Page 18 - February 2016

PERF’S ‘GUIDING PRINCIPALS’ CONTINUED FROM PAGE 17
undermine the very law enforcement community they pur- port to keep safe. d
Dan Herbert is a former Chicago Police Officer, Cook County Prosecutor and in-house attorney for the Fraternal Order of Police, Chicago Lodge #7. He is the founding member of The Law Offices of Daniel Q. Herbert and Associates.
LODGE PREVAILS CONTINUED FROM PAGE 16
officers precisely because it requires the judge or jury to adopt the role of a reasonable law enforcement officer when deter- mining whether an officer’s use of force was lawful. Graham states that, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Chicago police officers reading this may realize that their department has crafted its use of force policy to be more restrictive than what the law allows. As a result, you may be thinking, “What is so bad about PERF’s principle here?” For starters, setting a use of force policy in such a manner requires officers to assume risks that are not required under existing law. Simply put, officers should not be required to act in a manner contrary to what the law allows. The Supreme Court felt that a reasonable use of force must not be judged with hindsight, yet a department policy more restrictive than Gra- ham makes the mistake of prejudging a future use of force encounter regardless of what the law permits. Officers should therefore be aware and concerned about the implications of a lawful use of force that could be found to violate department policy.
taser, even if a unit was later discovered to be defective or resulting in injury that was caused by the gross negligence of Taser International or the City. While the City has the ability to require police officers to carry tasers as part of the required equipment, it cannot unilaterally require police officers to waive their rights to all remedies they might otherwise have if they are injured by a taser unit. Indeed, the waiver was so broadly drawn that it appeared to preclude use of the con- tractual grievance process contained in the parties’ agree- ment.
In Chicago, the Independent Police Review Authority (IPRA) is enabled under ordinance to investigate all cases in which a department member discharges his firearm, even if no allega- tion of misconduct is made. Furthermore, IPRA is to make rec- ommendations to the superintendent concerning the appropriate disciplinary action for department members found to be in violation of departmental rules and regulations. Thus, an officer can use force that is within the law, but the officer can still be held accountable administratively for vio- lating departmental policy. Considering today’s current climate regarding use of force by the police, all officers should be aware of the possibility of surviving a lawful use of force encounter only to end up facing discipline or perhaps even termination because of public opinion.
Moreover, the waiver directly impacted police officers’ safe- ty and compensation, forcing them to accept all risk and absorb all financial harm caused by a taser unit, contrary to another provision of the agreement – the indemnification clause (found in Article 22), all of which are mandatory sub- jects of bargaining.
It is not cynical or pessimistic for an officer to believe that public opinion has a tremendous impact on how a use of force encounter is adjudicated across all levels of review. PERF’s third principle titled, “Police use of force must meet the test of proportionality” confirms that public opinion is considered a key factor in their analysis. PERF believes that when officers are responding to a dynamic and highly stressful use of force encounter that they should consciously take time to reflect on how the public will feel about their use of force. Sadly, I am not misstating their position in any manner. PERF directly states, “In assessing whether a response is proportional, officers must ask themselves, “How would the general public view the action we took? Would they think it was appropriate to the entire situation and to the severity of the threat posed to me or to the public?”
In the letter, Lodge 7 demanded that the City remove and nullify any previously executed waivers from individual police officers’ files and that the City cease and desist from requiring police officers to execute the waivers, unless and until the City has bargained the issue with Lodge 7. The City’s conduct was not only a violation of the parties’ collective bargaining agree- ment, but also constituted a violation of the Illinois State Labor Relations Act. Unless the City ceased such unlawful activity immediately, Lodge 7 warned that it would pursue any and all legal options, including, but not limited to, filing unfair labor practice charges with the state Labor Relations Board, as well as file and pursue a grievance under the parties’ agreement.
What this principle means plain and simple is that officers should question how their action will be judged, not by a court of law, but rather by the ever-changing whims of the court of public opinion. Officers already knew that the general public has no idea of the nature of their daily work, although the pub- lic always seems to have an opinion on everything an officer does. What officers may not have known was how the law enforcement professionals in PERF hope to set policy that will
Be mindful if the Department resumes this practice or requires police officers to sign similar documents in the future. If this happens, please reach out to your Unit Reps or contact the Lodge immediately. d
Of course, as Lodge 7 suggested in the letter it sent to the City, the City and the Chicago Police Department are free to sign the waiver, but police officers cannot be forced to do so, and such a practice must stop.
Within 24 hours, the Department responded to Lodge 7’s objection. The Department informed Lodge 7 that there would be “no more waivers” and that any “previously executed waivers from the time the mandatory training began until now are nullified.” Taser training, conducted by Taser International, is continuing, but police officers are no longer required to sign any waivers.
18 CHICAGO LODGE 7 ■ MARCH 2016
Pasquale (Pat) A. Fioretto has been associated with the Baum Sig- man law firm since 1990, and as of Jan. 1, 1999, became a share- holder member of the firm. He concentrates his practice in the areas of labor and employment law, in both the public and pri- vate sectors.