 7 (d) ("If a collective bargaining agreement . . . contains a

conflict between matters which are within the scope of

negotiations pursuant to [§ 6] of this chapter[6] and . . . the

regulations of . . . a police commissioner . . . the terms of

the collective bargaining agreement shall prevail").

Accordingly, the CBA's just cause provision permits the

arbitrator to interpret regulations promulgated pursuant to the

commissioner's statute, and usurps no authority in so doing.

Second, this conclusion is consistent with courts'

reluctance to allow broad discretionary powers to subsume

bargained-for provisions. See Lynn v. Labor Relations Comm'n,

43 Mass. App. Ct. 172, 182 (1997), citing School Comm. of Newton

v. Labor Relations Comm'n, 388 Mass. 557, 564–566 (1983) ("where

6
General Laws c. 150E, § 6, provides that parties "shall
negotiate in good faith with respect to wages, hours, standards
or productivity and performance, and any other terms and
conditions of employment."
 13

the governmental employer acts pursuant to broad, general

management powers, the danger is presented . . . that to

recognize the statutory authority as exclusive would

substantially undermine the purpose of G. L. c. 150E, § 6, to

provide for meaningful collective bargaining").

Finally, although we have recognized the breadth of the

commissioner's authority in a long line of cases, those cases

have largely confined nondelegable matters to the administrative

realm and have never reached the core matters of discipline and

discharge. See, e.g., Boston Police Superior Officers Fed'n,

466 Mass. at 215 (commissioner has exclusive, nondelegable

authority to assign and transfer police officers).7 Indeed,

where the parties bargained to arbitrate "any dispute concerning

7
See also, e.g., Boston v. Boston Police Patrolmen's Ass'n,
403 Mass. 680, 684 (1989) (nondelegable management prerogative
to assign one officer, as opposed to two, to marked patrol
vehicle); Nolan v. Police Comm'r of Boston, 383 Mass. 625, 629-
630 & n.4 (1981) (authority to determine by way of psychiatric
examination officer's fitness to perform duties); Broderick v.
Police Comm'r of Boston, 368 Mass. 33, 41 (1975), cert. denied,
423 U.S. 1048 (1976) (authority to question officers regarding
private conduct); Boston Police Patrolmen's Ass'n v. Boston, 367
Mass. 368, 371-372 (1975) (authority to require officers seeking
elective office to take leave of absence without pay during
campaign); Boston v. Boston Police Superior Officers Fed'n, 52
Mass. App. Ct. 296, 301 (2001) (sole discretion to make and end
temporary assignments); Boston v. Boston Police Patrolmen's
Ass'n, 41 Mass. App. Ct. 269, 271-273 (1996) (authority to
determine and assign overtime); Boston v. Boston Police Superior
Officers Fed'n, 29 Mass. App. Ct. 907, 908 (1990) (nondelegable
matters include staffing levels, assignments, uniforms, weapons,
and definition of duties); Boston v. Boston Police Patrolmen's
Ass'n, 8 Mass. App. Ct. 220, 226-227 (1979) (sole authority to
determine whether officer should be reissued service weapon).
 14

the interpretation or application" of the CBA, G. L. 150E, § 8,

such a broad arbitration clause, see AT&T Techs., Inc. v.

Communications Workers of Am., 475 U.S. 643, 650 (1986), leaves

discipline well within the arbitrator's ambit. Boston Police

Patrolmen's Ass'n v. Boston, 60 Mass. App. Ct. 672, 676–677

(2004) (severity with which municipal employer treats its police

officers in disciplinary proceedings can be subject of

grievance).

c. Public policy exception. The city argues that the

award must be vacated because Williams's reinstatement violates

public policy. The union contends that this exception is

unavailable because the court is bound by the arbitrator's

finding that Williams committed no misconduct.

