Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 1 of 26. PageID #: 41

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

UNITED STATES OF AMERICA.,
Plaintiff
v.
THE CIlY OF WARREN, OHIO
AND mE eCImTY OF WARREN
POLICE DEPARTMENT
Defendants.

) CASE NO. ) ) JUDGE
)
) SET'ITLEMENT AGREEMENT ) BETWEEN THE CITY OF WAARRREN ) AND THE UNITED STATES OF ) AMERICA (JQ2EEPARTMENT OF ) JUSTICE) )

SEETTTTLLEMMENT AAGREEMENT Noting the general principle that settlements are to be encouraged, particularly settlements
between governmental entities, and noting the cootinued cooperative relationship between the U. s.
Department ofJustice, Civil Rights Division ("DDOO.1]""), the City of Warren, Ohio ("City"), and City ofWarren, Ohio Police Department ("WPD"), and having considered the terms ofthe measures, set forth herein., the City and WPD agree to the following terms and conditions:

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 2 of 26. PageID #: 42
TABLE OF CONTENTS 1. INTRODUCTION ................................................................................................................... 3
A. Background ......................................................................................................................... 3 B. General Provisions ................................................................................................................ 3 C. Definitions .......................................................................................................................... 5 II. USE-OF-FORCE POLICIESIPRACTICES ...................................................................... 6
III. EVALUATION, DOCUMENTATION, AND REVIEW OF USES OF FORCE.............. 7 IV. CIT1ZEN COMPLAINT PROCESS ................................................................................ 9
A. Public Information ...................................................................................... .......................... 9 B. Means of Filing and Tracking of Complaints ................................................................... 10 C. Investigation of Complaints .............................................................................................. 10 V. MANAGEMENT AND SUPERVISION ............................................................................ 13 A. Risk Management System................................................................................................. 13 B. Oversight........................................................................................................................................ 17 C. Discipline .......................................................................................................................... 17 VI. TRAINING ...................................................................................................................... 18 A. . Management Oversight..................................................................................................... 18
B. Curriculum ........................................................................................................................ 19 VII. MONITORING, REPORTING, AND IHMvlPPLLEEMMEENNTTAATION ................................... 20
A. D00O1l Monitoring .................................................................................................................. 20 B. DOOJl Monitoring Reports ..................................................................................................... 21 C. WPD Reports and Records ............................................................................................... 21 D. Implementation, Modification, and Ternmnination................................................................ 21
2

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 3 of 26. PageID #: 43
I. INTRODUCTION
A. Background
1. In December 2004, DOl initiated an investigation of an alleged pattern or practice of excessive force and illegal searches throughout WPD under the Violent Crime Control and Law Enforcement Act of 1994,42 U.S.C. § 14141 ("Section 14141 ").
2. City and WPD officials met with DOl officials to facilitate the Cityy''Ss cooperation with DOl's investigation and craft an Agreement addressing all of the Parties' concerns. The Agreement is the result of a cooperative effort that evinces a commitment to constitutional policing on the part of DO]; the City; and WPD (collectively, "the Parties").
B. General Provisions
1. The Parties share a mutual interest in promoting effective and respectful policing. They join together in entering this Agreement to promote police integrity and prevent conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or the laws ofthe United States.
2. This Agreement is effectuated pursuant to the authority granted DO] under Section 14141 to seek declaratory or equitable relief to remedy a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges or immunities secured by the Constitution or federal law.
3. In its investigation of WPD, DOl, in conjunction with two police practices consultants, conducted a detailed fact-finding review, including: ride alongs, tours of WPD's facilities, interviews with WPD and City officials, WPD command staff, supervisors, and police officers; and review of numerous documents. In addition, in March 2006, DO] sent the City a letter providing detailed technical assistance regarding WPD practices and policies in the areas of use of force, citizen complaints, investigations, supervisory oversight, and training.
4. Following DOJ's provision of technical assistance, the City and WPD represented that they completed substantial revisions ofall ofWPD's policies and procedures. WPD presented certain of these policies to DO] for consultation.
5. In its complaint for the above-captioned action, the United States has alleged that WPD is violating 42 U.S.C. § 14141 by engaging in a pattermn or practice of use of excessive force by WPD officers that deprives persons of rights privileges or immunities secured or protected by the Constitution or laws of the United States. The City denies these allegations.
6. This court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345. The United States is authorized to initiate this action pursuant to 42 U.S..Cc. §

