Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

CITY OF TORRINGTON v. COUNCIL 4, AFSCME,
AFL-CIO, LOCAL 442, ET AL.
(AC 46927)
Suarez, Clark and Seeley, Js.

Syllabus

The defendants, a union and a former police officer, appealed from the
judgment of the Superior Court granting the plaintiff city’s application to
vacate an arbitration award that required the city to reinstate the officer in
its police department and denying the defendants’ application to confirm
the award. The defendants claimed, inter alia, that the court improperly
concluded that the arbitration panel manifestly disregarded the law. Held:

The trial court’s conclusion that the arbitration panel manifestly disregarded
the law was erroneous because the panel properly evaluated the defendant
officer’s use of force under the objective standard set forth in Graham v.
Connor (490 U.S. 386), determined that the use of force was objectively
reasonable under the circumstances, and did not rely on the officer’s subjec-
tive perspective in making its determination.

This court, having considered the four factors set forth in Burr Road
Operating Co. II, LLC v. New England Health Care Employees Union,
District 1199 (316 Conn. 618) for determining whether termination of
employment was necessary to vindicate public policy, concluded that,
although the defendant officer’s employment implicated public safety and
the public trust, his use of force was objectively reasonable and, thus, the
trial court improperly vacated the arbitration award.
Argued February 10—officially released April 15, 2025

Procedural History

Application to vacate an arbitration award, brought
to the Superior Court in the judicial district of Litchfield
at Torrington, where the defendants filed a combined
objection and application to confirm the award; there-
after, the court, Lynch, J., rendered judgment granting
the plaintiff’s application to vacate the arbitration
award, denied the defendants’ application to confirm
the award, and ordered the matter remanded to the
arbitration board for a new hearing, from which the
defendants appealed to this court; subsequently, this
court, Alvord, Westbrook and Prescott, Js., denied the
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

plaintiff’s motion to dismiss the appeal. Reversed; fur-
ther proceedings.
Mario Cerame, with whom was Timothy Brignole,
for the appellants (defendants).
Michael J. Rose, with whom was Megan L. Nielsen,
for the appellee (plaintiff).
William Tong, attorney general, and Joshua Perry,
solicitor general, filed a brief for the State Board of
Mediation and Arbitration as amicus curiae.
Opinion

CLARK, J. The defendants, Council 4, AFSCME, AFL-
CIO, Local 442 (union), and Gerald Peters, appeal from
the judgment of the trial court vacating an arbitration
award that ordered the plaintiff, the city of Torrington
(city), to, inter alia, reinstate Peters as a sergeant in the
Torrington Police Department (department). On appeal,
the defendants argue that the trial court (1) improperly
concluded that the arbitration panel manifestly disre-
garded the law, (2) improperly concluded that the
award violated public policy, and (3) abused its discre-
tion by remanding the case to a new arbitration panel.
We agree with the defendants’ first two claims. We
therefore reverse the judgment of the court and remand
the case for further proceedings consistent with this
opinion. In light of our disposition of the defendants’
first two claims, we do not reach the merits of their
third claim.
The following facts, as found by the arbitration panel,
and procedural history are relevant to this appeal. On
or about March 23 or May 20, 2020,1 officers with the
1
The arbitration award is inconsistent as to the date of the incident for
which Peters was terminated from his employment. The award identifies
each of the two listed dates as the date in question. The award also states
that the incident occurred during ‘‘[t]he time period . . . just after the
George Floyd tragedy,’’ which would mean that neither of the listed dates
is correct; George Floyd was murdered on May 25, 2020. See ‘‘How George
Floyd Died, and What Happened Next,’’ New York Times, July 29, 2022,
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

department arrested Christopher Spetland for assault
after identifying him as the perpetrator in successive
altercations at a Cumberland Farms and a Dunkin’
Donuts in the city. Spetland had an extensive criminal
history that included arrests and convictions for assault
and interfering with police officers. In the course of
his arrest, Spetland attempted to escape, kicked at the
officers, and threatened the officers with physical harm.
His speech was slurred, and he appeared to be intoxi-
cated. A knife was removed from his person. Officer
Tyler Otis, one of the arresting officers, reported to
department headquarters (headquarters) that Spetland
was being brought in as a ‘‘ ‘no party,’ ’’ i.e., that he was
noncompliant with officer commands and was physi-
cally resisting arrest. Upon arrival at headquarters, Otis
told Spetland that he did not want to fight with him, and
Spetland responded that he was going to fight with Otis.

On the day of Spetland’s arrest, Peters was acting as
the officer in charge of the booking room at headquar-
ters and was therefore responsible for booking every
person brought into headquarters who was charged
with a crime. From the dispatch area, Peters saw Spet-
land in the sally port2 and observed that three officers
were required to remove him from the police cruiser.
Peters further observed Spetland resisting the officers,
including by attempting to free his arm from Otis’ grip,
by attempting to strike Otis with his elbow, and by
kicking another officer in the shin. The officers brought
Spetland to the ground and held him there until a wheel-
chair was brought to them.
available at https://www.nytimes.com/article/george-floyd.html (last visited
April 4, 2025). At another point, the award states that the incident occurred on
March 23, 2022, which appears to be a scrivener’s error because proceedings
before the arbitration panel had already commenced as of that date.
2
‘‘A modern sally port is most often a controlled entrance into a secured
and protected area . . . .’’ Konah v. District of Columbia, 971 F. Supp. 2d
74, 78 n.1 (D.D.C. 2013).
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