Our deference to arbitration notwithstanding, we recognize

the primacy of certain policy matters over expediency, and will

not allow an arbitrator to order a party to engage in an action

that violates well-defined public policy. G. L. c. 150C,

§ 11 (a) (3). Boston v. Boston Police Patrolmen's Ass'n, 443

Mass. 813, 818, 823 (2005) (Patrolmen's Association). If an

arbitration award violates public policy, "we are obliged to

refrain from enforcing it." Massachusetts Highway Dep't v.

American Fed'n of State, County & Mun. Employees, Council 93,

420 Mass. 13, 16 & n.5 (1995), quoting W.R. Grace & Co. v. Local
 15

Union 759, Int'l Union of United Rubber, Cork, Linoleum &

Plastic Workers of Am., 461 U.S. 757, 766 (1983).

In determining whether this narrow public policy exception

requires the vacation of an arbitrator's award, we apply a

"stringent, three-part analysis." Patrolmen's Association, 443

Mass. at 818. First, the policy at issue "must be well defined

and dominant, and is to be ascertained 'by reference to the laws

and legal precedents and not from general considerations of

supposed public interests.'" Massachusetts Highway Dep't, 420

Mass. at 16, quoting W.R. Grace & Co., 461 U.S. at 766. Second,

the exception does not address "disfavored conduct, in the

abstract, but [only] disfavored conduct which is integral to the

performance of employment duties" (emphasis in original).

Massachusetts Highway Dep't, supra at 17, quoting Delta Air

Lines, Inc. v. Air Line Pilots Ass'n, Int'l, 861 F.2d 665, 671

(11th Cir. 1988), cert. denied, 493 U.S. 871 (1989). "Finally,

we require[] a showing that the arbitrator's award reinstating

the employee violates public policy to such an extent that the

employee's conduct would have required dismissal." Patrolmen's

Association, supra at 819, quoting Thompson, 435 Mass. at 63.

The question in the third prong is not whether the employee's

behavior violates public policy, but whether an award

reinstating him or her does so. Eastern Associated Coal Corp.
 16

v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62-63

(2000).

The first two prongs of this test are easily satisfied in

cases of alleged police misconduct toward civilians, as the

Superior Court recognized below. See, e.g., O'Brien v. New

England Police Benevolent Ass'n, Local 911, 83 Mass. App. Ct.

376, 381 (2013) (in police excessive force case, it is "clear"

that first two prongs of public policy test were met). It is

inarguable that well-defined public policy condemns excessive

force by police officers. See Commonwealth v. Adams, 416 Mass.

558, 563 (1993); Human Rights Comm'n of Worcester v. Assad, 370

Mass. 482, 487 (1976).

Similarly, there is no question that refraining from

excessive force is integral to a police officer's duties to

protect the public and keep the peace. Patrolmen's Association,

443 Mass. at 819. See Attorney Gen. v. McHatton, 428 Mass. 790,

793-794 (1999), quoting Police Comm'r of Boston v. Civil Serv.

Comm'n, 22 Mass. App. Ct. 364, 371 (1986) ("Police officers must

comport themselves in accordance with the laws that they are

sworn to enforce and behave in a manner that brings honor and

respect for rather than public distrust of law enforcement

personnel. They are required to do more than refrain from

indictable conduct. . . . In accepting employment by the

public, they implicitly agree that they will not engage in
 17

conduct which calls into question their ability and fitness to

perform their official responsibilities").

Thus, only the exception's third prong remains contested

here. "To prevail, the city must therefore demonstrate that

public policy requires that [Williams's] conduct, as found by

the arbitrator, is grounds for dismissal, and that a lesser

sanction would frustrate public policy" (emphasis added).

Patrolmen's Association, 443 Mass. at 819. Because the

arbitrator found that Williams acted reasonably and truthfully,

the public policy exception cannot bar his reinstatement.

