Richfield takes case of fired police officer to Minnesota appellate court

The city of Richfield and the state's largest police union squared off Thursday at the Minnesota Court of Appeals over the firing of officer Nate Kinsey and the proper handling of police misconduct.

The case is a significant test of Minnesota's decades-old system for using arbitrators to settle the labor disputes of public employees as a faster, cheaper alternative to court battles.

Its use by law enforcement, in particular, has come under scrutiny amid recent controversies involving police misconduct and discipline. Richfield has called the system "broken and flawed," one that keeps problem officers on the street — a position backed by the Minnesota Association of Chiefs of Police.

Still, Richfield is seen as the underdog in the case because Minnesota law offers few reasons that allow courts to overturn arbitration awards. Cities seldom challenge such awards.

Richfield officials fired Kinsey in 2016 after cellphone video of the officer striking a local teenager in the back of the head during a confrontation in a city park was spread widely on the internet. Kinsey did not report the incident, a violation of department rules.

The incident prompted a meeting among Richfield police officials, the family of the young man and Omar Jamal, head of the Somali Human Rights Commission.

In brief oral arguments Thursday morning, a labor attorney for Richfield asked the judges to vacate a lower court's ruling that upheld an arbitration order to give the fired officer his job back. Kinsey had been counseled repeatedly about inadequate report writing and use of force, Marylee Abrams told the panel of three judges.

Forcing Richfield to reinstate Kinsey would violate clear public policies that require cities to safeguard their citizens and require officers to report when they use force, Abrams said. The city didn't even know about the incident until it went viral, Abrams told the judges. Police cannot fulfill their profession's obligation to self-regulate, she argued, if they don't write the required reports documenting use of force.

"This leaves us with a huge risk to the public," Abrams said.

The police union defended arbitrator Charlotte Neigh's 2016 ruling, which was subsequently upheld by Hennepin County District Judge Bridget Sullivan. Neigh reasoned that under the circumstances that evening in Richfield, the level of force Kinsey used "was not excessive or unreasonable." His failure to file a report about it, or inform his supervisor, was a lapse of judgment, she concluded.

Isaac Kaufman, general counsel for Law Enforcement Labor Services, told the judges that Neigh was "squarely within her authority that three days unpaid suspension was adequate punishment."

Whether reinstating Kinsey would violate a clear and dominant public policy — about police conduct and record-keeping, in this case — is the central legal question the court faces.

The judges asked both lawyers multiple questions, including why failing to write a report would violate a clear public policy. They also asked whether, if Kinsey returned to police work and was called to testify in a criminal prosecution, defense attorneys might seize on his problematic report-writing to undermine his credibility.

The Supreme Court has ruled that prosecutors must disclose matters that could impeach the credibility of one of their witnesses, such as any dishonesty. In common legal shorthand, Kinsey has been designated a Brady/Giglio-impaired officer. This designation means that his testimony could viewed to be of marginal value.

Kaufman told the judges Thursday that labeling Kinsey this way was "bogus." It's problematic under due process rules, he said, although he acknowledged that the designation stands and is not something the union can grieve.

Kinsey, 42, of Cottage Grove, attended the hearing but did not address the judges, and exited swiftly afterward. He has not returned to the Richfield force and he is not on administrative leave, since Richfield officially considers him terminated.

Kinsey was not criminally charged. However, the city paid nearly $50,000 to settle claims by Kamal Gelle, the young man Kinsey confronted, that his civil rights were violated.

In an interview after the hearing, Kaufman said a ruling in favor of Richfield would be highly unusual. "The law is stacked heavily in favor of deferring to arbitrators," Kaufman said. "In that sense we are optimistic."

Neigh, the arbitrator whose ruling is at issue, also attended Thursday's hearing. In an interview, she said neutral arbitration is an effective way to resolve disputes quickly. If the appellate court sets a precedent allowing employers to challenge the decisions, it would "wreck" that, she said.

"It's a disservice to the whole system," said Neigh, who has since retired.

Arbitrators are supposed to be the final judge of law and fact, and state law provides only a few instances in which they can be overturned, such as if there was a mistake in the facts presented. There is also a narrow public policy exception.

If the Court of Appeals uses that exception to vacate Kinsey's order, it would be only the second instance in Minnesota since 1993. In a 2001 case involving a Brooklyn Center police officer fired for sexual harassment, the appellate court invoked the public policy exception and ordered a lower court to vacate an arbitrator's order to rehire the officer.

That's the outcome Richfield City Manager Steve Devich is hoping for. Standing outside the courtroom Thursday, Devich said he has a responsibility to protect the public interest.

"If I can't prevent an officer like that from being back on the street, then who can?"

A decision from the appellate panel is expected in the next 90 days.

Jennifer Bjorhus • 612-673-4683