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D.C. Police Officer Michael Thomas was off duty when he shot an unarmed man in Hyattsville in 2009, and the Metropolitan Police Department has been trying to fire him ever since.
After multiple internal reviews and a two-day administrative trial known as an adverse action hearing, a three-person panel of MPD brass concluded that Thomas “cannot be rehabilitated,” and that his actions “raise serious concerns about his judgment as a police officer.” Then-Chief Cathy Lanier rejected Thomas’ initial appeal and upheld the panel’s decision. But an arbitrator reversed the termination, setting off what would become a nearly 13-year process that sent the case from the Public Employee Relations Board to D.C. Superior Court to the Court of Appeals and back down to the PERB.
The board just released its latest opinion late last month and ordered MPD to rehire Thomas. MPD spokesperson Dustin Sternbeck referred questions to the Office of the Attorney General, which represents the department in police discipline cases. An OAG spokesperson said the office plans to file another appeal to the PERB’s ruling in the near future.
For now, Thomas stands to get his job back and at least five months of back pay. He could earn much more.
The case might seem extreme to outside eyes, but it is a surprisingly typical example of the arduous process of getting rid of bad cops in D.C. Last October, the Office of the D.C. Auditor released a report that found MPD was forced to rehire 37 officers between October 2015 and March 2021; the District was ordered to pay 36 of those officers a combined $14.3 million in back pay. Fifteen of the officers were still working for MPD at the time D.C. Auditor Kathy Patterson released her report, and her auditors labeled three of the 15 as a “threat to safety,” due to the nature of their misconduct.
Patterson tells City Paper it’s still slightly unusual to see a case go on for quite this long, but she believes the ultimate outcome will be clear for Thomas: “If they say you have to take him back, they have to take him back.” There’s no telling if the department will actually do so, though. Patterson says MPD has simply “refused” to rehire officers in some cases, since the PERB doesn’t have independent authority to enforce its rulings.
Marc Wilhite, the attorney representing Thomas and the city’s police union for part of these proceedings, says he’s unsure what’s become of Thomas as his appeal has played out. In cases like this one, where an arbitrator overturns the department’s decision, he suspects that MPD’s strategy is to exhaust all its appeals to and “run out the clock.” The belief is that officers will walk away from the department even if they are reinstated after years of appeals. Efforts to reach Thomas were not successful.
Thomas’ case is emblematic of a process that leaves precisely no one happy. MPD spends huge amounts of taxpayer money as a stall tactic to get rid of officers who they don’t believe should carry a badge and a gun. The strategy simultaneously negates the union’s move to bargain for arbitration for its members. Meanwhile, Thomas is stuck in limbo, barred from working for the department as his appeal crawls toward an end.
Yet long sagas like this one could soon become much more rare, as the D.C. Council passed a series of reforms to police discipline as part of a broader bill meant to respond to the racial justice uprisings of 2020. The D.C. Police Union spent years challenging them in court, and has since turned to Congress to try and overturn the legislation after losing the legal battle. The House voted to do so on Wednesday, April 19, with 14 Democrats joining Republicans to help the bill pass. President Joe Biden has promised to block that effort, but his recent reversal on similar legislation overturning revisions to D.C.’s criminal code ensures that District leaders can’t be certain about their standing with national Democrats just yet.
“The union can squawk and cry in front of Congress, but the fact is they’ll have the same rights as all other D.C. government employees if this goes through,” says Michael Tobin, the executive director of D.C.’s Office of Police Complaints. “The only difference is they won’t have more rights where they get to go through this long arbitration process … It’s going to eliminate situations like this one.”
Thomas’ saga started around 5:30 a.m. on Sept. 13, 2009. He was watching TV in bed while his then-girlfriend was sleeping next to him, and the alarm on his car fob started going off.
Thomas, a two-year veteran of the force at time, went to see what was going on, according to investigative reports subsequently prepared by MPD. He saw a man near the front passenger side door of his black Chevy Tahoe parked outside: 20-year-old Julio Lemus.
Lemus would later testify in a hearing with MPD officials that he was walking home after a night of drinking with his cousin and stopped by the truck to pee. Thomas would later testify that he believed Lemus was tampering with his vehicle (perhaps trying to break in), so he grabbed his service pistol and went out on the front porch.
Thomas claimed in a series of interviews with investigators that he repeatedly told Lemus to “roll out” and move away from his car, and he said he identified himself as a police officer in the process (though Lemus disputed that claim). Thomas told investigators that he walked closer to Lemus, and after a brief exchange between the two, he said Lemus reached inside the pocket of his hoodie and moved “quickly and aggressively” toward him. That’s when Thomas shot Lemus twice, once in the thigh and once in the abdomen.
Lemus gave a different version of events. He said Thomas did not identify himself as a police officer and charged toward him.
“I lifted my hands up … Then all of a sudden, he pulled out his gun,” Lemus testified during the adverse action hearing on the incident in October 2010. “And I tried to run, and he shot me sideways, shot me in my stomach and shot me in my leg.”
Investigators did not find any weapons on Lemus, and Prince George’s County prosecutors found no evidence that he attempted to commit a crime. Lemus, who did not respond to a request for comment, would spend about two and a half months in the hospital as a result of his injuries and underwent six surgeries, according to court records. He told the panel that his injuries prevented him from working, except for some odd jobs.
Prince George’s County prosecutors also opted not to pursue charges against Thomas. A simultaneous review by MPD’s internal investigators looked at the incident for potential policy violations.
At first, MPD Detective James King determined the shooting was “justified,” essentially finding that Thomas was within his right to arm himself and confront Lemus in response to what was, at best, a property crime. King took Thomas at his word that he fired after he believed his safety was in danger.
