Applying the “Obey Now, Grieve Later” Rule - Part II

By Terrence P. Dwyer, Esq.
Police1 Liability and Litigation Columnist

Last week I began to outline a case involving the application of the third exception — danger to the safety, health, or welfare of another — to the “obey now, grieve later” rule. The case began with two officers’ response to a 911 poll for the nearest available patrol for a domestic dispute in progress. Earlier in the year, the officers’ agency issued an internal order requiring all its officers to request supervisory approval prior to responding to 911 calls. My two officer clients were aware of their shift supervisor’s tacit approval of all 911 call responses — unfortunately he was on disability leave on the day in question and not available for approval. The officers’ dilemma: do they wait until a supervisor is contacted and either approves or denies their request, or do they respond and seek approval in the interim? Read Part I if you missed it or want to refresh your memory.

Deciding they were under a duty to respond, and after hearing one poll for the call go unanswered, they responded to the second poll and took the call. In the meantime, their precinct dispatcher — another officer — heard the poll and notified the responding officers that he was in the process of obtaining supervisory approval. The desk officer attempted to contact the neighboring precinct sergeant who was on-duty but unavailable and out of the station. Eventually a precinct sergeant in another county was contacted and he denied the officers permission to respond to the domestic.

As the officers were pulling into the driveway of the residence — where they found the male caller waiting and bleeding from the head — they were told by dispatch permission to respond was denied. They in turn advised their dispatch they were already at the residence. An off-duty Inspector, the second in command for the agency, heard the radio transmissions, called the dispatcher and granted the officers permission. The officers handled the call and held down the scene until the state police unit arrived. After spending twenty minutes at the location they cleared and resumed their patrol.

As I previously mentioned, this was a location familiar to the officers. It is directly across from New York City reservoir property they are responsible for patrolling, it is within the broader watershed protection district they are also responsible for patrolling, and they had been to the residence on prior calls. One of those calls was an environmental complaint during which they issued a summons to the male occupant for polluting the reservoir. The final icing on this informational layer cake is that the male occupant was a known convicted felon. At the end of their tour the officers had no idea that, aside from receiving the gratitude of their state police colleague for the assistance, they would spend the next year justifying their actions before an informal disciplinary board and at a subsequent disciplinary trial.

Once the off-duty Inspector returned to work the following week, he decided to start his day by bringing disciplinary charges against the two officers. The charges were for failing to follow the internal memorandum and insubordination. When the union delegate first contacted me regarding this case, I thought he was joking — surely there is a punch line to this story. I asked him, but no, it was for real and I would be defending the two officers for doing their job and responding to a 911 call.

My first order of business — after providing the necessary response to the charges and outlining my discovery requests, was to research the “obey now grieve later” rule as applied in New York State, particularly within the body of administrative case law found in the New York City Office of Administrative Trials and Hearings (OATH). It had become a foregone conclusion that this matter was not being resolved informally within the agency — especially in light of the fact the agency was offering a loss of two days pay.

This past August, the case went to trial before an impartial administrative law judge not affiliated with the agency. A full day trial ensued in which the sergeant who originally denied the request and the Inspector testified for the agency. One of the responding officers testified for the defense. Without going into a full report of the trial it is sufficient to say that the testimony of the responding officer, both on my direct examination and the cross-examination of the agency’s disciplinary counsel, adequately laid out the “safety, health and welfare exception” relied on as our defense. In my summation I asked the judge, “What would you want the officers to do in that situation if you were the caller, choose between strictly obeying a flawed order and avoid the fiasco they have been put through or proceed as they did and prevent further injury to anyone else at the premises?”

The judge answered my query last October when he issued a seven page decision finding the emergency exception to the “obey now grieve later” rule applied in this case and ruling that there was no misconduct on the part of the officers.

In order to rely on an exception such as that described above, officers must be prepared to explain and defend their actions. A key consideration for an officer to be aware of when facing an insubordination charge is the element of intent. In general, a finding of misconduct on the part of an officer will require a showing of deliberate disobedience on the officer’s part. If a disciplining body or hearing officer does not find the requisite intent, misconduct charges cannot be sustained. Negligence will not suffice for a charge, especially one of insubordination.

The safety, health, or welfare exception however involves a choice of the lesser of two evils — doctrine quite familiar in the law in the context of defenses to criminal conduct. If an officer decides a supervisor has given an order which poses an unusual threat to the health or physical safety of the officer or others, then the officer must thoroughly document the situation and articulate the reasons for the particular response. If presented properly this negates an agency argument of willful disobedience or misconduct.

In my defense of the two officers, I relied (aside from the New York case law) on the way the safety, health, and welfare exception has been applied in other jurisdictions and cited approvingly within the public and private sector. See eg., Hingsbergen v. State Personnel Board, 170 Cal. App. 2d 333 (1959); Crider v. Spectrulite Consortium Inc., 130 F.3D 1328 (7th Cir., 1997). It has been recognized as a viable exemption to obeying a supervisor’s order.

Even within the military employment community the principle has life. In Larson v. Department of the Army the appeals court overturned a Merit Systems Protection Board case and found that the employee “may have reasonably believed that the order in question placed him or others in imminent danger and, accordingly, may have been entitled to refuse this order.” But there are always reservations when advising officers as to the application of this rule. Since the “obey now, grieve later” rule is, as the Spectrulite court observed, such a “time honored principle of industrial relations,” courts are unwilling to undo administrative or arbitration decisions imposing punishment for insubordination allegations. The interest in a cohesive workplace free from individual determinations as to what rules and orders employees will follow is in keeping with public policy.

An officer who obeys a bad order but subsequently grieves the order stands in a much better light than the employee who originally disobeys the order. The officer who disobeys the order and files a grievance faces a disciplinary hearing and the processing of the grievance. These are two forums as different and disconnected as one can find. The disobeying officer may win the grievance but still lose in the disciplinary hearing due to the fact that the order was nonetheless disobeyed. I have represented officers in these same situations only to tell them they won the battle but lost the war.

It is always advisable to adhere to the orders of a superior officer, especially in the paramilitary structure of policing. Yet, officers are called upon to make snap, critical decisions and may encounter a situation similar to that of the two officers described above. Police officers are asked to rely on their training, experience, and best judgment when making patrol decisions. Sometimes those decisions can be perceived harshly by supervising officers. It should never be a foregone conclusion that the insubordination charge in all circumstances will go against the officer. My two client officers made a calculated decision which turned out to be the right one.

The law favored that decision as well.

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