Attorneys representing ousted City of Orange Police Captain Robert Arnold have requested more time to provide a Houston District Court with information as to why the former public servant should be entitled another arbitration hearing in an effort to get his job back using an arbitrator whose prior ruling in the matter was overturned by a judge earlier this year. In January, Judge Elizabeth Ray tossed out arbitrator Leroy Bartman’s 2011 ruling, which instructed the city of Orange to reinstate Arnold, who was relieved of his civil service duties after fatally shooting an unarmed Marine veteran July 26, 2010.
John Cash Smith, attorney for the city of Orange, said he was pleased with the January ruling – for the most part.
“I’m very gratified with the judge’s ruling, and we expected we would win from the beginning. The facts, and case law, were on our side,” Smith said. However, “I’m going to recommend that we appeal the ruling not to exclude (Bartman).
“It would be very nice if (Arnold would) just resign. I’m not going to keep him if we don’t have to. A court will have to make me.”
Smith said Bartman was paid $18,000 to deliver a report based on the facts brought out in arbitrated mediation, but failed to do so. If used for the arbitration rehearing, Bartman would stand to gain another $18,000, Smith added.
“You don’t think that puts a sour taste in my mouth?” Smith said. “We are of the feeling that he can’t be fair.”
Smith said he will defend the city of Orange’s interests in keeping Arnold off the streets as a city officer. Smith estimated that the first hearing cost the two parties in excess of $100,000.
The culmination of the first hearing was the result of Arnold challenging his termination from the Orange Police force following an incident wherein Arnold, while off duty, became entangled in an altercation that ended when the former police captain shot and killed James Whitehead, a Marine veteran. Exactly one year after the homicide, arbitrator and fact-finder Bartman ruled that Arnold should be placed back on the Orange Police Department payroll based on testimony that Arnold was unaware he was being investigated for shooting Whitehead.
According to testimony presented by city of Orange attorney Smith during a civil hearing, the lawyer stated, “We presented a very clear and convincing case that Chief (Sam) Kittrell’s decision to terminate Robert Arnold was entirely justified.
“This whole incident is a human tragedy. A 28-year-old man was deprived of the rest of his life, a 3-year-old daughter doesn’t have a father, two parents have lost their son, and a police officer’s career has been ruined — all because of an incredible lapse of judgment in less than four minutes of time.”
Smith alleges that in the four-minute event bringing about the tragedy at the Orange O’Reilly Auto Parts store, Arnold used poor judgment when he killed Whitehead at point-blank range as the man was attempting to leave the scene of a heated verbal altercation.
“Arnold used incredibly bad judgment, and because of that, lives were ruined,” Smith said on behalf of the city. And because of Arnold’s actions, Smith said, Whitehead “had his life snuffed out.”
According to Smith, “We believe, by more than a preponderance of the evidence, that it was a killing, not what police call a good shooting.”
Smith said a date for the arbitration rehearing of Arnold has not yet been set. Attorneys for Arnold were scheduled to submit briefings to the court as to why the city of Orange’s request for a new arbitrator/fact finder should be denied, but instead asked for a 30-day delay on April 30. Smith said that once Arnold’s attorneys answer the court, the city will have an additional 30 days to respond. Arnold also filed an EEOC complaint against the city of Orange alleging that he is the victim of racial discrimination. That case is pending in federal court.
Jennifer Johnson can be reached at (409) 832-1400, ext. 231, or by e-mail at jennifer [at] theexaminer [dot] com.