Peters went to the booking area to wait for the offi-
cers to bring Spetland there. As the wheelchair
approached, Peters heard Spetland make additional
threats and observed that Otis had a ‘‘ ‘control hold’ ’’ on
Spetland’s neck and head. Spetland continued pushing,
turning, and bracing, as well as making threatening
statements. On the basis of all of these circumstances,
Peters determined that Spetland was actively resisting
and that he posed an imminent threat to both himself
and the other officers. Because there was a policy that
an arrestee could not be placed in a cell with handcuffs,
Spetland’s handcuffs would have to be removed before
he could be put in a cell. Peters concluded that the best
way to prevent injury to Spetland and the officers was
to utilize oleoresin capsicum (pepper spray). Peters
took a can of pepper spray from another officer, began
shaking it so that Spetland could see it, and warned
Spetland that, if he continued to threaten the officers,
Peters was going to spray him. Spetland continued
pushing and pulling, turned toward Peters, and said,
‘‘Go fuck yourself.’’ Peters then pepper sprayed Spet-
land, removed him from the wheelchair, and took him
to the floor without causing him physical harm.
Peters was a sergeant with approximately thirty years
of experience who had spent nearly twenty years with
the department. He was an instructor in the use of force
and had used pepper spray as a control technique in
the booking area roughly seven times over the previous
ten years, under similar circumstances, without any
discipline being imposed. In each prior case in which
Peters used pepper spray, there was an investigation,
and he was cleared of any wrongdoing. Peters intended
to continue to use force in this manner in the future
unless there was a change in policy.
Following this incident, the department’s chief of
police, William Baldwin, referred the matter to the state
police to determine if Peters had committed a crime
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

when he pepper sprayed Spetland and took him to the
floor. The state police conducted an investigation and
determined that no crime had been committed. Peters
thereafter returned to work in the same position he had
held prior to the incident. Baldwin then referred the
matter to the Daigle Law Group, a private law firm, to
conduct an investigation and to determine whether
there was cause to discipline Peters for his actions. The
Daigle Law Group conducted an extensive investigation
in which it interviewed several witnesses and reviewed
body camera footage from the various officers involved.
Eric Daigle, the principal of the Daigle Law Group and
an expert in the use of force, concluded that Peters
had used excessive force when he pepper sprayed Spet-
land and took him to the floor. On the basis of this
conclusion and Baldwin’s own opinion, Peters was ter-
minated from his employment for violating depart-
ment policy.

The union filed a grievance challenging Peters’ dis-
missal, and the matter was ultimately brought before
a three member panel of the State Board of Mediation
and Arbitration pursuant to the collective bargaining
agreement between the union and the city. The follow-
ing issues were submitted to the panel: ‘‘Did the [city]
have just cause to terminate [Peters’ employment]? If
not, what shall be the remedy consistent with the [c]ol-
lective [b]argaining [a]greement and [department]
[g]eneral [o]rders?’’ The panel heard evidence over
twelve days between January and October, 2022. On
February 24, 2023, the panel, with one member dis-
senting, issued the following award: ‘‘[Peters] was not
terminated for just cause. He shall be reinstated as a
[s]ergeant in the [department] with full back pay, less
any earnings or unemployment monies that he received.
There shall be no break in his seniority. He shall further
be reimbursed for any medical insurance that he paid
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

out-of-pocket for any coverage previously paid by the
[city]. There shall be no award of attorney’s fees.’’
In its award, the panel concluded in relevant part
that, ‘‘[g]iven all that [Peters] had seen before and while
in the booking area, he thought it best for his safety
and the safety of the prisoner and other officers to
spray [Spetland]. In other words, he perceived that there
could be harm done when [Spetland’s] handcuffs were
removed as he was placed in a cell. . . . The majority
of the [p]anel of [a]rbitrators believe that [Peters] was
complying with the [g]eneral [o]rders of the [depart-
ment] when he sprayed [Spetland] and then removed
him from the wheelchair and placed him on the floor
without causing him any physical harm.’’ The panel
identified department General Order No. 1-11—Use of
Chemical Agents, and General Order No. 3.01—Use of
Force, as pertinent to its decision and attached a copy
of each general order to the award.
General Order No. 1-11, which was issued on Novem-
ber 20, 2013, provides in relevant part: ‘‘The policy of the
[department] is that officers will use only that amount of
force reasonably necessary to effect an arrest, control
a situation, or defend themselves or others from harm.
. . . Any use of [a] [c]hemical [a]gent must comply with
the [d]epartment’s [u]se of [f]orce [p]olicy. Any police
officer who makes an unlawful, excessive, or unautho-
rized use of a chemical agent will be subject to disciplin-
ary actions, and may be subject to civil and criminal
liability. . . . The term [‘force’] includes the . . . use
of [pepper] [s]pray . . . . Use of force is lawful if it is
objectively reasonable under the circumstances, and
the minimum amount of force that is necessary to
[e]ffect an arrest, or protect the officer or other person,
is used. . . . The use of [pepper] [s]pray involves the
application of force. . . . Each application of [pepper]
[s]pray involves a separate, additional use of force.
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

***
‘‘Officers are only permitted to use [pepper] [s]pray
in accordance with training in the following instances:
1. Used against subjects who are actively resisting in a
manner that, in the officer’s judgment, is likely to result
in injuries to themselves or others. 2. To incapacitate
a subject who poses a threat of imminent physical injury
to himself/herself. . . . Department issued [pepper]
[s]pray should not be used in the following circum-
stances . . . 3. Once a subject becomes compliant,
incapacitated, or is restrained . . . .’’
General Order 3.01, which was issued on July 11,
2019, provides in relevant part: ‘‘In compliance with
applicable law, officers shall use only the amount of
force necessary and reasonable to accomplish lawful
objectives and to control a situation, effect an arrest,
overcome resistance to arrest, or defend themselves or
others from harm. . . . There is a compelling public
interest that officers authorized to exercise the use of
force do so in an objectively reasonable manner and
in a way that does not violate the civil rights guaranteed
by our [c]onstitution and applicable law. . . . Officers
who use excessive or unauthorized force shall be sub-
ject to discipline, possible criminal prosecution, and/
or civil liability. The use of force is only authorized when
it is objectively reasonable and for a lawful purpose.
***
‘‘[‘Imminent threat’ is defined as] [a]n officer’s reason-
able perception of impending danger, death, or serious
injury from any action or outcome that may occur dur-
ing an encounter. . . . The degree of force used in
effecting an arrest, investigatory stop, or other seizure
is evaluated by using an objective, reasonable police
officer standard. The reasonableness of each particular
use of force will be judged from the perspective of a
reasonable officer on the scene, based on the facts and
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