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 4 of 26. PageID #: 44
14141. Venue is proper in the Northern District of Ohio pursuant to 28 U.S.C. § 1391.
7.. The Parties enter into this settlement jointly for the purpose of avoiding the burdens oflitigation and to partner in support of vigorous and constitutional law enforcement. Moreover, joint entry of this Agreement is in the public interest because it provides for ex.ppeeddiittious remedial activity, promotes the use of the best available policing practices and procedures, and avoids the diversion of federal and City resources to adversarial actions by the Parties.
8. Nothing in this Agreement is intended to alter the lawful authority ofWPD to use reasonable and necessary force, effect arrests and file charges, conduct
searches or make seizures, or otherwise fulfill its law enforcement
obligations in a manner consistent with the requirements of the Constitution . and laws of the United States, the State of Ohio, and the City.
9. Nothing in this Agreement is intended to: (a) alter the existing collective bargaining agreements between WPD and the Ohio Patrolmen's Benevolent Association and between WPD and the Fraternal Order ofPolice/Ohio Labor Council, Inc.; or (b) impair the collective bargaining rights of employees under State and local law. Nothing in this Agreement is intended to mnecnd or supercede any provision of State or local law..
10. This Agreement shall constitute the entire integrated agreement of the Parties. With the exception of correspondence resulting from technical assistance that the United States has provided to WPD, no prior drafts or prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding.
11. The Parties agree that -prior drafts of this Agreement and prior or contemporaneous communications, whether oral or written, between the Parties leading to this Agreement are subject to Settlement Privilege. By approval of this Agreement by the Court in the above-captioned action, the Court finds that all such prior drafts of this Agreement and prior or contemporaneous communications, whether oral or written, between the Parties leading.to this Agreement are subject to Settlement Privilege. In the event the parties disagree about the meaning ofthis Agreement, in whole or part, the parties agree that Settlement Privilege will not bar the use or admission of parole evidence in proceedings before the Court in the above­ referenced action.
12. In the event of any public records request pursuant to Ohio Revised Code
§149.43 requesting prior drafts of this Agreement and prior or contemporaneous communications, whether oral or written, between the Parties leading to this Agreement, the Court will maintain continuing jurisdiction over any such request. Further, the Parties agree that they may
4

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 5 of 26. PageID #: 45
assert in any action, motion, subpoena, or request for disclosure of infonnation the ongoing applicability of Settlement Privilege to all such prior drafts or prior or contemporaneous communications, oral or written, between the Parties leading to this Agreement.
13. This Agreement is binding upon the Parties, by and through their officials, agents, employees, and successors. This Agreement is enforceable only by the Parties. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal. or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement. This Agreement is not intended to impair or expand the right of any person or organization to seek relief against the City and WPD for their conduct or the conduct of WPD officers; accordingly, it does not alter legal standards governing any such claims, including those under Ohio law. This Agreement does not authorize, nor will it be construed to authorize, access to any City, WPD, or DOJ documents, except as expressly provided by this Agreement.
14. The City and WPD agree to be bound, as they are now, by the Constitution and Laws of the United States.
c. Definitions
1. The tenn "City" means the City ofWarren, including its agents, officers and employees.
2. The ternmn "WPD" means the Warren Police Department, its agents and its employees (both sworn and unsworn).
3. The term "DOJ" means the United States Department of Justice and its agents and employees.
4. The term "deadly force" means any use of force likely to cause death or serious physical injury, including, but not limited to, the discharge of a firearm.
5. The term "force" means any physical coercion used to effect, influence or persuade an individual to comply with an order from an officer. The ternmn shall not include ordinary, unresisted handcuffing. The ternmn shall include, but not be limited to: the use of strikes, punches, take downs, or physical pressure other than simple guidance for the safety or direction of the subject; the use of any intermediate weapon including, but not limited to, conductive energy devices, chemical irritants, baton, or telescoping baton; and/or the deployment of a canine..
6. The tenn "force continuum" refers to the graphical depiction ofuses offorce that is attached hereto as Appendix A.
5

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 6 of 26. PageID #: 46
7. The ternmn ;'discipline" means a verbal warning, written reprimand. suspension, demotion or dismissal.
8. The ternmn "non-disciplinary corrective action" refers to action other than discipline taken by a WPD supervisor to enable or encourage an officer to modify or improve his or her perfornmnance.
9. The ternmn "police officer" or "officer" means any law enforcement officer employed by 'WWPD, including supervisors.
10. The ternmn "supervisor" means a sworn WPD employee at the rank of Sergeant or above (or anyone acting in those capacities).
11. The ternmn "complaint" means any complaint by a member of the public regarding WPD services, policy or procedure, claims for damages (which allege officer misconduct) or officer misconduct; and any allegation of possible misconduct made by a WPD officer.
12. The ternmn "complainant" means any person who files a complaint against an officer or WPD.
13. The term "implement" or "implementation" means the development or putting into place ofa policy or procedure, including the appropriate training of personnel.
14. The ternmn "include" means including, but not limited to.
15. The term "effective date" shall be the date on which the Court approves this Agreement and retains jurisdiction to enforce its ternmns.
II. USE-OF-FORCE POLICIESIPRACTICES
1. The City shall maintain use-of-force policies that:
a. defme terms clearly;
b. define "force" as that ternmn is defined in this Agreement;
c. incorporate a use-of-force model that relates the force optiioonn.s available to officers to the types of conduct by individuals that would justify the use of such force, and that teaches disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements or calling in specialized units as appropriate responses to a situation, and that requires the use of a verbal warning before the use of force, when possible;
d. state that, whenever possible, individuals should be allowed to submit to arrest before force is used;
6

