Barbara Howard: A Boston police officer who has been fired two times for using excessive force has been ordered reinstated again, this time by the Massachusetts Supreme Judicial Court. The first time, back in 1995, Officer David C. Williams nearly killed an undercover police officer, mistaking him for a criminal. He was fired, but reinstated by an arbitrator. The second firing stems from an incident in 2009. Williams, accused of using excessive force after he reportedly put a choke hold on a man during an arrest in Boston’s North End. On the line to talk about the ruling to reinstate Williams is WGBH News legal analyst and Northeastern University law professor Daniel Medwed. Hi Daniel.

Daniel Medwed: Hi Barbara.

Barbara Howard: Well, in making that ruling yesterday, the Supreme Judicial Court effectively ruled that the Boston Police Department does not have rules that explicitly forbid choke holds. What do you make of that?

Daniel Medwed: That’s’ exactly right. The Boston Police Department’s own use of force policies are very subjective. They allow the use of nonlethal force as long as that force is reasonable. There’s not a general and explicit ban on choke holds. So in other words, as long as the arbitrator here found that Mr. Williams engaged in force that was reasonable, then the BPD was found not to have a justification to require firing him.

Barbara Howard: Well in writing the opinion, Justice Geraldine Hines said “the Court is troubled by the prospect that any use of force not explicitly prohibited by a rule of conduct is essentially unreviewable.” Is that what you’re talking about?

Daniel Medwed: Absolutely. The entire structure is set up to give arbitrators a lot of power in deciding whether or not a termination is justified, because the use of force policies are so open-ended, they’re so subjective, they leave a lot of room for interpretation, and ultimately that interpretation belongs to the arbitrators. The SJC in this opinion by Justice Hines seemed to express frustration between the lines with the inability of the court to overturn or look anew at those arbitrators' decisions.

Barbara Howard: And you’re right about the arbitrator having a lot of power on this. It should be noted that 72 percent of discipline that’s meted out by the commissioner, the police commissioner, Evans, is overturned in arbitration. 72 percent, that’s according to research that was conducted last year by Northeastern University students in cooperation with reporter Mike Beaudet of WCVB television. What do you make of that?

Daniel Medwed: That’s a very powerful figure, and it shows that in the balance of power between the police union and the police department, it seems like the union might be winning when officers are terminated, the union-backed candidates will then have a very good likelihood of success through arbitration. Perhaps beefing up the use of force policies or making more explicit some of the rules could make it harder for arbitrators to reverse these termination decisions.

Barbara Howard: Now the judge went on to write, and I quote, “because choke holds are unpredictably lethal, both officers and the public deserve a bright line rule.” Now what does she mean by that?

Daniel Medwed: I think Justice Hines means that the Boston Police Department should forbid all choke holds under any circumstances because of their unpredictable nature.

Barbara Howard: Well this ruling from the SJC has dealt a real blow to public confidence in the police department, when even the police department itself seems not to be able to get rid of an officer who has been fired by them twice.

Daniel Medwed: Absolutely. And one of the telling issues in this opinion was when Justice Hines criticized the Boston Police Department itself for not investigating this allegation, the allegation against Officer Williams, with alacrity. The person who was injured in the North End filed a complaint, but it languished, it looks like for about a year before the BPD really did anything about it. So on the one hand we can look at this and say, poor Boston Police Department, they can’t even fire their own officers. But on the other hand we can look at it and say, maybe if the BPD had investigated this more quickly and more thoroughly, it could have reached a different result.

Barbara Howard: What are the chances that this officer, David C. Williams, will actually be out on the street again in uniform, do you think?

Daniel Medwed: I would be shocked if he ever ended up on patrol again. Maybe he would have a desk job, or more likely he’d reach some type of settlement with the police department in exchange for his resignation.

Barbara Howard: Thanks, Daniel.

Daniel Medwed: Thank you, Barbara.

Barbara Howard: That’s WGBH News legal analyst and Northeastern University law professor Daniel Medwed.