Worcester Arbitration Award - Rawlston.2009

NEW ENGLAND POLICE BENEVOLENT ASSOCIATION
LOCAL 911
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CITY OF WORCESTER, MASSACHUSETTS
Arbitration: Termination of David F. Rawlston
AWARD OF ARBITRATOR
That there was not just cause for the termination of Police
Officer David Rawlston. That termination is revoked, and he will
be reinstated with full back pay and benefits, less any and all
outside earnings and/ or unemployment compensation.
I retain jurisdiction in this case over issues concerning
computation or implementation of this Award.
ard G. Higgins
Arbitrator
DATED: July 17, 2009

LOCAL 911
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INDEX
Item Page
THE ISSUE 1
RELEVANT CONTRACTUAL PROVISIONS 2
RELEVANT POLICE DEPARTMENT POLICIES 4
WORCESTER POLICE DEPARTMENT RULES AND REGULATIONS 8
PRIVACY CONSIDERATIONS 9
THE DISPUTE 10
POSITIONS OF THE PARTIES 58
Position of the City ;. 58
Position of the Union 65
DISCUSSION 71
AWARD 90
ii
LOCAL 911
-and-
Hearings were held in the above-referenced case on August 25, October

20, November 25, 2008; March 12 and March 13, 2009. A post-hearing brief
was submitted by each party.
Appearances for Parties: Peter J. Perroni, Esq.

Gary G. Nolan, Esq.
For the Union
, Esq.
For the City
THE ISSUE
At the initial arbitration hearing, I placed the following statement in the

record:
Arbitrator: On the record, please. Prior to going on the record, the

Union offered the issue whether the City violated the applicable collective
bargaining agreement by terminating Officer David Rawlston without just cause.
If so, what shall the remedy be?
And the City offered whether the City violated M.G.L. Chapter 31 by
discharging David Rawlston. Neither party accepted the other's version and have
granted this-both parties have granted this arbitrator the right to frame an
issue after the hearing is completed.
(Tr., p. 3)
Pursuant to the authority granted me by the parties, and in accordance
with Article 14, Sections 1 and 6, I am satisfied that the following Issue is
appropriate:
Was there just cause for the termination of Police Officer David
Rawlston?
If not, what shall be the remedy?
RELEVANT CONTRACTUAL PROVISIONS
ARTICLE 12
GRIEVANCE-ARBITRATION PROCEDURE
Section One. For purposes of this Agreement, the term "grievance" shall
be defined to be any actual dispute between the parties hereto concerning the
interpretation, application or enforcement of the terms of this Agreement
(including appendices hereto) and any portions of the Revised Ordinances of the
City of Worcester, 1986, which are attached to this Agreement and are
specifically incorporated herein by reference. The foregoing, notwithstanding,
any dispute subject to the jurisdiction of the Civil Service Commission (with the
exception of those matters to which an election is made under Article 14,
Section 6) or any Retirement board, or any matter which is or has been filed
before any administrative agency referred to by Article 11 of this Agreement,
shall not be subject to grievance/arbitration hereunder. Furthermore, unless by
mutual written agreement of the parties, disputes arising prior to execution of
the Agreement shall not be subject to grievance/arbitration hereunder.
***-J..'***
Section Four. As soon as practicable following the effective date of this

Agreement, the City and the Union shall agree upon the selection of a
permanently appointed impartial arbitrator. The impartial arbitrator shall be
appointed for a one year term, July 1 through June 30 of the following year. The
impartial arbitrator may be removed, however, by written agreement of the
parties upon thirty calendar days notice. The fees and expenses of the arbitrator
shall be borne equally by the parties to any arbitration. In the event that said
impartial arbitrator shall be unable to serve, a successor impartial arbitrator
shall be selected by mutual agreement of the parties, or if such agreement
cannot be reached, an impartial arbitrator shall be selected from panels of
arbitrators provided by the American Arbitration Association. The arbitration
hearing shall be conducted in accordance with rules and procedures mutually
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agreed upon by the parties, or if no such agreement is reached, in accordance
with the Voluntary Labor Arbitration Rules of the American Arbitration
Association. The decision of the impartial arbitrator shall be final and binding
upon the City and the Union, provided, however, that the arbitrator shall be
without power to alter, amend, add to or subtract from the provisions of this
Agreement, or the rules and regulations of the City and the Charter, Ordinances
and statutes concerning the City, as they are party of this Agreement. The
arbitrator shall interpret only such cases and determine such issues as may be
submitted to him by the written agreement of the parties.
The arbitrator shall make no ward for grievances initiated prior to the
effective date of this Article. Grievances may be settled without precedent at any
stage of the grievance procedure until issuance of a final award by the
arbitrator.
*******
ARTICLE 14
INTERNAL AFFAIRS INVESTIGATIONS
Section 1: No permanent member of the bargaining unit shall be

removed, dismissed, discharged, suspended, reprimanded or disciplined except
for just cause. Shift transfers will not be utilized as a disciplinary measure
without the express written consent of the employee affected thereby. It is
understood that nothing in this Article will restrict the Chief of Police from
making non-disciplinary transfers in accordance with the provisions of Article 3.
*******
Section 6: Permanent employees of the bargaining unit who have

been suspended, dismissed, removed or terminated may, with the consent of the
Union, select under G.L. c. 150E and Article 12 of this Agreement, to process
such appeals by means of Article 13 rather than G.L. c. 31, ss. 41-45. Notice of
such election shall be given by the Union to the City Manager, or his designee,
within ten (10) days of receipt of notice of such disciplinary action by the
employee. Any such election timely made shall be binding upon the Union and
the employee. The Union shall also notify the impartial arbitrator of any such
election in accordance with the provisions of Article 12, Section Three.
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RELEVANT POLICE DEPARTMENT POLICIES
POLICY NO. 205-CODE OF ETHICS

(CITY EXHIBIT 15)
As a Law Enforcement Officer, my fundamental duty is to serve the

community; to safeguard lives and property; to protect the innocent against
deception, the weak against oppression or intimidation and the peaceful against
violence or disorder; and to respect the constitutional rights of all to liberty,
equality and justice.
I will keep my private life unsullied as an example to all and will behave
in a manner that does not bring discredit to me or to my agency. I will maintain
courageous calm in the face of danger, scorn, or ridicule; develop self-restraint;
and be constantly mindful of the welfare of others. Honest in thought and deed
in both my personal and official life, I will be exemplary in obeying the laws of
the land and the regulations of my department. Whatever I see or hear of a
confidential nature or that is confided to me in my official capacity will be kept
ever secret unless revelation is necessary in the performance of my duty.
I will never act officious or permit personal feelings, prejudices, political

beliefs, aspirations, animosities or friendships to influence my decisions. With
no compromise for crime and with relentless prosecution of criminals, I will
enforce the law courteously and appropriately without fear or favor, malice or ill
will, never employing unnecessary force or violence and never accepting
gratuities.
*******
POLICY NO. 400-USE OF FORCE

(CITY EXHIBIT 16)
GENERAL CONSIDERATIONS GUIDELINES
Because of his law enforcement and peacekeeping role, a police officer

will be required at times to resort to the use of physical force to enable him to
fUlly carry out his responsibilities. Police officers are confronted continually with
situations requiring or resulting in the use of various degrees of force to effect a
lawful arrest, to ensure public safety, or to protect himself or others from harm.
The degree of force used is dependent upon the facts surrounding the situation
the officer faces. Only a reasonable and necessary amount of force may be used.
The degree of force the officer is forced to use is dependent upon the amount of
resistance or threat to safety the situation produces.
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The objective of the use of force is to maintain and/or reestablish control
over a situation. Control is reached when a person complies with the officer's
directions and/or the suspect is restrained or apprehended and no longer
presents a threat to the officer or another. Since an officer will encounter a wide
range of behaviors, the officer must be prepared to utilize a range of force
options that are reasonable and necessary to maintain and/ or reestablish
control by overcoming resistance to the officer's lawful authority while
minimizing injuries.
Because there are an unlimited number of possibilities, allowing for a

wide variety of circumstances, no written directive can offer definitive answers to
every situation in which the use of force might be appropriate. Rather, this
directive will set certain specific guidelines and provide officers with a concrete
basis on which to utilize sound judgment in making reasonable and prudent
decisions.
* * ** * * *
POLlCY
1. Members of this Department shall use only the force reasonably necessary to
effect lawful objectives and effectively bring an incident under control.
2. Members of this Department may use deadly force only when the officer
reasonably believes that the action is in defense of human life, including the
officer's own life, or in defense of any person in immediate danger of serious
physical injury, or to prevent the escape and effect the arrest of a fleeing
felon whom the officer reasonably believes will pose a significant threat to
human lie should escape occur.
3. In each individual instance, lawful and proper force is restricted to only that
force necessary to control and terminate unlawful resistance and to prevent
any further physical attack against the police officers or any other person.
This would include deadly and/or non-deadly force, with lethal and non-
lethal weapons.
CONTINUUM OF FORCE
The amount and degree of force which may be employed will be

determined by the surrounding circumstances including, but not limited to:
a. The nature of the offense;
b. The behavior of the subject against whom force is to be used;
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c. Actions by third parties who may be present;
d. Physical odds against the officer; and
e. The feasibility or availability of alternative actions.
When an officer determines that the use of force is necessary, he shall, to

the extent possible, utilize the appropriate level of force as determined by the
particular needs of the situation.
The preferred means of using force are set forth below in ascending order
from least severe to the most drastic measures. An officer should exhaust every
reasonable means of employing the minimum amount of force before escalating
to a more severe application of force, except where the officer reasonably believes
that lesser means would not be adequate in a particular situation and the use of
force is necessary to accomplish his lawful objective or to protect himself or
another from serious physical injury or death.
a. Verbalization is defined as verbal persuasion used by the officer in

an attempt to defuse the situation or inform a suspect that he is
under arrest.
b. Physical strength or hand control is the level of force normally

required to overcome passive or defensive resistance that is not
intended as an act of overt aggression toward the officer when an
individual refuses to comply with verbal instructions.
c. Restraint techniques are those techniques an officer feels necessary

to use to effect "Take Down and Control Holds" by using his hands
or police baton.
d. Department approved non-lethal chemical substance when used to

overcome resistance or an assault, or deter riotous or violent
behavior.
e. The department approved police baton, when used as an impact

instrument by the officer to defend himself or another from the
threat of serious physical injury.
f. CNICS Gas Grenades and Projectiles when used in dispersing

violent, riotous crowds or when dealing with armed or dangerous
barricaded subjects.
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g. The use of Deadly Force is the last option within the continuum of
force and is only authorized in accordance with the guidelines in
separate policy dealing with firearms.
PROCEDURES
*******
5. A weapon should not be displayed or brandished as a threat unless its

actual use in the situation would be proper. This does not prohibit an officer
from having a weapon readied when it is anticipated that a weapon may be
required.
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10. After any level of non-deadly force is used, the officer shall immediately
evaluate the need for medical attention or treatment for that person upon
whom the force was used and arrange for such treatment when:
a. That person has a visible injury; or,
b. That person complains of injury or discomfort and requests medical

attention.
*******
POLICY NO. 400.7-FIREARMS GUIDELINES

(CITY EXHIBIT 18)
*******
Drawing or Displaying
An officer shall avoid the unnecessary display of firearms and not draw a
firearm except when there is justification for its use to accomplish a proper
police purpose. However, in responding to any potentially dangerous situation
(e.g., searching a building pursuant to a burglar alarm or approaching a
business establishment on a report of a robbery in progress, etc.) the officer
should carry his firearm in a position that will facilitate its speedy, effective, and
safe use.
******-A-
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WORCESTER POLICE DEPARTMENT RULES AND REGULATIONS
(CITY EXHIBIT 19)
1400.0 REQUIRED CONDUCT
*******
1402.1 Truthfulness
An officer or employee of the Department shall truthfully state facts

in all reports as well as when he appears before or participates in
any judicial, Departmental or other official investigation, hearing,
trial or proceeding. He shall fully cooperate in all phases of such
investigations, hearings, trials and proceedings.
*******
1403.11 MGL Chapter 268 6A Advisory
Officers and employees should be aware that it is illegal for them, in

the course of their official duties, to execute, file or publish any false
written report, minutes or statements, knowing the same to be false
in a material matter. (General Laws, c. 268, sec. 6A.)
*******
1500.0 PROHIBITED CONDUCT
*******
1502.1 Criminal Conduct
Commission of any felony or misdemeanor.
1503.1 Unnecessary Force
Using more physical force than that which is reasonably necessary

to accomplish a proper police objective.
*******
1514.1 Conduct Unbecoming an Officer or Employee
Conducting oneself, on or off duty, in a manner which reflects

discredit upon the officer or employee as a police officer or employee,
or upon his fellow officers or employees, or upon the Police
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Department or any conduct or act which interferes with the
operation, efficiency, or discipline of the Department.
*******
1517.1 Incompetence
Incompetence, which may be demonstrated by, among other things,

the following:
(a) a lack of knowledge of the application of the laws required to be

enforced.
(b) an unwillingness or inability to perform assigned tasks.
(c) failure to conform to work standards established for the officer or

employee's rank, position, office or assignment.
(d) repeated poor evaluations or repeated infractions of these Rules

and Regulations.
1518.1 Careless Use of Weapons
Using or handling any weapon in a careless or imprudent manner or

not using weapons strictly in accordance with Departmental
procedures.
PRIVACY CONSIDERATIONS
On April 7, 2007, three individuals had a set of interactions with Police

Officer David Rawlston. Following those interactions, those three individuals,
accompanied by their parents, lodged complaints with the Worcester Police
Department concerning Officer Rawlston's actions on April 7, 2007. As of that
date, two of those individuals were 15 years old, and one was 14 years old. All
three testified at the arbitration hearing.
As a result of their testimony given at the arbitration hearing, and their

statements given during various investigations of this incident, I will be making
assessments as to the credibility, honesty and truthfulness of those individuals
as well as their statements and testimonies.
I find no purpose which would be served by revealing the identities of

those three individuals in this document. Therefore, throughout this
Arbitration Award, I will refer to those three individuals as "Person A," "Person
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B," or "Person C." I have assigned the letter designation "A" through "c" to the
three individuals involved in the order they testified at the August 25, 2008
arbitration hearing. Thus, the first of those individuals to testify on that date
will be referred to hereafter as "Person A," and the last of the three individuals
to testify on that date will be referred to as "Person C."
I intend to append certain documents to this Arbitration Award as

attachments. Several of those attachments do in fact contain the actual names
of the three individuals involved. I do not know how wide the distribution of
those "attachments" has been within the City; however, I am still persuaded of
the efficacy of declining to give the three individuals' names in this Award. The
parties are free to separate my Award from any attachments, thereby leaving a
document which does not specify the names of the three individuals.
THE DISPUTE
The grievant in this case, David F. Rawlston, began his employment with
the Worcester Police Department in 1994. Prior to that time, he had (following
graduation from high school) served in the United States Navy aboard the
aircraft carrier USS John F. Kennedy. He testified that during that service, the
Kennedy was deployed to the Beirut, Lebanon area in response to the bombing
which killed over 240 U.S. Marines. After his Navy service, Mr. Rawlston was
employed by the Commonwealth of Massachusetts Department of Corrections
for five years as a Correction Officer.
From his first employment with the Worcester Police Department in 1994
until the events at issue in this case occurring in 2007, Mr. Rawlston held the
position of Patrolman.
As of Saturday, April 7, 2007, the day before Easter, Officer Rawlston

was on "Injured on Duty" (hereinafter "IOD") status as the result of an injury to
his elbow which occurred in May 2006. He had undergone two surgeries on
that elbow, the last of which occurred on March 13, 2007. He testified that the
stitches and cast from that surgery were removed on March 26, 2007-
approximately 12 days before the incident at issue in this case.
Rawlston's activities prior to 9:40 p.m. 4/7/07:
Officer Rawlston testified as follows concerning his activities and those of

his wife, Beth Rawlston, just prior to 9:40 p.m. on April 7, 2007:
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About 8 o'clock, my wife put my daughter to bed. About 8:30, she came
back down, we made up my daughter's Easter basket because Easter was the
following day. We hid Easter eggs around the house. And then we went to bed.
About 9 o'clock we went to bed....Approximately 9:40 p.m., the phone rang. My
wife answered the phone. She said to me, "It's the Simokonises across the
street." ...After that, my wife's next statement to me was, "There's three kids in
our backyard."
(Tr., p. 961)
Mrs. Elizabeth (Beth) Rawlston testified as follows:
My husband and I went to bed around 9 o'clock. We received a phone

call about 20 of nine. It was Joanne Simokonis from across the street. I told my
husband, "It's the Simokonises from across the street. Joanne had said that she
and her husband saw three kids go in our driveway in between cars into the
darkness. They'd been in there for a while. She thinks they were in the
backyard." I then told my husband, "There's three kids in the backyard."
(Tr., p. 939)
Mr. Rawlston testified that he got out of bed, pulled on some sweatpants
and a shirt, retrieved his Department-issued weapon from the safe and his
flashlight and, followed by his wife, searched each room of his home for
intruders. He testified that he then told his wife to flick on the external lights
on the side of the house at the same moment he flicked on those covering the
backyard. He described the backyard as completely closed in by fence. He
testified that he flicked the lights on and did not see any intruders.
Events involving Mr. and Mrs. Simokonis prior to 9:40 p.m. 4/7/07:
Mr. John Simokonis testified at the arbitration hearing. He was also

interviewed on April 10, 2007 by Detective Bureau Sergeant Mark Richardson
and on May 21,2007 by Bureau of Professional Standards Sergeants John
Cronin and Michael Kwederis.
Mr. John Simokonis and his wife testified that they live across the street
from Mr. and Mrs. Rawlston. They testified that the Rawlstons had moved to
that street approximately five years before. They testified that they were not
close friends with the Rawlstons, and that the interactions between the two
families consisted primarily of greeting each other when they happened to both
be out performing some type of yard work.
Mrs. Simokonis described Lane as a "... private street...in

certain areas it's only like ten feet wide ...with a lot of potholes.... Quiet country
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road." (Tr., p. 844) She testified that up! Lane from both the
Simokonis and Rawlston homes there is an entrance to Cook Pond, which
other witnesses described as a "gate." Several witnesses, including the
Simokonises, have described the lighting along Lane as intermittent
and relatively dim lighting. Mrs. Simokonis testified further as follows:
Q: So what is your opinion of whether or not kids frequent that area around
this time of year?
A: No. No. And not in the winter at all. There's nowhere to go. I mean, it's
cold. There's nothing up there.
(Tr., p. 846)
According to Mr. Simokonis, he and his wife were returning from Easter
Vigil, which ended at approximately 9:20 p.m. They carne down Rich Street and
as that road approached its intersection with Lane, he noticed that
there was some type of commotion occurring on Lane just south of the
intersection with Rich Street. As they arrived at the intersection, Mr. Simokonis
observed three individuals being confronted by a fourth individual who appeared
to have exited his car, leaving it blocking other vehicles. He testified that he said
to his wife, "Something's going on over there .... Let's go see what happened over
there." (Tr., p. 901) Instead of turning right on Lane to go to their
horne, the Simokonises took a left turn, passing by the scene of the commotion,
and proceeding to the vicinity of Mower Street and then turning around. He
testified that on the first pass by the scene, he noticed the driver of the vehicle
get back into his car, pull it out of the way of traffic, and then "... he jumped back
out of his car wanting to go back to confront the three kids."2
Mrs. Simokonis testified that as they drove by the confrontation heading

south, she said, "It looks like there's a fight." (Tr., p. 848) She testified that
the individual who had jumped out of the car "... was yelling, yelling at these
people." (Tr., p. 848) She testified as they returned past the interaction after
1 Union Exhibit 2 contains a number of copies of a street map of a portion of Worcester showing Lane in the
center of the map running almost vertically in the map to a point where it appears to end in a dead end. The sketch
map does not provide an indication of magnetic north. For purposes of this arbitration, I assume that the map is
oriented with north to the top and south to the bottom. Based on that assumption, Lane appears to run in a
north-south direction from Mower Street to the Cook Pond "gate" and then slightly west of north until it ends in a dead
end. According to this map, there is only one side street which connects with Lane, and that is Rich Street.
There appears to be a narrower-than-normal offshoot from the Lane north of Cook Pond, and that offshoot itself dead
ends after a short distance. This arbitrator will utilize the above north-south assumption later in my analysis.
2 Both Mr. and Mrs. Simokonis made repeated reference during their statements and testimonies to there being "three"
individuals who were being confronted by that fourth individual. I take note of the figure "three" because Person Band
Person C, during their testimonies, stated that they were in fact the people being confronted by that driver on
Lane just south of Rich Street on April 7, 2007. Throughout their statements in this case as well as their
testimonies, however, they assert that at that point they had yet to rendezvous with Person A, who they state they met
at the "gate" just before their interaction with Officer Rawlston.
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turning around, she put the window down and her husband told her to get the
license plate of the car as he drove away. She testified that she was able to
recall the license plate number days later because it included the same digits
as the emergency room number at St. Vincent's Hospital.
Mr. Simokonis testified that as they headed back up Lane after