circumstances known to and confronting the officer at
the time. [See Graham v. Connor, 490 U.S. 386, 396–97,
109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).] In determining
the appropriate level of force to be used, officers shall
evaluate each situation in light of the unique facts and
circumstances of each case . . . [including] whether
the subject was posing an imminent threat to officers
or others.
***
‘‘Justification for the use of force is limited to the
facts known or perceived by the officer at the time
such force is used, including levels of resistance, [the]
suspect’s behavioral cues, the number of officers and/or
offenders present, and the availability of other options.
***
‘‘Force shall not be used against persons in handcuffs,
except as objectively reasonable to prevent imminent
bodily harm to the officer or another person or persons
. . . .’’ (Citations omitted.)
On March 22, 2023, the city filed an application in
the Superior Court to vacate the award. In its applica-
tion, the city claimed that the award should be vacated
because the panel had manifestly disregarded the law
in violation of General Statutes § 52-418 (a) (4),3 and
3
General Statutes § 52-418 provides in relevant part: ‘‘(a) Upon the applica-
tion of any party to an arbitration, the superior court for the judicial district
in which one of the parties resides . . . or, when the court is not in session,
any judge thereof, shall make an order vacating the award if it finds any of
the following defects: (1) If the award has been procured by corruption,
fraud or undue means; (2) if there has been evident partiality or corruption
on the part of any arbitrator; (3) if the arbitrators have been guilty of
misconduct in refusing to postpone the hearing upon sufficient cause shown
or in refusing to hear evidence pertinent and material to the controversy
or of any other action by which the rights of any party have been prejudiced;
or (4) if the arbitrators have exceeded their powers or so imperfectly exe-
cuted them that a mutual, final and definite award upon the subject matter
submitted was not made.’’
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

because the award was contrary to public policy. With
respect to its claim of manifest disregard of the law,
the city averred that ‘‘the award manifests an egregious
or patently irrational application of the law relating to
the subjective and objective standards of reasonable-
ness applicable to review of use of force incidents,
as well as clearly established law relating to citizens’
constitutional rights . . . and the panel’s calculation
of an appropriate remedy is internally inconsistent.’’
The city further claimed that the panel had ‘‘demon-
strated [manifest] disregard of the law, by utilizing a
subjective standard when assessing [Peters’] conduct,
and in further reliance upon prior instances of force
to imply departmental acquiescence in Peters’ use of
force.’’ With respect to its public policy claim, the city
identified the relevant public policies as ‘‘the public
policies in Connecticut against use of excessive force
. . . against employing police officers who have
engaged in malfeasance or other serious misconduct
or who are unfit to serve in a position of public trust
. . . [and] against civil rights violations by municipali-
ties and their agents . . . .’’ On April 20, 2023, the
defendants filed an objection to the city’s application
to vacate, combined with an application to confirm the
award, in which they claimed that the city had ‘‘failed
to meet [its] onerous burden to justify vacating the
award under one of the enumerated grounds to do so
. . . .’’
On July 18, 2023, the court, Lynch, J., issued a memo-
randum of decision in which it granted the city’s applica-
tion to vacate the panel’s award and ordered a rehear-
ing. The court concluded that the panel had committed
legal error because it had ‘‘evaluated the use of force
from [Peters’] subjective perspective,’’ rather than eval-
uating whether Peters’ use of force was objectively
reasonable in light of the facts and circumstances
known to him, as required by Graham v. Connor, supra,
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490 U.S. 397. The court’s determination that the panel
had used a subjective standard rested on the following
language from the award: ‘‘Given all that [Peters] had
seen before and while in the booking area, he thought
it best for his safety and the safety of the prisoner and
other officers to spray [Spetland]. In other words, he
perceived that there could be harm done when [Spet-
land’s] handcuffs were removed as he was placed in a
cell.’’ (Emphasis added.) The court further determined
that the panel had appreciated the existence of, but
decided to ignore, the objective standard for evaluating
officers’ use of force set forth in Graham, as evidenced
by the panel’s attachment of General Order 3.01, in
which this standard was set forth, to its memorandum;
that this standard was well-defined, explicit, and clearly
applicable; and that the average person qualified to be
an arbitrator would have applied it. The court accord-
ingly concluded that the panel had manifestly disre-
garded the law in violation of § 52-418 (a) (4).
The court also concluded that the award violated a
clear public policy protecting the public from the use
of excessive force by police officers. In reaching this
conclusion, the court applied the following factors set
forth by our Supreme Court in Burr Road Operating
Co. II, LLC v. New England Health Care Employees
Union, District 1199, 316 Conn. 618, 633–34, 114 A.3d
144 (2015) (Burr Road), for determining whether the
termination of employment is necessary to vindicate
public policy (Burr Road factors): ‘‘(1) any guidance
offered by the relevant statutes, regulations, and other
embodiments of the public policy at issue; (2) whether
the employment at issue implicates public safety or
the public trust; (3) the relative egregiousness of the
grievant’s conduct; and (4) whether the grievant is
incorrigible.’’ The court in the present case concluded
that the first three Burr Road factors weighed in favor of
vacating the award and that the fourth weighed against
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

doing so. The court accordingly held that ‘‘it violates
public policy to reinstate a police officer, who was
terminated for excessive force, based upon an analysis
of that force which contravenes well settled case law
and the city’s use of force policy.’’
On August 28, 2023, the defendants filed a motion
for reconsideration of the court’s judgment or, in the
alternative, for clarification of it. The city filed an objec-
tion to this motion on September 7, 2023. The parties
agreed in their filings that the court should clarify
whether, on remand, the arbitration must be conducted
by a new panel of arbitrators. The court granted in part
and denied in part the defendants’ motion on September
18, 2023. In its order, the court clarified that it ‘‘[did]
not vacate that part of its decision finding that the panel
exceeded its authority’’ and that the arbitration should
be conducted by a ‘‘new panel’’ of arbitrators. This
appeal followed.4
We begin by setting forth the general principles gov-
erning judicial review of arbitration awards. ‘‘Judicial
review of arbitral decisions is narrowly confined. . . .
When the parties agree to arbitration and establish the
authority of the arbitrator through the terms of their
submission, the extent of our judicial review of the
award is delineated by the scope of the parties’ agree-
ment.’’ (Internal quotation marks omitted.) Meriden v.
AFSCME, Local 1016, 213 Conn. App. 184, 193, 277 A.3d
902 (2022). ‘‘Since the parties consent to arbitration,
and have full control over the issues to be arbitrated,
a court will make every reasonable presumption in favor
4
On September 21, 2023, two days after this appeal was filed, the city
filed with this court a motion to dismiss the appeal on the basis that it had
not been taken from a final judgment. This court denied the city’s motion
to dismiss on December 13, 2023, and issued an opinion articulating the
reasons for that denial on March 19, 2024. See Torrington v. Council 4,
AFSCME, AFL-CIO, Local 442, 224 Conn. App. 237, 239 n.1, 312 A.3d
1112 (2024).
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

