Heard: December 5, 2016.
action commenced in the Superior Court Department on July 22,
2013. The case was heard by Dennis J. Curran, J.
Supreme Judicial Court granted an application for direct
Hodge (Geoffrey R. Bok also present) for the plaintiff.
H. Shapiro (John M. Becker also present) for the defendant.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
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 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.
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,
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 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
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.
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 legal parking space, he heard
Fils-Aime say, "I am a federal agent and you are
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."
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 from the middle of Hanover Street, where he was
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.
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.
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
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 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.
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,  and
untruthfulness during the IAD interview, in violation of rule
102, § 23. 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
union filed a grievance, contending that the city lacked just
cause to terminate Williams. 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 ...