turning around, they saw the operator of the vehicle drive off and" ... the three
kids kept going down Lane in the direction of my house." (Tr., p. 902)
Mr. Simokonis testified that the distance from that interaction south of
Rich Street to his home on Lane is "... maybe a hundred, hundred
fifty yards." (Tr., p. 902) He was asked whether, as he drove by the three
individuals walking north on Lane, he had "a clear view... " of them.
He responded "Yes." He testified that as he pulled his automobile in behind his
truck in the driveway, "...we got out of the car and I could see the kids walking
up the street. And we went into the house." (Tr., p. 903) He testified that after
he got into the house, he said to his wife, ".. .I'm going to go outside. I just
want to see what's going on with these three kids." He testified that he shut off
his porch lights and went outside "... and the three kids were at the end of my
driveway." (Tr., p. 903) Mr. Simokonis testified that as he was standing
behind his van with the "three kids" at the end of the driveway, there was no
other pedestrian or vehicular traffic, nor any other noise which would interfere
with his hearing what the three persons were saying. He testified that he
looked around the corner of his van and was able to see the three individuals
at the end of his driveway and he heard, "... something to the effect that, Well,
if he touched me, I was going to kick his F'ing ass, and I was going to'-they
were talking about having a fight." (Tr., p. 904)
Mr. Simokonis testified as follows concerning the events after the three
individuals left the area at the end of his driveway:
A. At that point, a car came up the street and I didn't know whether this car
was coming back or what, so I just stayed there and watched. But the car
continued up the street.
And the three kids started walking up the-back up and-the

same direction that they were coming. And they went right into Dave
Rawlston's yard, into his driveway. And all three of them went into the
yard and I couldn't see where-from where I was standing behind my
truck, I saw them go in, but I couldn't see them. So I went to the left
over-almost near the front of my house, and I can see them up the-
figurines up in the back. It's dark, but I can still see, you know-you
know, there's some light, but I can see figurines moving around.
(Tr., p. 905)
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Mr. and Mrs. Simokonis each testified that at this point Mr. Simokonis
came in and asked his wife if she had Dave Rawlston's phone number. She
testified that she looked up the Rawlston's phone number and placed a call to
the Rawlston home. She testified further as follows:
I called Rawlston's number, and the phone rang a couple of times and
somebody answered and said, "Hello?"
And I said, "Dave?"
And the person said, "No. It's Beth."
And I said-just as an aside, I thought to myself, I'm glad she said it

was Beth because I forgot her name because I didn't really know his wife's
name. I used to just say, "Hi, Dave." I said, "Beth, this is Joanne Simokonis
across the street. There are three guys"-let me just explain to you at that
point, I was-I had my portable because I walked into my living room which is
right through my kitchen. I walked into my living room, and my two living
room windows, they don't have any curtains on them, and they are dead nuts
right across from Dave's driveway.
So I'm on the phone, I said, "Beth, John saw three kids going in your
driveway. I'm watching them right now. They are in your driveway between your
cars." I said, "They are in between your car. And I'm watching." I'm telling her,
"They are looking in your cars. They are farther in now. The kid-the guy in the
light colored sweatshirt, I couldn't see him. He had gone in, in. So that meant that
he was either in front of the cars or they are going into your backyard. I don't
know. Throw outside, throw some lights on."
But let me just explain that while I'm talking to her saying this, Dave's in
the background and he's going, "Who is it?" And she's saying, "It's Joanne. She
says there's people in our yard.
And I heard him say something, "What?"
She said, "There's people in your yard. They are between our cars. She's
watching them right now."
(Tr., p. 855-856)
Both Mr. and Mrs. Rawlston were asked whether they had any doubt
about whether the three individuals they saw go down Rawlston's driveway
that evening were the same three individuals who just earlier had been
involved in the incident south of Rich Street. Mrs. Simokonis responded,
"Those are the same three guys... .! saw them." Mr. Simokonis responded,
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"... It's the same-there's no doubt in my mind it's the same individuals." (Tr.,
p.857-906)
Mrs. Simokonis testified as follows concerning the end of her phone

conversation with Mrs. Rawlston:
Q: Okay. Continue please.
A: I'm sorry, where was I?
Q: I think you were on the phone with Beth and Dave was talking in the-
A: I'm sorry. At this time I'm having this conversation I'm telling her, she's
telling him. I said to her, "I think they are starting to come out." And I don't
even remember saying good-bye to her because all I could think of was they
are starting to come out, John's outside. Where's John outside? So I don't
even remember if I hung up the phone or just threw the phone.
And I went outside and I saw them walking up Fort. They were coming
out and they were walking up Fort. I think they were as far as my
brother-in-Iaw's house that was in darkness. He lives next door to Dave on
the same side. They were walking out.
I said to John, "Call the police." And we went-he went-he started across
the street. And I saw the three-I saw their back sides walking up the street.
And-
Q: You say, "their," you mean the three people?
A: The three guys.
Q: Okay.
A: I followed him across the street-
(Tr., p. 857-858)
Mrs. Simokonis testified that as she saw the three individuals walking
away, ".. .1 thought, 'Good. Go away.'" (Tr., p. 858-859) When asked if she was
sure that there were "three" individuals walking away from Officer Rawlston's
home, she testified ".. .1 know there were three." (Tr., p. 859) Mrs. Simokonis
testified further as follows:
Q: All right. Why don't you continue.
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A: Okay. They walked-they started walking up, and they got as far as the
green house that's there now that they were doing construction on. So that
would have been like Rawlston's, my brother-in-law's, and the Sobel's, and it
got as far as the green house, and they stopped. And I don't know-they
stopped for I don't know how long. And they were like-1 guess that they
were talking or doing-they were just stopped.
And then they turned around and started coming back, and the lights came
on at Dave's house. I don't know who came out first, Beth or Dave. John
was on the phone-John was on the phone, I believe, at this juncture, and-
Q: On the phone with the police?
A: Uh-huh (affirmative response). Because I remember saying to him, you

know, "Call the police. Call the police." And I don't know whether Beth
came out first or Dave, but I do remember Dave came out, and he was right
at his door and I had like backed up a little bit into his yard. I think I had
walked backwards into his yard because I saw them coming back down the
street. I had backed up into his yard and he came out.
Q: Let me ask you this. As they are coming back now, is there any doubt in
your mind that it's the same three people?
A: Oh, no. It was the same three ....
(Tr., p. 859-860)
*******
Q: Okay. Go on, please.
A: Okay. Dave Rawlston came out and he looked at me, and he said, "What's
going on?"
I said, "The guys are there."
And he looked at me and he said, "Okay. Don't be nervous. I'm coming

out. I have my"-1 don't know whether he said "I have my weapon" or "my
gun," and I never saw his gun, but he was like-he was like this. I don't
know-
Q: You're holding your left hand behind your back?
A: Yeah. But I don't know which arm it was, left or right. But I know that-1 think
it was this arm. But it was like this.
16
Q: What you're saying is he had one arm behind his back and-
A: Right.
Q: -You didn't see the weapon in the other arm.
A: No, I didn't see the weapon. But he told me he had his gun. And I think
it-l looked like a deer in the headlights, and I look like a deer in the
headlights now because I can just see these people coming back down the
street. They are on the street.
So he came-that's right. He said, "Are those the guys?"
And I said, "Yes."
He said, "Are you sure?"
I said, "Absolutely. Those are the guys."
(Tr., p. 861-862)
Persons A, B, and C Events Prior to 9:30 p.m., 4/7/07:
During their testimonies and in their statements to both the Detective

Bureau and the Bureau of Professional Standards, Persons A, Band C
described their locations just prior to any of them entering Lane on
April 7, 2007. Persons Band C each testified that there were together
"... around Tatnuck Square ... at a bunch of places... Dunkin' Donuts a few times,
I don't know, we were just walking around, pretty much around Tatnuck
Square." (Person B, City Exhibit 12, p. 2)
Person A testified that prior to the events at issue in this case he was at
home having Easter dinner. He testified that he left home to meet a friend
named Max, and he headed toward Friendly's, which is in the general area of
Tatnuck Square as designated by Person B on the street map entered as Union
Exhibit 2C. Person A testified as follows:
Q: So you-if you were going to walk to Tatnuck Square, you'd walk down to
Mower Street?
A: Yeah.
Thus from the map it appears that Person A intended to go from his
home on Olean Street on a generally straight path to the point at which Mower
and Olean join, and continue on that roughly same direct line into the Tatnuck
Square area to meet "Max." According to Person A, he had proceeded
17
southeast on Olean and had arrived in the area where Fernside intersects
Olean when he received a phone call from Max that Max was "... going home .... "
(Tr., p. 40) Person A testified that he then had a telephone conversation with
Person C, who as noted above was with Person B in the Tatnuck Square area.
Person A testified as follows:
Q: And did you tell them you wanted to meet them at the gate?
A: I don't remember. I just remember meeting at the gate. I don't remember

who suggested it.
(Tr., p. 46)
Union Exhibit 2B is the same street map mentioned above but with
handwriting placed thereon by Person A showing his route from the
intersection of Olean Street and Fernside to the gate. According to that map,
Person C reversed his direction on Olean Street away from Tatnuck Square and
proceeded north/northwest for a short distance, and then north/northeast
along the edge of Cook Pond and eventually to the area of the gate on
Lane.
The sum total of Person A's testimony concerning events prior to

encountering Officer Rawlston is that he was never with Persons Band C as
they proceeded north on Lane, and only met up with them when they
arrived at the gate. Person A testified that the three of them then proceeded
south on Lane until the point where they encountered Officer
Rawlston.
Person B and Person C:
Person C testified that "... around the afternoon ... " of April 7, 2007, he
smoked marijuana. (Tr., p. 189) When asked if he was with Person B when he
smoked marijuana, Person C responded "I do not remember." (Tr., p. 189)
Person C testified further as follows:
Q: And so the-some point in time you don't know whether you smoked it with
(Person B) or not, but at some point in time you ended up meeting up with
(Person B).
A: Yes.
Q: Do you recall what time that was?
A: I do not.
18
Q: Do you know where you met him?
A: In Tatnuck Square.
(Tr., p. 190)
Person B testified as follows concerning an interaction he and Person C

had with certain individuals on Lane just south of Rich Street prior to
them arriving in the vicinity of Officer Rawlston's house. As noted earlier,
Person B and Person C each testified that there were only two of them together
at that point, and they had yet to meet up with Person A. Person B testified:
Q: All right. At some point, sir, did you learn-did one of the officers tell you
that you were accused of two separate break-ins on Ave.?
A: No. I was unaware of that.
Q: So you don't recall having spoken to Sergeant Detective Richardson and

discussing a confrontation you had with another-with a green car down the
street?
A: I don't remember who it was, but I remember that the green car was an issue
at the police station.
Q: Okay. Did you, in fact, have a confrontation with the people in the green car?
A: I'm unsure of what color this car was.
Q: Did you have a confrontation with anyone in a car down the street?
A: Yes. Me and (Person C) were walking down the street, and two people drove
up to us and asked us if we had seen other people breaking into cars. We
said no.
Q: That's it? They didn't have you empty your pockets?
A: I don't remember completely.
Q: You don't remember completely. Do you have difficulty remembering?
A: Sometimes.
(Tr., p. 112-113)
Person C testified as follows concerning the interaction which occurred

on Lane just south of Rich Street:
19
Q: Okay. And at any point in time when you were walking up did
any-did anybody stop you and get out of their car and accuse you of
breaking into their car?
A: Yes, they did.
Q: Okay. Tell me about that incident.
A: A couple kids sped up, slammed on the breaks, hopped out the car and
basically what you said, accused us of breaking into their car. And the thing
is, though, they had told us they were missing stuff. We emptied our
pockets, showed them that we didn't have whatever they were looking for,
and we also told them there were other kids out that night.
Q: Okay. So these two guys got out of their car-they stopped their car in the
middle of the street?
A: Yes.
Q: And is it fair to say that that event happened right around Rich Street?
A: Maybe right before it, yeah.
Q: Right before Rich Street on as you're walking up?
A: I believe so, yes.

(Tr., p. 198-199)
Persons Band C each testified that after the interaction they had just
south of Rich Street on Lane, they continued north on Lane
to meet Person A at the gate. Person B testified as follows concerning his
involvement with Officer Rawlston's property as they passed his house heading
north on Lane. He testified:
Q: No. Were you were in his (Officer Rawlston's) yard?
A: We were just walking down the street. We weren't like purposely walking in
anyone's yard, but it's possible we might have taken a couple steps on
somebody's yard messing around. I'm really unsure.
Q: Okay. You don't know if you were in his yard or not?
A: If you were to ask me was I in his yard, I would say no.

(Tr., p. 141-142)
20
During his interview with Sgt. Cronin, Person B stated as follows on the
question of whether he entered Officer Rawlston's property:
Q 1: Okay. Had you been on this man's (Officer Rawlston's) property at all?
A: Oh, we were messing around like through a few people's yards maybe, but
we weren't anything wrong, anything that should ever, anything like that.
Q1: What do you mean, in people's yards?
A: Like I might have pushed (Person C) into someone's yard just messing
around, but we weren't near his cars or anything like he said he (sic) was.
Q 1: Any other, just this, this yard, or was it other yards, or?
A: I didn't, I honestly couldn't remember any yards going in, but I'm saying
it's possible that it could have happened, but we weren't, definitely...
Q1: Well, how far in toward a person's yard would you have ...
A: It had to have only been two or three feet, tops.
Q 1: All right. Are there any sidewalks there?
A: No, you just pretty much walk in the street. It was late at night. There
was no cars.
Q1: So how far into urn, this man's property did you go?
A: I would, I don't even know if we did go on his property, but I would have to
say no more than three feet, because I wasn't venturing out into his yard
at all, no.
(City Exhibit 12, p. 3-4)
At the arbitration hearing, Person B testified further as follows

concerning his involvement with Officer Rawlston's property as he headed
north on Lane:
Q: All right. So in your estimation, the basketball net's about 20 feet away. Are
you aware that (Person C) told the Detective Bureau that you were spinning
around the basketball hoop (on Officer Rawlston's property)?
A: That I was spinning around the basketball hoop?
21
Q: Yeah.
A: I'm unaware of that.
Q: Is that incorrect?
A: I did not spin around the basketball hoop, so, yes, that would be incorrect.
Q: So if he said that, that would be incorrect.
A: Correct.
Q: Because in your memory, you weren't in there at all.
A: Correct. My recollection of what happened.

(Tr., p. 158-159)
On April 11, 2007, four days after the incident at issue in this case,
Person B was interviewed by Sgt. Mark Richardson of the Detective Bureau.
During that interview, Person B stated:
Q: Earlier I asked you if (Person A) was really with you when you walked up
Lane, and you insisted that he wasn't. But if! told you that the two
guys who jumped out of the car and accused you of breaking into their car
said that (Person A) was with you, what would be your response?
A: I'm not really sure if he was there or not.

(Union Exhibit 1, p. 35)
At the arbitration hearing on August 25, 2008, Person B was asked a

series of questions on cross-examination concerning that April 11, 2007
interview with Detective Bureau Sgt. Richardson. He testified at the arbitration
hearing as follows:
Q: All right. Do you recall going in there-it looks like Sergeant Richardson is
asking you some follow-up questions about last Saturday night?
A: Yes.
Q: Do you recall that?
A: Yes.
Q: This is your second interview with the folks in the Detective Bureau.
A: Correct.
22
Q: All right. Now, if you could just skip to 35. You see that? I'm going to go
down to the fourth Q-the fourth question from the bottom, if you count four
up.
Take a look at that. This is a question from Sergeant Detective Richardson. It

says, "Earlier I asked you if (Person A) was really with you when you walked
up Lane. And you insist that he wasn't. But if I told you that the
two guys who jumped out of the car and accused you of breaking into their
car said Person A was with you, what would your response be?"
What's your answer there?
A: My answer as of now or the answer that-
Q: The answer yoU gave on April 11 th,
A: "I'm not sure if he was there or not."
Q: You told Sergeant Richardson, "I'm not really sure if he was there or not."
Correct?
A: Correct.
Q: Okay. And that was, what, four days after this incident happened, correct?
A: Correct.
Q: All right. And as you sit here today, you're saying you are sure he was there.
A: Yes. Person A was not with us when we were there.
Q: Okay. So what you told the detective is incorrect?
A: All I can really say is I can only tell-say what happened to the best of my
recollection as of right now.
Q: As of right now.
A: Yes.
Q: Is it fair to say that on April 11, four or five days after this incident
happened, your memory was fresher as it was closer to the events in time?
Would you agree with that?
A: Yes.
(Tr., p. 150-152)
23
During his interview with Detective Bureau Sgt. Thomas Radula, Person
C made the following statements:
Q: In your previous statement on 4-9-07, you said you were in the driveway at
Lane. (Officer Rawlston's home) Were you near any car or
cars parked in the driveway?
A: There were two cars in the driveway. We were about five feet away from the
cars. There was a basketball hoop set up half between the cars and the end
of the driveway. (Person B) was spinning around on the pole of the
basketball hoop. (Person A) wasn't with us. He was still at Cook's Pond.
Neither of us touched the cars.
Q: How close were the cars parked to the house?
A: The cars were close to the side of the house. About ten feet away from the
house.
*******
Q: Did either you or (Person B) enter a green car parked in front of 2

Lane?
A: No.
Q: Prior to your confrontation with the officer, were you confronted by anyone
driving a green car on Lane near Rich Street?
A: Nope.
(Union Exhibit 1, p. 28-29)
At the August 25, 2008 arbitration hearing, Person C testified as follows:
Q: So your testimony to the-or your statement to the Detective Bureau that

"(Person B) was spinning around on the pole of the basketball hoop in the
driveway at Lane."
A: I do not remember that.
Q: Let me ask you two questions. Are you saying you don't remember seeing
(Person B) spinning around on the pole as you sit here today?
A: I can't visualize it. Yes, that's what I'm saying.
Q: Are you denying that you said that to the Detective Bureau?
24
A: No, I'm not.
(Tr., p. 208-209)
At the arbitration hearing, Person C was referred to his statement

given to the Detective Bureau and his denial that he had been confronted
on April 7, 2007 by someone "... driving a green car on Lane near
Rich Street." (Tr., p. 203) He was also referred to his earlier testimony
given that day at the arbitration hearing where he acknowledged such a
confrontation. He testified further on point as follows:
Q: And it's fair to say you didn't tell the detectives about that confrontation that
you just told me about, correct?
A: I did after the papers were put away.
Q: Okay. Explain that to me.
A: I had remembered-because when they asked the story right after, it's
hard-I was thinking too much. And I remembered that it wasn't a green
car, that's why it didn't click right when they asked me. It was a gray car.
Q: So it's your recollection that when the detective asked you about this, you
finish your statement, everybody packs up, and you're kind of getting ready
to leave-or you're not on the recording anymore, that's when you told the
detective?
A: Yes.
Q: And so you told the detective that you'd had this confrontation?
A: With a car. But it was not a green car, yes.
*******
Q: And how about Sgt. Cronin? Did you tell him that you'd had this
confrontation?
A: I do not remember.
(Tr., p. 203-205)
Events at 2 Lane Prior to 9:30 p.m. on 4/7/07:
Union Exhibit 1 is the report of the investigation of these events

conducted by the Detective Bureau. At page 37 of 45 in that report, Sgt. Mark
Richardson presents a "narrative" wherein he summarizes each of the
interviews conducted during the investigation. Page 40 of Union Exhibit 1
25
contains Sgt. Richardson's summaries of five individuals whose statements
related to the "confrontation" which occurred in front of 28 Lane. As
has been noted above, Persons Band C acknowledge being involved in that
confrontation, but both deny that Person A was with them. The interview
summaries from page 40 of Union Exhibit 1 are presented below, rearranged
into chronological sequence of the events described:
KATHRYN RUDY
12. On Tuesday, April 10, 2007 at 1650 hours, John Simokonis contacted me
(Sgt. Richardson) by phone. He advised me that he had observed the car
with the 6205VS plate from Saturday's incident at Rich Street and
Lane. He observed the car parked at 2 Lane. He stated that he
talked to residents there and discovered that the three kids that were
involved with Officer Rawlston had been observed breaking into Kathryn
Rudy's car on Saturday night. The observation was apparently made by
Kathryn Rudy's second floor neighbor. I responded to 2 Lane and
spoke with Ms. Rudy. She confirmed this information. She further stated
that her boyfriend, Mason Bergeron, and his friend, Habib Sultan, had
encountered the three kids down the street after the incident. She stated
that the witness to the original break into the car was a second floor resident
named Dan, a Becker College student, who was not currently home.
DANIEL BRIAND INTERVIEW
16. On Wednesday, April 11, 2007, at approximately 1045 hours, Daniel Briand
of 2 lane was interviewed by Sgt. Tomas Radula. Mr. Briand
described what he observed from the second floor front porch of his house
that night:
'Briand stated his downstair neighbor's car, a green Dodge, was parked in
front of 2 Lane, facing Mower St. Briand stated he observed the 3
white juvenile males stop in front of the address. One of the males
approached the motor vehicle and opened the driver's door, entered the
vehicle, and began going through it. Because this male entered the car so
easily, Briand stated he wasn't sure if it wasn't his downstair neighbor,
Mason Bergeron. Briand stated the vehicle is Bergeron's girlfriend's car.
However, Briand stated once this male exited the vehicle approximately 30
seconds later, he recognized that it was not Mason Bergeron. Brian(d) stated
all 3 males then "briskly walked away down Lane." Briand stated
he immediately went inside his apartment and called Mason on his cell
phone.'
26
MASON BERGERON INTERVIEW
15. On Wednesday, April 11, 2007 at approximately 1045 hours, I interviewed

