"I believe we're going to make it," said Jay Rothman, a Yellow Springs mediator who was appointed "special master" of the racial profiling settlement. "I believe the agreements that we have are so important that the disagreements have to be bridged."
U.S. District Judge Susan Dlott, who is handling the racial profiling suit, set an April 5 deadline for a settlement. If successful, the mediation would be a pioneering effort to avoid years of legal battles that tangled police departments in Pittsburgh and Columbus. If not, the case goes to trial.
The Department of Justice (DOJ) examination is open-ended but was so closely related to the profiling lawsuit that DOJ officials joined the profiling mediations March 29 to try to settle both issues at once. The talks went well enough to merit a third day of talks March 30 and a fourth session April 1.
Rothman said April 1 the previous three days of 12-hour sessions had resolved 95 percent of the disputes between the DOJ, the city and a team of lawyers for plaintiffs in the racial profiling suit -- five percent more than had been resolved in earlier sessions
But three other lawsuits accusing the Cincinnati Police of civil rights violations seem likely to remain in federal court. Allegations include cops Macing handcuffed protesters, unnecessarily bruising and bloodying people with bean bag rounds, detaining people on questionable grounds and Thomas' wrongful death after being shot by former Cincinnati Police Officer Stephen Roach.
Not all of the lawsuits involving Cincinnati Police are meant to effect change; at least one aims to undo it. The Queen City Lodge of the Fraternal Order of Police is suing the city over Issue 5, the charter amendment passed last fall that ended civil service protection for 98 positions, including police chief.
Racial profiling -- the common term for police unjustifiably targeting citizens based on race -- became a household term through documented cases in New Jersey in the late 1990s. But the issue didn't really reach Cincinnati until a team of three local lawyers gathered stories from about 400 citizens in early 2001.
A March 2001 CityBeat analysis of 141,000 traffic citations written by Cincinnati Police in a 22-month period found black drivers twice as likely as whites to be cited for driving without a license, twice as likely to be cited for not wearing a seat belt and four times as likely to be cited for driving without proof of insurance. (See Moving Violations, issue of March 8-14, 2001.)
That same month, attorneys Al Gerhardstein, Ken Lawson and Scott Greenwood filed suit, accusing Cincinnati Police of racial profiling. Greenwood is attorney for the American Civil Liberties Union. Lawson represents the Black United Front. Gerhardstein is a longtime civil rights attorney.
Rothman, president of the ARIA Group, got the go-ahead from Cincinnati City Council and Judge Dlott to try to settle the lawsuit.
It was Rothman's job to bridge the gap between what the legal team wanted and what the city and police were willing to give.
It was also his job to ask all types of citizens what kind of police department they wanted. The ARIA Group solicited ideas from eight separate groups of citizens during summer and fall meetings, including police officers and their families, people 25 and younger, city employees, business leaders and others. The participants offered more than 3,500 ideas, which the ARIA Group condensed into five broad goals, including:
· Making police officers active partners in community problem solving;
· Building trust between the community and police; and
· Improving public understanding of the police department's policies.
The effort has been a roller coaster ride, Rothman said March 27.
"There are times when there's a tremendous sense of real accomplishment ... and there are other times when it just feels like we have a thousand miles to go," he said.
Doubt clouded the beginning of discussions March 28. Greenwood said there was doubt the city was negotiating in good faith, considering its criticism of the plaintiffs' legal team.
Even the usually cheerful Rothman had a twinge of doubt in his voice March 27. A week earlier, the mediation had reached a stalemate.
"In such high-stakes negotiations, that's not unusual," Rothman said.
Greenwood said the key issues concerned some sort of civilian oversight of the police department, enforcement authority for the agreement and significant changes in the police department's use of force.
Although Greenwood didn't mention legal fees and the ARIA Group's expenses, both could be a sore spot in finishing the negotiations. He said the profiling legal team isn't in it for the money.
"I can make far more money without having to go through this battle," he said.
"This is blood, sweat, and tears."
The negotiating table got even more crowded March 28 when U.S. Magistrate Michael Merz joined the mediation team. The FOP, the Black United Front and others were already there.
The mayor surprised
Similar points of contention mark the DOJ's investigation of the police department, which began in April after the riots at Mayor Charlie Luken's request.
Luken seems to have trouble deciding if he really wants to change the police department. During the week of the riots, he said, "Far too many African-American males have been killed at the hands of the Cincinnati Police." Days later he called for the city to "return to normal" -- a comment that irked police critics.
Within weeks, Luken invited the DOJ to evaluate the police, then seemed surprised when it found a lot of things the department could do better.