of the arbitration award and the arbitrator’s acts and
proceedings.’’ (Internal quotation marks omitted.) Doc-
tor’s Associates, Inc. v. Windham, 146 Conn. App. 768,
774, 81 A.3d 230 (2013). ‘‘When the scope of the submis-
sion is unrestricted, the resulting award is not subject
to de novo review even for errors of law so long as the
award conforms to the submission. . . . Because we
favor arbitration as a means of settling private disputes,
we undertake judicial review of arbitration awards in
a manner designed to minimize interference with an
efficient and economical system of alternative dispute
resolution. . . . Accordingly, the factual findings of the
arbitrator . . . are not subject to judicial review.’’
(Citation omitted; internal quotation marks omitted.)
Norwalk Police Union, Local 1727, Council 15,
AFSCME, AFL-CIO v. Norwalk, 324 Conn. 618, 628, 153
A.3d 1280 (2017). ‘‘A submission is unrestricted when
. . . the parties’ arbitration agreement contains no lan-
guage restricting the breadth of issues, reserving
explicit rights, or conditioning the award on court
review.’’ (Internal quotation marks omitted.) A Better
Way Wholesale Autos, Inc. v. Gause, 184 Conn. App.
643, 648 n.5, 195 A.3d 747, cert. denied, 330 Conn. 940,
195 A.3d 693 (2018). In the present case, the parties do
not dispute either that the submission was unrestricted;
see, e.g., Elm City Local, CACP v. New Haven, 230
Conn. App. 847, 854, A.3d (2024), cert. denied,
351 Conn. , A.3d (2025); or that the award
conforms to the submission.
‘‘[A] court may vacate an unrestricted arbitration
award only under certain limited conditions: (1) the
award rules on the constitutionality of a statute . . .
(2) the award violates clear public policy . . . [or] (3)
the award contravenes one or more of the statutory
proscriptions of § 52-418.’’ (Internal quotation marks
omitted.) Kellogg v. Middlesex Mutual Assurance Co.,
326 Conn. 638, 646, 165 A.3d 1228 (2017). ‘‘Our courts
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14 ,0 0 Conn. App. 1
Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

have held that claims of manifest disregard of the law
fall within the statutory proscription of § 52-418 (a)
(4). [A]n award that manifests an egregious or patently
irrational application of the law is an award that should
be set aside [pursuant to § 52-418 (a) (4)] . . . because
the arbitrator has exceeded [his] powers or so imper-
fectly executed them that a mutual, final and definite
award upon the subject matter submitted was not made.’’
(Internal quotation marks omitted.) Design Tech, LLC v.
Moriniere, 146 Conn. App. 60, 67–68, 76 A.3d 712 (2013).
I
The defendants first claim that the court improperly
concluded that the panel manifestly disregarded the
law by evaluating Peters’ use of force under a subjective
standard, rather than the objective standard required
by Graham. In response, the city argues that the panel’s
‘‘frequent evaluation of what Peters thought or believed
to be true throughout the award’’ demonstrates that
the panel ‘‘disregard[ed] the constitutionally mandated
assessment of objective reasonableness’’ and that the
court’s vacatur of the award on the ground of manifest
disregard of the law was therefore proper. (Emphasis
in original.) We agree with the defendants.
The following additional legal principles are relevant
to our review of this claim. We review de novo a court’s
determination that an arbitration award should be
vacated on the ground that the arbitrators manifestly
disregarded the law. See, e.g., Schoonmaker v. Cum-
mings & Lockwood of Connecticut, P.C., 252 Conn. 416,
431, 747 A.2d 1017 (2000). ‘‘[T]he manifest disregard of
the law ground for vacating an arbitration award is
narrow and should be reserved for circumstances of an
arbitrator’s extraordinary lack of fidelity to established
legal principles. . . .
‘‘In Garrity [v. McCaskey, 223 Conn. 1, 9, 612 A.2d
742 (1992)], [our Supreme Court] adopted the test enun-
ciated by the United States Court of Appeals for the
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Torrington v. Council 4, AFSCME, AFL-CIO, Local 442