Mason Bergeron of 2 Lane about the encounter with the three kids
at Rich Street and Lane. He confirmed that his neighbor, Dan, told
him that some kids were in his car on Saturday night. Mr. Bergeron went
outside and could observe that it was apparent someone had gone through
the property in the console of the car. He also confirmed encountering the
three kids down the street within two to three minutes of the incident. The
kids denied being in the car. One of them was smoking a blunt (marijuana),
he said. Mr. Bergeron stated that he did tell them to empty their pockets,
but he can't be sure if they took everything out of their pockets. In any case,
he did not observe any property that belonged to him. Mr. Bergeron stated
there was no evidence of forced entry to the car, but the car is usually
locked.
HABIB SULTAN
13. On Tuesday, April 10, 2007 at 1910 hours, I interviewed Habib Sultan. He
confirmed that he and Mason Bergeron went to look for the three suspects,
following the phone call that his friend, Mason Bergeron, had received from a
neighbor. He described how Mason had questioned the kids, and how they
denied having gone into the car. They also apparently emptied their pockets
after Mason asked them to, and no property from Mason's car was found.
Mason warned them to remain away from his car, and then he and Habib
left the area.
JOHN DERVISHAN
11. As a result of a secondary canvass of the Rich Street and Lane

area on Tuesday, April 10,2007, I spoke with John Dervishan of 28
Lane. He corroborated Mr. Simokonis's account of the confrontation
between two males in a car and three males on foot, which happened
directly in front of his house. Additionally, Mr. Dervishan related how he
heard one of the two males in the car asking the others, "Who was fucking
with my car?" Mr. Dervishan watched the parties leave the area, with the
three kids walking up Lane toward Cook's Pond.
*******
27
Interaction between Officer Rawlston and Persons A, B, and C on 4/7/07:
As noted just above, Mrs. Simokonis described her actions and reactions
prior to Officer Rawlston leaving his property to confront Persons A, Band C.
She testified:
A: No, I didn't see the weapon. But he told me he had his gun. And I think
it-I looked like a deer in the headlights, and I look like a deer in the
headlights now because I can just see these people coming back down the
street. They are on the street.
So he came-that's right. He said, "Are those the guys?"
And I said, "Yes."
He said, "Are you sure?"
I said, "Absolutely. Those are the guys."
He came out his driveway and he went up the middle of the road and I'm not
sure that the first-the very first thing he said was "Worcester Police." But-
because I couldn't swear that's what the first thing out of his mouth was,
but I know he said, "What are you doing here? What were you doing in my
yard?" And I couldn't hear the guys. And then he said-I don't know what
they were saying, but he said, "I am a Worcester Police. Worcester Police."
Q: You're putting emphasis on the "am"?
A: Yeah. And he was loud and-I can't say scream, but so loud like, "I am a
Worcester Police." And it was like-and he was yelling the whole time. I
mean, the whole time. He was using this loud, loud, loud voice. And he said,
"What were you doing in my yard? What are you doing here?" And they said
something. And he said, "Don't tell me that. My neighbors told me you were
in my yard." And he said-I couldn't hear what they said back. And he said,
"You were in my yard. My neighbors told me you were in my yard. Stop right
there." And I think he said, "Get down on the ground."
(Tr., p. 861-863)
Mrs. Simokonis testified to her reaction to Hearing Officer Rawlston

informing Persons A, Band C that it was the Simokonises who informed him
that Persons A, Band C were in his yard:
A: No. It was "What were you doing in my yard? My neighbors said they saw
you in my yard. My neighbors told me you were in my yard." And at that
point all I could think of was oh, great, "my neighbors" are going to be shot.
28
My neighbors are going to get somebody to come back at them and they are
going to find out and they are going to be-you know.
(Tr., p. 865-866)
Testimony of Mr. Simokonis:
Mr. Simokonis testified as follows concerning the initial stages of the

interaction between Officer Rawlston and Persons A, Band C:
Q: Okay. What happened next?
A: And then the lights-Dave's house was in complete darkness, and the lights
came on. And I met Beth, his wife, in the driveway. And then Dave came
out. And I said to Dave, I says, "Those three kids I think were trying to break
into your car."
And he said to me, "Are you sure-" I started calling the police, and I got-1 was
on my cell phone, and I guess I went to the State Police first and I got
transferred over and I didn't know if I had a good connection or what, but I'm
talking to Dave and I'm talking to the police at the same time.
And Dave's walking up the street. He goes, "Are you sure those are the same
three kids?"
I said, "Yes, those are the three kids that were just in your yard."
And Dave went up and confronted them about-it was about two houses-
about two houses up. They started to walk back down like they
were coming back at us, coming the opposite way like they were coming back
towards Dave's house.
Q: At this point now you see them walk, turn around. Any doubt in your mind
it's the same three individuals?
A: No.
Q: All right. What happened at that point?
A: At that point the kids were coming down and they were spread apart and
Dave identified himself as a police officer and started asking-you know,
yelling "What are doing here? What's going on? What are you doing in my
yard?" And he said something about, "I am a police officer." Maybe one of
the kids probably-they thought this guy was kidding.
Q: Did you have any problem hearing Officer Rawlston?
29
A: No. No. I mean, he was-he was loud. I mean, he-I guess, you know, taking
control of the situation. He scared the kids, I don't know. But he was loud,
asking the kids, you know, "What are you doing up here? What are you
doing in my yard? Where are you from?" Asking them, you know, where
they lived, this, that, and every other thing.
(Tr., p. 910-912)
Mrs. Rawlston testified as follows concerning the initial stages of the

interaction between Officer Rawlston and Persons A, Band C:
Q: What happened at that point?
A: My husband pointed to the three people walking away. He said, those people
right there?"
And John said, "Yes."
My husband said, "Are you sure?"
He said, "Yes. I never lost sight of them."
Q: Okay. Go on.
A: At that point I looked back up the street. Three people were stopped in the
middle of the street. I couldn't see what they were doing. And then they
started walking back towards our house.
Q: And are these the same three people you saw walking up?
A: Yes.
Q: Okay. Go ahead.
A: At that point, my husband started walking towards them. As they got closer
together, I could hear my husband say, "What were you doing on my
property?" Three people still walking towards him and then they started to
fan out. And a few seconds later I heard my husband say, "Worcester Police.
Put your hands where I could see them."
Q: How far were the three individuals from your husband when they fanned
out?
A: I would say probably about 20 or 30 feet.
Q: And when they fanned out, that's when he said, "Worcester Police"?
30
A: Yes.
Q: Okay. What happened next?
A: They continued to walk towards my husband. A few seconds later I heard

him say again, "Worcester Police. Get to your knees, put your hands on your
head." Eventually the three individuals went to the ground.
(Tr., p. 942-943)
Testimony/Report of Officer Rawlston:
City Exhibit 9 is a July 13, 2007 report submitted by Officer Rawlston

pursuant to a request for the report from Chief Gemme. In that request, the
Chief included a series of 44 questions which Officer Rawlston addressed
following the statement quoted below. After reviewing the statement and Officer
Rawlston's testimony, I am satisfied that the statement represents information
comparable to his testimony, and therefore I have chosen to present his version
of events by quoting that July 13, 2007 report in its entirety, except for the
answers to Chief Gemme's questions. I am satisfied that the answers are
essentially restatements of other information provided in the quoted portion of
the report. That report states:
I am submitting this report per your order on June 18, 2007 and I respectfully
assert my rights under the U.S). Constitution under the 5 th amendment Carney v City
of Springfield and Garrity v New Jersey.
On April 7 th 2007 at approximately 2140 hours, I was awoken by a phone

call which was answered by my wife. She relayed to me that it was the
neighbors from across the street and that there were three kids in our back
yard. At that time I got up, put on a pair of sweat pants, sweat shirt and
retrieved my departmental firearm and a flashlight and I headed downstairs with
my wife following me. I did not know as I headed down the stairs if these kids
were in my house or not. I did not turn on any lights until I walked through the
house. I did not discover any intruders in my house. I walked into the kitchen
with my wife and then turned the outside deck light on and exited the house
onto the deck. I did not see anybody in my backyard but saw my neighbors John
and Joanne Simokonis walking towards my house into my driveway.
I met the Simokonis's in my driveway and John Simokonis stated to me

"those three kids were just walking between your cars into the darkness and we
could not see what they were doing so we called you, and we also called the
police." John Simokonis while making this statement to me was pointing a
couple houses up the street at what appeared to be three people standing in the
31
middle of the street. I asked John Simokonis if he was sure that those were the
same three people and he stated "yes, I did not lose sight of them."
At that time I observed the three suspects walking back towards my

house. For the safety of my wife and the Simokonis's I walked towards the
suspects and met them halfway, approximately two houses away from my house.
As I approached the suspects I held my firearm behind my back, hidden from the
three suspects, still walking towards them with my flashlight shinning on the
suspects. I asked them what they were doing on my property. At that time the
suspects who were still walking towards me started to spread out. I attempted to
shine my flashlight on all three of the suspects but could only illuminate one at a
time because of the distance they put between themselves while they were still
approaching me. Based on my training and experience I felt that this was a threat
to my safety and at that time I identified myself as a Worcester Police Officer and
ordered them to there knees and put their hands on their heads. At the same time
I pointed my departmental firearm in the direction of the suspects, again ordering
them to get to their knees and put their hands on their heads.
All three suspects got to their knees but did not comply with my
commands to put their hands on their heads. I again identified myself as a
Worcester Police Officer and ordered them to put their hands on their heads. Not
one of the suspects kept his hands on his head and at no time were there more
than one of them with their hands on their head at the same time.
While giving these commands to the suspects I had started to walk to the
side of the suspects and after non-compliance with my several commands I then
forced the first suspect to the ground telling him to get on his stomach and put
his hands where I can see them. At that time my flashlight that was in my left
hand slipped out of my hand and dropped to the ground. At that time I stepped
towards the second suspect and also forced him to the ground telling him to get
on his stomach and put his hands where I can see them. The third suspect
complied and went to his stomach. I then began to search the first suspect for
weapons, I found no weapons and then searched the second suspect. I again
found no weapons and went to search the third suspect. While searching the
third suspect I came across a hard object in his pocket and retrieved it. It was a
cell phone. I put the cell phone on the ground and continued my search when
the third suspect turned and reached back with his left hand for something, at
that time I pushed the suspect back to his stomach telling him to get back on
his stomach and put his hands out in front of him. At that time unintentionally
struck him in the back of the head with the barrel of my gun when I forced him
back onto his stomach. At that time I stood up and waited for the police to
arrive.
32
While waiting for the police to arrive I asked the three suspects what they
were doing on my property, they denied being on my property but one of the
suspects stated "we were cutting through to get to the beach." You cannot get to
any beach by cutting through my property.
Within minutes two marked cruisers arrived. I told the officers that my
neighbor saw these suspects walking in between my cars and towards my
backyard. I also told them that I have not been back to my house to check if my
cars were broken into. At that time the two officers identified the three suspects
as (Persons A, B & C). The officers did record checks on the three suspects and
then let them go At that time I returned to my house.
When I arrived at my house my neighbors and wife were still standing in

the driveway. At that time John Simokonis told me exactly what he saw. The
day after my interview with the detective bureau I was at home and I lifted the
blinds to the window next to my front door and discovered the screen was
pushed in and it appeared to me that someone tried to gain entry to my home by
forcing the window open. I reported this to the investigating detectives but
because there were no witnesses they were unable to file charges against any of
the three suspects for that crime.
It was later discovered that prior to trespassing on my property and

trying to break into my house, these suspects were involved in breaking into a
motor vehicle at the beginning of Lane. Again charges could not be
filed because they could not prove which one of the suspects broke into the
vehicle. I cannot recall the names of the two Officers that responded to the scene
on the above date and time.
Statement/Testimony of Person A:
On Monday, April 9, Person A gave a statement to Sgt. John Cronin of

the Bureau of Professional Standards. That statement was submitted at the
arbitration hearing as City Exhibit 11. It states in pertinent part:
Q: Right. We're here to discuss an incident that occurred on Lane

Saturday night at approximately quarter of ten in the evening. It involved
yourself, (Person A), and two other boys that were with you. Can you tell us
what happened that night?
A: I left....we had Easter dinner Saturday night and I left the house around 9:15
to go meet up with a buddy at Friend1y's-Max , but he left like right as
soon as I left so I called and (Person C) and asked where they were and
they were out near Honey Farms and they told me to meet them at the gate on
33
that goes towards Cooks Ponds cause it would be quicker to meet
them there. So I walked through Cooks Pond and met up with them and when
I met up with them we started walking down toward Fort and we saw a guy-a
man-like it was dark out and he was wearing sweatpants and a sweatshirt,
and he came out and he pointed a gun at us and told us-he said what the
fuck do you kids think your doing? Get on your fucking knees, put your
hands behind your head and we got on our knees and put our hands behind
our heads like he said, and he came over to us and he grabbed all of our-he
grabbed (Person B's) pockets and then he came to me because I was in the
middle and grabbed by pockets and then he grabbed (Person C's) pockets and
asked if we had weapons on us or any tools for breaking into cars or houses or
anything and he said that would getus in trouble, and then he said you're
lucky that I don't know whose coming and I called the cops or I'd take you
kids in the woods and beat the fucking shit out of you. If I see you kids
around my property again I'll blow your fucking heads off, and then he told us
to lay down and he went back over towards (Person B) and checked his
pockets again and struck-he hit (Person B) in the back of the head with his
gun and then came over towards me and did the same to me and hit me in the
left side my-of the back of my head and then said did that hurt, and I said
yes and he said well that better fucking hurt and then he went over towards
(Person C) and did the same and hit (Person C) in the back of the head and
then (Person C) said what did we do and said that there were other kids up on
the street. How does he know that it was us? And he said-he just asked
what did we do and the guy kicked him in like his ribs on the right side and
said I'll ask the fucking questions and he just kept saying-kept telling us. He
had must have told us at least five times that if he sees us around there again
or he's lucky that-we're lucky that he didn't blow our fucking heads off and
stufflike that, and then the police officers came there and they came out and
they took all our information and talked to the guy and I-after they took-
they took (Person C's) information and they took in, and as they were taking
down all my information I asked if the man had a right to hit-hit us in the
back of the heads with the gun and kick (Person C) in the ribs and tell us he
was going to kill us and stuff and I told them that-that he said all that and
did all that and all the police officer said was-well I have a young baby at
home and a wife, and if! saw three able men on my property I'd be pretty
pissed off too, and he didn't question the guy at all about the weapon or didn't
question him if that really happened and then took down all the rest of the
information and just told us to get up and said you guys are all set. Get out
of here and then we left and then the cops drove past us after and then they
went towards TECHNIQUE Square and on to Cumberland Farms.
34
Person A testified as follows concerning the question of whether and how
Officer Rawlston struck any of the three individuals:
Q: (By Arbitrator) ... So as of the time that you first went down prone on your
stomach, had the officer hit any of the three of you?
THE WITNESS: No.

(Tr., p. 57)
.;..******
Q: Now, it's fair to say that when Officer-did you see Officer Rawlston hit
(Person B)?
A: I don't remember. I know he did. I don't remember if I saw it.
Q: You don't remember seeing it one way or the other?
A: I think I saw it. I don't-I'm not sure.
Q: But as you sit here today, you don't have a memory of seeing it?
A: No. I have a memory of seeing (Person C) get hit and kicked, but-
Q: So you don't know one way or the other now based upon your-what you see
in your head, whether or not Officer Rawlston hit (Person B), correct?
A: I don't know. I guess not.
Q: Once you got on the ground, did Officer Rawlston walk around behind you?
A: He went up behind (Person B) and searched him, and then came up behind
me and searched me and hit me, and then went behind (Person C) and
searched him and then went on the side and kicked him (Person C) right
here.
Q: Okay which foot did he kick him with?
A: I don't remember.
(Tr., p. 64-65)
***0)..-***
35
Q: To your recollection, did Officer Rawlston walk up in front of (Person B) while
he was standing up and make contact with the side of his head?
A: I don't know if he was standing up. I just know he walked up and pointed
the gun at us, and we got on the ground.
Q: You got on the ground. So you don't remember Officer Rawlston walking up
to (Person B) and hitting him while he was standing up, correct?
A: Correct.
(Tr., p. 67-68)
Statement/Testimony of Person B:
City Exhibit 12 is an April 9, 2007 statement given by Person B to

Sgt. Cronin of the Bureau of Professional Standards. In that document,
Person B stated in pertinent part:
Q1:All right, could you tell us what occurred that evening?
A: Yeah. Me and my friend (Person C) were walking down to meet our

friend (Person A), who was coming from Cook's Pond, which is right off of
Fort. So we met him and when we walked back, all this happened, and
the first thing I saw was that guy's gun in my face and he was telling me he
was going to blow my f-ing head off and he was saying, he was saying he was
threatening me. He was threatening my life. He hit me in the head with the
gun. Made me get on, made me get on the ground, lay down, put my hands
on my head. Did the same thing to Person A, same thing to Person C, hit
them all with the gun, and we were all on the ground just laying there
waiting for the cops to come. So about 10 minutes later, two cop cars pull
up. They weren't even really asking any questions. They just came up to us
and talked to us and took our names, took our addresses down and then
just said that we could leave. And then we left.
(City Exhibit 12, p. 1)
*******
Q1: Was he, he was pointing a gun?
A: He was pointing a gun right in my face.
Q 1: Did he have anything else-did the gun touch you?
A: Yeah, it hit me in the head when he pistol whipped me onto the ground.
36
Ql: Any other time did the gun touch you?
A: No. But it was close to my head a few times.

*******
Ql: ... 0kay. Uh, did he (Officer Rawlston) identify himself to you?
A: He said Worcester Police Department at one point, but he never identified

himself as an officer at all. He was in regular clothes. I was very scared,
initially. I had no idea who he was. No idea.
Person B testified as follows concerning his allegations on how all three

individuals were struck by Officer Rawlston. He testified:
Q: And you got hit with the butt of the gun. Is that your testimony?
A: I'm not a hundred percent sure on what part.
Q: But you agree that you told the officers it was the butt of the gun?
A: Yes.
Q: And he hit you with such force that it caused you to do down on the ground.
A: Yes.
Q: And then as you were on the ground he saw him hit the other gentleman in
the same fashion.
A: Yes. My recollection of what happened.
Q: And that's what you told Sgt. Cronin, correct?
A: I believe so.
*******
Q: So you're standing up, and Officer Rawlston hits you with enough force to
knock you on to the ground with his gun when he hits you in the right
temple. And then your testimony is that you looked up and saw him
knock-who was next?
A: (Person A) was next.
37
Q: So he hits (Person A) in the head.
A: Yes.
Q: With enough force to knock (Person A) to the ground?
A: I'm not a hundred percent certain how Person A was feeling at that time.
But-
Q: But in any event, after he knocked him in the head, (Person A) went down?
A: Correct.
Q: And then he-then (Person C) was last?
A: Correct.
Q: So now he knocks (Person C) in the head with the gun and then it forced
(Person C) down to the ground?
A: Correct.
k******
Q: And at the time, despite having been hit that hard in the temple, you had no
injuries, correct?
A: 1 had injuries. No visible like-I wasn't bleeding or anything.
Q: You had no visible injuries.
A: Correct.
(Tr., p. 121-123)
*******
Q: Okay. Where were you going when you were going to Fort?
A: When I was walking down Fort, I was going to meet (Person A) at the
gate that goes into Cook's Pond.
Q: Why were you meeting him there?
A: We were going to hang out.
Q: Where?
38
A: Tatnuck Square.
(Tr., p. 127)
*******
Q; You were going to meet (Person A) at the gate and then go back to Tatnuck
Square.
A; Yes.
(Tr. p. 128)
*******
Q; All right. So you and (Person C) walked from Pleasant Street down Mower
Street and then you went down Fort.
A: Yes.
Q: Okay. Where were you when you spoke with Person A?
A; The first time I spoke to (Person A)?
Q; Yeah. You made-at some point you made plans to meet (Person A)?
A; Oh, that might not even have been the same day that I made plans to meet
(Person A) that day. But the first time I met (Person A) was right where the A
is.
Q; Okay. So you recall having planned at some other time you were going to
meet him by the gate?
A; It could have been the same day, it could have been the day before that. I don't
completely recall when I made plans with (Person A) that night or even if it was
that night.
Q: How did it come that you came to meet him at the gate?
A: That's just where-he cuts through Cook's to go down to Tatnuck Square.