In October, the DOJ sent a 14-page letter suggesting specific changes -- a list of recommendations Luken called "too onerous." But several of the suggestions had already been completed or were redundant, such as requiring a canine handler to announce loudly that a dog was about to begin a search and taking photos of people injured by the use of chemical irritant.
In February, the city solicitor's office released a 91-point "preliminary response" to the letter, agreeing with 74 of the recommendations, disagreeing with 10 of them and offering a mixed response to seven. Although there were some key sticking points, the police department explicitly agreed with 47 of the DOJ suggestions, saying,"The CPD agrees with this recommendation."
The disagreements centered on recommendations that the police division:
· Track every time an officer draws a gun and points it at someone;
· Require officers to provide a written explanation of every use of force;
· Allow citizens to submit complaints without visiting a police station and allow them to take a support person to complaint resolution meetings;
· Notify the police communications section about ongoing special operations; and
· Allow recruits to anonymously evaluate their field training officers.
In late March, Billy R. Martin, lawyer for the city, proposed a new Citizen Complaint Authority to replace both the defunct Citizens Police Review Panel and the city manager's Office of Municipal Investigations.
In case you're wondering who's representing the DOJ, so are we. A DOJ spokesperson would not identify the names of its representatives negotiating with the city.
"As a matter of policy, we don't release names," said DOJ spokesperson Dan Nelson.
Nelson did say there are at least two representatives and they're from the civil rights division. The city solicitor's February letter was addressed to Steven Rosenbaum, chief of the Special Litigation Section of the Civil Rights Division.
The mediation was continuing as CityBeat went to press.
If I get whacked, you get sued
The riots might have ended a year ago, but the legal fallout is far from over. Four related civil rights lawsuits are traveling through the U.S. District Court for the Southern District of Ohio at varying speeds.
Police stayed away from the New Prospect Baptist Church April 14, 2001, the day of Thomas' funeral -- almost.
After the funeral, dozens of people were milling about the 1800 block of Elm Street near the church, talking to each other under an air of calm. Several protesters had migrated a few blocks south and were standing in Elm Street just north of Liberty Street, holding signs.
Suddenly, four or five police cruisers pulled up, according to eyewitnesses. Six Cincinnati Police officers and two troopers from the Ohio Highway Patrol stepped out, drew their weapons and fired bean bag and/or foam rounds into the crowd, which included children. Eyewitnesses said the officers gave no warning.
Officers had used the same bean bag and foam rounds to shoot dozens of others during protests and riots, mostly on April 10 and 11.
One woman needed 20 stitches to close the wound a bean bag round opened in her head. Others were shot while standing in their own doorways. Police shot one man while he was picking up four grandchildren from a birthday party in Over-the-Rhine.
Attorney Bob Newman filed suit May 2 on behalf of 39 plaintiffs who were either Maced, shot by nonlethal rounds or detained -- all without provocation, the suit alleges.
Lawson represents three people with similar accusations in a separate lawsuit.
Soon after filing suit, Newman tried to convince U.S. District Judge Arthur Spiegel to order police to stop using bean bag and foam rounds. Newman argued the rounds were an unconstitutional use of force because they were used before a crime had been committed, and could be deadly. Spiegel denied the request.
The lawsuit began with 30 unnamed officers as defendants, Newman said, but none of the 39 plaintiffs could identify the officers who shot or Maced them.
While the city admits officers fired bean bag and foam rounds, it won't admit the officers hit anyone, according to Newman. So far, no one has sued to get Cincinnati Police officers more target practice.
The city provided all the documentation it had, including officers' use of force reports, according to Assistant City Solicitor Richard Ganulin.
With the officers removed as defendants, Newman must prove the police department's policies allow for an unconstitutional level of force.
The city denied all 289 accusations in Newman's lawsuit. Nine days earlier, however, the city offered each of the plaintiffs between $1,000 and $8,000 to settle, according to a letter from Ganulin. The average offer was $2,397.
Individual plaintiffs have been trying to negotiate their own deals with the city, but city attorneys aren't really responding, Newman said. A group settlement is under discussion as well.
"We're bumbling along on settlement discussions, but we're not really getting very far," Newman said.
A tentative trial date has been set for Oct. 15.
The DOJ investigated the funeral day incident but declined to bring an indictment in front of a federal grand jury. It seemed unlikely federal prosecutors could prove the eight officers intended to deprive people of their civil rights -- the burden of proof required for a conviction, according to Greg Lockhart, U.S. attorney for the Southern District of Ohio.
"We don't take people to court just to see what could happen," Lockhart said.