Second Circuit in interpreting the federal equivalent of
§ 52-418 (a) (4). . . . The test consists of the following
three elements, all of which must be satisfied in order
for a court to vacate an arbitration award on the ground
that the arbitration panel manifestly disregarded the
law: (1) the error was obvious and capable of being
readily and instantly perceived by the average person
qualified to serve as an arbitrator; (2) the arbitration
panel appreciated the existence of a clearly governing
legal principle but decided to ignore it; and (3) the
governing law alleged to have been ignored by the arbi-
tration panel is well defined, explicit, and clearly appli-
cable.’’ (Internal quotation marks omitted.) Economos
v. Liljedahl Bros., Inc., 279 Conn. 300, 306–307, 901
A.2d 1198 (2006). ‘‘[T]he exceptionally high burden for
proving a claim of manifest disregard of the law under
§ 52-418 [a] [4] is demonstrated by the fact that, since
the test was first outlined in Garrity . . . [our
Supreme Court] has yet to conclude that an arbitrator
manifestly disregarded the law . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) AFSCME, Coun-
cil 4, Local 2663 v. Dept. of Children & Families, 317
Conn. 238, 251 n.7, 117 A.3d 470 (2015).5
In Graham, the United States Supreme Court held
that ‘‘all claims that law enforcement officers have used
excessive force—deadly or not—in the course of an
arrest, investigatory stop, or other seizure of a free
citizen should be analyzed under the [f]ourth [a]mend-
ment and its reasonableness standard . . . .
‘‘The reasonableness of a particular use of force must
be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hind-
sight. . . . With respect to a claim of excessive force,
5
This observation remains true ten years later; our research has identified
no case since 2015 in which a litigant has prevailed on a claim of manifest
disregard of the law before our Supreme Court.
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the same standard of reasonableness at the moment
applies: Not every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers
. . . violates the [f]ourth [a]mendment. The calculus
of reasonableness must embody allowance for the fact
that police officers are often forced to make split-sec-
ond judgments—in circumstances that are tense, uncer-
tain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.
‘‘As in other [f]ourth [a]mendment contexts, however,
the reasonableness inquiry in an excessive force case
is an objective one: the question is whether the officers’
actions are objectively reasonable in light of the facts
and circumstances confronting them, without regard to
their underlying intent or motivation. . . . An officer’s
evil intentions will not make a [f]ourth [a]mendment
violation out of an objectively reasonable use of force;
nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.’’ (Citations
omitted; emphasis in original; footnote omitted; internal
quotation marks omitted.) Graham v. Connor, supra,
490 U.S. 395–97. ‘‘In sum, the standard to be applied in
determining whether the amount of force used
exceeded the amount that was necessary in the particu-
lar circumstances is [objective] reasonableness at the
moment.’’ (Internal quotation marks omitted.) Rogoz v.
Hartford, 796 F.3d 236, 247 (2d Cir. 2015).
In the present case, the court concluded, in relevant
part, that the panel manifestly disregarded the law
because the panel evaluated the propriety of Peters’
actions through Peters’ own subjective perspective,
rather than through the objective perspective of a rea-
sonable officer, as required by Graham. See Graham
v. Connor, supra, 490 U.S. 397. The court reasoned that
the panel’s determination that Peters ‘‘thought it best’’
to spray Spetland, and that Peters ‘‘perceived that there
could be harm done when [Spetland’s] handcuffs were
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removed,’’ evinced a conclusion by the panel that Peters’
actions were proper solely because Peters subjectively
believed that Spetland posed a threat. The court, how-
ever, overlooked the very next paragraph of the award,
in which the panel determined that Peters ‘‘was comply-
ing with the [g]eneral [o]rders of the [department]
when he sprayed [Spetland] and then removed him from
the wheelchair and placed him on the floor without
causing him any physical harm.’’ (Emphasis added.) As
previously discussed, the general orders that the panel
deemed pertinent—and attached—to its decision pro-
vide that the use of force by department police officers,
such as the use of pepper spray, is authorized only if
it is objectively reasonable under the standard estab-
lished in Graham. In determining that Peters had com-
plied with the general orders, therefore, the panel neces-
sarily concluded that his use of force on Spetland had
been objectively reasonable under the circumstances.
This conclusion is not inconsistent with the panel’s
observation that Peters also subjectively perceived a
threat from Spetland. The panel was not required explic-
itly to use the words ‘‘objectively reasonable’’ in its
decision. Viewing the panel’s decision in its entirety, it
is clear, from the panel’s determination that Peters had
complied with the general orders, that it applied the
correct objective standard in assessing Peters’ use of
force and that it did not demonstrate the ‘‘extraordinary
lack of fidelity to established legal principles’’; (internal
quotation marks omitted) Economos v. Liljedahl Bros.,
Inc., supra, 279 Conn. 306; for which the manifest disre-
gard of the law ground for vacatur is reserved.
Because the panel did not commit legal error in its
choice of the standard through which it evaluated
Peters’ use of force—let alone an ‘‘obvious’’ error that
was ‘‘capable of being readily and instantly perceived,’’
as Garrity requires; (internal quotation marks omitted)
Garrity v. McCaskey, supra, 223 Conn. 9; the court’s
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conclusion that the panel manifestly disregarded the
law in this regard is erroneous.
II
The defendants next claim that the court improperly
concluded that the award violated public policy. At oral
argument before this court, the city declined to defend
the trial court’s public policy analysis and focused its
attention on whether the panel’s award constituted a
manifest disregard of the law. We agree with the defen-
dants.
‘‘We have recognized . . . that an arbitration award
should be vacated when, inter alia, it violates clear
public policy. . . . When a challenge to a consensual
arbitration award raises a legitimate and colorable
claim of [a] violation of public policy, the question of
whether the award violates public policy requires de
novo judicial review. . . .
‘‘We emphasize, however, that our de novo review is
limited to the question of whether the arbitrator’s [award]
is itself contrary to an established public policy. In a
case involving an unrestricted submission, when we
conduct de novo review in response to a claim of a
public policy violation, we do not review either the
arbitrator’s construction of the agreement, to determine
whether that construction is correct, or the arbitrator’s
factual findings, to determine whether those findings
have sufficient evidentiary support. . . . In reviewing
a claim that an award rendered in a consensual arbitra-
tion violates this state’s public policy, we are bound by
the arbitrator’s factual findings. . . .
‘‘The public policy exception applies only when the
award is clearly illegal or clearly violative of a strong
public policy. . . . A challenge that an award is in con-
travention of public policy is premised on the fact that
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the parties cannot expect an arbitration award approv-
ing conduct which is illegal or contrary to public policy
to receive judicial endorsement any more than parties
can expect a court to enforce such a contract between
them. . . . When a challenge to the arbitrator’s author-
ity is made on public policy grounds, however, the court
is not concerned with the correctness of the arbitrator’s
decision but with the lawfulness of enforcing the
award. . . .

‘‘The party challenging the award bears the burden
of proving that illegality or conflict with public policy
is clearly demonstrated. . . . [G]iven the narrow scope
of the public policy limitation on arbitral authority, the
trial court’s order vacating the arbitrator’s award should
be upheld only if the plaintiff demonstrates that the
. . . award clearly violate[d] an established public pol-
icy mandate. . . . As we repeatedly have emphasized,
implicit in the stringent and narrow confines of this
exception to the rule of deference to arbitrators’ deter-
minations, is the notion that the exception must not be
interpreted so broadly as to swallow the rule. . . .