It's a common place where we would meet him.
(Tr., p. 130-131)
Q: I think you told Sergeant. Cronin that when Rawlston approached you, he
pistol whipped you down to the ground, correct?
39
A: Correct.
Q: And that was while you were standing up and forced you down onto your
belly basically.
A: Correct.
Q: All right. And I think you told Sgt. Cronin that he hit you before he ever
even said, "Get down."
A: It was just all one big motion. I saw the gun, and then I was hit onto the
ground and was being threatened.
Q: Okay. That's it. Right? You didn't go-he didn't come up to you and say,
"Get down;" then you got on your knees; and as you were waiting on your
knees he hit you.
A: Correct. That did not happen.

(Tr., p. 160-161)
Q: If-you said earlier you saw the other two boys get hit in a similar manner as
you from the feet, hit on the head, forced down to the ground, correct?
A: To my recollection of what happened I saw them both get hit, yes.
Q: All right. If another boy testified that each person was hit while they were
laying flat on their stomach, is that inconsistent with your memory?
A: Yes.
(Tr., p. 167-168)
*******
Q: ... So as of April 9 th , two days later, you don't remember telling the officers
whether or not you were hit with a gun?
A: Correct.
(Tr., p. 172)
Statement/Testimony of Person C:
City Exhibit 13 is the report of an April 9,2007 interview of Person C by

Sgt. Cronin. City Exhibit 13 states in pertinent part:
Q: This is an incident that occurred Saturday evening, uh, the 7 th of April at

approximately quarter of 10 in the evening on TORI FORT Lane. Uh,
40
(Person C) would you tell us what happened that night and everything that
you can remember about the incident?
A: Uh, uh, me and my friend (Person B), we were walking to Cook's Pond to go
meet up with (Person A) and we ...there's no sidewalks and we were like on
the side of the grass kind of. And we walked across someone's driveway and
we were horsing around a little like pushing each other around. And I guess,
uh, a neighbor called and said we were like close to the cars or whatever or
trespassing. And then we met up with (Person A) and on the way back, uh, a
guy put a gun to (Person B's) head and was like you guys were on my
property. And we had no idea what he was talking about and then he hit
(Person B) in the side of the head with the gun and then, uh, forced us to get
on our knees. He did threaten us. He said if the cops weren't coming he'd
take us into the woods and kick our asses he said. And, uh, he searched us
while we were lying on the ground and hit all of us in the back of the head.
And, uh, I asked who he was and where he lived because I didn't know what
he was talking about and then that's when he kicked me in the ribs. And
then we waited for the cops to come.
*******
Q: Did he say he was a police officer?
A: My friends said that they heard it, but I don't recall that.
*******
Q: When did they say that that they both heard him say...
A: When...when he came up to us.

At the August 25, 2008 hearing, Person C testified in pertinent part as

follows:
Q: And that's the-is that the direction the man came from?
A: He came from the opposite direction. He was walking towards us.
Q: So the opposite direction from you
A: Yes.
Q: All right. Who did he encounter first?
41
A: (Person B)
Q: What happened?
A: He put the gun to his head and said, "Get on the ground."
Q: All right. What happened then?
A: We were a little startled, so we didn't react right away. Then he hit (Person B)
in the side of the head with the gun and said, "Get on the ground."
Q: What happened then?
A: We got on our knees, put our hands behind our head, laid face flat on the
ground. He then searched us-searched (Person B), searched (Person A), hit
(Person A) on the back of the head with a gun, and then searched me and hit
me in the back of the head with a gun.
Q: During this time did he say anything to you?
A: He did tell us that the cops were coming. And he said, "You're lucky the cops
are coming or else I'd drag all three of you into the woods and beat the shit
out of you."
Q: Did he make any other threats toward you?
A: Yes. He said that we're lucky he didn't actually see us on his property or
there would be a bullet in all three of our heads.
Q: All right. What happened then?
A: We remained on the ground-well, after he hit me in the head with a gun,

I asked him who he was and what he was talking about because we had
no idea why he was doing that. And then he kicked me in the side of the
ribs.
Q: Okay. Did he search you?
A: Yes, he did.
Q: And did he find anything on you?
A: A cell phone, that's it.
Q: Did you make any threatening moves or gestures?
42
A: Not at all.
Q: Okay. Now did this man identify himself as a Worcester Police while he was
brining you to the ground and so forth?
A: The only time I heard him identify himself as a police officer is when he was
talking to the other police.
(Tr., p. 181-183)
Q: It's fair to say you smoked some marijuana that day, correct?
A: Yes, it is.
Q: What time did you smoke the marijuana?
A: I'd say around the afternoon.
Q: Sometime in the afternoon?
A: Yeah.
Q: Were you with (Person B) when you smoked it?
A: I do not remember.
(Tr., p. 189)
In his April 9, statement to Sgt. Cronin, Person C addressed the question

of alcohol and/ or marijuana use as follows:
Q: All right. Um, had you been drinking that night?
A: No.
Q: Had you smoked any marijuana or anything?
A: No.
During his cross-examination, Person C was questioned about his denial

of marijuana use during his interview with Sgt. Cronin. He testified as follows:
Q: So you weren't truthful with Sgt. Cronin when he asked you that, right?
A: Yes.
(Tr., p. 225)
43
On re-direct examination, Person C testified as follows:
Q: Okay. Well, the question is-at the time the question was, "All right. Had
you been drinking that night?"
A: No.
Q: And you hadn't been drinking that night.
A: No.
Q: "Had you used marijuana that night?"
A: Not that night, no.
Q: Okay. So strictly speaking, was this a truthful answer at that time?
A: Yes, it is a truthful answer.

(Tr., p. 249)
In his statements given on April 11, 2007 to Sgt. Radula of the Detective
Bureau, Person C stated as follows:
Q: When the police officer approached you on Lane, which direction

were you, (Person B) and (Person A) walking?
A: Towards Tatnuck Sq. The Mower St. end of Lane.
Q: What direction was the officer walking?
A: He was walking at us from the other end of Lane, from his house
at Lane.
Q: Not the woods?
A: No, I don't know.

Responding Officer's Report:
Police Officer Michael Hanlon, identified on the transcript of Dispatch

tapes as "Oscar 18," was designated by the Dispatcher as the primary
responding officer. He testified that he responded to that dispatch call by
proceeding to the area of 38 Lane.
44
City Exhibit 14 is a report signed by Officer Hanlon dated April 9, 2007-
two days after the events in question in this case. City Exhibit 14 states:
On 4-7-06 at approximately 2200 hrs, I was dispatched to 38

Lane for a report of three males trespassing on the property of an off-duty police
officer. Upon approaching, I observed three males laid out on the ground in front
of the drive way at 38 Lane. The off duty Worcester police officer
identified himself as Officer Dave Rawlston. He informed me that he had been at
home with his wife and children when he observed 3 males lurking about his
property. He stated that the males were looking into his windows and looking in
the windows of his car in the driveway. Fearing that the males were attempting
to break into his vehicle, Officer Rawlston stated that he approached the males
and ordered them to the ground. At the time, Mr. Rawlston was in possession of
a firearm which he is authorized to carry.
One of the males stated to me that he had been struck on the back of the
head by Officer Rawlston, but did not complain that he was injured. I did not
observe any injuries to the male. After a was done on the three
individuals, I allowed them to leave the area, informing them not to loiter on the
property of others or look in people's windows.
(City Exhibit 14-emphasis added)
City Exhibit 14 also contains a report filed by Officer Hanlon dated

4/ 12/07 responding to a "Request for Report" from Chief Gemme dated
April 11, 2007, containing 26 specific questions concerning the
incident of April 7, 2007. That document contained the following
responses:
*******
9. Mr. Rawlston stated that he observed the three males lurking in his yard.
He stated that they had been looking in his windows and were in his
driveway looking into his vehicle. He stated that he believed they may be
attempting to break into his vehicle.
10. At no point did Officer Rawlston state that he held the individuals at
gunpoint.
*******
13. In interviewing the group, (Person C) stated that he had been struck in the
head by Officer Rawlston. (Person C) did not complain of any injuries, and
I did not observe any sign of injury to (Person C).
45
*******
15. No. (Person A) did not complain that he had been injured or struck by
Officer Rawlston.
16. To my recollection, (Person C) stated that he had been struck in the back of
the head by Mr. Rawlston. He did not complain of any injury, nor did I observe
any injuries. (Person C) did not state that he had been hit with an object or a
firearm.
17. (Person B) did not complain of any injuries or of being struck by Officer
Rawlston.
*******
24. I did not interview any other persons at the scene.
* ******
(City Exhibit 14)
Officer Hanlon testified at the arbitration hearing that the reports he

submitted represented his best memory at the time of what occurred during his
response to the April 7, 2007 dispatch to Lane. On cross-
examination, he stated it was "possible" that he somehow misunderstood
Officer Rawlston on the question of how Officer Rawlston learned that there
were persons in his yard. On re-direct examination, he testified that the
reports did in fact represent his memory of what occurred that evening.
Persons A, Band C-After 38 Event:
At the arbitration hearing, Persons A, B, and C testified at some length

concerning events after they were released by the police and allowed to leave
the area. They indicated that at some point after heading towards Tatnuck
Square on Lane, (Person B) realized that he was missing his cell
phone and the group proceeded back towards 38 Lane in an attempt
to retrieve it. (Person B) stated that he called his cell phone number several
times in order to listen for its ring tone as they proceeded up Lane.
He testified that on one of these attempts, a friend who he had been with
earlier that day answered on his cell phone and informed him that he had left it
in that person's car.
The Investigations:
Pursuant to complaints lodged by Persons A, B, and C, as well as their

parents, the Worcester Police Department undertook two separate investigations.
46
Chief Gemme testified that he was notified by Capt. Harrington of Professional
Standards concerning an incident involving three individuals and a police officeL
He testified that he went to Professional Standards and. that Capt. Harrington
"... outlined for me in general terms what he knew regarding three young boys
that were assaulted by a police officeL" (TL, p. 399) Chief Gemme testified that
he "... had an opportunity to personally view the injuries to two of the boys'
heads.'>-(TL, p. 399) He testified that Capt. Harrington recommended to him
that a separate criminal investigation be undertaken by the Detective Bureau.
He testified that he later met with the Deputy Police Chief and Lieutenants Rich
and Gaffney-both of whom were from the Detective Bureau. Chief Gemme
testified that Sergeants within the Detective Bureau would report to one or both
of these Lieutenants.
Detective Bureau Report-Union Exhibit 1:
Chief Gemme testified that "... During the conversation that I had with
the deputy and the lieutenants, ... they were told to proceed with a criminal
investigation. They were also advised by policy that they weren't to make any
recommendations or conclusions, that we would meet regularly through the
investigation, and when the investigation was concluded, that we would
present the facts to the district attorney if we felt that there was potential for
criminal charges." (TL, p. 401-402)
Chief Gemme testified that he met" ... on a regular basis with both the
detectives that were supervising the investigation, Lieutenant Rich particularly,
and meeting on a regular basis with Captain Harrington to be brought up-to-
date on this investigation as well as other ongoing investigations." (TL, p. 402)
The "policy" referred to by Chief Gemme as controlling the question of

whether the Detective Bureau investigation should include conclusions is
Policy No. 500 entitled "Internal Affairs Investigation" submitted at the hearing
as City Exhibit 22. Under the heading, "Types of Investigations... " at
paragraph C, "Criminal Investigations," it states in part that "... No
recommendation shall be made to the Chief as to whether criminal charges
should or should not be sought. Any recommendations and all conclusions
drawn from the investigation will be determined only after consultation
between the Chief, the appropriate Deputy Chief, and the appropriate Unit
Commander, not the investigating lieutenant or sergeant." (City Exhibit 22)
At the November 25, 2008 arbitration hearing, Detective Bureau

Lieutenant Robert Rich testified as follows concerning the Chiefs instructions
that no conclusions were to be drawn by the investigating lieutenants and/ or
sergeants:
47
A: Well, when the initial indication was made that the Chief didn't want us to
do any conclusions, we argued the case that this is an investigation that we
always do this, we always do the investigation, put everything together, and
come up with a conclusion.
A: Well, as we neared the end, both Lieutenant Gaffney and I who had been at
all the meetings with the Chief were of the belief that the Chief had
acquiesced to our argument that we always do these investigations, you've
had your best investigators, the people who always do your homicides and
everything else, they do investigations in one manner and that's how they
always did them. And we didn't think that there was a purpose in not
coming to a conclusion.
Q: Okay. And is it your opinion that the people charged with investigating this
case were the City's best investigators?
A: Yes, sir.
Q: All right. And you said that you believed that Chief Gemme had acquiesced,
accepted your arguments to do things in the way you've always done them?
A: Yes.
Q: And why do you believe he acquiesced to that?
A: It was just the conversations that we had during the meetings.
Q: Okay. At some point did you learn that there was perhaps a different opinion
held by the Chief?
A: Yes.
Q: And when did you learn that?
A: In December.
Q: December of-
A: 2007.
(Tr., p. 770-771)
Detective Mark Richardson, who was assigned to the Detective Bureau as

of April 2007, testified that the Detective Bureau was aware that the Bureau of
Professional Standards was conducting a separate investigation. He stated,
48
"... but we were also told that it was completely independent of ours and we had
no discussion with anybody about their investigation." (Tr., p. 565)
With respect to Policy No. 500, Sgt. Richardson stated that he "...wasn't
aware of..." that policy. (Tr, p. 608) He testified that he learned of the
existence of Policy No. 500 and its prohibition against drawing "conclusions" in
August 2008, just prior to the initial arbitration hearing. He testified further as
follows concerning standard practice within the Detective Bureau:
Q: Okay. And had you conducted criminal investigations of other individuals

and stated your conclusion as to whether there was probable cause or not?
A: Yes.
Q: Okay. And is that something you did routinely?
A: Yes.
Q: And had you conducted criminal investigations of law enforcement officers?
A: I might not have.
(Tr., p. 619)
The portion of the Detective Bureau report which Chief Gemme found to
be in violation of Policy No. 500 is contained at pages 43, 44 and 45 of Union
Exhibit 1. That section states:
CASE STATUS: NO PROBABLE CAUSE; CASE CLOSED
21. a. Based upon all the information available at this time, it appears that
Officer Rawlston had reason to believe that the three subjects he stopped
that night were involved in criminal activity. Officer Rawlston's actions were
based on statements made to him by his neighbors, Mr. and Mrs. Simokonis,
who indicated that they believed the suspects were involved in attempting to
commit a break-as far as Officer Rawlston understood it at the time,
possibly to his home. It would also appear reasonable that Officer Rawlston
would arm himself with his service weapon and a flashlight, especially in
light of the fact that he was told there were several suspects of an unknown
age and description. Additionally, Officer Rawlston was recuperating from
surgery to his right arm, having had a pin removed recently, and thereby
limiting mobility in this arm. Based upon the information that was made
available to Officer Rawlston at that time, it would appear to be reasonable
for him to make a stop of the three suspects, who had been positively
identified by Mr. Simokonis, and keep them detained until the arrival of on-
49
duty police officers. It also appears that it was reasonable for Officer
Rawlston to have them lie on the ground, where they would be less of a
threat to him and in a position from which they would be less likely to flee.
b. The best physical evidence available to us, the injuries to the heads of
(Person A) and (Person C), as well as the absence of any observable injury to
(Person B)'s head approximately forty-eight hours after the incident, are
more consistent with Officer Rawlston's statement that one of the three
subjects was not struck-(Person B). The superficial abrasions / contusions
to the heads of (Person C) and (Person A) are more consistent with Officer
Rawlston's attempts to contain the suspects on the ground, prior to the
arrival of the police. Having armed himself with a gun, and having nowhere
to put the gun when his hands were needed to force the suspects to comply
with his verbal instructions, Officer Rawlston appears to have been credible
when he stated that the barrel of the gun did strike at least one of the
suspects when he tried to force them to comply. As noted above, (Person C)
admitted to removing his hands from behind his head and reaching into his
pants pockets to show that he had nothing in them, a movement
understandably seen as a potential threat to an officer in that situation.
Under the circumstances, it appears that Officer Rawlston used only that
degree of force that was necessary to ensure his safety, and to keep the
suspects detained until the arrival of on-duty police officers.
c. Also, as noted above, (Person C)'s description of how he was kicked ("He
kicked me. Not full force. Not like he was kicking a field goal. Walking force,
like he was taking a step. The tip of his foot went under my body 1 was
struck in the ribs by the middle of his foot, not his toes.") is not consistent
with the kind of kick that a reasonable person would associate with an
assault and battery with a dangerous weapon allegation, but more the kind
of force, whether incidental or intentional, that an officer might use to
maintain control over a non-compliant suspect. This interpretation is, in
part, corroborated by the lack of any physical bruising to the rib section of
(Person C).
d. When judging the credibility of the complainants versus that of

Officer Rawlston, the investigation reveals many inconsistencies in the
accounts of the three complainants, whether about the incident
involving Officer Rawlston or about events leading up to that incident.
The statements provided by Mr. Briand, Mr. Bergeron and Mr. Sultan,
confirmed what Mr. Simokonis initially suspected-that the three
subjects may be engaged in criminal activity. None of the witnesses who
observed the incident, or part thereof, observed Officer Rawlston
assaulting the suspects in any way, or even acting out of control. As
50
Mrs. Simokonis stated, he appeared to be "very professional" and in his
"police lnode."
e. Based on these facts, the undersigned believes there is no probable

cause to support the allegations of assault and battery with a dangerous
weapon, either handgun or shod foot. It appears that Office Rawlston used
only the degree of force that was necessary to get the suspects to comply
with his reasonable and justifiable commands. We recommend that the case
be closed, allegations unsupported, pending any additional information that
may become available.
(Union Exhibit 1, p. 43-44)
Bureau of Professional Standards Report:
City Exhibit 7 is an August 14, 2007 report from Sgt. John J. Cronin, Jr.
of the Bureau of Professional Standards concerning the incident on 4/7/07
involving Officer Rawlston. The report contained interviews with Persons A, B
and C conducted on April 9, 2007, and an interview of Mr. Simokonis
conducted on May 22,2007.
Sgt. Cronin's Professional Standards report contains, at page 15, a

paragraph entitled, "SUMMARY," which states:
SUMMARY
On Saturday April 7, 2007 at approximately 2145 hours three boys, ages

14 and 15 had been walking on Lane, a street on which they have
walked numerous times in the past, and were in the vicinity of the gate that
leads to Cooks Pond and the beach, a teenage gathering place in the Tatnuck
Square area that has existed for decades. As the boys began walking toward
Officer David Rawlston's property, and were approximately two houses away in
the middle of the dark and dimly lit street, Officer David Rawlston, who was off
duty, being carried in an lOD status, and in possession of his departmental
firearm, approached the three boys and stopped them. Officer Rawlston who is
taller and heavier than the teenage boys, pointed his firearm at the boys,
ordered them to the ground and searched them. According to his report he was
stopping them for criminal activity, and at that very moment he stopped them, it
was at most trespassing. He did not stop them in his house, in the curtilage of
his property, or anywhere on or near his property, but rather a couple of
hundred feet away and up the street. Rawlston has alleged that the boys said
they were cutting through his property to get to the beach, but the beach is on
the opposite side of the street, and further down the road. The boys have alleged
that Rawlston hit each of them in the head with the firearm; he threatened to
take them into the woods and shoot them. Rawlston admitted that he
51
"inadvertently" struck one of the boys in the head with his firearm, but was
unable to specify which boy. Two of the boys had visible injuries, and one of the
boys alleged that not only was he hit with Rawlstons' firearm, but he was also
kicked in the ribs, just for questioning Officer Rawlstons' actions. Rawlston
made them lie on the ground at gun point for nearly ten minutes, and when the
two route cars arrived at the scene for what was categorized by the call takers in
communications as a trespassing, they remained on the ground until record
checks were completed. There was no mention by Mr. Simokonis to either Officer
Rawlston or to the responding officers that these boys were allegedly the same
youths that he had seen a few minutes earlier, and who had been stopped at the
other end of Lane and confronted by the owner of a vehicle for a
possible car break, it was only days later that this was brought to light. The
officers did not ask Mr. Simokonis what had transpired; their reports only
indicated that Officer Rawlston had observed the boys looking in the windows of
his car and house, not the fact that it was Mr. Simokonis who observed the boys
in the Rawlston yard, but he did not know what they were doing in Rawlston's
yard because is (sic) was very dark.
Chief Gemme's Findings:
On September 5, 2007, Chief Gemme added a section to the Professional

