Photo By Jymi Bolden

Harry Roberts, president of the F.O.P., displeased members of the Citizen Complaint Authority by saying officers would use their firearms more often if the agency faults their use of Tasers.

The head of the union for Cincinnati Police officers last week warned that they might start using their guns more often if a review board rules against their use of Tasers.

Fraternal Order of Police (FOP) President Harry Roberts told the Citizens Complaint Authority (CCA) that the wrong ruling could have serious consequences. His remarks came in a Dec. 5 hearing about the use of a Taser on a man who had surrendered to police.

"Police officers in every district are watching this case," Roberts said. "So what you do is very, very, very important, because if we don't support them in the use of Tasers, then they're not going to be willing so much to use non-lethal alternatives."

Some members of the CCA criticized Roberts' remarks as improper pressure.

But the conflict over use of Tasers wasn't the only disturbing development for police-community relations Dec. 5. In another case, an assistant chief acknowledged that the police department has no policy forbidding harassment, and some board members said the CCA is helpless to act against racial profiling when they see it.

"We're never going to be able to sustain a racial profiling allegation, given the way the system is already set up," said CCA member Sandra Butler.

Shocks or bullets
Paul McGee filed a complaint Sept. 30 with the CCA, alleging that Officer Thomas Rackley had used a Taser on him while his hands were open and extended as a gesture of compliance. Rackley and several other officers had stopped McGee on a drug charge.

McGee said he heard conflicting orders to get back into his car and to get on the ground. Instead he held out his hands.

McGee had a gun on the front seat of his car. Rackley said he heard an officer shout, "Gun!" so he fired the Taser without warning. Believing there weren't enough officers on hand to take McGee into custody before the first charge wore off, Rackley fired again when McGee was posing no resistance.

An internal police investigation and the police chief found Rackley violated policy on use of force, and a CCA investigation also found Rackley acted improperly.

Rackley appeared before the CCA to present his case. In addition to a written statement, including citations of case law, he explained his decision-making process.

"Forced to make a split-second judgment in a rapidly unfolding situation, I exercised the use of a Taser on Mr. McGee without warning," Rackley said. "I prevented this rapidly escalating situation from becoming a tragedy as Mr. McGee had a loaded .45-caliber weapon within reach inside his vehicle and other officers on the scene had their service weapons pointed at Mr. McGee with other officers in the crossfire. I ask that you disapprove the finding and rule for a motion for exoneration."

Rackley asked the board to watch video of the arrest.

Roberts, serving as Rackley's FOP representative, told the board that he supports citizen oversight and thanked the CCA for its efforts. He said he'd reviewed the arrest video "25 to 30 times," so he was well versed in the case. Roberts said that, as a sergeant in District 2, he'd worked with Rackley and found him dedicated, hardworking and honest.

Roberts went on to discuss the use of Tasers. Some have criticized Cincinnati Police for using the stun guns unnecessarily. Roberts agreed that officers have used Tasers too much, saying they should sometimes have used their guns instead.

"We have over the past couple of years used our Tasers many times when we should not use our Tasers," Roberts said. "We have used our Tasers when we should have used a firearm. I must tell you, our officers are taking their lives in their hands when they approach a possible gunfight with a Taser, and Officer Rackley did that. What he did was save anyone from getting hurt."

Some board members were quick to call Roberts to task.

"Taser's a weapon -- a deterrent, for lack of a better term -- that would preclude drawing a firearm, firing a firearm," said CCA member Dr. Walter Bowers II. "I take a little bit of issue when you say that, 'If we can't use a Taser then we may fire our weapon.' I don't want us to send the wrong signal here to the community and also to the police department. Let's be careful how we phrase these things. I assure you this panel will do due diligence in examining the evidence brought before us."

Butler was more direct.

"I'm not real happy with the FOP president telling us that, if we don't change our allegation or if we disagree with the findings, that they're going to use a more lethal means of dealing with these types of citizens," she said. "And I have a problem with it occurring in this meeting. I understand your concerns, I understand the seriousness of this situation, the seriousness of this allegation but I do feel that those comments were inappropriate."

The police department issued Tasers to all officers after the controversial death of Nathaniel Jones in police custody in 2003. Jones, who was unarmed, died after police officers arrested him in a confrontation prompted by his erratic behavior at a White Castle restaurant. An autopsy showed Jones had ingested PCP and died of heart problems as a result of the struggle with police.