“Although Officer Thomas may have had other alternatives, his actions were still within the guidelines and the training of the Metropolitan Police Department,” King wrote in his 2009 report.
Throughout his report, King notes that the county prosecutor’s investigation had not wrapped up, but repeatedly writes “once a declination is issued …” as if it were a foregone conclusion that Thomas would not face any charges.
The declination letter signed by Prince George’s County prosecutor Joeday Newsom glosses over several details that MPD brass viewed as significant, such as the fact that Thomas did not call local police after shooting Lemus. The letter also misstates the evidence to seem more favorable to Thomas. For example, Newsom wrote that Thomas “held out his badge identifying himself as police,” which is not accurate.
In any case, MPD Lt. Guy Middleton subsequently disagreed with King’s findings, and pointed out several holes in the detective’s report. For instance, Middleton said King did not address the fact that Thomas was off duty and in Maryland, where the officer had no jurisdiction.
“While Detective King includes a number of hypothetical situations which could have been possible, the facts of this case are clear and indisputable,” Middleton wrote in his 2009 report.
“I believe that MPD, and law enforcement training across the country, trains members not to use deadly force unless there is an actual or imminent attack that could lead to death or serious bodily injury,” he continues.
The lieutenant found that Thomas “made a series of questionable decisions” in the run-up to the shooting, such as choosing to move closer to Lemus and neglecting to call local police to handle the situation. A panel of officers scrutinizing uses of force ultimately recommended Thomas’ firing, and the adverse action panel of MPD brass agreed.
Thomas appealed that decision to then-police chief Lanier, but she denied his entreaties. This prompted Thomas and the union to ask for arbitration, when a third-party mediator reviews such employment decisions, in March 2011.
D.C. police chiefs have railed for years against the process, arguing they should have the final say on firings without involving arbitrators. The Council’s legislation, which Congress is currently reviewing, would give the chief this sort of power by removing disciplinary matters from the department’s bargaining with the union.
Adding to the absurdity of this case, the union did not file papers to move forward with arbitration until April 2017—six years after MPD issued its final decision to fire Thomas. Arbitrator Malcolm Pritzker later called the delay “extraordinary.” (The process took so long that the original arbitrator assigned to review the case died before the union could get the process moving.) This sort of foot-dragging by the union is also seen by people close to the process as common practice. A long wait can have all sorts of benefits for officers, perhaps allowing time for a new chief (or mayor) willing to settle open cases to take over.
Pritzker ultimately ruled on the case in November 2017, reversing Thomas’ firing in favor of a 45-day suspension. He wrote that Thomas “did not have the legal authority in another jurisdiction to give police orders to an individual who was not committing a crime” and he found it “reckless” for Thomas to approach Lemus without waiting for Hyattsville police to arrive. However, Pritzker found that MPD suspended officers rather than firing them in another, similar case, suggesting that the department should offer Thomas more training rather than canning him.
Pritzker did take issue with the union’s long delays, however, opting to award Thomas five months of back pay instead of the six years that elapsed since the union started the arbitration process. Pritzker reasoned that five months is the average amount of time it takes for these cases to get resolved, so he found that a more appropriate award.
This ruling set off a cascading series of unsuccessful MPD appeals. All in all, this part of the process took about six years. The PERB ruled in March of this year that the arbitrator’s ruling stands and Thomas deserves his job back.
Wilhite, who has represented officers in these types of cases since 2007, notes that whichever side wins the initial round of arbitration “typically wins” all these appeals, since the PERB and the courts are extremely limited in their reviews. He says a judge could only really overturn the arbitrator in extreme circumstances, such as the arbitrator ignoring a key piece of law applicable to the case.
Of course, MPD knows these appeals are bound for near-certain defeat, and that’s why Wilhite sees a possible ulterior motive here. The union has similarly complained about this practice— chairman Gregg Pemberton told the D.C. Council’s labor committee in 2021 that in “every single case” he’s seen an arbitrator reverse an officer’s firing, MPD has appealed.
“They can kind of succeed in keeping an officer away from the police department even though they actually lost,” Wilhite says, noting that the process probably cost hundreds of thousands of dollars in legal fees. The union can often win attorneys’ fees from the city in these cases, too.
Thomas could also see more money in back pay, Patterson says, but it’s not clear how the process would play out. She notes that the PERB wouldn’t have the final say on that matter, as its purview is only to review what the arbitrator found: “The right hand and the left hand don’t necessarily talk,” she adds. The PERB ruling is silent on the question of more back pay, so the union could ask for much more (since the arbitrator last ruled on this question back in 2017), setting off a new round of court wrangling if MPD wants to keep fighting the case.
And then there’s the matter of Thomas getting his job back, if he wants it. Wilhite says he’s unsure if Thomas caught on with another law enforcement agency while the appeal played out. But he says generally other departments are wary of hiring officers until the cloud of suspicion is resolved one way or the other. Thomas appears to still live in the Maryland suburbs, per addresses attached to his name that City Paper dug up. MPD could opt to settle the case, too, or simply hire Thomas back for one day and make a lump-sum payment to him.
MPD could also choose to avoid hiring him entirely, as Patterson predicted, considering that the union has grumbled about exactly this sort of outcome for years. Pemberton told the Council that, in several instances, the department hasn’t hired officers back until PERB heads to superior court and it “sanctions MPD, awards attorneys’ fees to the DC Police Union and threatens the department and the chief of police with civil contempt for refusing to comply with these court orders.”
“They’re not gonna do anything until they’re absolutely forced to,” Pemberton said during the 2021 hearing.