Standards Report entitled "Chief's Findings." The Chief noted a number of
"... potential administrative violations... " including a possible violation of
Section 1402.1 of the Department's Rules and Regulations regarding
"Truthfulness;" four violations of 1502.1, "Criminal Conduct (A&B D jW) ...."
one involving such conduct with a handgun toward each of Persons A, Band
C; and a fourth 1502.1 allegation involving a "Shod Foot" upon Person C. The
Chief also sustained a violation against 1503.1, "Unnecessary Force;" 1514.1,
"Conduct Unbecoming an Officer or Employee;" a violation of 1517.1,
"Incompetence;" and finally a violation of 1518.1, "Careless Use of Weapons."
Testimony of Sgt. Cronin:
Sgt. Cronin of Professional Standards testified as follows concerning

certain aspects of his investigation:
Q: Were there any major inconsistencies in the accounts that were given by the
boys?
A: Just minor inconsistencies on whether they were standing or kneeling down

when they were struck or lying down.
52
Q: Okay. Why did you feel that was a minor inconsistency?
A: It was a traumatic event, having been confronted by a person with a gun in

the darkness of that street and then having been struck by this person
(Tr., p. 289)
Sgt. Cronin testified that he was aware that Mr. Simokonis placed the
"911" call on April 7,2007. He testified that he interviewed Mr. Simokonis on
May 21. He testified as follows regarding Mrs. Simokonis:
Q: Did you interview Mrs. Simokonis?
A: No, I did not.
Q: Did you become aware that Mrs. Simokonis was a witness to these events in
some respects?
A: Some respect. But after interview Mr. Simokonis, it appeared that she was
most likely in the house for most of the event.
Q: So you didn't want to find out what she saw and what she didn't see?
A: I didn't believe she would have had anything that would be relevant that we
already had.
Q: You made that determination without talking to her?
A: Yes.
Q: Okay. How about Mrs. Rawlston, Beth Rawlston? Did you become aware
that she may have been a witness to some of these events?
A: Correct.
Q: Did you interview her?
A: No, I did not.
(Tr., p. 297-298)
Sgt. Cronin was asked a series of questions as to whether he interviewed

the various people associated with the incident which occurred in the vicinity
of 28 Lane less than one-half hour prior to the events at issue in this
case. He testified:
53
Q: John Dervishan, did you talk to him?
A: No.
Q: So you don't know one way or the other what he had to say about the three
youths being down the street breaking into a car?
A: That wouldn't be relevant to whether Officer Rawlston struck these three

boys.
Q: You didn't consider that relevant that the three boys that were involved in
this incident may have been down the street earlier breaking into a car?
A: . We weren't investigating car breaks.
(Tr., p. 302)
Sgt. Cronin testified that in addition to not interviewing Mr. Dervishan

concerning the lower Lane incident, he did not interview Ms. Rudy,
Mr. Sultan, Mr. Bergeron, nor Mr. Briand.
Sgt. Cronin was asked on cross-examination if he ever went back and re-
interviewed Person A, B, or C, and he responded in the negative.
Sgt. Cronin was referred to Person A's testimony on page 57 to the effect
that as of the time he went prone on his stomach, Officer Rawlston had not hit
any of the three individuals. Sgt. Cronin was then referred to Person B's
testimony that he was struck in the head while standing and not in the prone
position. He was then referred to Person C's testimony (Tr. p. 221-222) to the
effect that he alleged Officer Rawlston hit him, and Person A while they were
prone and hit Person B while he was standing. At that point, he was referred
to a sentence on page 3 of the Professional Standards report, City Exhibit 7,
where it states, "The boys were ordered to their knees by Rawlston and told to
put their hands on their heads and were kneeling side by side .... Rawlston then
hit the (Person B) boy in the head first with the handgun, he then hit the
(Person A) boy in the head who was in the middle, and then hit the (Person C)
boy in the head.... " (City Exhibit 7, p. 3)
At that point in his cross-examination, Sgt. Cronin was asked:
Q: Would you agree with me that what you've written to the Chief and the
incident you've described is three boys kneeling in the middle of the road
then being hit in the back of the head by Officer Rawlston with the gun?
A: Yes.
54
Q: Okay. Who told you that that version is what happened?
A: Taken from the statements of the boys.
Q: Which boy told you that's what happened?
A: Came from the statements, taken from the boys.
Q: Okay. That's what we just spent way too much time going through and I don't
want to do it again. Which boy told you that that's what happened?
A: It's taken from the statements.
Q: You keep saying the same thing, and I keep asking you a different question.
I'm asking you which boy told you that that is what happened-
A: Summary of their statements-
*******
Q: So that was your conglomeration of the events, that's how you put it together
in your head?
A: (no response)
Q: Correct?
A: Yes.
Q: All right. (Person B) told you he was hit while standing, right?
A: Yes.
Q: All three of them were hit while standing. He walked up and hit (Person B),
he went down; hit-I forget the second kid's name, (Person A)
A: (Person A).
Q: ... (Person A). He went down; hit (Person C), he went down. Right?
A: Yes.
Q: That's (Person B's) version. (Person A's) version is that all three are lying on
their stomach when they are hit, right?
A: Yes.
55
Q: And (Person C) says he hits (Person B) while he's standing and hits (Person
A) and himself while-(Person A) and himself while they are on the ground,
correct?
A: Yes.
Q: Those are three different stories, right-
A: Yes.
Q: ... You'll agree with me? But you decided that those inconsistencies
weren't-didn't warrant your doing any further investigation of them correct?
A: Yes.
Q: Didn't warrant doing any further investigation of whether or not they'd been
smoking marijuana earlier that evening, correct?
A: Correct.
*******
Q: The inconsistency didn't concern you enough to tell the Chief they were
inconsistent, right?
A: He was provided copies of the statements from the boys.
*******
Q: But you'll agree with me that not one of the boys said what you said here.
You've garnered that from apparently some version in your head of what the
three of them had said to you, right?
A: I don't know.
(Tr., p. 333-335)
District Attorney's Investigation:
Apparently the District Attorney conducted an investigation concerning

the events on Lane on April 7, 2007. There is no copy of any
investigation report from the District Attorney's office in evidenceas part of this
arbitration proceeding. No individual from the District Attorney's office testified
at the hearings. Sgt. Cronin, in his August 14, 2007 report, made the following
statement:
56
The Detective Bureau conducted a separate but parallel investigation
which included interviewing persons alleging that the 3 boys may have been
involved in a breaking and entering into two motor vehicles at the beginning of
Lane, yet there was no incident report filed for a Breaking and Entering.
They then forwarded their report to the Office of the District Attorney. In a
facsimile received in the Worcester Police Department on May 25, 2007 from the
District Attorney, the following information was provided; "Based upon all the
evidence provided, the Office of the District Attorney declines to recommend
criminal charges against any person in connection with the circumstances and
events surrounding the detention of Messrs. (Person C), (Person A), and (Person B)
on Lane on April 7,2007."
Request for Termination I Hearing Officer's Report I Notice of Decision:
This Arbitrator cannot help but notice that even at this point this report
is becoming quite lengthy. Therefore, I have chosen to present the balance of
this section by attaching four documents which describe the charges lodged by
Chief Gemme, Notice of Contemplated Discipline sent to Officer Rawlston, the
Hearing Officer's report, and finally the City Manager's decision to terminate
Office Rawlston's employment. These documents are attached as follows:
Attachment A: Chief's Gemme's September 6, 2007 letter to City Manager

Michael V. O'Brien entitled, "Police Officer David Rawlston-
Request for Termination." (City Exhibit 6)
Attachment B: A November 15, 2007 letter from City Manager Michael V. O'Brien
to David Rawlston entitled, "Notice of Contemplated Discipline and
Hearing Pursuant to M.G.L. c. 31, 41." (City Exhibit 4)
Attachment C: A January 25, 2008 letter from Assistant City Solicitor

John F. O'Day to City Manager Michael V. O'Brien
entitled, "Hearing Officer's Report-David Rawlston." (City
Exhibit 2)
Attachment D: A February 1, 2008 letter from City Manager Michael V. O'Brien

to David Rawlston, entitled "Notice of Decision After Hearing
Pursuant to M.G.L. c. 31, 41." (City Exhibit 2)
I suggest that the reader of this document take some time at this point to
read Attachments A through D.
57
It is the above-outlined Dispute which, having passed through the
contractually provided grievance procedure, is before this Arbitrator in the form
of the Issue shown above.
POSITIONS OF THE PARTIES
Arbitrator's Note: I have already noted, just above, the length that this
Arbitration Award has reached without yet having addressed the positions of the
parties nor my analysis of the case. I am satisfied that this length was
necessary in a case involving seven eye-witness accounts to the incident
involving Officer Rawlston and Persons A, B, and C, as well as a number of
reports addressing a prior incident on Lane that same evening. The
length of the record was also the result of there being two separate but parallel
investigations, the results of which themselves have become a point of contention
between these parties.
Given the above, I will present each party's position by giving a truncated
and brief summary of the arguments presented by counsel for the Union and
counsel for the City) both at hearing and in their post-hearing submissions. The
brevity of these presentations is not reflective of the extremely thorough and
professional presentations made by counsel. Their post-hearing submissions
were of the highest quality and were of great use to this Arbitrator in reaching
my decision.
Position of the City:
The City asserts that the termination of Officer Rawlston should be

sustained in arbitration and the grievance contesting that termination denied.
The City contends that since members of this bargaining unit enjoy Civil
Service protections, the standard to be applied in this case should be those
called for under Civil Service case law. Citing City of Cambridge v. Civil Service
Commission, 43 Mass. App. Ct 300, 303 (1997), the City asserts that the
standard should be "... whether, on the basis on (sic) the evidence before it, the
appointing authority has sustained its burden of proving that there is
reasonable justification for the action taken by the appointing authority." (City
Brief, p. 22.
The City has provided additional citation in support of its assertion that
the Arbitrator should not merely substitute his judgment for that of the
58
appointing authority. Rather, the judgment of the appointing authority should
be respected and upheld absent the Arbitrator making findings of fact which
are significantly different from those made during the pre-termination hearing
conducted by the City. In the case at hand, Officer Rawlston did not testify at
that pre-termination hearing. In its brief, the City has provided citation
establishing its right to draw a "negative inference" from the failure of Officer
Rawlston to testify at his own hearing. Officer Rawlston should not be allowed
to benefit by presenting testimony during these arbitration proceedings when
he withheld his testimony from the hearing officer in his pre-termination
hearing.
If the Arbitrator were to impose the traditional "Just Cause" standard in

this case, the City argues and has presented extensive citation in its brief to
support that the Arbitrator should not substitute his judgment for that of the
employer. If the Arbitrator finds that the evidence supports a finding of
wrongdoing on the part of the grievant, deference should be extended to
Management in the selection of the appropriate response thereto. The City
notes that the Rules and Regulations of the City are incorporated by reference
into this Agreement and the Agreement specifically prohibits the Arbitrator
from altering, amending, adding to or subtracting from the provisions of this
Agreement.
The Arbitrator should also take note of the strong public policy
considerations at issue in this case. Police officers who violate the rights of
citizens and then lie in official reports about that violation would, if allowed to
continue in employment, erode the confidence in the police service which is
necessary to its effective functioning.
The operative facts upon which the City Manager made his decision to
discharge the Grievant are set forth in the Hearing Officer's report which is
attached to the City Manager's decision. (City Exhibit 2).
(City Brief, p. 26)
Referring to those findings in City Exhibit 2/ Attachment C, the City

asserts that the Hearing Officer's findings #1,2,3, 10, 12, 13, 14, 15 and 16
are not disputed. Finding #4 was disputed to the extent that Officer Rawlston
asserts that he believed the three boys had engaged in a crime of trespass;
however, Chief Gemme testified that a trespass which occurred in the past
would not represent a reasonable basis to arrest an individual. With respect to
Finding #5, Officer Rawlston himself admits that he did not state that he was a
police officer prior to pointing his firearm at the boys. His claim that he stated
"Police Officer" at all is refuted by the testimony of the three boys. The time to
utilize the term "Police Officer" is prior to resorting to threats of deadly force. If
Officer Rawlston said those words by coupling it with the pointing of his
59
weapon at the boys, the timing did nothing to relieve their fears of being killed
by this stranger. While Officer Rawlston has denied making the verbal threats
to kill or beat the boys, his pointing of a loaded firearm at them is so extreme
as to make the few points of contention as to which words were used pale in
comparison. Finding #7 essentially says Officer Rawlston struck one or all of
the boys and kicked one of them. Officer Rawlston acknowledges that at least
one of the individuals was struck by the barrel of his gun as he used physical
force to push that individual down. Officer Rawlston's own description of how
he pushed the individuals using both hands-one of which contained his
weapon-warrants a conclusion that the weapon would make contact with
those individuals. All of Officer Rawlston's contact with the individuals was
"intentional," and since the contact between his weapon and the boys' heads
was an unavoidable consequence of that form of physical force, those strikes
themselves can be viewed as intentional. The City asserts that Finding #8 is
essentially undisputed. Officer Rawlston admits that he held the boys at
gunpoint, thereby restricting their liberty and he subjected them to physical
search. While Officer Rawlston asserts that those actions were justified by
some police purpose, Union witness Sgt. Richardson testified that he viewed
Officer Rawlston's actions in detaining those individuals as being those of a
civilian.
Finding #9 represents a clear example of the grievant lying on an official

report. Officer Hanlon's report and testimony both established that Officer
Rawlston told him that Officer Rawlston had observed the three individuals
looking in the windows of both his vehicle and his house. According to Officer
Hanlon's reports and testimony, he interviewed no other individual at the scene
other than Officer Rawlston, and hence the information could not have come
from anyone but the Officer. The City asserts that there is no basis to reject the
report and testimony of Officer Hanlon, thereby leading to the inevitable
conclusion that Officer Rawlston was lying. Finding # 11 asserts that Officer
Rawlston's lie to Officer Hanlon was intentional-a fact which the City asserts
is a reasonable conclusion based on the circumstances. In Finding # 17, the
Hearing Officer declared as "untruthful" Rawlston's assertion that he viewed
the three boys as a "threat...when he observed them several houses away, and
when he approached them and pointed his firearm at them." (Hearing Officer's
Report, Finding # 17, City Exhibit 2) In his own testimony at page 987 of the
transcript, Officer Rawlston, referring to the moment when the three
individuals were three houses away from him, stated, "...you're right, they were
not a danger to me at that point." (Tr., p. 987) Finding # 18 was that Officer
Rawlston was "... untruthful" when he stated that he only struck one individual
and that was unintentional. The Hearing Officer found that the physical
actions of pushing the individuals down while holding a weapon would have
occasioned that weapon coming into contact with them, thereby warranting a
60
conclusion that all three were struck. In its brief, the City has provided citation
supporting the conclusion that Officer Rawlston's intentional physical contact
which precipitated his weapon striking the individuals does not make that
striking unintentional, since it was the unavoidable consequence of an
intentional act. Finding # 19 included the finding that Officer Rawlston's
"... report was untruthful and incomplete ... " in that he "... fails to mentions
threats he made to hurt or kill the boys." (Hearing Officer's Report, p. 3, City
Exhibit 2)
Given the above, the next area of inquiry is whether there was a "...valid
police purpose ... " for the grievant's actions. At the arbitration hearing, Chief
Gemme testified to his extensive police experience and training. The Chief
focused a certain amount of his testimony on those actions which Officer
Rawlston himself acknowledges he took on that evening. The Chief took issue
with Officer Rawlston taking an unholstered firearm into that situation,
thereby endangering everyone by creating the possibility of discharging the
weapon accidentally and/ or losing control of the weapon if a struggle ensued-
especially given his diminished physical capacity.
Although the Chief indicated that the Grievant might have been entitled
to conduct a threshold inquiry, such an inquiry, under the circumstances,
would have included only speaking to the boys, asking them to identify
themselves and their activities. If the boys did not wish to identify themselves or
their activities, they would be free to go, in the absence of any other information
gleaned from the contact to suggest on-going criminal behavior or a past felony.
(City Brief, p. 32-33)
Officer Rawlston justified his search of the individuals based on a

concern that they could be armed and dangerous given their alleged fanning
out, or spreading out, as he approached them. The Chief's testimony
established that the circumstances advanced by Officer Rawlston did not
constitute the type of specific and articulable facts which are a prerequisite to
such a search. There was no reason for the grievant to believe that a felony had
been committed, nor that the three individuals posed a danger to him or others
warranting pointing his weapon, searching the individuals, and detaining
them. Even if Officer Rawlston harbored a concern that the individuals were
armed and dangerous, once the search was completed he had no basis for
holding the individuals as he did.
The City rejects Mr. Rawlston's claim that his injured arm somehow
made him more vulnerable and hence it increased the danger to him from
these individuals. The fact is that this condition argues strongly for him
avoiding the type of physical confrontation which he precipitated.
61
Chief Gemme testified concerning the corrosive effect that acts of
untruthfulness by a police officer have on his usefulness and effectiveness.
Mr. Rawlston's reckless use of his weapon represented sufficient cause

for the Chief to withdraw his license to carry, a status which "... further
disqualifies him from being able to perform the essential functions of a police
officer in the City of Worcester." (City Brief, p. 34)
The Grievant presented as a fearful man who is not fit to be a police

officer.
(City Brief, p. 34)
The grievant attempted to justify his fear that the boys might be armed
by citing that he views everybody as potentially armed prior to finding out
differently. The City rejects Mr. Rawlston's claim that the mere act of those
boys walking down that streetposed any threat to him, his family, or his
neighbors. "The Grievant was incredulous at the suggestion that he could have
gone inside and waited for uniform police to arrive .... " (City Brief, p. 35)
During his testimony, Officer Rawlston raised the specter that he had no way of
knowing if the three individuals had planted a bomb on his property, and
further justified his actions by stating there was no guarantee of how quickly
other officers would arrive. He raised the additional specter of that time lapse
creating the possibility of those individuals shooting him and/ or members of
his family. At the hearing, the grievant attempted to add to the aura of his
perceiving the situation as threatening by raising for the first time claims that
as the individuals began to fan out, they directed hostile answers toward him,
and that one individual reached his hand into his pocket. Neither claim was
placed in Officer Rawlston's report, nor did it surface at any time until his
testimony given at the arbitration hearing.
The grievant, through his testimony, has claimed to have been placed in
great fear by the sight of three boys walking toward him. The City suggests
that had these been full-sized, mature adults, that same fear would have
prevented him from the actions he took. "It appears that it was only because
these were young boys that the Grievant approached them at all, and he did so
with an outrageous show of force, and without taking any attempt to behave
like a professional police officer and engage them in a conversation about their
activities." (City Brief, p. 37)
The Arbitrator should place no reliance on the Detective Bureau report.

