Cruz Beating: Arbitrator clears Griffin to return to APD

While Austin Police Officer Gary Griffin did "momentarily 'cross the line' into the use of excessive force" during a June 2006 confrontation with 24-year-old Joseph Cruz at an East Austin bus stop, an independent arbitrator concluded last week that Griffin's actions were "nothing more sinister than gross negligence." Considering Griffin's otherwise-solid employment record, arbitrator Don Hays concluded that then-acting Chief Cathy Elli­son erred in terminating Griffin and that the 10-year officer should ultimately be given his job back.

Cruz, a schizophrenic, had fallen asleep at a bus stop on East Seventh Street while waiting for a ride home. Someone saw him there and, thinking he was ill, called EMS. Griffin, on patrol that night, was directed to meet medics at the bus stop but was asked not to wake Cruz until they arrived. Griffin disregarded that directive and, without identifying himself as a police officer, poked and prodded Cruz with his nightstick until Cruz woke, confused. As the groggy Cruz tried to pull away from Griffin, Griffin began beating Cruz, striking him repeatedly with his baton and fists, in an altercation that was captured by Griffin's in-car video recorder. Cruz was ultimately arrested for assaulting a police officer, but Travis Co. prosecutors dismissed the charges. They also raised questions about Griffin's actions, prompting the Austin Police Department's Integrity Crimes Unit to begin a criminal inquiry. Griffin was no-billed by a Travis Co. grand jury but was fired from the department last winter by Ellison, who determined that he not only had failed to identify himself as a police officer and had misrepresented the chain of events at the bus stop but also that he'd used excessive force against Cruz.

Arbitrator Hays disagreed with Ellison's conclusion, however, and in a 69-page decision released last week, determined that Griffin should be given his job back. Hays wrote that Griffin's "initial verbal/physical conduct toward Cruz [was] less than professional or judicious – he failed to properly identify himself as an APD police officer, and he acted precipitously in physically forcing Cruz to sit and stand, without any real pressing time constraints, or any knowledge of [Cruz's] actual physical condition." Hays ruled that having "negligently and prematurely embarked on such a questionable course of action the fault for some of the force usage that occurred thereafter must be placed exclusively upon Griffin."

However, Hays concluded that Griffin was not acting with racial bias and only "momentarily" crossed the line into excessive use-of-force – specifically, by delivering an over-the-head baton strike and a series of "ridge chop" hand strikes to Cruz's face. But ultimately, Hays wrote, the department was also culpable for what happened to Cruz: APD's use-of-force policy is woefully inadequate and appears to contradict APD academy use-of-force training. In other words, Hays contends that Griffin's actions while on duty are only going to be as good as his training – and APD's training in this area, Hays opined, leaves something to be desired. While the policy instructs officers to use the least amount of force necessary in any given situation, the academy force training "authorizes and teaches all APD officers to use one level of control above the minimum amount of force necessary to repel the level of resistance he is facing," Hays wrote. In other words, if someone is trying to kick an officer, the officer could be justified in using a baton to repel the attack – akin to the force Griffin used against Cruz.

"Effective control of excessive force usage by police officers necessarily begins with clear policy statements, but then continues with regular practical training and frequent enforcement reminders delivered by all levels of police supervision," Hays wrote. "Regrettably, the preponderant evidence in this record reveals no such level of clarity and repetitiveness as a part of APD's general order or training (retraining) curriculum." (Since being hired in June, APD Chief Art Acevedo has repeatedly said that he believes APD's training programs should be strengthened, and the department is working on a revised use-of-force policy that should take effect in early 2008.)

In sum, Hays concluded that Griffin's punishment should be reduced to a "lengthy" suspension without pay or benefits, which can be considered complete only after Griffin has been cleared to return to service by both "a city designated physician and a qualified psychiatrist" and has completed a "reasonable amount of retraining or sensitivity therapy."

City spokesman Gene Acuña says city officials are considering whether to appeal Hays' ruling, although he would not elaborate concerning the basis for any such appeal other than to say the city feels Hays overstepped his jurisdiction. Under civil-service law, the final judgment of an independent arbitrator is final as to the disciplinary decision – that is, the city cannot file an appeal seeking a direct reversal of Hays' conclusion that Griffin should be allowed back on the force. So presumably, an appeal would make a case that Hays overstepped his bounds by commenting on changes that should be made for training and/or by ruling that specific conditions must be attached to Griffin's rehire.