The arbitrator found that Williams "placed [his] right arm

and shoulder against the right side of O'Brien's neck." Nguyen,

who the arbitrator found to be "a conscientious and credible

witness," testified that Williams had his arm "around

[O'Brien's] neck" in a "chokehold." But he also found that

Williams was terminated not for use of a choke hold, which is

nowhere prohibited by department rules, but for excessive force

in choking O'Brien. Because the arbitrator concluded that

Williams's use of force was reasonable and had not actually

restricted O'Brien's breathing, he also found that Williams's

characterization of events had been truthful and that there was

no just cause for termination.

Without doubt, a de novo analysis of whether Williams's

actions constituted excessive force in the totality of the
 18

circumstances could support a conclusion very different from the

one reached by the arbitrator. This was an arrest for

disorderly conduct. Williams gave no verbal commands, and used

neither of the methods of nonlethal force in which he was

trained before applying a choke hold,8 despite his training to

avoid a suspect's neck area.9 Williams is significantly larger

than O'Brien, who was unarmed. It is unreasonable to justify a

choke hold -- as the arbitrator did -- on the grounds that a

suspect could always "grab" an officer's service weapon, because

this is true of any civilian interaction with police and would

obviate any continuum of force.10

8
The department authorizes the use of the following
nonlethal force methods: verbal commands, pepper spray, wrist
locks, and batons. It is uncontested that Williams attempted
none of these methods before tackling O'Brien.
9
Beyond requiring that officers use "the least amount of
force" and "only that amount of force that is reasonably
necessary to overcome resistance in making an arrest," rule 304
on the use of nonlethal force confines officers to the use of
procedures on which they have been trained and found
"proficient." Nguyen and Williams each admitted that this
training did not include choke holds as an appropriate means of
force, and the IAD investigator explained that Boston police
officers are trained to avoid contact with a person's head or
neck due to the high risk of injury.
10
Indeed, the notion that an unarmed suspect must
nonetheless be treated as dangerous because he or she interacts
with an armed police officer ("[e]ven if O'Brien was unarmed,
there was always the possibility that he would grab Nguyen's
gun") controverts clear United States Supreme Court precedent,
see Graham v. Connor, 490 U.S. 386, 396 (1989); Tennessee v.
Garner, 471 U.S. 1, 11 (1985), and we reject the troubling
 19

This is especially true given the unpredictably lethal

nature of choke holds. See, e.g., Los Angeles v. Lyons, 461

U.S. 95, 116-117 (1983) (Marshall, J., dissenting) ("It is

undisputed that chokeholds pose a high and unpredictable risk of

serious injury or death"); Thompson v. Chicago, 472 F.3d 444,

446 (7th Cir. 2006) (officer's application of choke hold

contributed to suspect's death by asphyxia); Maddox v. Los

Angeles, 792 F.2d 1408, 1411 (9th Cir. 1986) (officer's

application of choke hold for twenty to thirty seconds caused

suspect's death). Cf. Commonwealth v. Stockwell, 426 Mass. 17,

19 n.2 (1997) (posited among methods of strangulation supporting

conviction of murder in first degree, choke hold occurs when

"the aggressor's forearm is placed on the neck of the victim").

Where the city failed to recognize those dangers in any

rule, however, we are not free to redefine terms the parties

bargained over. Had the city prohibited choke holds as

excessive force, an arbitrator who found a choke hold reasonable

would have exceeded his authority. See G. L. c. 150C,

§ 11 (a) (3) ("the superior court shall vacate an award if . . .

the arbitrators exceeded their powers"); School Dist. of

Beverly, 435 Mass. at 229 (Cordy, J., concurring), quoting

United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.

presumption of a citizen's dangerousness that this proposition
would create.
 20

593, 597 (1960) ("[A]n arbitrator's 'award is legitimate only so

long as it draws its essence from the collective bargaining

agreement' that he is confined to interpret and apply"). In

other words, that a de novo factual analysis would permit a

finding of felonious conduct does not permit us to proceed as if

the arbitrator actually made that finding.