The City asserts that the report warrants a conclusion that the Detective
Bureau" .. .investigation was designed to clear Officer Rawlston and discredit
the witnesses against him." (City Brief, p. 38) The Detective Bureau report
focused much of its attention on events which occurred prior to Officer
62
Rawlston encountering these three individuals. Clearly, those prior events are
irrelevant in this case since Officer Rawlston had no knowledge of them as of
the time he chose to confront these boys, point a weapon at them, search them
and detain them against their will after striking them. Chief Gemme, Detective
Bureau Captain McGinn and Deputy Roche all took issue with the conclusions
reached in the Detective Bureau report. They took issue with not only the
validity of those conclusions, but the fact that they were made at all given the
prohibition against conclusions contained in Policy 500. "Apparently, the
primary reason the report was authored in this way was the failing to Lt. Rich,
who, for reasons only he knows, disobeyed direct orders from the Chief, given
repeatedly, to comply with policy 500." (City Brief, p. 38)
On cross-examination, Sgt. Richardson essentially acknowledged that

Officer Rawlston had no specific facts warranting a conclusion that the boys
were armed and dangerous, and hence no basis to unholster and point a weapon
at them. Sgt. Richardson incorrectly attributed to the neighbors a belief that
some form of break had occurred at Officer Rawlston's home. Sgt. Richardson
seemed to find it reasonable for Officer Rawlston to arm himself with a weapon
and his flashlight, yet acknowledged that an unholstered weapon in this
scenario was inappropriate. The Sergeant believed that Officer Rawlston's
injured right arm somehow made carrying an unholstered weapon more
reasonable, whereas ranking officers within the Department testified to the exact
opposite.
The City acknowledges Sgt. Richardson's reputation as a "... technically

competent and even gifted investigator. ..." (City Brief, pAO) In this case,
however, those talents were, in the City's opinion, applied with the goal of
clearing Officer Rawlston while tearing down statements of other witnesses.
For example, he found the boys non-compliant, despite the fact that the
Simkonises' reports and testimonies indicated the boys went directly to the
ground when instructed to do so. Given that testimony the blows and physical
force by Officer Rawlston clearly were not warranted, and were gratuitous given
the cooperation attested to by the Simkonises. The fact that Sgt. Richardson
did not apply his investigative skills to resolving inconsistencies between
Officer Hanlon's report and those reports given by Officer Rawlston warrants a
conclusion that not doing so was a product of" ... his bias and his judgment."
(City Brief, p. 41)
The grievant and the Union placed great reliance on Person B's statement
at one point that he was not sure whether Person A was with them as they
headed up Lane. The City asserts that this response came after an
extended two-hour interview, and was precipitated by a falsehood told to
Person B by Sgt. Richardson claiming that someone had identified Person A as
63
being part of the 2 Lane confrontation. "It is possible that this false
assertion by Sgt. Richardson led (Person B) to wonder whether the encounter
had occurred after they met up with (Person A) and after they encountered
Rawlston." (City Brief, p. 42) The City rejects the claim that the testimony of
the Simokonises establishes that there were three boys in that group at that
initial 28 Lane event. The Simokonises observed four people involved
in that confrontation, and given the fact that other evidence establishes that
two of those people came from the car, the remaining two matches the
testimony of both Persons Band C. Sgt. Richardson's report avoided
addressing Person A's interactions with anyone prior to these events, and
ignored the fact that he was wearing a blue baseball cap which was not
mentioned by any witness. "While some of the reports of interviews do mention
three individuals in some of the earlier incidents, based upon Sgt. Richardson's
testimony regarding how he creates reports, it is possible, even probable, that
the detail was supplied by the interviewing officer, based upon a pre-conceived
understanding of the facts." (City Brief, p. 42)
In its brief at Section D, the City has provided extensive citation

establishing the need for truthfulness in reports and statements of police
officers and the corrosive effects on their effectiveness and credibility of
falsification of such statements and reports. Indeed, examples of such false
reports as exist in this case represent information which must be disclosed to
the defense in any criminal proceedings where Officer Rawlston would have to
testify.
At Section E of its brief, the City has address the credibility which should
attach to the three boys. It is clear from their testimony at both the arbitration
and appointing authority hearings that they are willing to be candid on some
difficult matters and willing to admit when they cannot remember certain events.
"Each one truthfully answered difficult questions about his own activities,
including marijuana use and silly postings on a Myspace page." (City Brief, p. 45)
Whatever differences there were in their recounting of these events are more than
explained by the trauma they were subjected to. The fact is that most of the
claims by the boys as to the physical abuse they received was in essence
supported by Officer Rawlston himself who acknowledged he forced them to the
ground, thereby creating a situation where his weapon would strike each of the
individuals. The Union has made much of the varying stories by the boys as to
who was struck when and how. "This issue really makes no difference, since the
Grievant admits to using force on all three, and even the Detective Bureau found
that he struck two of the teens on the head with his firearm, causing injury."
(City Brief, p. 46) Those moments of fear induced by being struck by a weapon
and confronted with a loaded weapon are, the City asserts, sufficient to disorient
anyone as to the finer details of the event. The City rejects the significance
64
attached by Sgt. Richardson to the term "pistol whipped" as not being consistent
with the absence of physical harm to Person B. "The only use of the term 'pistol
whipped' amounts to totem pole hearsay from any individual unconnected with
the case who told investigators that one of the boys supposedly told him that he
had been pistol whipped by a police officer. In the actual statements given to the
Detective Bureau by these boys, none of them used the term 'pistol whipped.' The
fact that Sgt. Richardson sets this up as an inconsistency perhaps says more
about Sgt. Richardson's judgment and motivations than it does about the veracity
of these three boys." (City Brief, p. 47)
"For all of the foregoing reasons, the City of Worcester respectfully

requests that the Arbitrator uphold the discharge and deny the grievance."
(City Brief, p. 49)
Position of the Union
Any claim by the City that the Arbitrator's powers in this case are
somehow constrained in this case by G.L. c. 31 or the holding in Town of
Falmouth v. Civil Service Commission, 447 Mass. 814, 826-827 (2006) must be
rejected....The decision has no application to this case which arises under the
collective bargaining agreement's just cause provision, not under the statutory
civil service rights provided by Chapter 31.. .. Finally, it is worth noting that even
if the arbitrator was bound to follow the Town of Falmouth decision at this
arbitration-which he (sic) not-the case has no application. First, it is
anticipated that the findings of fact here will be markedly different than those
found by the City Manager and accordingly Falmouth by its own terms would
not apply even at the Civil Service Commission....Moreover, here Rawlston
provided the City with a comprehensive written and oral statement answering
any and all questions posed (sic) City's investigators. Accordingly, any claim
that the City did not have Rawlston's "side of the story" is without merit.
(Union Brief, p. 1-2, Footnote 1)
The City bears the burden of proof in this case, both as to the guilt of the
grievant and on the question of whether the penalty imposed was appropriate
under the facts of this case. That burden includes the requirement that the
City establish the existence of a reasonable standard known to the employee,
that the employee violated that standard, and that the resultant discipline was
appropriate under the circumstances.
The Union asserts that the City has failed to meet its burden of proof in
establishing that Officer Rawlston engaged in any criminal behavior. The
charges of criminal behavior were in the form of four separate allegations of
65
assault and battery by Officer Rawlston. Three of those charges alleged assault
and battery with a handgun against each of the three individuals involved, and
the fourth charge alleged assault and battery with a shod foot. All of the
charges in this case were the result of a Bureau of Professional Standards
investigation conducted by Sgt. Cronin. Indeed, the charges lodged by the
Chief were appended to that investigation report. The allegations in that regard
by Sgt. Cronin were that the three individuals "...were kneeling side by side ... "
and that Officer Rawlston then proceeded to hit each of the three individuals in
turn. "On cross-examination, Sgt. Cronin conceded that not one of the boys
had told him that the events he had described in his report had actually
occurred. (Tr. 331-336)." (Union Brief, p. 8) Despite repeated questions on
cross-examination as to which boys' report was Sgt. Cronin's source for such a
conclusion,Sgt. Cronin only responded that it was taken from some statement
taken from the boys,but he failed to identify which. "Sgt. Cronin further
conceded that the events he described-and upon which the discipline was
allegedly based-were, in fact, 'a conglomeration of the events' put together 'in
his head.' Tr. 333." (Union Brief, p. 9)
Sgt. Cronin, on cross-examination, acknowledged that Person B had

stated he was struck while standing. He also acknowledged that Person B
asserted that Person A and Person C were in turn struck while standing. He
further acknowledged that Person A's statement included an assertion that all
three were struck while laying prone on the ground. He finally acknowledged
that Person C stated that Person B was struck while standing, and that he and
Person A were struck while prone on the ground. Despite these obvious
inconsistencies, Sgt. Cronin acknowledged that he did not re-interview the
three individuals, nor did he point out to the Chief that their testimonies in this
regard were inconsistent on material facts.
Indeed, comparison of the investigation conducted by Sgt. Cronin and

the investigation (sic) parallel investigation undertaken by the WPD detective
bureau (Union Exb. 1) further confirms that Sgt. Cronin's investigation-upon
which the chief relied-was grossly incomplete and unreliable and reached
fundamentally unsupported conclusions.
(Union Brief, p. 9)
Sgt. Cronin failed to interview a number of individuals who were "material

witnesses" to the events at issue in this case. (Union Brief, p. 10) He did not
interview Beth Rawlston, despite the fact that she placed the "911" call and
witnessed all interactions between her husband and the three individuals. He did not
interview Mr. Sobel, who lives in the house directly in front of which the interaction
between Officer Rawlston and the three individuals occurred. Mr. Sobel testified that
he was able to hear those events and he denied hearing any of the threatening,
66
violent and assaultive language which the three individuals attribute to Officer
Rawlston. Sgt. Cronin also failed" ... to interview any of the witnesses who had
observed and confronted these same three individuals as they attempted to break
into a vehicle while smoking marijuana minutes before entering Rawlston's backyard.
Tr. 302-307) ...." (Union Brief, p. 10) Sgt. Cronin did not interview Mrs. Simokonis
who testified that she observed many of the actions of the three individuals as they
entered Officer Rawlston's property, and further observed a large portion of the
interaction between Officer Rawlston and those individuals.
In contrast to the Professional Standards investigation, the Detective

Bureau investigation did interview the individuals associated with the lower
Lane incident which occurred just minutes before the incident at question
in this case. The Detective Bureau investigation, based on the statements of
those lower Lane participants and that of Mr. Simokonis, concluded
that the participants' testimony" ... confirmed what Mr. Simokonis initially
suspected-that the three subjects may be engaged in criminal activity." (Union
Brief, p. 10 citing Union Exhibit 1, p. 44)
None of the witnesses who observed the events of April 7, 2007 other
than the three boys observed any form of assault by Officer Rawlston or any
loss of control on his part. Their testimonies were that he behaved in a
professional manner consistent with a police officer. The Detective Bureau
investigation concluded that there was no probable cause to support
allegations of assault and battery of any sort-but rather Officer Rawlston
utilized the force appropriate to the situation in order to get the three
individuals to comply with his commands. The Detective Bureau investigation
report concluded with a recommendation "... that the case be closed, allegations
unsupported, pending any additional information that may become available."
The Union asks that the Arbitrator ignore the City's attempt to undermine
the validity of the portion of the Detective Bureau report entitled, "CASE
STATUS: NO PROBABLE CAUSE; CASE CLOSED." (Union Exhibit 1, p. 43)
Despite the City's citation of Policy 500 as controlling in this matter, Lt. Rich
testified that he felt the Chief had acquiesced to Lt. Rich's position that the
investigation should be conducted in the traditional manner employed by the
Detective Bureau, which includes conclusions and recommendations. Indeed,
even Policy 500 itself mandates an "analysis of the evidence." (City Exhibit 22,
p. 8) The Union asserts that Sgt. Richardson was unaware of any issue
concerning the forming of conclusions, and proceeded to conduct the
investigation in the same manner he had for all other investigations. The City
now seeks to negate the call for "analysis" required by Policy 500.
67
The Union asserts that regardless of the dispute over whether the
Detective Bureau report should have contained conclusions, the fact is that the
evidence and testimony presented at the arbitration hearing support the
conclusions reached in that investigation report. For example, the testimony of
Persons Band C given at the arbitration hearing establish beyond doubt that
they were involved in a prior confrontation at 28 Lane concerning
events at 2 Lane, which was also testified to by the Simokonises. This
acknowledgment at the arbitration hearing "... came after they had denied being
involved in the altercation in their interviews with the detective bureau. Tr. 202;
(Union Exb. 1, p. 29)) (Union Brief, p. 12) When he finally admitted the prior
confrontation, Person B explained his failure to mention it earlier as being
because "I didn't think it mattered." (Union Exhibit 1, p. 34) The Union asserts
that the evidence presented at the arbitration hearing in the form of reports
collected by the Detective Bureau establish that the three individuals had been
observed breaking into a car and that the person observing that act informed the
owner's boyfriend, Mr. Bergeron, who along with a friend confronted the three
near 28 Lane and observed one of them smoking marijuana. Mr. and
Mrs. Simokonis stated that the three individuals in that 28 Lane
confrontation were the same ones who entered Officer Rawlston's yard.
The Union asserts that the credibility of the three individuals was
damaged by their testimony and statements concerning marijuana use. Person C
at first denied using marijuana on that day, but later admitted it. Person C
testified that he had used marijuana but claimed not to be able to recall if it was
done with Person B. Finally, Persons Band C claim that they only met Person A
at the gate, which was in direct contrast to several persons' testimony, including
the Simokonises, that they were observed in the 2 and 28 Lane area as
well as when entering Officer Rawlston's property. After initial denials that they
were in any portion of Officer Rawlston's property, Person C later stated that
Person B had swung on the basketball hoop on the Rawlston property.
As has been noted earlier, the reports and testimony of the three
individuals conflicted on the allegations concerning being struck by Officer
Rawlston. Person B claimed that Officer Rawlston, who is right-handed, used
his left hand to pistol whip him on the head, but failed to explain the absence
of any visible injury. In its brief, the Union has addressed in detail the three
various conflicting and mutually exclusive versions of the alleged striking
which were advanced by the three individuals.
In contrast to the conflicting testimonies of the three individuals, Beth

Rawlston testified credibly that she observed the entire interaction, including
Officer Rawlston announcing he was a Worcester police officer, and asking why
the persons were in his yard. She testified to seeing them fan out, and heard
68
Officer Rawlston order them to the ground. She heard him state that he would
search the teens, but testified she heard none of the threats that the three
individuals claim were made by Officer Rawlston.
The observations by Beth Rawlston were supported by those of John

Simokonis. Both individuals testified that Officer Rawlston behaved in a
professional manner as police officer.
The Arbitrator should find that based on the evidence, the three
individuals involved in this interaction are not credible. In addition to the
conflicts within their testimonies and statements, Person C admitted smoking
marijuana on April 7, yet told the Detective Bureau he had not smoked it.
Person B had a page on MySpace which states in pertinent part, "hello my
name is (Person B) and I enjoy blunt smoking and shot gunning the occasional
bruskies. I also enjoy toking the bong and robbing n----- 3 for their gwap .... "
(Union Exhibit 3A) During his testimony, Person B acknowledged that the term
"gwap" stands for money. In addition, the picture on Person B's MySpace page
shows him sitting in front of the wall of his bedroom which has a lot of writing
on it, including a sign which says, "Fuck the cops." (Union Exhibit 3A) In
addition, the teens claimed that they were traumatized by the events of this
evening, yet acknowledged returning almost to Officer Rawlston's property in
search of a cell phone. Both the Rawlstons and Simokonises testified to several
occasions where one of the three individuals was observed in the vicinity of
their property since the events at issue in this case.
Given the above, the Union asserts that the testimony of the three
individuals must be dismissed based on damaged credibility, and hence the
City cannot establish just cause.
In its brief, the Union has provided extensive citation establishing that
the actions taken by Officer Rawlston on April 7, 2007 were permissible given
the circumstances he confronted on that date. The citation also establishes
that when assessing the reasonableness of the actions of a police officer, it
should be judged from the perspective of someone present at that scene rather
than with the benefit of hindsight. The Union has provided citation supporting
the conclusion that since Officer Rawlston's conduct was as a police officer, it
was privileged, and thereby did not constitute assault and battery.
What occurred here is that Officer Rawlston and his wife were awakened
from their sleep by a call indicating that someone was around their cars and in
their back yard. Officer Rawlston responded by securing his weapon and
flashlight and searching the house for intruders. When he went outside, he
3 The Arbitrator chooses not to repeat in this document the racial slur utilized in Person B's MySpace page.
69
encountered his neighbors who "... seemed nervous and afraid." (Union Brief,
p. 17) As he was discussing the situation with them, and observing the three
individuals stopped down the street, they turned and proceeded back towards
the Rawlstons and Simokonises. The Union asserts that Officer Rawlston
reasonably viewed the approach of those teenagers as threatening. In order to
divert any threat from the three civilians present with him, he advanced so that
his interaction with the three individuals would be distant from his wife and
neighbors. When he inquired of the three individuals why they entered his
property, he received "... a hostile comment." (Union Brief, p. 18) As they
advanced further, the teens fanned out in a manner which made simultaneous
observation impossible due to the dim light and distance between them. At
that point, Officer Rawlston reasonably concluded that there was sufficient
threat to raise his firearm and order the individuals to show their hands. "In
reference to hypothetical facts almost identical to those faced by Rawlston,
Chief Gemme conceded that he would be concerned for his safety. (Tr. 458-
462)." (Union Brief, p. 18, Footnote 8)
Officer Rawlston, in order to avoid further movement by the three

individuals, ordered them to their knees with their hands on their heads. They
were initially non-compliant and continued to speak and move. When they
eventually did go to their knees, they failed to comply with his order to get
down onto their stomachs, at which point he used a reasonable two-handed
motion to direct them to the ground. At that point, based on a reasonable
suspicion that they could be armed and dangerous, he conducted a pat frisk of
each, varying only from that search when Person C made a move of reaching
toward his back pocket, at which point Officer Rawlston forced him back into
the prone position. Officer Rawlston acknowledged that his response to that
movement could have caused his weapon to come in contact with that
individual's head. The photos taken at a later time reveal a small mark on that
person's head. Another photo purporting to show a similar mark on Person A's
head could have been, according to the Union, a self-inflicted injury to support
the other fabrications advanced by these three individuals.
The Union rejects the City's assertion that the appropriate conduct for
Officer Rawlston when he saw the three individuals turn and head back
towards his home was to retreat to his house. The Union finds that statement
by the City to be totally without merit under the circumstances and given that
Officer Rawlston was an experienced officer trained to handle such situations.
The Union asserts that the City has failed to meet its burden of proof
with respect to the criminal charges sustained by Chief Gemme concerning
assault and battery with a dangerous weapon against each of the three
individuals. To sustain that burden, the City had to prove that Officer
70
Rawlston used excessive and unreasonable force, and it has failed to establish
those two elements. Indeed, following its own investigation, the office of the
District Attorney "... declined to initiate any criminal prosecution." (Union Brief,
p. 19) In the absence of establishing excessive force, the City's other charges of
unnecessary force, conduct unbecoming, incompetence, and violation of the
policy concerning use of force, must be rejected.
The Union rejects the assertion that Officer Rawlston was untruthful in
his discussions with Officer Hanlon. He told Officer Hanlon that his neighbors
had observed the teens in his driveway. "Officer Hanlon acknowledged that it
was possible Rawlston had relayed the information about the trespass in terms
that made clear that he (Rawlston) had received the information in the phone
call from the Simokonises." (Union Brief, p. 19) The Union asserts that under
the circumstances, attaching the label of falsification of reports to this
misunderstanding is unwarranted and unsupported.
There is no just cause for discipline in this case. For the foregoing
reasons, the Union respectfully requests that the grievance be sustained and
that Officer Rawlston be returned to his position without loss of payor benefit
and that he be made whole by the City. The Union requests that the arbitrator
retain jurisdiction throughout the completion ofthe remedy in this matter.
(Union Brief, p. 20)
DISCUSSION
At the outset of this Discussion I would like to thank the representatives

of the parties for the detailed and professional manner in which they presented
their respective positions.
Any time you have an arbitration record which covers five days of hearing
and includes testimony from seven separate witnesses to all or portions of the
same event, the issue of credibility becomes important. The credibility of
witnesses is an essential factor, among others, when attempting to reconcile
conflicting testimony between witnesses. The importance of credibility in this
case is attested to by the extensive treatment both the Union and the City have
given to that subject-both in the questioning of witnesses at the hearing, and
in their written closing briefs. Indeed, I note that the Hearing Officer in this
case, Assistant City Solicitor John F. O'Day, began his "DISCUSSION" right at
the outset with a section entitled, "Credibility of Witnesses." (City Exhibit 2,
p. 4 of 8) I am convinced that Hearing Officer O'Day was correct when he
71
adjudged that the "credibility of witnesses" is a factor which must be addressed
and examined at the outset of any reasoned evaluation of the testimony and
evidence.
Credibility of Witnesses:
The complainants in this case are Persons A, Band C, and their parents.
Therefore, it makes sense to begin an examination of the credibility of
witnesses with Persons A, Band C.
I consider it useful to begin the examination of the credibility of Persons A,

