The Ohio Patrolmen's Benevolent Association (O.P.B.A)
I’m sure you recall that Ohio wasn’t the only state that tried to trash collective bargaining rights for public employees. Wisconsin virtually repealed bargaining rights for most of its public employees. And as I write this, the Wisconsin Supreme Court has upheld the 2011 gutting of the Wisconsin law.
I bring this up because this is the last issue of Police Beat before this November’s election. Please remember that it was republicans in Columbus, spurred on by a republican governor, who tried to gut YOUR collective bargaining rights.
Please also remember that it was the same republicans in Columbus who balanced the state budget by throwing city and county budgets into chaos. I am referring to the phasing out of funds the state used to divvy up among the subdivisions and also the elimination of the estate tax. These two measures made it much more difficult for subdivisions to pull out of the recession.
We have seen five (5) years now with nearly flat wage growth and struggling to avoid concessions, and all the while paying more each year for medical insurance.
And we continue to hear that so –called “right to work” legislation is going to be brought up after the elections this fall. This is another republican attack on unions and working people that should more accurately be called “right to work for less.”
All these problems can be traced to a single source – a republican ideology that favors the wealthy and screws over everyone else. The way to solve this is really quite simple – they must be voted out of office. Remember this in November – vote democrat up and down the ticket.
Two Federal Cases Revisited
Two recent federal court cases caught my eye, so, I thought I would share them.
Each of the cases revisits a topic that I have written to you about previously.
First, on July 16, 2014, the Sixth Circuit Court of Appeals, which is the federal appeals court with jurisdiction in the State of Ohio, reversed a case that had been decided in favor of a Sheriff’s Office employee, in southwestern Ohio, concerning an excessive use of force claim in a county jail.
In this case, which is captioned Cordell v. McKinney, Case No. 13-4203 (6th Cir. 2014); an inmate claimed that he was slammed headfirst into a wall while handcuffed, allegedly in violation of the Eighth Amendment to the U.S. Constitution.
After considering the evidence, the United States District Court for the Southern District of Ohio at Dayton had granted summary judgment in favor of the Deputy Sheriff, finding that: 1. The allegations of excessive force were uncorroborated, 2. The deputy was justified in utilizing the level of force that was exerted, and 3. The deputy was entitled to qualified immunity.
The Sixth Circuit Court of Appeals completely reversed the findings of District Court, after finding that some level of force was appropriate because the prisoner tensed up and turned toward the deputy while being escorted.
However, in determining that a genuine issue of material fact existed as to whether the amount of force utilized was excessive, the court stated, “we conclude that a reasonable jury could find that Deputy McKinney lacked a good-faith reason to use Cordell as a human battering ram.” The Court based its decision on the severity of the prisoner’s injuries, the threat that the deputy actually faced, in light of the fact that the inmate’s hands were cuffed behind his back and the deputy had him in a submission hold and that the court found no evidence that the deputy made any effort to moderate the level of force that he used.
After reviewing the entire case, however, in my opinion, the case turned on the fact that the inmate was restrained at the time the use of force occurred.
This is illustrated by the Sixth Circuit, at p. 15 of the Opinion, where it states:
We have held in the past that “striking a neutralized suspect who is secured by handcuffs is objectively unreasonable.” Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010); see also Burgess v. Fischer, 735 F.3d 462, 474-75 (6th Cir. 2013). While Cordell admitted turning toward Deputy McKinney, presenting a slightly different factual situation, we doubt that slamming a handcuffed and controlled prisoner headfirst into a concrete wall comports with human decency. See Burgess, 735 F.2d at 474-75 (citing Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988)).
As such, it continues to be extremely important to carefully consider the level of force necessary to subdue a subject that is already restrained, as the Sixth Circuit continues to carefully scrutinize these types of cases.
Secondly, on March 26, 2014, the United States, Supreme Court, in U.S. v. Castleman, 134 S Ct. 1405 (2014), considered the issue of what constitutes “the use of physical force” adequate to result in a misdemeanor crime of domestic violence sufficient to trigger the lifetime ban on possession of firearms contained in 18. U.S.C. §922(g)(9).
The case examined the statute’s definition of misdemeanor crime of domestic violence, to wit:
“an offense that… (i) is a misdemeanor under Federal, State or Tribal law; and (ii) has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person that is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.”
However, the case turned specifically on the meaning of the phrase “the use . . . of physical force,” in the statute.