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 7 of 26. PageID #: 47
e. state that the use of excessive force shall subject officers to discipline, possible criminal prosecution, and/or civil liability;
f. ensure that sufficient less lethal alternatives are available to all patrol officers; and
g. explicitly prohibit the use of choke holds and similar carotid holds except where deadly force is authorized..
2. For the duration of this Agreement, WPD shall ensure that its use-of-force policy meets the above criteria. If notified by DOJ that WPD ':s policies do not meet the above criteria at any point during the term of this Agreement, WPD shall revise its policies consistent with the above criteria and submit the revised policy to DO] for approval. DOJ will review and comment on WPD's revised use-of-force policies.. WPD shall further revise its use-of­ force policies consistent with the DOJ] comments, and WPD shall resubmit the revised policies to DO] for its consideration for approval. WPD shall not implement any revisions to its use-of-force policies unless approved by DOJ. Once the DO] has approved these policies, WPD shall immediately implement any revisions. Within thirty days of DOlr's approval ofWPD's revised use-of-force policies, WPD shall retrain all WPD officers on the revised policies, and shall keep a written record of such training of all existing and new WPD employees as part of each employee's personnel file
3. WPD represents that every uniformed WPD officer is provided an intermediate force weapon. WPD shall continue to provide every uniformed WPD officer with an intermediate force weapon., which all uniformed officers shall carry on their person at all times while on duty and may be used when appropriate under law and policy. WPD has previously selected the telescoping baton as WPD' s current assigned intermediate force device for all sworn officers. WPD may select a different intermediate force weapon,
provided that WPD make the selection uniform across all sworn officers..
WPD shall incorporate its selected intermediate force weapon into WPD's force policy, and shall continue to train all its sworn officers on an annual basis on the proper use of the selected intermediate force weapon.
m.m. EVALUATION. DOCUMENTATnIOONN. AND REVIEW OF USES OF FORCE
1. WPD requires all uses of force to be documented in writing. Each WPD officer involved in a use-of-force incident shall separately complete a use-otf:.' force report, or a separate addendum to the original use-of-force report. Each officer shall indicate on his or her respective report each and every type of force he or she used or was a party to. Each officer involved in a use-of­ force incident shall include in his or her report a narrative description of the events preceding the use of force, a description of the force used, and a description of the care given after force was used. All use-of- force reports shall indicate whether or not the subject on whom force is used was
7

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 8 of 26. PageID #: 48
restrained or not at the time force was used.. WPD shall ensure that WPD officers complete and submit all use-of-force reports within twenty-four hours of the end of the shift on which a use offfoorce occurs.
2. Officers shall notify their immediate supervisors following all uses of force or upon the receipt of an allegation of excessive force. Upon such noottiffiiccaattioion~, the immediate supervisor of the involved officer(s) shall promptly respond to the scene, examine the subject for injury, interview the subject. and ensure that the subject receives needed medical attention. When a Sergeant is involved in a use of force or an allegation of excessive force , the Lieutenant on duty shall be the immediate supervisor. The Chief of Police. or his or her designee, shall promptly respond to the scene of any use of deadly force.
3. The immediate supervisor shall reviev.'. evaluate, and document each use of force in the supervisor's review section of the use-of-force report including his or her determination of whether or not the officer's actions were within WPD policy, and whether or not the force used was objectively reasonable. Any officer or supervisor who used force during the incident, or whose conduct led to an injury, or who authorized conduct leading to the use of force or allegation of excessive force, will not be eligible to review the incident.
4. Supervisors shall conduct a review of all uses of force or an injury resulting from a use of force by any officer under their command. As part of this review, supervisors shall interview all witnesses to a use-of-force incident or an injury resulting from a use of force.
5. Consistent with the requirements of the collective bargaining abrreement andlor other applicable authority, supervisors shall ensure that all officer witnesses provide a statement regarding use-of-force incidents. Officers shall not be pennitted to see one another's statements prior to submission of their own statement. Supervisors shall ensure that all use-of-force reports identify all officers who were involved in the incident or were on the scene when it occurred. Supervisors shall ensure that all reports indicate whether an injury occurred, whether medical care was provided, and whether the subject refused medical treatment. Supervisors shall ensure that all reports include contemporaneous photographs or videotapes taken of all injuries at '. the earliest practicable opportunity, both before and after any treatment. Supervisors shall document their review of the use-of-force report in the supervisor's review section of every use-of-force report. Supervisors shall record therein their evaluation of the basis for the use of force, a detennination ofwhether the officer's actions were within WPD policy,. and whether the force used was objectively reasonable.
6. The Parties agree that it is improper for WPD personnel conducting reviews ofuse-of- force incidents to ask officers or other witnesses leading questions 8