‘‘In considering a claim that considerations of public
policy make the arbitration award unenforceable, the
United States Supreme Court has explained that we
must assume that the [collective bargaining] agreement
itself calls for [the grievant’s] reinstatement. That is
because both [the] employer and [the] union have
granted to the arbitrator the authority to interpret the
meaning of their contract’s language, including such
words as just cause. . . . They have bargained for the
arbitrator’s construction of their agreement. . . . And
courts will set aside the arbitrator’s interpretation of
what [the] agreement means only in rare instances. . . .
[A]s long as [an honest] arbitrator is even arguably
construing or applying the contract and acting within
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the scope of his authority, the fact that a court is con-
vinced he committed serious error does not suffice to
overturn his decision. . . .
‘‘As the United States Supreme Court has explained:
[T]he question to be answered is not whether [the
employee’s behavior] itself violates public policy, but
whether the agreement to reinstate him does so. To
put the question more specifically, does a contractual
agreement to reinstate [the employee] . . . run con-
trary to an explicit, well-defined, and dominant public
policy, as ascertained by reference to positive law and
not from general considerations of supposed public
interests?’’ (Citations omitted; internal quotation marks
omitted.) State v. Connecticut State University Organi-
zation of Administrative Faculty, AFSCME, Council
4, Local 2836, AFL-CIO, 349 Conn. 148, 161–64, 314
A.3d 971 (2024).
‘‘This court employs a two-pronged analysis to deter-
mine whether an arbitration award should be vacated
for violating public policy. First, the court determines
whether an explicit, well-defined and dominant public
policy can be identified. If so, the court then decides
if the arbitrator’s award violated the public policy.’’
(Internal quotation marks omitted.) State v. Connecti-
cut Employees Union Independent, 322 Conn. 713, 723,
142 A.3d 1122 (2016). In the context of a challenge to
an arbitral award reinstating a dismissed employee, ‘‘we
must determine whether [the] public policy [that is
implicated] required the grievant’s dismissal. . . . In
making this determination, we are mindful that the fact
that an employee’s misconduct implicates public policy
does not require the arbitrator to defer to the employer’s
chosen form of discipline for such misconduct.’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) Stratford v. AFSCME, Council 15,
Local 407, 315 Conn. 49, 58, 105 A.3d 148 (2014).
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In Burr Road Operating Co. II, LLC v. New England
Health Care Employees Union, District 1199, supra,
316 Conn. 634–35, our Supreme Court ‘‘identified four
factors a reviewing court should consider when evaluat-
ing a claim that an arbitration award reinstating a termi-
nated employee violates public policy . . . . [They
are]: (1) any guidance offered by the relevant statutes,
regulations, and other embodiments of the public policy
at issue; (2) whether the employment at issue implicates
public safety or the public trust; (3) the relative egre-
giousness of the grievant’s conduct; and (4) whether
the grievant is incorrigible.’’ (Internal quotation marks
omitted.) New Haven v. AFSCME, Council 4, Local
3144, 338 Conn. 154, 174, 257 A.3d 947 (2021). No single
Burr Road factor is necessarily dispositive of our deter-
mination. See id., 187 (‘‘the weight a reviewing court
attaches . . . to any Burr [Road] factor . . . neces-
sarily depends on the facts of the case’’).
The defendants concede, and we agree, that there is
an explicit, well-defined, and dominant public policy
against the use of excessive force by police officers.
The statutory and decisional law of this state expresses
a clear condemnation of such conduct. See, e.g., Gen-
eral Statutes § 7-282e (a) (setting forth mandatory
reporting and intervention requirements for police offi-
cers who witness other police officers use unreason-
able, excessive, or illegal force); General Statutes § 7-
294d (c) (2) (J) (authorizing Police Officer Standards
and Training Council to revoke police officer certifica-
tion upon finding that officer engaged in excessive or
unjustifiable physical force); General Statutes § 51-277a
(c) (requiring Office of Inspector General to prosecute
any case in which it determines that use of force by
peace officer was not justified or there was failure to
report unjustified use of force); General Statutes § 53a-
22 (b) (permitting officers to use physical force on
another person ‘‘when and to the extent’’ necessary to,
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inter alia, effect arrest or prevent escape); McGann v.
Allen, 105 Conn. 177, 188, 134 A. 810 (1926) (‘‘[w]here
the officer arrests one on a warrant charging a crime,
and uses against him excessive force, or otherwise sub-
jects him to oppression . . . he has abused the process
in his hands for service, and is liable in damages for
such abuse’’). Moreover, courts have recognized a pro-
hibition against police officers using excessive force in
the course of making an arrest under both the fourth
amendment to the federal constitution; see, e.g., Outlaw
v. Hartford, 884 F.3d 351, 366–67 (2d Cir. 2018); and
article first, §§ 7 and 9, of the Connecticut constitution.
See, e.g., Huaman v. Sirois, Docket No. 13-CV-484
(DJS), 2015 WL 5797005, *13 (D. Conn. September 30,
2015); Carey v. Maloney, 480 F. Supp. 2d 548, 561 (D.
Conn. 2007). ‘‘Because the existence of [this] important
public [policy] is not in dispute, we turn to the question
of whether the panel’s award violated [it].’’ New Haven
v. AFSCME, Council 4, Local 3144, supra, 338 Conn.
173. We address each Burr Road factor in turn.
A
We begin with the question of whether the relevant
statutes, regulations, or other manifestations of the pub-
lic policy at issue recommend or require termination
of employment for the conduct at issue in this case.
‘‘Put differently, we ask whether the offense committed
by the employee involves the sort of conduct the law
deems to be inexpiable, or that would expose the
employer to substantial liability if it were to reoccur.
. . . Whether sources of public policy themselves man-
date termination is a question of law subject to plenary
review.’’ (Citation omitted.) Burr Road Operating Co.
II, LLC v. New England Health Care Employees Union,
District 1199, supra, 316 Conn. 634–35.
With respect to this Burr Road factor, the court con-
cluded that it weighed in favor of terminating Peters’
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employment because ‘‘there is a clear public policy
protecting the public from excessive force by the police.’’
This analysis misunderstands the relevant inquiry under
the first Burr Road factor, which is not whether a public
policy exists but, rather, whether—under statute, regu-
lation, or case law—the required or recommended con-
sequence for the grievant’s conduct is termination of
employment, as opposed to some lesser sanction. See,
e.g., State v. Connecticut State University Organiza-
tion of Administrative Faculty, AFSCME, Council 4,
Local 2836, AFL-CIO, supra, 349 Conn. 171–72. Were
the mere existence of a public policy determinative of