The trial court had previously held that the defendant’s conviction did not trigger the federal firearms disability on the theory that the use of physical force, for §922(g)(9) purposes, must entail “violent contact with the victim.”
On appeal, the Sixth Circuit affirmed, but, on other grounds. It held that the degree of physical force required is the same as that which occurs in the statutory definition of “violent felony,” which requires “violent force.” Therefore, it found that the defendant’s conviction did not qualify as a misdemeanor crime of domestic violence for the purpose of the federal firearms ban.
The United States Supreme Court reversed by indicating that Section 922(g)(9)’s “physical force” requirement is satisfied “by the degree of force that supports a common-law battery conviction – namely, offensive touching.” Id. at Syllabus.
Thus, the court found, that defendant’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child qualified as a misdemeanor crime of domestic violence sufficient to trigger the firearm ban in the federal statute.
The potential impact of this case cannot be understated for anyone that is required to carry a firearm within the scope of his or her employment.
As always, if you have any questions about these or other issues that may impact your livelihood, please do not hesitate to contact your OPBA representative.
The SERB Wage Increase Breakdown
The economic news we are hearing every day has been much better than what we were hearing during 2009. The economy is still growing in the USA, but not real fast. Finally, the predictions of a healthy economy are almost here! Healthy economies tend to provide healthy wage increases.
There are many who have been living in fear that the economy is heading into another recession due to the economy slowing down. Some point to the housing market as a disappointment. Others complain that the new jobs are mostly service industry and don’t pay enough. Still others say that there are still too many under employed, those working part-time that want full-time.
All are true to one degree or another. Most of the jobs have been in the service sector, but not all of them. In fact Ohio has been improving in manufacturing and business jobs for quite a while. Further, the people that may have given up on job hunting for a while are starting to come back into the job market with some success.
However, the economy in Ohio is doing better than most of the US and the rest of the world. At this time the unemployment rate is down to 5.5%, which is about a half point lower than the US as a whole. The State has a budget surplus of a couple of billion dollars. They have pretty much taken everything from the local governments that they could, so there is only an upside left. The demand for specialized workers is still high enough that people are moving to the State to find jobs and are indeed finding them.
The various branches of the government are generally improving economically. While there are few jurisdictions that are still hurting, most are hiring. Some are still not replacing those who retire at the local level, but the State is hiring more then enough to offset that.
The State Employment Relations Board (SERB) has released the wage settlement report for 2013. The economic mess really hit around the last quarter of the 2009. The negative impact from recession hit the public sector twelve to eighteen months after. The impact to wage increases was plain to see. That was by far the worst average wage increase ever recorded by the SERB.
The State wide average increase in wages for 2011 was 0.57%. In 2006 it was 3.01%. - The average wage increase has decreased every year since then. The range over the ten years of the survey was 0.57% in 2011 up to 3.59% in 2002. Since 2011 the wage increases have been going up. In 2012 they were one (1%) percent and 2013 they were almost one and a half (1.47%) percent. From what I’m seeing at the table, the trend of increasing wages is continuing.
The Cincinnati region had the largest decrease in wage rate increase in 2011, from the following year of 0.71%, down to 0.49%. The lowest regional increase award goes to Cincinnati again for 2013 at one point twelve (1.12%) percent. They are the only one of the regions that saw their rate of wage go down from the last wage survey. Bad time to be in the south west section of Ohio!
Southeast Ohio had the largest wage rate in 2013 at one point nine (1.90%).. That was the highest increase in wage rates as well. However the largest increase from 2012 was in the Akron/Canton area. They increased by almost three quarters of a percent (0.74%).
Counties were the jurisdiction that had the highest increase in rate of wage increase over 2013. They had the highest percent for the second year in a row. School Districts came in the largest increase from 2012 with a point six three (0,63%) percent increase over last year.
Police and Fire tied for the largest increase in unit type with one point six one (1.61%) percent. Fire did better than any other unit six out of the last ten years. The teachers found themselves on the bottom of the pack again. They increased their percent wage increase by an average of one and a quarter (1.23%).
This is a reminder that the next general membership meeting is scheduled for Thursday, October 2,2014 at the Perrysburg Police Department training room.
We would like to thank Chief Dan Paez, who is allowing us to hold the meeting in the training room once again this year. The Perryburg Police Department is located at 330 Walnut Street, Perrysburg, OH 43551. As usual , this meeting will begin at 7:30 pm
Hope to see you Thursday October 2, 2014 at 7:30 pm
Thomas Austin, Executive Director
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