Shawn Vestal: Cop who kicked handcuffed suspect stays fired – over Spokane Police Guild’s strenuous objections

Good news: Former Spokane Police Officer Kristofer Henderson, who kicked a handcuffed suspect in the genitals while he was being held by two officers, will stay fired.

That’s the ruling of an arbitrator, which is unfortunately what matters most when it comes to police discipline. Holding a cop accountable for misconduct takes more than a chief who is willing to make the right call, as Chief Craig Meidl did in firing Henderson in May 2020. That discipline also has to survive the maze-like system of binding arbitration in which police unions have extraordinary success in undoing disciplinary actions.

Fired officers, in other words, often don’t stay fired. Police unions grieve the firings, and arbitrators overturn them. City and county governments, faced with expensive legal battles, have incentives to rehire bad cops rather than stick to their guns.

It’s a longstanding problem, and it’s especially acute in labor-friendly Washington.

That’s why it’s heartening, if a little surprising, that Henderson will stay fired.

In an opinion issued in January, arbitrator James A. Lundberg rejected Henderson’s bid to overturn his dismissal.

“In this situation, the misconduct was so egregious that imposition of a disciplinary sanction less than discharge would be unreasonable,” Lundberg concluded.

Henderson’s firing stemmed from the chaotic, contentious arrest of a reckless driving suspect in July 2019. The suspect had fled his vehicle and gone into a residence, refusing to come out. Henderson and his partner were called to back up the officers on the scene, and by the time they arrived the suspect had emerged, though he continued to act resistant toward officers.

The other officers shortly placed him facedown on the ground, cuffed his hands behind his back and lifted him to his feet.

Two officers were holding him by the arms, another stood behind him, and Henderson and his partner were nearby as well at the point when Henderson kicked him in the genitals and cursed at him.

A prosecutor said the kick appeared retaliatory and without legitimate purpose, and said Henderson later told conflicting stories about what happened. The only reason he wasn’t charged with assault was the suspect didn’t want to pursue the matter. Meidl fired Henderson for violating five department policies, including inappropriate use of force, conduct unbecoming and providing misleading or false statements.

Henderson appealed the firing. On his behalf, the Spokane Police Guild argued, absurdly, that the kick was “objectively reasonable given the totality of the circumstances” and that the many officers surrounding and holding the handcuffed man were in danger when Henderson assaulted him.

The Guild also argued that the suspect had kicked another officer before Henderson kicked him – a phantom kick that was not captured on any of the six body cameras and not seen by any of the six officers present, according to the arbitrator.

In fact, such was the evidence against the Guild’s version of events that Lundberg resorted to all-caps and bold type to emphasize the point: “THE HANDCUFFED SUSPECT WAS NOT KICKING ANYONE IMMEDIATELY PRIOR TO THE KICK BY THE GRIEVANT!”

So the grievant, Henderson, stays fired, to the benefit of Spokane.

Our system has not always meted out such appropriate consequences for police misconduct. (Recall the slap on the hand delivered by Meidl to Officer Dan Lesser, the officer who hoisted a police dog into a car to attack a surrendering suspect, while screaming, “I’m going to f——— kill you!” over and over again.)

And yet at a moment when police accountability and criminal justice reform are on the run – and politicized calls to “back the blue” no matter what are on the rise – it’s good to see the system work.

What a tortured, ineffective system it is, though. It would seem that the incredible power we grant to cops should come with an incredible level of accountability and responsibility – with very high standards of behavior and comportment.

Instead, the system seems meant chiefly to protect officers from consequences. Instead of applying extraordinarily high standards, it is extraordinarily difficult to enforce standards.

A law professor at Loyola University Chicago analyzed a database of 624 arbitration awards from around the country between 2006 and 2020, and found that more than half the time – 52% of cases – arbiters overturned the discipline implemented by the officers’ departments.

In 46% of cases, arbiters ordered departments to rehire the officers, wrote the author, Stephen Rushin, in his paper, which was published in 2020 in the Vanderbilt Law Review.

“Frequently, arbitrators found the original discipline to be excessive relative to the offense committed or relative to punishments received by other officers,” Rushin wrote. “In a somewhat smaller number of cases, arbitrators cited insufficient evidence or procedural flaws in the investigation or adjudication of the original internal disciplinary process.”

In the real world, the Henderson case would not be a close call. And yet our local officers union thinks it was fine. Reasonable, even. Henderson himself fought his punishment like he was the one being unfairly kicked.

It’s good that this fired cop will stay fired. But it’s troubling that the organization that represented him – and the other front-line officers in our police department – believes that what he did was OK.

It makes you wonder what else they find similarly reasonable.