whether the first Burr Road factor weighed in favor
of termination of employment, that would erode the
distinction between the two overarching prongs of the
public policy analysis: (1) whether there is an explicit,
dominant, and well-defined public policy; and (2) if so,
whether the award violated it.
In the present case, the panel concluded—as we have
discussed in part I of this opinion—that Peters’ conduct
complied with the department’s general orders, mean-
ing that his use of force against Spetland was objectively
reasonable. Reasonable minds may well differ about
the merits of this determination, but we must defer to
it for the purposes of our analysis of whether the panel’s
award violates public policy. See, e.g., Blakeslee Arpaia
Chapman, Inc. v. Dept. of Transportation, 273 Conn.
746, 755, 873 A.2d 155 (2005) (‘‘[u]nder an unrestricted
submission . . . courts will not review the evidence
considered by the arbitrators nor will they review the
award for errors of law or fact’’ (internal quotation
marks omitted)); see also, e.g., Boston v. Boston Police
Patrolmen’s Assn., 477 Mass. 434, 443–45, 78 N.E.3d 66
(2017) (deferring to arbitrator’s finding that excessive
force was not used in determining whether award
reinstating police officer violated public policy against
officers’ use of excessive force); Richfield v. Law
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Enforcement Labor Services, Inc., 923 N.W.2d 36, 41–42
(Minn. 2019) (same). Regardless of whether the stat-
utes, regulations, and/or case law setting forth the pub-
lic policy against police officers’ use of excessive force
bar the reinstatement of an officer who uses such
force—a question we do not reach—the city has directed
our attention to no authority, and we are aware of none,
that would require the dismissal of an officer who uses
objectively reasonable force. Because the panel found
that Peters’ conduct was objectively reasonable, and
we are not free to disturb that finding in light of the
limited scope of review we afford to arbitral decisions,
we cannot conclude that the ‘‘statutes, regulations, and
other manifestations’’ of the public policy against the
use of excessive force deem Peters’ conduct ‘‘inexpia-
ble’’ and worthy of nothing less than dismissal. Burr
Road Operating Co. II, LLC v. New England Health
Care Employees Union, District 1199, supra, 316 Conn.
634. The first Burr Road factor therefore does not weigh
in favor of vacating the award.
B
We now turn to whether Peters’ employment impli-
cates public safety or the public trust. ‘‘Nationally, in
the vast majority of cases in which courts have vacated
for public policy reasons arbitration awards reinstating
terminated employees, the grievant has been a public
sector employee, primarily working in fields such as
law enforcement, education, transportation, and health
care, in other words, fields that cater to vulnerable
populations or help ensure the public safety. . . . This
reflects the fact that the threat to public policy involved
in reinstating a terminated employee is magnified when
the offending employee provides an essential public
service, and especially when he is employed by, repre-
sents, and, ultimately, is answerable to the people.’’
(Citations omitted; emphasis added.) Id., 635–36. ‘‘The
second Burr Road factor hinges on general questions
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of law and policy and is, therefore, subject to plenary
judicial review.’’ (Internal quotation marks omitted.)
State v. Connecticut Employees Union Independent,
supra, 322 Conn. 729.
Our analysis of this Burr Road factor requires little
discussion. The trial court concluded that it weighed
in favor of Peters’ dismissal because he was a police
officer employed by the department at the time that he
used force on Spetland. We agree. As our Supreme
Court recognized in Burr Road, law enforcement is a
paradigmatic example of employment that implicates
the public safety and the public trust. See Burr Road
Operating Co. II, LLC v. New England Health Care
Employees Union, District 1199, supra, 316 Conn. 635;
see also, e.g., Stratford v. AFSCME, Council 15, Local
407, supra, 315 Conn. 68–69 (Palmer, J., dissenting)
(‘‘The role of the police in our society is a unique one
due to the broad authority and enormous discretion
vested in them by the public. . . . With [their] great
power . . . comes the responsibility to act in a manner
that is faithful to the great trust placed in them by the
community. [A police officer] . . . is a trustee of the
public interest, bearing the burden of great and total
responsibility to his public employer.’’ (Internal quota-
tion marks omitted.)). Indeed, the panel found that, on
the day of Spetland’s arrest, Peters was acting as the
officer in charge of the booking room, which brought
him into contact with people who were charged with
crimes, and that he had served as an instructor on police
use of force, a role with clear implications for the safety
and dignity of members of the public who interacted
with the department’s officers. Cf., e.g., New Haven
v. AFSCME, Council 4, Local 3144, supra, 338 Conn.
179–80 (considering whether grievant’s position
‘‘[brought] her into contact with vulnerable populations
or involve[d] public safety’’); State v. Connecticut
Employees Union Independent, supra, 322 Conn.
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729–30 (concluding that, although grievant was state
employee, second Burr Road factor nonetheless
favored reinstatement because ‘‘there [was] no indica-
tion that performance of his job duties substantially
implicate[d] public safety’’). The second Burr Road
factor therefore weighs in favor of vacating the award.
C
The third Burr Road factor concerns the relative
‘‘egregiousness’’ of Peters’ conduct. Burr Road
Operating Co. II, LLC v. New England Health Care
Employees Union, District 1199, supra, 316 Conn. 634.
‘‘This factor encompasses myriad considerations,
including, but not limited to: (1) the severity of the
harms imposed and risks created by the grievant’s con-
duct; (2) whether that conduct strikes at the core or
falls on the periphery of the relevant public policy; (3)
the intent of the grievant with respect to the offending
conduct and the public policy at issue; (4) whether
reinstating the grievant would send an unacceptable
message to the public or to other employees regarding
the conduct in question; (5) the potential impact of
the grievant’s conduct on customers/clients and other
nonparties to the employment contract; (6) whether the
misconduct occurred during the performance of official
duties; and (7) whether the award reinstating the
employee is founded on the arbitrator’s determination
that mitigating circumstances, or other policy consider-
ations, counterbalance the public policy at issue. . . .
‘‘This factor presents a mixed question of law and
fact. We take as our starting point the factual findings
of the arbitrator, which are not subject to judicial
review. . . . We defer as well to the arbitrator’s ulti-
mate determination whether termination was a just or
appropriate punishment for the conduct at issue. . . .
[H]owever . . . for purposes of the public policy analy-
sis, our determination of whether the conduct in ques-
tion was so egregious that any punishment short of
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termination would offend public policy is not restricted