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 9 of 26. PageID #: 49
that improperly suggest legal justifications for officers' conduct when such questions are contrary to appropriate law enforcement techniques. In each use-of-force review, WPD shall consider all relevant evidence including circuwmnstantial, direct and physical evidence, as appropriate, and make credibility determinations, iffeasible. WPD will make all reasonable efforts to resolve material inconsistencies between witness statements.
7. For each use-of-force incident, a WPD Captain will timely evaluate each use· of-force review supervisors conducted for such incident, identify any deficiencies in those reviews, and require supervisors to timely correct any deficiencies. WPD shall hold supervisors accountable for the quality oftheir reviews. WPD shall take appropriate non-disciplinary corrective action andlor disciplinary action whenever a supervisor fails to conduct a timely and thorough review of a use of force, or neglects to recommend appropriate corrective action, or neglects to properly implement appropriate corrective action.
IV. CITIZEN COMPLAINT PROCESS
A. Public Information
1. WPD has developed and implemented a program to inform persons that they may file complaints regarding the performance of any ofiflcer. The complaint form is presently available at www.warren.org, the City'S website. The City also presently makes complaint forms and directions for submitting complaints public available at all governmental properties. The City has proceeded to make the public aware of the complaint fonn process. During the performance ofttrhuis Agreement, WPD shall continue to make complaint forms, directions on submitting complaints, and informational materials publically available at governm~nt properties including, but not limited to: WPD headquarters, all City public libraries, the Office of the Director of Public Safety, the Internet, and, upon request, to commmUunItity groups and community centers.
2. Within within 30 days of the effective date of this agreement, WPD shall permanently post in a public space at WPD headquarters a placard describing the complaint process and include the relevant phone numbers. WPD shall require all officers to carry informational brochures and complaint forms in their official vehicles at all times while on duty. If a citizen objects to an officer's conduct, that officer will inform the citizen of his or her right to make a complaint. Officers shall not discourage any person from making a complaint.
9

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 10 of 26. PageID #: 50
B. Means of Filing aDnd Tracking of Complaints
1. WPD shall continue to maintain clear complaint acceptance and complaint resolution policies and procedures. WPD shall ensure that all officers are trained in acceptance of complaints. Training on the complaint acceptance policy and procedure will be a part of in-services to all officers at the implementation of this Agreement.
2. The complaint-acceptance policy shall specify that WPD shall accept complaints in writing or verbally, in person or by mail, telephone (or TDD) , facsimile, electronic mail, or drop box. The policy shall require that all WPD employees accept complaints and prompt delivery them to a supervisor.. The policy shall state that an employee accepting a complaint may describe facts that bear upon a complainant's demeanor and physical condition but may not express opinions regarding hislher mental competency or veracity.. The complaint-resolution policy shall require that WPD resolve each complaint in writing,
3. WPD shall refer copies of allegations of misconduct against WPD to WPD's Internal Affairs Unit ("IA") within three business days of receipt of a complaint. Within 90 days of the effective date of this Agreement, WPD shall institute a centralized numbering and tracking system for all complaints.. Immediately upon receipt of a complaint, WPD shall assign each complaint a unique identifier, which WPD shall provide to the complainant. WPD shall track in a database each complaint according to the basis for the complaint (e.g., excessive force, discourtesy, improper search, etc.).
C. Investigation of Complaints
1. WPD shall investigate every complaint of employee misconduct.
2. WPD shall explicitly prohibit from investigating an incident any officer involved in that incident.
3. WPD shall complete all investigations of officer misconduct within 40 days ofthe earlier ofWPD's receipt of a complaint or WPD's discovery of alleged officer misconduct, unless the Chief of Police extends that deadline in writing at the written request of the assigned investigator. The Chief of Police may pernmnit only one extension at a time of no more than 30 days per extension, and shall not pernmnit more than a maximum of two possible extensions. The Chief ofPolice shall record, as part of the invesitigative file for the incident, his or her basis for granting or denying the request for extension. WPD shall provide written notice to the complainant of any extensions.
4. Within 90 days of the effective date of this agreement, WPD shall adopt a single policy concerning the investigation of misconduct complaints, regardless of whether the investigation is conducted by IA or a chain-of10

