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Arbitrator sides with officer in ruling.

Byline: Jack Moran The Register-Guard

A state arbitrator has ruled that Eugene police officials were wrong to discipline a patrol officer for punching a handcuffed suspect who he believed was about to spit on him.

In a Feb. 28 written decision, arbitrator Gary Axon said the city did not have just cause to suspend officer Jimmie McBride for 40 hours without pay after former Police Chief Robert Lehner concluded that McBride used excessive force during the Aug. 24, 2007, arrest of Daniel Grey.

Axon, an arbitrator with the state Employment Relations Board, ordered the city to repay McBride the wages and benefits he lost during his suspension.

Axon's conclusion that McBride used appropriate force to arrest Gray came after the city police union appealed Lehner's decision to punish the veteran patrol officer.

Lehner upheld then-Capt. Pete Kerns' recommendation to sustain an allegation that McBride went too far when he struck Grey with the back of his fist.

Kerns' opinion differed from those of a police sergeant and a lieutenant, both of whom reviewed the case and said McBride used an acceptable level of force against Grey.

"Jimmie did what he had to do at the time, and the sergeant and the lieutenant agreed," Eugene Police Employees Association President Willy Edewaard said.

"It's interesting to me that Kerns and the chief didn't think it was within policy," Edewaard said. "They've both been removed from the street for some time."

Kerns, who has served as the city's interim police chief since Lehner left Eugene last October for a new job in California, declined to say much about McBride's case because it is a personnel matter that involved discipline.

Kerns said the appeal system "worked the way it was supposed to work" and that the city would abide Axon's ruling.

Edewaard, who also works as a Eugene patrol officer, said McBride asked him to speak on his behalf regarding the matter.

McBride arrested Grey, a parolee, on a pair of outstanding warrants after reporting that he illegally crossed the intersection of West Fifth Avenue and Washington Street.

McBride said in a police report documenting the arrest that a handcuffed Grey filled his mouth with saliva and threatened to spit in the officer's face as McBride fastened a seat belt across the suspect's body in the back of a patrol car.

McBride said he warned Grey twice not to spit before punching him in the mouth.

The blow caused Grey's tooth to bleed, and cut his lip.

In his written decision, Axon stated that "McBride punched Grey with the back of his fist as a reflexive action and a focused blow to avoid being spit on," in accordance with the police department's defensive tactics manual.

Arbitrators with the state Employment Relations Board review personnel actions between employers and their workers that cannot otherwise be resolved between the two parties.

The city's Civilian Review Board, which reviews closed investigations of allegations against Eugene police officers, last year concurred with Lehner's ruling that McBride used excessive force while arresting Grey.

The review board has no power to change the outcome of a closed investigation, but serves as a public voice of the city's police oversight system.

The civilian board's decision marked the second time in four months that the oversight body concluded McBride had been overly violent while making an arrest.

In the previous case, the review board said McBride used excessive force when he got into an altercation with Levi Smith, 53, after McBride responded to an alarm in west Eugene on Sept. 15, 2007.

Smith suffered a fractured pelvis and other injuries during his arrest.

McBride cited Smith for interfering with a police officer, a charge that was later dropped.

Smith has sued the city over the incident.

Before the review board looked at Smith's case, Lehner determined that McBride did not use excessive force to arrest Smith.

Former Eugene police officer Rob Hart was present at both arrests that led to complaints against McBride.

In both cases, Hart told investigators he hadn't actually witnessed McBride use force against either Smith or Grey.

Hart, who now works as an inspector for the Federal Protective Service, also was involved in a controversial December arrest that led to a new complaint against McBride.

In that incident, Hart - who federal officials said was acting as a private citizen at the time - vigorously twisted arrestee Mike Stinnette's arm behind his back after calling police to report that Stinnette was aggressively protesting in front of a Eugene church, disturbing several churchgoers.

McBride wrote in a police report that he responded to the scene and, using a covert police signal, tapped his badge to ask Hart for help taking Stinnette into custody.

The arrest was captured by an in-car video camera in McBride's patrol car.

A police department investigation into Stinnette's complaint that police violated his constitutional rights has not been completed.
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Title Annotation:City/Region; The city wasn't justified in suspending Jimmie McBride, the state official says
Publication:The Register-Guard (Eugene, OR)
Date:Mar 16, 2009
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