Band C by examining their testimony and the evidence concerning their
whereabouts, plans, and actions in the period of time immediately preceding
their interaction with Officer Rawlston.
Person A testified that when he left his house on April 7, after having
Easter dinner, he was headed to meet a friend that I will identify as "Person M."
He testified that Person M was at Friendly's, which Person A designated on the
sketch map, Union Exhibit 2B, as being on Lauf Street just south of its
intersection with Pleasant Street. When asked where Tatnuck Square was
located, he responded, "off of Pleasant." (Tr., p. 43) He testified as follows:
Q: So you-if you were going to walk to Tatnuck Square, you'd walk down to
Mower Street?
Pl.: Yeah.
Q: And take a left?
A: Towards Pleasant.
(Tr., p. 43)
Person A testified that while he was proceeding down Olean Street-which

according to the sketch map is essentially a straight shot to Mower Street, which
itself leads into Pleasant Street at about the intersection of Pleasant and Lauf-
his plans changed. He testified that he learned that Person M would not be at
Friendly's, but he could not recall the exact manner in which he learned that
information. (Tr., p. 37) He testified that while still on Olean Street, he made
contact with Person C. He testified:
Q: So you were leaving to meet (Person M) and as you go, (Person M) tells you
he's not going to be around, he's going home. So you had some
communication, I'm assuming, with Person C?
A: Yes.
(Tr., p. 40)
72
When asked if when he left his home he had any intention of meeting
with Person C, Person A replied, "I knew he was out, but I didn't have any
intention of meeting him." (Tr., p. 40) Given this last statement, this Arbitrator
is satisfied that the plans between Persons A, Band C to meet the evening of
April 7, 2007 were made as Person A proceeded down Olean Street on his way
to Tatnuck Square, rather than some hours or days before, which had been
suggested by one of the other two individuals. Person A testified that he was at
the intersection of Olean and Fernside Road when he arranged to meet Persons
Band C. (Tr., p. 44) He testified that when he made plans to meet Persons B
and C, "... they said they were at Honey Farms, which would have been up
Pleasant in this area." (Tr., p. 45)
Person A testified as follows concerning the decision among the three

individuals to meet at the "gate" off of Lane leading to Cook's Pond:
Q: And did you tell them (Persons Band C) you wfu'1ted to meet them at the
gate?
A: I don't remember. I just remember meeting at the gate. I don't remember who
suggested it.
(Tr., p. 46)
Person B testified that "... before the alleged event happened on Fort,
I was with my friend, (Person V), and we were hanging out at his house." (Tr.,
p. 109) When asked, "Where did you go after that?" he answered, "I went to
Tatnuck Square." (Tr., p. 109)
Person C testified that on April 7, 2007, he met Person B "in Tatnuck

Square." (Tr., p. 190) He testified that "...we then walked from the Tatnuck
Square plaza to meet (Person A) at the gate of Tory-at the gate of Cooks
Pond....we walked down Mower Street and took a right on to Fort." (Tr.,
p.197)
I apologize to the reader for this somewhat tedious lesson in the

geography of Worcester; however, I have but one more piece of testimony prior
to reaching certain conclusions based on these citations.
Person B testified in pertinent part as follows:
Q: Okay. Could you just do me a favor? Take my pen, and show me where
after you had met (Person A) you intended to go.
A: After we met (Person A)?
Q: Yeah.
73
A: We met (Person A) where the X is (the gate at Cook's Pond per Union
Exhibit 2) and we intended to go like that to Tatnuck Square, the same
way we came.
(Tr., p. 129-Emphasis added)
If I were to accept the testimonies of Persons A, Band C as truthful on

the questions of their plans to meet and how they met, I would have to accept
1) that Person A-who said the route from his house to Tatnuck Square was
Olean Street to Mower Street, and whose plans with his friends were, after
meeting, to be in Tatnuck Square-would do an about-face on Olean from
Fernside, walk back up Olean, and take a right onto a dark path leading away
from the Tatnuck Square area; and 2) that Persons Band C, who were already
in the Tatnuck Square area, which was their final destination, would decide to
meet Person A by walking up Mower Street and then up Lane to the
gate and back to Tatnuck Square.
Those testimonies are illogical and make no sense. All three individuals
agree that their ultimate goal was Tatnuck Square. They would have me believe
that Person A, in furtherance of that goal, decided to return up Olean Street,
away from Tatnuck Square, and cut through a dark, unpaved area to meet at
the gate. They would also have me believe that two individuals already in
Tatnuck Square, and with the goal of spending time there with Person A, would
decide that the best way to accomplish that is to go up the length of
Lane and then come right back down.
I must admit it is a while since I was a teenager. However, I can think of

no conceivable reason, bar one, for teenagers already in what appears to be the
center of social life on a Saturday night, Tatnuck Square, to think it is a good
idea to spend the prime time of a Saturday night walking up some dark, private
road with potholes in order to meet someone and walk directly back. I cannot
conceive why Person A-who has already stated that his preferred route to
Tatnuck Square, the final destination, would be to continue down Olean to
Mower-would for some unknown reason immediately head in the opposite
direction and take the longest conceivable circuitous, uninteresting route
possible back to Tatnuck Square.
Just above I indicated that I could not think of one conceivable reason
"bar one" for such a plan. There is, of course, one possible explanation for
those three testimonies. That possible explanation is that those stories were
contrived on the spot when Persons A, Band C, after entering Officer
Rawlston's property, then continued north, looked backed, saw four individuals
in the street with the lights on where they had just trespassed, and realized
they were about to be confronted for a second time on Lane
concerning some form of trespass or unlawful entering, and they realized they
74
needed an excuse for being on that deserted road. Persons A, Band C did not
advance a single reason to explain choosing a remote location like the gate to
meet which would pass the plausibility test. Had they asserted that there was
some form of party going on at the gate, their stories would have made sense.
Had they even asserted that they went there to indulge in alcohol or drugs and
wanted a remote location to indulge, that too would have made sense. However,
during his testimony, when confronted with the question of why meet at such a
remote location, the best that Person B could corne up with was the following:
Q: How did it come that you came to meet (Person A) at the gate?
A: That's just where-he cuts through Cook's to go down to Tatnuck Square.

It's a common place where we would meet him.
Q: You met him there before?
A: Yes.
(Tr., p. 13 1)
That testimony is clearly at odds with Person A's testimony that how he
gets to Tatnuck Square from his house is straight down Olean to Mower to
Pleasant. That explanation makes no sense with respect to how persons
already in Tatnuck Square would decide to meet somebody who's already
halfway to Tatnuck Square on Olean.
Given the above, it is time to test the supposition I have advanced that
very possibly, based on that testimony, Persons A, Band C did not meet at the
gate, but rather arrived in that general location after having proceeded up
Lane from Tatnuck Square, being confronted in front of 28 Lane
concerning a possible car break-in at 2 Lane, and then found
themselves just north of 38 Lane confronted with the specter of lights
on in the house they had just trespassed upon, and four individuals staring at
them.
The question then becomes, is there any other evidence or testimony to

support a conclusion that all three of these individuals proceeded up
Lane, were involved in the 28 Lane interaction, and whether all three
participated in what I will classify at this point as a trespass at the minimum?
The answer is that there is voluminous, extensive testimony and statements
garnered by the Detective Bureau investigation that establish without a doubt
that there were three individuals engaged in the 28 Lane interaction,
and who violated Officer Rawlston's property while he, his wife and his
daughter slept. The chain of testimony / statements supporting the conclusion
that there were three individuals going up Lane that evening begins
75
with Mr. Briand, interviewed by Detective Bureau Sergeant Radula, whose
interview report says that "... he observed 3 white juvenile males walking from
Mower St. onto Lane." (Union Exhibit 1, p. 21) His interview report
asserts that he saw one of those individuals enter Mr. Bergeron's girlfriend's
vehicle, and that the "3 males" then "briskly walked away down
Lane." His statement says that "... he immediately went inside his apartment
and called Mason (Bergeron) on his cell phone ... " and told him about observing
the "... 3 white juvenile male suspects ..." and observing Mr. Bergeron get in his
car and drive down Lane ".. .in the direction that the three male
suspects fled." (Union Exhibit 1)
Mr. Bergeron gave a statement that said in response to the call from
Mr. Briand, Mr. Bergeron-along with a friend, Mr. Habib, according to the
Detective Bureau report-"quickly got into the car and drove north on
Fort.. .." The report states that "As they drove down the road a short distance,
they observed three young males." One of the individuals was, according to
the report of the interview with Mr. Bergeron, "... smoking a 'blunt' right in
front of him, during the whole conversation." The report goes on to state that
Mr. Bergeron had a "... conversation with the three youths.... " The report
asserts that Mr. Bergeron stated, "... he knew they were lying to him, as there
were no other kids in the area at all." (Union Exhibit 1, p. 22)
I think it is useful to observe at this time that my purpose in

examining these Detective Bureau reports is not to determine whether
Persons A, B, and C broke into Mr. Bergeron's girlfriend's car, nor is it to
reach a conclusion as to whether one of them was smoking marijuana in
front of Mr. Bergeron. I acknowledge full well the City's assertion that
regardless of whether those possible allegations are true or not, they
certainly were not known to Officer Rawlston at the time he chose to involve
himself with the three individuals. I will address that subject later. At this
point, this examination is solely to test the question of whether there were
three individuals heading up Lane that evening and the effect of
conclusions reached in that regard on the credibility of Persons A, Band C.
There is one thing on whiCh there is no conflict or disagreement, and

that is that Persons Band C both themselves admit that they were confronted
by someone in exactly the manner described by Mr. Bergeron somewhere in
front of 28 Lane. Persons Band C insist, however, that there were
only two of them at that point. The City seeks to explain away the testimonies
of Mr. Briand and Mr. Bergeron concerning the presence of three individuals
by asserting that the Simokonises only saw one person associated with the
pursuit vehicle, and hence the total of four people they saw could have
possibly consisted of Persons B and C and the two occupants of that car. With
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all due respect to the well-crafted arguments presented by the City in this
regard, I find that argument totally unconvincing. In order to accept it, I would
have to ignore the fact that the Simokonises were not fleeting passers-by to
this event. If I had to put a label on their attention level devoted to that
interaction, I would have to call them "gawkers." Indeed, they took the trouble
to turn left on Lane in order to observe the interaction, despite the
fact that their house was to the right. They went down and turned around,
lowered the window, and went back by, taking note of such minutia as the
license plate of Mr. Bergeron's girlfriend's car. Indeed, their recollection of
events was sufficiently good for them to, several days later, take note of that
same license plate, leading them to discuss the whole subject of that 28
Lane interaction with the vehicle owner and Sgt. Richardson. In addition,
in order to accept the City's proffered mathematical supposition, I would also
have to ignore not only Mr. Bergeron's statement but also Mr. Habib's
statement where he stated that he and Mr. Bergeron drove down
Lane "... about a quarter of a mile and found three kids walking." (Union
Exhibit 1, p. 23) Mr. Habib would have no reason to miscount the number of
people in the car with him (i.e., one other), and there is no indication that he
confused Mr. Bergeron with being part of Person Band C's group.
Finally on this point, in order to accept the City's assertion that Persons
Band C were alone at that initial Lane confrontation, I would have to
ignore the statement of Mr. Dervishan who, according to the Detective Bureau
report, stated that" ... there were two kids who had gotten out of a black car in
front of his house and were yelling at a group of three other kids." (Union
Exhibit 1, p. 19)
The City has asserted that Sgt. Richardson might have incorrectly
written these reports, because of some preconception, in a manner to reflect
that these witnesses saw three kids on Lane. I can only observe in
response to that allegation concerning a detective of long service that it is
completely at odds with the assessment of Sgt. Richardson by Capt. McGinn,
the City's own witness. Further, the City has had over a year to find out if
those reports were inaccurate by re-interviewing the citizens involved. No
evidence was advanced to support that assertion.
It is rare indeed in an arbitration case to have as much compelling

evidence on a single point as exists in this case establishing that there were
three persons who were confronted in lower Lane. I have sworn
testimony from the Simokonises to the effect that they observed those same
three individuals that they had "gawked" at earlier, come.up Lane,
stop at the end of the their driveway, and discuss how they would have
handled those two people who confronted them under certain circumstances,
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and then proceed down Officer Rawlston's driveway and disappear between his
vehicles, apparently entering his yard. There's no doubt that there were three
individuals a short time later involved in the interaction with Officer Rawlston.
Persons Band C have never claimed that the third person with them somehow
disappeared and then they met with Person A at the gate. Rather, they have
insisted from the outset that there were only two of them proceeding down the
entire length of Lane.
Based upon the statements, reports, and testimonies in this case, I am

satisfied that this body represents overwhelming evidence that Persons A, B
and C were lying when they stated, under oath, at the arbitration hearing that
only Persons Band C proceeded down Lane, and that they met
Person A at the gate. That fabrication flies in the face of logic when you
consider the tortured explanations of why they decided to meet at the gate, and
flies directly in the face of the statements of all individuals who observed the
earlier interaction.
In its brief, the City has asserted that the mandate of an arbitrator does
not include authority to merely substitute his judgment for that of the Hearing
Officer and the City Manager who adopted the Hearing Officer's report when he
decided to terminate Officer Rawlston. The City asserts that I should disturb
that decision if, and only if, I find substantial facts which are different from the
facts/ conclusions reached by the appointing authority Hearing Officer. Well,
my finding of facts on the "three versus two" question could not be more
different from that reached by Hearing Officer O'Day who, as a footnote to his
"Fact" #4, wrote the following:
Witness John Simokonis claimed that three boys walked on Rawlston's

property. However, at the time the boys who were later stopped passed
Rawlston's house, there would have been only two of them, since they met
(Person A) coming from the other direction.
(City Exhibit 2, p. 2 of 8)
I do not know how Hearing Officer O'Day reached such a conclusion. His
failure to credit the statements of six Worcester citizens that there were three
persons involved at 28 Lane could be explained if Hearing Officer
O'Day relied solely on the Bureau of Professional Standards report which
ignored this dimension of the case. There's nothing in his report, however,
which would indicate that he was denied access to the Detective Bureau report.
It is time to turn to the issue of the credibility of the Simokonises. I note

that Hearing Office O'Day, under the heading of "Credibility of Witnesses,"
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stated that "While Mr. Simokonis appeared sincere in his testimony, his
account suffers from two flaws." (City Exhibit 2, p. 5 of 8)
Hearing Office O'Day cited the first of his concerns in regard to Mr. Simokonis
as being based on his view that Mr. Simokonis, having observed the event on lower
Lane, had drawn the conclusion that the" ...juveniles had done something
improper... " and that the same juveniles "...were planning to do something in the
vicinity of Officer Rawlston's house ...." Hearing Officer O'Day concluded that those
beliefs, which he attributed to Mr. Simokonis, "... fills his testimony with
assumptions concerning the actions which he observed." Hearing Officer O'Day
does not specify the "assumptions" with which Mr. Simokonis is supposed to have
filled his testimony.
Being a Hearing Officer is a difficult job. Hearing Officer O'Day was

confronted with conflicting statements on such basic issues as the
Simokonises' claim that there were three juveniles versus the statements of
Persons A, Band C that there were only two involved in all the Lane
incidents. With all due respect to the difficulty of his task, however, I cannot
state that I share Hearing Officer O'Day's doubts as to the Simokonises'
credibility without his specifying which "assumptions" he was referring to, and
some evidence that those "assumptions" were incorrect. I note that his second
concern with the Simokonises' testimony was that Mr. Simokonis did not see
the entirety of the confrontation between Officer Rawlston and the three
individuals. However, he did the see the entirety of their sortie into Officer
Rawlston's yard up to the point where they disappeared into the dark between
his cars and beyond. Mrs. Simokonis testified that she saw the entire sortie
down that driveway among the cars and beyond.
I find absolutely no reason to doubt the credibility of the Simokonises.

There is nothing in the record which would indicate that they make a habit of
pestering "911" with crank calls every time a kid walks by their house. They
observed Persons A, Band C get confronted on lower Lane about
some kind of alleged break-in of a car. They then observed the same three
individuals head down Officer Rawlston's driveway and lost sight of them after
they passed among his vehicles. They behaved exactly as anyone would wish a
neighbor to behave under those circumstances. They alerted their neighbors
and they alerted the police.
Hearing Officer O'Day intimated, and indeed asserted, that Mr. Simokonis's
story may have been affected by subsequent conversations with Officer Rawlston.
In his report, he cites a statement by Officer Rawlston to the effect that every time
he and the Simokonises discussed anything after April 7, 2007, they discussed the
events of that night. Hearing Officer O'Day went on to state, "The frequent
discussions of the incident with Officer Rawlston after the fact make it difficult to
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discern how his (Mr. Simokonis's) observations of the April 7 incident have been
affected by the subsequent discussions with Officer Rawlston." (City Exhibit 2, p. 5
of 8)
I agree with Hearing Officer O'Day that subsequent conversations

between potential witnesses could conceivably have an impact on their
recollection of events. However, Mr. Simokonis and Mrs. Simokonis gave
extensive statements to Sgt. Richardson on April 10, 2007-some two and
a half days after the events at issue. There is nothing in evidence which
would indicate that the Simokonises and the Rawlstons had "frequent
discussions" in those two and a half days. I suppose there could have
been more discussions between the events of April 7, 2007 and the
interview of Mr. Simokonis by Sgt. Cronin and Sgt. Kwederis of the Bureau
of Professional Standards on May 22, 2007, approximately six weeks later.
I acknowledge full well the desirability of interviews occurring while
memories are fresh in people's minds and before they have a chance to
have extended conversations with each other which might affect their
recollections. Given that concern, I have examined the record, without
success, in an attempt to ascertain why Professional Standards waited six
weeks to interview Mr. Simokonis, and why Mrs. Simokonis was not
interviewed.
Sgt. Cronin gave a rational explanation for why he never interviewed any
of the people associated with the lower incident. He stated, in
essence, that Officer Rawlston would have had no knowledge of that event
when he took the actions he did on April 7,2007, and hence Sgt. Cronin found
those prior events to be irrelevant. As noted earlier, I will address the question
of whether I agree with Sgt. Cronin that those prior events have no relevance
later in this discussion. At this point, however, I would suggest (as has been
discussed at too much length above) that those prior events are compelling
evidence on the question of the credibility of Persons A, Band C.
With respect to the credibility of Officer Rawlston and Mrs. Rawlston, I am

satisfied that there is no evidence before me that they knew Persons A, B or C
before the evening in question, nor that they had any animosity or grudge against
them based on prior contact. There is no evidence that Officer Rawlston ever
arrested anyone of the individuals, or that anyone of the three individuals had
ever violated Officer Rawlston's property before. There is no evidence of any prior
discipline of Officer Rawlston, nor any intimation that he was ever previously
charged with any form of falsification of reports or evidence. Thus, I will assess
the credibility of Officer Rawlston and the other participants in that subsequent
exchange below when I assess their testimonies concerning the interactions
between Officer Rawlston and Persons A, Band C.
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Conclusions on Credibility:
Given the above, I am satisfied that Persons A, Band C lied to the

investigating officers and lied under oath during the arbitration proceedings as
to why they were on Lane. There were not two of them who proceeded
up Lane; all three of them participated. That conclusion raises a
critical question in this case, which is:
What were Persons A, Band C doing on Lane on April 7, 2007?
I am convinced that in the absence of any truthful explanation by