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 11 of 26. PageID #: 51
command supervisor. WPD shall apply a preponderance of the evidence standard to the evaluation of all allegations contained in a complaint or collateral misconduct discovered during the course of investigating a complaint.
5. The personnel participating in IA have presently been trained on the factors to consider when evaluating complainant or witness creditability, examination and interrogation of accused officers and other witnesses; identifying misconduct even if it is not specifically named in the complaint; and using the preponderance of the evidence standard as the appropriate burden of proof.
6. lIA or chain-of-command investigators asssiifg:,'nlled to the investigation of complaints shall interview all witnesses to the incident who are capable of being identified through the exercise ofreasonably diligent investigation. All interviews of WPD employees regarding the incident shall be recorded (audio or video). All interviews of non-WPD employees regarding the incident shall be recorded (audio or video), unless the interviewee specifically requests not to be recorded. If an interviewee requests not to be recorded, WPD shall secure a written declination of recording executed by the interviewee. An interviewee' s refusal to have an interview recorded will not relieve WPD of its obligation to interview all witnesses to an.incident giving rise to a complaint. Consistent with the requirements ofthe collective bargaining agreement and/or other applicable authority, the assigned investigators shall ensure that all officer witnesses provide a statement regarding the incident. Officers shall not be permitted to see one another's statements prior to submission of their own statement. For all allegations involving injury to a person, the assigned investigator shall obtain contemporaneous photographs or videotapes of all injuries at the earliest practicable opportunity, both before and after any treatment, including cleansing of wounds.
7. In each misconduct investigation, WPD shall consider all relevant evidence including circumstantial, direct and physical evidence, as appropriate, and make credibility determinations, iffeasible. WPD specifically shall not give an automatic preference for an officer's statement over a non-officer's5 statement, nor will WPD disregard a witness' statement merely because the witness has some connection to the complainant. WPD will make efforts to resolve material inconsistencies between witness statements..
8. During a misconduct investigation, WPD will continue to investigate all relevant police activity, including each use offorce (i.e., not just the type of force complained about). The investigation shall also evaluate any searches or seizures that occurred during the incident. WPD shall not close an investigation simply because the complaint is withdrawn or the alleged victim is unwilling or unable to provide medical records or proofofinjury or
the complainant will not provide additional statements or written statements;
11

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 12 of 26. PageID #: 52
rather, WPD shall continue its investigation as necessary to deternmnine whether the original allegation(s) can be resolved based on the information, evidence, and investigatory procedures and techniques available. In each investigation, the fact that a complainant pled guilty or was found guilty of an offense will not be considered as evidence ofwhether a WPD offitcer used or did not use a type of force, nor will it justify discontinuing the investigation.
9. For each allegation, the assigned investigator shall make a written recommended determination to the Division Commander as to whether: (1) the police action was in compliance with policy, training and legal standards) regardless of whether the complainant suffered harm; (2) the incident involved misconduct by any officer; (3) the use of different tactics should or could have been employed; (4) the incident indicates a need for additional training, cOWlSeling or other non-disciplinary corrective measures; and (5) the incident suggests that WPD should revise its policies, training, or tactics . WPD shall ensure that assigned investigators' reports contain a written recommended determination on each of these elements.
10. The misconduct-investigation policy shall require that WPD reach a separate investigative finding for each allegation. WPD shall ensure that a separate recommended investigative fmding is reached and recorded in the assigned investigator's report for each allegation of employee misconduct. Each allegation in an investigation shall be resolved by making one of the following investigative [fmdings:
a. "Unfounded," where the investigation determines. by a preponderance of the evidence, that no facts to support that the incident complained of actually occurred;
b. "Sustained:," where the investigation determines, by a preponderance ofthe evidence. that the person::s allegation is supported by sufficient evidence to determine that the incident occurred and the actions of the officer were improper;
c. "Inconclusive," where the investigation determines, by a preponderance of the evidence, that there are insufficient facts to decide whether the alleged misconduct occurred; and
d. "Exonerated," where the investigation determines, by a preponderance ofthe evidence, that the alleged conduct did occur but did not violate WPD policies, procedures, or training.
11. IA shall track and monitor chain-of-command investigations to ensure timely and thorough completion of investigations.
12. Within one week of completion of the IA: s review of the investigative file, the Captain in command of the personnel at issue shall, in writing, either 12

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 13 of 26. PageID #: 53
accept or reject the recommended fimndings, or return the investigative report for further IA investigation, and shall set forth, in the investigative file, his or her basis for doing so unless referred to the ChiefofPolice for further action.,
13. WPD shall keep all non-anonymous complainants infonned periodically regarding the status of the complaint investigation. Within one week of the completion of the investigation, WPD shall notify, in writing, all non­ anonymous complainants of the investigation's outcome, including an appropriate statement regarding whether any non-disciplinary corrective action or disciplinary action was taken,.
14. Subject to the protection against self incrimination in criminal proceedings for statements compelled consistent with Garriittyy'·v. New Jersey, 385 U,.S.. 493 (1967), but without withholding non-compelled statements or comepelled statements that may be used in a criminal proceeding against a person other than the compelled witness, \VVPD shall make a written refeml of all allegations of criminal misconduct by WPD employees to the City, County, or Federal Prosecuting Attorney or other appropriate agency for possible criminal prosecution, pursuant to that prosecutor's own prosecutorial discretion, as soon as al1leeggaattions of criminal conduct arle reported to IA or are uncovered by the assigned investigator. WPD shall ensure the referral ofall allegations of criminal conduct by WPD employees to the appropriate criminal prosecutor within one day ofWWPD' s discovery of those allegations of criminal conduct. The misconduct-investigation policy shall continue to require the completion of an administrative investigation. irrespective of the initiation or outcome of criminal proceedings, with the appropriate coordination with the criminal matter.
vV.. MANAGEMENT AND SUPERVISION
A. Risk Management SYysstem
1. Within 150 days of the effective date of this Agreement, WPD shall develop and implement an early intervention system, i.e., a risk management system, to include either a computerized relational database or paper system for maintaining, integrating. and re1trriieeving infonnation necessary for supervision and management ofWPD. WPD will regularly use this data to promote civil rights and best police practices; to manage risk and liability; and to evaluate the perfonnance ofWPD officers across all ranks, units, and shifts.
2. The risk management system shall collect and record the following information for each officer:
a. all uses of force;
b. the number of canisters of chemical spray used by officers;
c.. all discharges of conductive energy devices; 13