We are aware of no prior application of the public policy

exception to vacate an award ordering reinstatement where the

arbitrator found no underlying misconduct. See Patrolmen's

Association, 443 Mass. at 820-821, 823 (vacating reinstatement

of police officer found by arbitrator to have committed

felonious misconduct of perjury and filing of false police

reports); Boston v. Boston Police Patrolmen's Ass'n, 74 Mass

App. Ct. 379, 382 (2009) (vacating reinstatement of police

officer found by arbitrator to have committed off-duty felonious

misconduct of assault by means of dangerous weapon). The

question, in other words, is not whether Williams's conduct

justified termination, but whether it required termination, such

that any lesser sanction would violate public policy. See

Thompson, 435 Mass. at 63. Because the arbitrator found that

Williams used reasonable force and was not untruthful in

subsequent investigations, the award reinstating him must be

upheld.
 21

d. Prospective guidance. Today's decision should not be

read to view the city -- and more importantly, the citizens of

Boston -- as without remedy moving forward. First, it is

incumbent on the city to clarify its own policies with respect

to excessive force and specifically choke holds if it does not

wish in the future to relinquish interpretive control of that

term.

As a threshold matter, it cannot be that when a choke hold

is applied, the excessive force determination nonetheless

depends on the extent of resulting harm. See Stamps v.

Framingham, 813 F.3d 27, 35 (1st Cir. 2016) (rejecting argument

that inadvertent excessive force is shielded from scrutiny under

Fourth Amendment to United States Constitution, reasoning that

"[t]he defendants' proposed rule has the perverse effect of

immunizing risky behavior only when the foreseeable harm of that

behavior comes to pass"). If anything, it is the unpredictable

dangerousness of choke holds that warns against their use at

all. Indeed, it is untenable to assert both that choke holds

are so potentially dangerous that reinstating officers who use

them violates public policy and that the commissioner retains

the discretion to determine whether a choke hold is excessive

force in any given case. As discussed supra, it is because

choke holds are unpredictably lethal that both officers and the

public deserve a bright-line rule.
 22

Second, the city must investigate allegations of excessive

force with substantially more alacrity than was evidenced here.

Pursuant to its own existing rules,11 the department owes a duty,

both to the public and to its own officers, to investigate

allegations of excessive force thoroughly and promptly. As with

the tension between a choke hold's dangerousness and the

commissioner's desire to retain discretionary review of their

use, it is difficult to reconcile the department's position that

an officer's use of a choke hold requires termination with its

protracted inaction in this case. See Massachusetts Highway

Dep't, 420 Mass. at 21 n.8 ("In determining that the safety of

the work environment was not sufficiently threatened by [the

employee's] behavior to require permanent discharge, the

arbitrator could consider the fact that the department waited

nearly one year after the [misconduct] was discovered" before

bringing disciplinary action). There was a two-year delay on

meaningful internal investigation; the department concedes, as

it must, that it mishandled an inquiry that took entirely too

long. Officers deserve notice of allegations against them, and

citizens deserve investigations not contingent on the filing of

Federal lawsuits.

11
See Boston police department rule 304, "Use of Non-Lethal
Force," § 7, "Investigation of Use of Force."
 23

Last, we are troubled by the prospect that any use of force

not explicitly prohibited by a rule of conduct is essentially

unreviewable. It is difficult to fathom why we elevate the

values of "expediency" and "judicial economy" so high as to

eclipse the substantive rights of citizens who have no seat at

the bargaining table. We recognize, of course, that public

employers may or may not choose to adopt rules for the

protection of the public from the excessive use of force.

Without the benefit of such rules, however, arbitrators remain

free to find reasonable any level of force that does not

explicitly require termination. Absent legislative authority

for a broader review of arbitration decisions, we are

constrained in our ability to review the use of excessive force

by public safety officials.

3. Conclusion. For the reasons stated above, we affirm

the Superior Court's decision confirming the arbitrator's award.

So ordered.