The Ohio Highway Patrol found that Trooper Bradley Bishop -- who fired at least one of the rounds during the funeral day incident -- followed department policies and practices, according to Ohio Highway Patrol spokesperson John Born.
Things are moving more slowly at the Cincinnati Police Department, as always. Despite the fact that nearly a year has passed since the funeral day incident, the department hasn't concluded its own investigation. One of the six Cincinnati Police officers involved in the incident -- Sgt. Eric Hall -- resigned last month.
Only recently did the police department wrap up its investigation of Thomas' death, finding Roach lied to investigators. But in September, Hamilton County Municipal Judge Ralph E. Winkler acquitted Roach on charges of negligent homicide and obstructing official business.
Speaking of double standards, when Luken called a citywide curfew to regain control of the city April 13, some bars in Mount Adams stayed open past the 8 p.m. curfew. Residents in Over-the-Rhine and other less-affluent neighborhoods were angry because their streets had been closely watched by police during the curfew.
On June 2, about 80 people participated in a rally in Seasongood Pavilion in Eden Park. The goal of the protest was to call attention to the fact that nearby Mount Adams bars remained open during the curfew while police rounded up people in low-income neighborhoods.
When participants marched away from the park, police surrounded them at the corner of Louden, Hatch and St. Gregory streets and forced them onto a narrow sidewalks, causing chaos, according to a lawsuit filed by Lawson.
Seemingly at random, officers pulled two of the protesters from the sidewalk and arrested them. Then they arrested a man for asking why the first two were arrested. Then they arrested a young woman, handcuffed her and Maced her in the mouth, possibly because she was yelling. Most were charged with resisting arrest or disorderly conduct.
The man arrested for questioning police, Jay Marx of Washington, D.C., had argued with Assistant Police Chief Richard Janke before the protest. One of Janke's responses was overheard by a CityBeat reporter.
"We're just here to ensure that all you law-abiding citizens don't do anything illegal," Janke said. "Because if you were to do something illegal, then we just want to be clear that we are prepared to whack you and take you out if necessary."
Eight of the nine people arrested in Mount Adams took their cases to court and were acquitted. (One protester pleaded guilty to a reduced charge.) A videotape of their interaction with police was key evidence.
Perhaps the lowest-profile lawsuit so far is Angela Leisure's wrongful death claim against the city of Cincinnati and Roach, filed May 9. Leisure's son, Thomas, is survived by a girlfriend and their 15-month old son, who are asking for unspecified damages based on Roach's errant shooting of Thomas.
The city plans to file for dismissal of all of the cases, according to Ganulin.
The cops want it back
In November, 52 percent of Cincinnati voters passed Issue 5, the civil service charter amendment. It enables the city manager to hire a police chief, fire chief and 96 other city employees from outside the city's ranks.
The FOP sued in February, arguing the charter amendment violates the FOP's contract with the city. The lawsuit, filed in the Hamilton County Court of Common Pleas, is relatively simple, according to FOP attorney Chris Finney.
The city signed a two-year contract with the FOP in December 2000 that guarantees assistant police chiefs have certain rights of appeal if they're fired. Issue 5 attempts to remove those rights, violating the contract, Finney said.
If the FOP wins in court, he said, Issue 5 will be thrown out for lack of a severability clause -- the legal language allowing only part of the law to be struck down.
Betty Hull, the former chair of the pro-Issue 5 group "A Better Cincinnati," disagrees. Hull said that severability isn't an issue because nothing in the charter amendment conflicts with anything else.
Why didn't the FOP bring this angle up before the election? Finney said Issue 5 opponents did talk about it a little but mostly focused on other parts of the initiative -- such as the ability to fire police and fire chiefs -- because the FOP and others thought this "would move more votes."
Finney said the lawsuit could be resolved in as little as a month because the facts are not in dispute but it's simply a legal question to be resolved by a judge.
Hull characterizes the FOP suit as an attempt by the losing side to stop a popularly approved change in government. City council backed Issue 5 by unanimously voting to put it on the ballot. Otherwise, Hull and other initiative backers would have needed thousands of signatures from registered voters.
But Finney doesn't see the FOP lawsuit as a roadblock to reform.
"We don't see this as progress," he said. "We see this as a horrible direction."
The FOP argues that ending civil service reform will make police more vulnerable to political whims.
Ironically, the DOJ's letter from October seems to endorse Issue 5. It concludes by noting that police management seems to have limited exposure to the ideas of other police departments.
"Greater exposure would provide the CPD with access to new ideas and innovations," the letter says. ©