In McGee's complaint, the CCA decided to hold the case over in order to give board members time to review the videotape and the additional evidence presented by Officer Rackley.

'This is a pattern'
The CCA also heard a pair of complaints accusing two officers of racial profiling. Andre Blasingame said he was looking for an address on Dewey Avenue in Price Hill when he noticed Officer Eric Priestle's cruiser following him.

Blasingame said he slowed, assuming the officer was running his plate. After being followed for several blocks, he pulled into a no parking zone and got out to ask why officers were following him.

CCA member Dr. Walter Bowers objected to Roberts' remarks about Tasers and firearms.

The officers told a CCA staff investigator they hadn't continually followed Blasingame; they'd broken off contact but ended up following him again later.

Their statement indicates Blasingame stopped in the middle of the street, not at a curb, and they cited him for driving too slowly. Priestle said he ran Blasingame's license plate, as he frequently does with cars in front of him, but denied race was a motivation.

Priestle was with Officer Anthony Egner in that incident and also in one that led to a complaint by Paul Ware, who alleged the officers racially profiled him, stopping him for no apparent reason. When traveling in opposite directions, the officers made a U-turn in the middle of Price Avenue in Price Hill, even though Ware hadn't committed any traffic violation, he said.

After Ware parked and left his car, the officers ordered him back inside and asked for his license and registration. They asked to search him and his car. Ware consented, then changed his mind. The search was completed anyway.

The officers cited Ware for failure to use a turn signal, carry a driver's license and wear a seat belt.

After board members noted similarities in the two complaints, they agreed to discuss them together.

"It just doesn't look right," Butler said. "I don't think it's by coincidence that this same scenario happened with the same two officers within a six-day period of time. How many other times did this happen and the people that were involved in the situation just never filed a complaint?"

Identifying trends in police behavior is one of the reasons the CCA exists, according to Butler.

"I think this is a pattern of practice," she said. "It is our obligation to point out that we are disturbed with this pattern of practice. There's no way for us to say, 'Yes this is racial profiling, no it isn't.' But both these people that got followed were black men. If there was a different race of the two individuals, then I guess that would be a consideration. The fact is they are both of the same race. They both did not commit a traffic infraction until those officers continually followed them."

Bowers provided some context for the board.

"As black men, we're told that when we're stopped by police persons that you cooperate fully, because you have no idea as what's going to happen if you don't cooperate fully," he said. "Now these two incidences happened within a week of each other, six days of each other, where lawfully abiding citizens are driving down the street and the officer turns around, follows you, takes your plates and still can't find anything and waits for you to commit an infraction."

Butler agreed.

"The one guy, they said, was moving too slow in the neighborhood," she said. "He said he was looking for an address. I've done that myself when it's hard to see the addresses on pieces of property; I have slowed down under the speed limit -- you can't go the speed limit and try to find an address if you've never been to that piece of property. That hits home with me. I sell real estate. Sometimes those addresses are not readily visible at nighttime and there may not be a light, so of course you're going to slow down.

"These two people took it upon themselves to file a complaint, but I'm willing to bet that (these are) not the only individuals that this officer has targeted or have followed behind without having a basis for doing that. ... There's too many other violent crimes happening in this city for these guys to be following behind two individuals that did not commit an offense. They had no reason to believe a crime was being committed, they had no reason to believe that a crime was going to be committed."

In both cases the CCA staff investigators concluded that the charges of racial profiling were not sustained by the evidence. Butler took issue with that.

"I don't agree with the findings," she said. "I think there's a pattern here. I think these guys have hidden behind that fact that they've decided on a traffic violation as a means to cover their actions or to cover themselves. Had they not been following these guys, there would not have been a traffic violation. The following (of) these guys, I think, created the traffic violation."

'A flawed system'
CCA Vice Chair Nancy Minson restated the board's frustration over dealing with racial profiling.

"As we brought up at previous meetings, the allegation of racial profiling is almost impossible to prove," she said. "Unless you've got someone on tape or you have irrefutable witnesses of the situation, it's a matter of conflict of opinions. These cases are blatant in what's going on. I think it's just symptomatic of the allegation of racial profiling.