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 14 of 26. PageID #: 54

d. all injuries to prisoners;

e. all instances in which force is used and a subject is charged with "resisting arrest," "assault on a police officer," "disorderly conduct," or "obstruction of official business";

f. all firearm discharges, both on- and off-duty, including unintentional discharges, but excluding discharges in planned training exercises or hunting;

g. all complaints (and their dispositions);

h. all criminal proceedings initiated, as well as all civil or administrative
claims filed with, and all civil lawsuits served upon, the City and its officers, or agents, resulting from WPD operations or the actions of WPD officers;

i.

all incidents involving the pointing of a filrearm at a person (if any

such reporting is required);

J. all discipline and non-disciplinary corrective action taken against officers; and

k. all positive personnel reviews, commendations, awards, etc.;

3. The risk management system shall include, for the incidents included in the database, appropriate identifying information for each involved officer (e.. g., name, badge number, shift and supervisor) and civilian (e.g., race, ethnicity or national origin, if available).

4. Within 21 0 days ofthe effective date ofthis Agreement, WPD shall prepare a protocol for using the risk management systemm..

5.. At a minimum, the protocol for using the risk management system shall include the following provisions and elements:

a.. The protocol is comprised ofthe following components:: data storage. data retrieval, reporting, data analysis, pattern identification, supervisory assessment, supervisory intervention, documentation and audit.

b. The protocol will require the risk management system to analyze the data according to the following criteria: (i) number of incidents for each data category by individual officer and by all offlcers in a unit; (ii) average level of activity for each data category by individual officer and by all officers in a unit; and (iii) identification of patterns of activity for each data category by individual officer and by aUll officers in a unit.
14

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 15 of 26. PageID #: 55

c. The protocol will require the system to generate reports on a monthly basis describing the data and data analysis and identifying individual and unit patterns.

d. The protocol will require that WPD Captains, Lieutenants, and supervisors review, on a regular basis but not less than quarterly, system reports, and evaluate individual officer, supervisor, and unit activity.

e. The protocol will require that WPD Captains, Lieutenants, and supervisors initiate intervention for individual officers, supervisors and for units based on appropriate activity and pattern assessment of the information contained in the risk management system.

f.

The protocol will require that intervention options include discussion

by Captains, Lieutenants, supervisors, and officers; counseling;

training; and supervised, monitored, and documented action plans

and strategies designed to correct inappropriate activity.

g. The protocol will specify that actions taken as a result ofinformation from the risk management system be based on all relevant and appropriate information, including the nature of the officer's assignment, crime trends and crime problems, and not solely on the number or percentages of incidents in any category of information recorded in the risk management system..

h. The protocol will require that WPD Captains, Lieutenants, and supervisors promptly review the risk management system records of all officers recently transferred to their sections and units.

1.

The protocol will require that WPD Captains, Lieutenants, and

supervisors be evaluated on their ability to use the risk management

system to enhance effectiveness and reduce risk.

j.

The protocol will require that the risk management system be

managed and administered by IA. Lt~... will conduct quarterly audits of

the risk management system to ensure that analysis and intervention

are taken according to the process described above.

k. The protocol will require regular reviews, at no less than quarterly intervals, by appropriate managers of all reJlevant risk management systteemm. information to evaluate officer performance citywide, and to evaluate and make appropriate comparisons regarding the performance of all WPD units in order to identify any signiffiiccaanntt. patterns or series of incidents.

6. WPD shall maintain all personally identifiable information about an officer included in the risk management system during the officer's employment
15

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 16 of 26. PageID #: 56
with WPD for at least five years. Information necessary for aggregate statistical analysis will be maintained indefinitely in the risk management system. WPD shall enter information into the risk management system in 8 timely, accurate, and complete manner, and maintain the data in a secure and confidential manner. WPD shall input new or changed information, if any new or changed information addressing the aforementioned risk management categories exists, at least on a monthly basis, if not sooner, subject to the confidentiality provisions of Section 149.43 of Ohio Revised Code and current collective bargaining agreements..
7. WPD shall either purchase the risk management system off-the-shelf (and customize the system, if necessary to meet the requirements of this Agreement), or WPD may develop and implement its own risk management system. In either case, WPD shall adhere to the following schedule:
a. Within 210 days of the effective date of this Agreement, WPD will
submit a protocol for using a risk management system to DOJ for review and approval. WPD will share drafts of this document with DO] to allow DO] to become familiar with the document as it develops and to provide informal comments on it. WPD and DO] will together seek to ensure that the protocol receives final approval within 30 days after it is presented for review and approval.
b. Within 270 days of the effective date of this Agreement, WPD shall prepare, for the review by and subject to the approval ofDOJ, a plan for including appropriate fields and values ofnew and historical data into the risk management system (the "Data Input Plan"). The Data Input Plan will identify the data to be included and the means for inputting such data (direct entry or otherwise), the specific fields of information to be included, the past time periods for which.. information is to be included, the deadlines for inputting the data, and the responsibility for the input of the data. The Data Input Plan will include historical data that is up to date and complete in the risk management system. WPD and DO] will together seek to ensure that the protocol receives fmal review and approval within 30 days after it is presented for approval.
c. Within 270 days of the effective date of this Agreement, subject to the review and approval of DOl, WPD will issue a Request for Proposal ("RFP") for the design and implementation of the risk management system consistent with this Agreement, or WPD will set forth parameters for its own development and implementation of a risk management system constructed by WPD.
d. Within 360 days oftthe effective date of this Agreement, or later with the agreement ofDO!, WPD will select the contractor to design and implement the risk management system, or, if WPD has chosen to
16