to those findings. . . . Judicial review . . . necessar-
ily transcends the interests of the parties to the contract,
and extends to the protection of other stakeholders and
the public at large, who may be adversely impacted by
the decision to reinstate the employee. . . . Accord-
ingly, we review de novo the question whether the rem-
edy fashioned by the arbitrator is sufficient to vindicate
the public policies at issue.’’ (Citations omitted.) Id.,
638–39.
In its analysis of this Burr Road factor, the trial court
wrote: ‘‘The panel found [that Peters] placed [Spetland]
on the ground without causing him any physical harm.
The panel made no finding as to whether [Spetland]
was harmed by the use of the chemical agent but did
find that the use of the [pepper] spray was an intermedi-
ate use of force which is very painful and disabling.
Properly evaluating the propriety of a use of force
strikes at the core of the use of force public policy.
Although [Peters’] intent was to protect his safety, the
safety of the prisoner, and other officers, reinstating
[Peters] using a flawed analysis after he was terminated
for excessive force would send an unacceptable mes-
sage to the public and other nonparties. [Peters’] use of
force occurred while in the performance of his official
duties. The third factor weighs in favor of vacating the
award for public policy reasons.’’
The problem with this reasoning is that it treats the
correctness of the legal standard applied by the panel as
relevant to the court’s determination of whether Peters
acted egregiously. As we have discussed in part I of
this opinion, the panel did not apply an incorrect legal
standard in its evaluation of Peters’ use of force. Regard-
less of whether the panel applied a correct or incorrect
legal standard, however, Burr Road and its progeny
make clear that a court conducting a public policy analy-
sis of an award reinstating a terminated employee must
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focus on whether ‘‘the grievant’s conduct, when viewed
as a whole and in light of the mitigating factors found
by the [panel], was so severe as to require the termina-
tion of his employment.’’ (Emphasis added.) State v.
Connecticut State University Organization of Admin-
istrative Faculty, AFSCME, Council 4, Local 2836,
AFL-CIO, supra, 349 Conn. 180. We accordingly con-
sider whether, in light of the panel’s unreviewable fac-
tual findings and the seven considerations identified by
our Supreme Court in Burr Road, Peters’ conduct was
sufficiently egregious that the third Burr Road factor
weighs in favor of vacatur.
The panel found that—although the use of pepper
spray is ‘‘very painful and disabling’’—Spetland suffered
no injuries, Peters’ takedown of Spetland did not cause
Spetland physical harm, and the state police determined
that Peters had not committed any crime. The panel
further found that Peters’ intent in using force against
Spetland was to protect his own safety, Spetland’s
safety, and the safety of other officers. The panel also
found that Peters was acting as the officer in charge of
the booking room at the time he used force on Spetland,
indicating that Peters used force during the perfor-
mance of his official duties. The panel did not identify
any mitigating factors, but its silence on this question
is logical in light of its ultimate conclusion that Peters’
conduct was justified—i.e., that there was nothing to
mitigate.
With respect to whether Peters’ conduct strikes at
the core, or falls on the periphery, of the relevant public
policy, because the panel found that Peters’ use of force
was objectively reasonable, we conclude that Peters’
conduct does not strike at the core of the public policy
against police officers’ use of excessive force. For this
reason, and in light of the panel’s findings as to Peters’
intent, the state police’s determination that no crime
was committed, and the lack of injuries to Spetland,
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we also cannot conclude that reinstating Peters would
send an unacceptable message to the public or to other
employees, or that it would have an adverse impact on
nonparties to the employment contract. Assessing all of
the considerations identified in Burr Road, we conclude
that they weigh decidedly in Peters’ favor and that the
third Burr Road factor therefore does not support
vacating the award.
D
Finally, we consider whether Peters was incorrigible.
‘‘Put differently, in light of the grievant’s full employ-
ment history, is there a substantial risk that, should a
court uphold the arbitration award of reinstatement,
this particular employee will reengage in the offending
conduct? . . . Here, relevant considerations include
whether, on the one hand, the grievant has committed
similar offenses in the past and has disregarded an
employer’s prior warnings or clear policy statements;
or, on the other hand, whether the grievant: (1) has
generally performed his work in a competent and pro-
fessional manner; (2) has demonstrated a willingness
to change and an amenability to discipline; (3) has
exhibited remorse and attempted to make restitution
for past offenses; and (4) is likely to benefit from addi-
tional training and guidance. . . . We also consider
whether the penalty imposed by the arbitrator is severe
enough to deter future infractions by the grievant or
others. . . .
‘‘Because these considerations are largely fact based
and case specific, a reviewing court must defer to an
arbitrator’s assessment—whether express or implied—
that a particular employee is unlikely to reoffend if
reinstated. . . . Absent an express finding by the arbi-
trator, which would be unreviewable, a court will deem
an employee incorrigible only when the likelihood of
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recidivism is plain from the face of the record.’’ (Cita-
tions omitted.) Burr Road Operating Co. II, LLC v.
New England Health Care Employees Union, District
1199, supra, 316 Conn. 639–40.
Although the panel found that Peters had engaged in
similar uses of force many times in the past, and that
he intended to do the same in the future, it also found
that the force that he had used against Spetland was
objectively reasonable and in conformity with depart-
ment policy. As such, the panel’s findings support a
conclusion that Peters is likely to reengage in the con-
duct for which he was dismissed, but they do not sup-
port a conclusion that that conduct was problematic
in light of the public policy against the use of excessive
force by police officers. The basic premise that under-
lies the fourth Burr Road factor—namely, that the
employee has engaged in misconduct, such that a repeat
of that conduct in the future would be cause for con-
cern—cannot be said to apply in the present case. See
id., 639. We therefore conclude that the fourth Burr
Road factor does not support vacating the award.
In sum, only one of the four Burr Road factors weighs
in favor of vacating the award: the fact that Peters held
a position implicating public safety and the public trust.
If that alone were a sufficient reason for vacating the
award on public policy grounds, then every arbitration
award reinstating a person to such a position would be
subject to vacatur, no matter what other circumstances
might obtain. We decline to set such a precedent.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.