"Something needs to be done to be able to address this issue. Whether we're able to sustain against a police officer or not isn't as important to me as being able to address the issue of racial profiling. Until we have some sort of change in the way we address this I don't think we're going to truly be able to deal with the problem."

Bowers read from the Collaborative Agreement to remind the board that it can take action: "At a minimum the CCA will look for three types of patterns: repeat officers, repeat citizen complaints and repeat complaint circumstances. Following the identification of such a pattern, the CCA and the CPD will jointly undertake a problem-solving project to determine the reasons for the pattern and whether there are opportunities to eliminate or reduce root causes."

It's time for the CCA to apply that clause, according to Bowers.

"I would challenge our CCA panel as well as the police to address these issues that we've addressed tonight because there's a mechanism in place for us to do that," he said.

When the cases came to a vote, the board continued to debate the ramifications of the cases. Butler said she couldn't go along with the staff finding because her "gut feeling" is that racial profiling had happened.

"The fact is the system is flawed and needs to be fixed, that's why we're here in the first place," she said. "If we're going to not sustain every allegation that comes before us, then how are we ever going to do that with the way the system is set up? We're never going to have an officer that's gonna say, 'Yes, I did target him because of his race.' But that's part of our charge, is to identify patterns that exhibit or look like race played a role in the whole interaction -- and that's what's happening in these two cases."

CCA member Sandra Butler objected to Roberts' remarks about Tasers and firearms.

CCA Chair Richard Siegel said he thought it was premature to vote on a perceived trend.

"CCA and the staff and the board are charged with investigations and recommend findings that we refer on to the city manager and the chief of police," he said. "It seems to me that we avoid the issue to the extent that we disapprove the finding without an analysis with respect to the other findings. None of the other findings are very satisfactory, unless you're willing to sustain allegations against these individual officers the allegation of racial profiling. The 'not sustained,' recommended by the staff, while we're uncomfortable with it, seems to meet the criteria we were given in terms of findings."

Minson agreed with Siegel's interpretation of the process but said she thinks the process needs change.

"I'm in favor in accepting the investigation as it comes out, however I am strongly in favor of adding a comment to that saying that this is a flawed system and something needs to be done to clarify or make the investigation of racial profiling more realistic," she said.

No harassment policy
CCA member David Black noticed that Blasingame's original complaint included "harassment" but the report was changed to indicate racial profiling. Kenneth Glenn, CCA's interim executive director, explained the revision.

"There is no CPD policy addressing an allegation of harassment, and that's why we took the harassment allegation out of that initial complaint that you received," he said.

Glenn said the CCA staff spoke at great length with the police department about the two complaints and reported that their watch commander had already talked to them. But Black wasn't satisfied.

"I understand what you're saying about not having a policy in place, but it seems to me that one of the things this board is commissioned to do is to try to cut down on racial profiling," he said. "That is the kind of accusation and perception in parts of the community that we're supposed to be addressing. So I frankly don't care whether there's a policy or not, maybe there ought to be a policy. It seems to me that we need to address this kind of thing in the fairest manner we know."

Assistant Chief Vincent Demasi explained how the police department addresses harassment.

"We do not have a policy that states, 'You can not harass people' per se because that in and of itself is extremely broad," he said. "What might be defined as harassment to one person might not be harassment to another. So what the police department has endeavored to do is produce a series of conducts that we call 'The Procedure Manual' that defines clearly how officers are to conduct themselves, whether it be in a traffic stop or in towing someone's car, whatever the situation is.

"We follow that up with 'The Manual of Rules and Regulations,' which also breaks down the conduct and allows us to measure the individual conduct of the officer in certain situations and then determine if there's been a violation or a rule violation. Although we don't have a harassment policy, we do have very specific criteria that, if an officer find himself or herself in violation of them, they are in violation of policy and procedures or our rules, which could be construed as harassment."

The police department does, however, have a policy forbidding sexual harassment.

Demasi said a citizen who believes he's been unfairly cited can go to court to fight the citation. Neither Blasingame nor Ware fought their tickets, he said.

As a measure of police-community relations, the Dec. 5 meeting of the CCA did offer one positive development: a cop finally participated in the proceedings.

"I would like to say, Officer Rackley, that I do appreciate your appearing before us tonight," Siegel said. "I do believe, if memory serves, that you may be the first officer willing to come down and state a position for us and provide additional information with respect to his case. I believe that's beneficial to the process for us. ©