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 17 of 26. PageID #: 57
construct its own risk management system, WPD will contract for all the necessary components for such an in-house risk management system by this time.
e. Within 450 days of the effective date.ofthis Agreement, WPD will have ready for testing a beta version of the risk management system consisting of: (i) any necessary hardware and operating systems, configured and integrated with WPD's existing automated systems; (ii) any necessary data base software installed and configured; (iii) data structures created, including interfaces to source data..:: and (iv) the use-of- force information system completed, including historic data. DOJ will have the opportunity to participate in testing the beta version using use-of-force data and test data created specifically for purposes of checking the risk management system.
f. Within 540 days of the effective date of this Agreement, the risk management system will be operational and fully implemented..
8. Prior to implementation of the new risk management system, WPD will continue to use existing databases and resources to the fullest extent possible, to identify patterns of conduct by WPD officers or groups of officers.
9.. Following the initial implementation ofthe risk management system, and as experience and the availability of new technology may warrant, WPD may propose to add. subtract, or modify data tables and fields, modify the list of documents scanned or electronically attached, and add, subtract, or modify standardized reports and queries. WPD shall submit all such proposals for review and approval by DOJ] before implementation.
B. Oversight
1. WPD shall develop a protocol for utilizing the risk management system to conduct audits of all WPD officers' performance and management of risk. Each supervisor charged with conducting audits shall use the protocol. The protocol will establish a regular and fixed schedule to ensure that such audits occur with sufficient frequency, and cover all WPD shifts and units.
C. Discipline
1. The Chief of Police shall have just cause to dispense appropriate discipline when he/she detennines, based on the outcome of an administrative investigation, that a preponderance of evidence demonstrates that a violation ofWPD policy hbas occurred.
2. WPD will continue to follow the disciplinary process in place in the collective bargaining agreements ("CBAs"). WPD shall ensure that its disciplinary procedure penalize uses of excessive forcee~, improper searches and seizures, discrimination, or dishonesty, and reflect the seriousness of 17

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 18 of 26. PageID #: 58

those infractions. WPD will impose appropriate punishment for violations when WPD believes the officer's misconduct exhibits a lack of fitness for duty. WPD shall submit this revised process for the review and approval of
DOl

3. Absent exceptional circumstances, WPD will take disciplinary corrective action when an appropriate disciplinary matrix indicates that imposition of discipline should take place. In a case where discipline has been imposed on
an officer, WPD must also consider whether non-disciplinary corrective action also is required. Whenever discipline is warranted, WPD shall impose discipline within the timeframe permitted by WPD's CBAs and applicable statute.

VI. TRAINING

A. Management Oversight

1. WPD shall continue to ensure that its use-of-force training complies with applicable laws and WPD policy. WPD may continue to seek techhrnUical
assistance from DO]l on the content and conduct of WPD's use-of-force
training.

2. WPD's director of training shall, consistent with applicable law and WPD policy:

a.

ensure the effectiveness of all use-of-force training by

implementation ofcompetency-based written examinations covering

the use-of-force policies and requiring a minimum passing score of

90% for all WPD officers;

b. develop and implement use-of-force training curricula;

c. select and train WPD officer trainers;

d. develop, implement, approve, and oversee all in-service training;

e. in conjunction with the ChiefofPolice, develop, implement, approve, and oversee a patrol division roll call protocol designed to effectively inform officers of relevant changes in policies and procedures:;

f.

establish procedures for evaluating all training CUITiculia and

procedures; and

g. conduct regular needs assessments to ensure that use-of- force training is responsive to the knowledge, skills, and abilities of the officers being trained.

18

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 19 of 26. PageID #: 59

3. WPD shall provide tmraiinniing consistent with WPD policy, law, and cCutlrlTreent best police practices, and will ensure that only mandated objectives and approved lesson plans are taught by instructors. WPD policy requires a minimum of 40 hours per calendar year of training for each sworn officer. WPD will continue to ensure that each officer receives training in use of force and other matters for a minimum of40 hours per calendar year for each sworn officer. WPD will make best efforts to train each work shift as a team in their use-of- force training.