Persons A, Band C for their presence on Lane on April 7, 2007, the
reason they were there is to do exactly what they did.
Phase I-Events at Lane:
I have decided that the best way to examine the events which started
when Persons A, B, and C headed down the driveway of the Rawlston property
is to separate out the events culminating in Officer Rawlston standing at the
end of his driveway on his property looking north on Lane at Persons
A, Band C. The reason I believe it makes sense to examine the first stage in
isolation is that it brings into focus more clearly Officer Rawlston's handling of
his weapon.
Chief Gemme is an impressive witness. He has enviable education

credits and vast experience in the proud career of a police professional. Thus,
when he speaks about the proper handling of a weapon, I listen. What I did
not hear in my listening, however, was a good explanation of why-whether it
be a police officer or a civilian-when awakened by a telephone call by a
neighbor and told that there are prowlers in the yard, it would make any sense
at all to strap on a holster, secure your mace and baton, before you even look
through you house to see if anyone has broken in. In all candor, I suspect that
if the events of April 7, 2007 had ended with Officer Rawlston stopping at the
end of his driveway and then going back into his house, no one would have
taken much issue with him as a home owner, in the haste to see if his home
had been violated, grabbing his weapon and not wasting time strapping on a
holster. While the advisability of carrying an unholstered weapon became a
pregnant question once Officer Rawlston left the driveway, I cannot find
anything in the regulations or policies submitted in evidence which would
suggest that a home owner, who happens to be a police officer, should holster
his weapon before going into the dining room to see if someone is lurking there
following a break-in. Indeed, those very policies specifically state that a
weapon may be carried in a ready position outside of a holster when an officer
is investigating a potential break-in at a warehouse or other structure.
81
I assure Chief Gemme that his testimony about the vulnerability of an
officer's weapon, once it is unholstered, was not lost on me. However, I find
Officer Rawlston's use of his weapon during the search of his house and the
immediate environs outside his door as being the acts of a reasonable person
who at the time of that search had absolutely no basis to believe that a break-in
could not have occurred. The City has cautioned me against being a "Monday
morning quarterback" with respect to the Hearing Officer's findings. I suggest
that the same deference must be paid to Officer Rawlston's valid belief that he
had better check his house with his 'weapon in a ready position because, as he
knew, anyone entering his yard was surely not there as a cut-through or for
some benign purpose at 9:30 at night. He had a wife and child and a house to
protect. The fact that he carried the weapon outside when he saw his neighbors
in his driveway was an understandable act given a desire to find out from the
neighbors what this was all about. As of the moment he exited that house, he
had absolutely no reason to know that the intruders were gone.
Given the above, I am satisfied that the City has failed to meet its burden
of proving that Officer Rawlston's handling of his weapon, up to and including
the point where he had a discussion with his neighbor, constituted a violation
of Section 1503.1, "Unnecessary Force," or of 1514.1, "Conduct Unbecoming an
Officer or Employee," or 1517.1, "Incompetence," or 1518.1, "Careless Use of
Weapons."
It is now time to examine the critical phase of the events of April 7, 2007.
Phase 2-April 7, 2007 Events:
I would like to start this section by taking a moment to set the scene at the
start of Phase 2. The Simokonises and the Rawlstons were assembled at the end
of the Rawlston driveway with the outside lights on illuminating them and their
house. Officer Rawlston's attention had been directed by Mr. Simokonis to three
figures standing approximately three houses north of them. The evidence is clear
that once those three individuals left Officer Rawlston's property they headed
north. Thus, when those three individuals stopped, turned around, and headed
south, there was every reason for the Simokonises and the Rawlstons to take
that change of direction seriously. I am satisfied that a reasonable person, acting
responsibly, who looks up a darkened street at three recent trespassers at best,
and who, while standing in a pool of light, sees those trespassers begin to head
back in the direction of the person upon whose property they had just
trespassed, that person should go on high alert.
At this point it is worthy of note that the circumstances surrounding that

trespass-i.e., at night, down the driveway, among the cars and beyond-
represented a reasonable basis to suspect that a felony break of the cars or the
82
house could have occurred. As of the moment that Persons A, Band C
reversed direction and headed back towards the witnesses to, and the victims
of, their trespass, Officer Rawlston had no opportunity to investigate nor to
rule out the possibility a felony had been committed.
The City has suggested that the appropriate response for Officer
Rawlston at this point would be to go back inside his house. He knew that
police had been notified and were on their way. The City asserts that his
injured condition and the imminent arrival of help warranted him going back in
the house and letting the responding officers handle the matter. With all due
respect to the City's assertion in this regard, it ignores the presence of the
Simokonises. It is inconceivable that an officer sworn, by virtue of the Code of
Ethics, to protect and defend the residents of Worcester would allow two
witnesses to a trespass, and possible break-in, to stay outside on that driveway
alone while the three trespassers headed back in their direction while the
officer went inside and closed the door. I am convinced that the approach of
persons who, at best, were trespassers on a dark night, moving in the direction
of the witnesses to and victims of that trespass, is a serious situation which, by
default, became Officer Rawlston's problem.
Officer Rawlston's testimony that he perceived that movement of the

three trespassers as a threat has been responded to by the City by painting
him as a fearful individual and someone who is not worthy of the badge by
virtue of that fear. I cannot accept that assertion. A badge on a person's chest
does not make him/her immune to fear. Rather, it requires the officer to accept
the responsibility of responding, despite that fear, and protecting those who
could reasonably be viewed as exposed and vulnerable.
Earlier in this Discussion I told the reader that my examination of the

events on lower Lane might be relevant to the interaction between
Officer Rawlston and Persons A, B, and C-even though Officer Rawlston was
unaware of those prior events. The reason I find those prior events to be
relevant is because, although Officer Rawlston didn't know about the prior
confrontation, Persons A, B, and C certainly did. When they looked back and
saw the lights at Lane go on and two home owners come out and
two neighbors join them, I am satisfied that two thoughts can reasonably be
attributed to those three individuals. The first thought was the expectation that
they were about to be confronted a second time, and the second thought was
they had absolutely no valid explanation for their presence on Lane
that evening. I am satisfied that a reasonable person, acting responsibly, could
conclude that what those three individuals did was immediately discuss a
cover story, and they arrived at a story which makes no sense at all-i.e., that
they just met Person A at the gate and there had been two of them who went
83
up Lane for the purpose of meeting Person A. As my earlier
examination revealed-at least to my satisfaction-their story could not stand
up to even a puff of wind. However, it was the best those three individuals
could come up with in short order.
I am satisfied that when those three individuals headed south on

Lane, they had every expectation that they were about to be confronted as
to why they were on Lane and why they had been in the Rawlston
yard. I have no evidence to support a conclusion that Persons A, Band C were
hardened criminals who were comfortable bluffing out such a scenario. They
were 15-year-old kids, caught in the act (or shortly after the act), without any
excuse for being on Lane other than the contrived "gate" story.
Throughout this case, the City, in a variety of ways, has sought to portray
Persons A, Band C as innocent "kids" with no prior records. However, there
are consequences to that assertion. Kids that young, without past arrests to
harden them, now facing their second confrontation in the last half-hour and,
again, armed with a flimsy, made-up story, most likely had two thoughts on
their minds-perhaps three. The first two involved "fright" and "flight." The
probable third thought in the back of their minds was what their parents
would do if they got caught following a trespass on Lane, itself
following a confrontation on lower Lane about a car break-in-all
with no valid reason for being there.
I do not want to attribute super-human powers to an individual just

because he's a police officer, but after 14 years on the force, any officer worth
his salt would detect in the behavior of those three individuals something
suspicious. Thus, when Officer Rawlston testified, consistent with his
statements, that the movement of those three individuals-including their
"fanning out"-put him in greater fear, I am satisfied that his statements about
their movements are not inconsistent with what you could expect of three
teenagers about to be confronted for the second time in a half-hour.
I don't want to be unfair to Chief Gemme by claiming that he directly

endorsed the validity of Officer Rawlston's right to conduct a threshold stop of
those three individuals on that evening. The Chief testified, "I believe that he
could, based on your scenario, conduct a threshold stop." (Tr., p. 442) In
fairness, I must point out that the "scenario" advanced to the Chief attributed a
belief to Officer Rawlston that he had been told by somebody witnessing the
trespass that somebody thought "... they are breaking in." I don't believe the
Chief accepted all of the facts in that scenario as being applicable to the actual
events in question. I would point out, however, that while Officer Rawlston had
no proof that anything more than a trespass had occurred, he also had no
proof that only a trespass had occurred. A reasonable person who is told that
84
someone has entered their backyard at night, and who had yet to have an
opportunity to examine the exterior of their home, might reasonably harbor a
suspicion that a break-in could have occurred or been attempted. Be that as it
may, when Chief Gemme's testimony on the question of a valid stop is
juxtaposed against that of Capt. McGinn, I am satisfied that they represent a
compelling tandem on point. Capt. McGinn testified as follows:
Q: All right. So do you agree that Officer Rawlston had reasonable suspicion
of-or sufficient to conduct a stop?
A: Yes.
(Tr., p. 1050)
Given the above, I accept that Officer Rawlston had sufficient basis to
conduct a stop of Persons A, Band C.
Continuum of Force:
I am satisfied that 1) Officer Rawlston headed north on Lane,

not as a form of pursuit of trespassers, but as a response to those trespassers
reversing direction and heading back toward him and the witnesses to their
trespass; 2) based on the testimonies of Chief Gemme and Capt. McGinn, I am
satisfied that Officer Rawlston had sufficient basis to conduct a stop of those
individuals.
Chief Gemme did an excellent job, as did Capt. McGinn, describing the
full panoply of potential responses available to an officer in the process of
taking charge of a situation and conducting a stop. They convincingly
described the desirability and, in fact, the requirement to use the least level of
force necessary, and to up the ante only in response to articulable events
demonstrating a deterioration of control of the situation or an escalation by the
suspects. With all due respect to the very convincing testimony of those police
professionals, I must point out that by virtue of the way that Officer Rawlston
was thrust into this situation by the trespass, at best, of those three
individuals, he was out on his driveway without any of that panoply of options
on which the continuum of force rests. There is nothing like a police shield to
capture people's attention. That shield, coupled with the police uniform, by
themselves alone, represent a level of authority which is useful in controlling a
situation. As the Chief and Captain described, if the situation escalates and the
circumstances warrant, an officer can up the ante with voice commands, and if
those are insufficient, resort to the threat of or actual use of hand controls,
chemical spray, and/ or of the baton. If those actions fail to establish control,
then there comes a point where an officer is justified, based on the threat, in
drawing his weapon.
85
Unfortunately for Officer Rawlston, and might I say for Persons A, Band
C, when those three individuals decided to head back toward Officer Rawlston
and the witnesses to their trespass, they were about to encounter a police
officer who only had three resources available to him on that dark street.
Those were his voice, his hands, and a gun. I am satisfied that a reasonable
person, acting responsibly, armed with only those three instruments of
reaction, could find it necessary, when the three suspects fanned out, to go
from level one to level three instantly. I cannot accept the City's repeated
invitation to view three teenage boys as inherently harmless and non-
threatening. While they are entitled to a presumption of innocence in Court,
they are not entitled to a presumption of harmlessness. Indeed, the entire
juvenile justice system renders that assertion unsupportable. Underthe
circumstances of this case, I am satisfied there is no reason to disbelieve
Officer Rawlston's claim, supported by other eye witnesses, that the three
individuals fanned out. Indeed, earlier in this Discussion, I already invited
what I consider to be the real possibility that one of the options being
considered by Persons A, Band C was flight. The preliminary movements of
someone who, as Mrs. Simokonis put it, looked like they were about to "book,"
could well resemble a group fanning out.
The testimony of Persons A, Band C establish that Officer Rawlston

called out, "Police officer." The record supports a finding that this was
synonymous with his raising his weapon. The reasonableness and efficacy of
that simultaneous elevation to level three of his available options is a tough
decision to second guess. I was not on that street that evening. I did not have
to protect the Simokonises and Mrs. Rawlston dressed only in a sweat outfit
and a gun. I am convinced, however, that this confrontation was precipitated
by Persons A, Band C when, after entering Officer Rawlston's yard for an as-
yet-to-be-determined purpose, they initially headed away from his home and
then they decided to head back in his direction, thereby precipitating these
events. While the fact that Officer Rawlston's weapon was not holstered may
have increased the jeopardy in which Persons A, Band C found themselves
that night, I think it is reasonable to assert that someone who decides to break
the law has to accept their victims as they find them.
The Take-Down and Search:
It is time to focus on the events following Officer Rawlston's raising of his

weapon. I am satisfied that the lens through which those events must be
viewed is one which recognizes that Persons A, Band C have no credibility
when it comes to that interaction. They have lied from beginning to end about
the reason they were on Lane and, as I stated earlier, I think it is fair
to conclude that the reason they were on Lane is to do what they did.
86
In addition on the issue of what occurred in the last stages of that interaction,
the City and Officer Cronin and the Hearing Officer, all appeared willing to
accept with full credibility three mutually exclusive versions of where those
individuals were when they were struck. Indeed, Sgt. Cronin opted for a
version where all three were kneeling when they were struck, which is at odds
with every version advanced by Persons A, B or C. Person B advanced a theory
of a pistol-whipping with the butt of a weapon, yet no evidence at all of the
injury one would expect from such a blow was present two days later, and he
made no mention of such a blow that evening. It would be a futile exercise to
try to pick out some portion of those three boys' testimonies concerning that
interaction which could possibly be believed in light of their self-destroyed
credibility.
I am satisfied that the testimony of the Simokonises, Mrs. Rawlston, and

the statement by Mr. Sobel-all support rather than contradict Officer
Rawlston's version. I acknowledge that, except for Mrs. Rawlston, the other
three had periods of time where they were not observing Officer Rawlston's
actions. Nonetheless, their reports and testimonies generally support his
version rather than that advanced by Persons A, Band C.
In conclusion, I am satisfied that the evidence and testimony presented

to me warrant the conclusion that the version of events advanced by Officer
Rawlston and supported by other witnesses should be accepted. I am further
satisfied that Officer Rawlston did not precipitate the events of that
confrontation, but rather responded to the provocative movements of those
three individuals back down Lane toward their victims. Officer
Rawlston, by virtue of those circumstances, was denied the full spectrum of
equipment and image that is inherent in the expectation of a continuum of
force. I am satisfied that he applied his scant resources in a reasonable manner
given the fact that he was outnumbered and had no reason to believe that
these persons had engaged in merely a trespass. While he had no proof of a
felony, he had no reason to rule out that option until an investigation revealed
otherwise. Given the above, I am satisfied that the City has failed to meet its
burden with respect to all alleged violations of rules and regulations except for
Section 1402.1, "Truthfulness," which I will examine just below. I am further
satisfied, based on the evidence and testimony before me, when coupled with
the District Attorney's decision not to take action against Officer Rawlston, that
the City has failed to meet its burden of proof in sustaining the allegations of
four violations of 1501.2, "Criminal Conduct, Assault and Battery with a
Deadly Weapon."
87
Section 1402.1-"Truthfulness":
There is absolutely no doubt that Officer Rawlston's report is at odds

with Officer Hanlon's report. In Officer Rawlston's report, he indicates that he
did not observe the three individuals while they were on his property but was
informed of their actions by his neighbors. By contrast, Officer Hanlon, in his
report, states in pertinent part: "He (Rawlston) informed me that he had been
at home with his wife and children when he observed 3 males lurking about his
property. He stated that the males were looking into his windows and looking
in the windows of his car in his driveway...." (City Exhibit 14) Clearly those two
reports contradict each other. The Hearing Officer's finding in this regard was,
"1 conclude that the statements to Officer Hanlon were false." (City Exhibit 2,
p. 3, Finding #11)
Obviously the Hearing Officer and I differ fundamentally about the

credibility of Officer Rawlston. The Hearing Officer found Persons A, Band C to
be credible, and hence, almost as an unavoidable consequence, Officer
Rawlston had to be viewed as not credible. I'm faced with the reverse situation.
However, I am not content to merely extend the mantle of credibility to resolve
the differences between Officers Rawlston's and Hanlon's reports. Rather,
before concluding that Officer Rawlston lied, I examined the record in detail for
one reason. Throughout this entire case, the question of who saw Persons A, B
and C in Officer Rawlston's driveway and who did not was consistently clear
except for Officer Hanlon's report. Officer Hanlon struck me as a good police
officer testifying honestly. The situation, however, raised the following question:
Why would Officer Rawlston put in his report that he learned everything from
the Simokonises, and if he lied to Officer Hanlon on point, why didn't he
attempt to get the Simokonises to match their story to the one he told to Officer
Hanlon? Indeed, Officer Rawlstontold Persons A, Band C in a somewhat
elevated tone of voice that if he had seen them on his property severe
consequences would have ensued. He didn't go back and try to get them to not
reveal that statement. There's no evidence that he ever went to the
Simokonises or to Mrs. Rawlston to try to get them to back up the version
which Officer Hanlon states was given to him. In other words, in every other
aspect of this case, every other witness to that interaction told the version of
this case consistent with Officer Rawlston's report (i.e., that what he found out,
he found out from the Simokonises).
Given the above, what could possibly have given Officer Hanlon the
impression that Officer Rawlston discovered the three individuals in his
driveway as opposed to them being observed by the Simokonises? The answer
to that question lies in City Exhibit 21, page 2, where the conversation between
the Dispatcher and Officer Hanlon went as follows:
88
Oscar 18 (P.O.M. Hanlon H505): Go ahead.
Dispatcher: can you start to 38 Lane for a

trespass; we have Dave calling in states he
just found three kids in his driveway. And
ah he is requesting a police officer as he is
approaching them.
(City Exhibit 21, p. 2-emphasis added)
I am satisfied that this is where Officer Hanlon got the impression that
Officer Rawlston had "...just found three kids in his driveway.... " That's what
he heard from Dispatch, and that's what he believed. That was what was on his
mind when he listened to Officer Rawlston's discussion about what the
trespassers might have done or intended to do.
In the light of the consistent repetition by all witnesses that Mr. Simokonis
and Mrs. Simokonis observed the trespassers, not Officer Rawlston, I am
satisfied that the sole exception to that consistent record-i.e., Officer Hanlon's
report-is more reasonably explained by that Dispatcher's statement than it is
by the City's assertion that somehow, despite everyone else knowing the
contrary, Officer Rawlston would recklessly lie to the responding officer when he
had no reason to believe that this officer wouldn't interview the Simokonises and
instantly find to the contrary.
Given the above, I am satisfied that the City failed to meet its burden
with respect to an alleged violation of Section 1402.1, "Truthfulness."
Chief Gemme I Sgt. Richardson I Reassignment I Reports:
I am sensitive to Chief Gemme's concern that he believes his orders were

not followed by the Detective Bureau on the subject of conclusions. With all
due respect to that concern, however, I do not find much evidence to support a
conclusion that Policy 500, which deals with "Internal Affairs" had much
circulation within the Detective Bureau. Given the high regard that Capt.
McGinn holds for Sgt. Richardson's investigative talents, and the absence of
sufficient information to support a conclusion that Lt. Rich intentionally
violated the Chief's orders, I cannot accept the City's view that the Detective
Bureau report should be ignored. I have already, earlier in this document,
presented some comments on certain aspects of the Professional Standards
report. I wi11leave it at that.
Following Sgt. Richardson's reassignment from the Detective

Bureau, the Union asked me to intervene to protect the integrity of
89
witnesses. I declined. I did allow the Union the opportunity to ask future
witnesses and recall past witnesses and inquire whether their testimonies
had been affected in any way by managerial actions. I am satisfied to
leave matters as they lay in that regard-first, because I have no authority
over those transfers under this grievance, and second, because I have full
faith that the Worcester Police Department will continue to make
personnel assignments based on what is best for the Department and the
citizens of Worcester.
Conclusion:
My findings in this case are substantially at odds with the findings of the
Hearing Officer and, hence, with the decision of the City Manager who adopted
those findings. I am satisfied that there was not just cause for the termination
of Officer Rawlston, and he is to be reinstated with full back pay and benefits,
less any and all outside earnings or unemployment compensation.
AWARD
That there was not just cause for the termination of Police Officer David
Rawlston. That termination is revoked, and he will be reinstated with full back
pay and benefits, less any and all outside earnings and/ or unemployment
compensation.
I retain jurisdiction in this case over issues concerning computation or

implementation of this Award.
: G. Higgins
Arbitrator
DATED: July 17, 2009
90

Worcester Arbitration Award - Rawlston.2009

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NEW ENGLAND POLICE BENEVOLENT ASSOCIATION

CITY OF WORCESTER, MASSACHUSETTS

Arbitration: Termination of David F. Rawlston

Officer David Rawlston. That termination is revoked, and he will

outside earnings and/ or unemployment compensation.

I retain jurisdiction in this case over issues concerning

computation or implementation of this Award.

DATED: July 17, 2009

CITY OF WORCESTER, MASSACHUSETTS

Arbitration: Termination of David F. Rawlston

RELEVANT CONTRACTUAL PROVISIONS 2

RELEVANT POLICE DEPARTMENT POLICIES 4

WORCESTER POLICE DEPARTMENT RULES AND REGULATIONS 8

POSITIONS OF THE PARTIES 58

Position of the City ;. 58

Position of the Union 65

CITY OF WORCESTER, MASSACHUSETTS

Arbitration: Termination of David F. Rawlston

Hearings were held in the above-referenced case on August 25, October

Appearances for Parties: Peter J. Perroni, Esq.

At the initial arbitration hearing, I placed the following statement in the

Arbitrator: On the record, please. Prior to going on the record, the

If not, what shall be the remedy?

RELEVANT CONTRACTUAL PROVISIONS

Section Four. As soon as practicable following the effective date of this

Section 1: No permanent member of the bargaining unit shall be

Section 6: Permanent employees of the bargaining unit who have

POLICY NO. 205-CODE OF ETHICS

As a Law Enforcement Officer, my fundamental duty is to serve the

I will never act officious or permit personal feelings, prejudices, political

POLICY NO. 400-USE OF FORCE

GENERAL CONSIDERATIONS GUIDELINES

Because of his law enforcement and peacekeeping role, a police officer

Because there are an unlimited number of possibilities, allowing for a

The amount and degree of force which may be employed will be

a. The nature of the offense;

b. The behavior of the subject against whom force is to be used;

d. Physical odds against the officer; and

e. The feasibility or availability of alternative actions.

When an officer determines that the use of force is necessary, he shall, to

a. Verbalization is defined as verbal persuasion used by the officer in

b. Physical strength or hand control is the level of force normally

c. Restraint techniques are those techniques an officer feels necessary

d. Department approved non-lethal chemical substance when used to

e. The department approved police baton, when used as an impact

f. CNICS Gas Grenades and Projectiles when used in dispersing

5. A weapon should not be displayed or brandished as a threat unless its

a. That person has a visible injury; or,

b. That person complains of injury or discomfort and requests medical

POLICY NO. 400.7-FIREARMS GUIDELINES

1400.0 REQUIRED CONDUCT

An officer or employee of the Department shall truthfully state facts

1403.11 MGL Chapter 268 6A Advisory

Officers and employees should be aware that it is illegal for them, in

1500.0 PROHIBITED CONDUCT

1502.1 Criminal Conduct

Commission of any felony or misdemeanor.

1503.1 Unnecessary Force

Using more physical force than that which is reasonably necessary

1514.1 Conduct Unbecoming an Officer or Employee

Conducting oneself, on or off duty, in a manner which reflects

Incompetence, which may be demonstrated by, among other things,

(a) a lack of knowledge of the application of the laws required to be