4. WPD will continue to utilize written records of lesson plans and other training materials, and continue to maintain records of training each officer has received.

B. Curriculum

1. The director oftraining shall review all use-of-force training and use-of-force polices on at least a semi-annual basis to ensure compliance with applicable
laws and WPD policy. The director oftraining shall produce a written record
of this review. The director of training will consult with the City's Law Department on any additions, changes andl/or modifications regarding use-of­ force training or policies to ensure compliance with applicable law.

2. WPD shall provide all recruits, officers, supervisors, and managers with training on use of force at least annUuaally. Such training shall include and address the following topics:

a. WPD's use-of-force policy, as described in this Agreement;

b. proper use-of- force decision making;

c. WPDl's use-of-force reporting requirements;

d. the Fourth Amendment and other constitutional requirements;

e. examples of scenarios faced by WPD officers that illusu'ate proper
use-of-force decision making;

f.

interactive exercises that emphasize proper use-of-force decision

making;

g. de-escalation techniques that encourage officers to make arrests without using force, and instruction that disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, calling in specialized units. or delaying arrest may be the appropriate response to a situation even when the use of force would be legally justified;

h. threat assessment; and 19

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 20 of 26. PageID #: 60

1.

appropriate training on conflict management.

VII. MONITORING, REPORTING, AND IMPLEMENTATION

A. Monitoring bv DOJ
1. DOJ] will monitor the City's and WPD's compliance with this Agreement.
At DOJ's sole discretion, DO] may retain consultants to work with DO] in monitoring this Agreement. The cost of any such consultants, if any, will be borne by DOl DOJ] is not required to retain consultants to monitor this Agreement.
2. To monitor and report on WPDD~~ss implementation ofttrhuis Agreement, the DOOJl, at its sole discretion: may conduct compliance reviews to ensure that WPD has implemented and continues to implement all measures required by this Agreement. DOJ] will provide reasonable notice to WPD prior to conducting anyon-site compliance reviews.

3. Subject to the limitations set forth in this paragraph and applicable collective bargaining agreements with bargaining units that are not parties to this Agreement, WPD will reopen for further investigation any use-of-force or citizen complaint investigations that DOJ] deternmnines to be incomplete. DDOmj will provide written recommendations for completing any investigation determined to be incomplete.

4. In monitoring the implementation of this Agreement, DOJ will maintain regular contact with the ChiefofPolice and the City's Law Department.

5. DOJ, including its consultants and agents shall have reasonable access to all WPD employees and facilities that DO] reasonably deems necessary to monitor this Agreement. An attorney or representative from the City's Laa\\-\' Department may be present during interviews of WPD's and the City's control center personnel, defmed as WPD officers of the rank of Captain or above, Public Safety Director, and Mayor. DO] will cooperate with WPD to access people and facilities in a reasonable manner that, to thbe extent possible, minimizes interference with daily operations.

6. DOOJl, including its consultants and agents, shall have reasonable access to all City and WPD documents -- including, but not limited to: criminal investigation files that have been closed by WPD, arrest reports, warrants, and warrant applications whether or not contained in open criminal investigation files -- for monitoring purposes only that DO] reasonably deems necessary to mornuitor this Agreement, except any documents protected by the attorney-client privilege. Should the City or WPD decline to provide DOJ] with access to a document based on attorney-client privilege, the City shall provide DOJ with a privilege log describing the document and the basis for the asserted privilege.

20

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 21 of 26. PageID #: 61
7. DO] will provide the City and WPD with reasonable notice of a request for copies of documents. Upon such request, the City and WPD shall provide DO] with copies (electronic, where readily available) of any documents that DOJ is entitled to under this Agreement. WPD shall bear the costs of producing and shipping such copies to DO].
8. All non-public information provided to DOJ, whether by the City or WPD, shall be maintained in a confidential malnIDneer, subject to requirements offllaaw . Other than as expressly provided in this Agreement, this Agreement shall not be deemed a waiver of any privilege or right that the City or WPD may assert, including those recognized at common law or created by statute. rule or regulation, against any other person or entity with respect to the disclosure of any document.
9. The parties agree that the provision of documents or information pursuant to this Agreement does not constitute a public disclosure of such documents or information. The parties agree that any requests for information to the City or WPD pursuant to O.R.C. §149.43 shaH be subject to Section I.B..113, herein.
B. DOJ Monitoring Reports
1. From time to time DO] may produce written, public reports detailing the City's and WPD's compliance with and implementation of each substantive provision of this Agreement. These reports shall be written with due regard for the privacy interests ofindividual officers and the interest of the City and WPD in protecting against disclosure of non-public information. At least 16 business days before filing a report or publicalnly producing such a report, DOJ] will provide a copy of the draft to the City and WPD for comment. The City and WPD shall submit to DO] their comments on the report, if any, within eight business days of receiving the draft report. DO] will consider the CCiittyi:s and WPD:'s comments and make changes that DO] deems appropriate, if any, before issuing the report.
c. WPD Reports and Records
1. During the term of this Agreement, the City's Law Department and WPD shall maintain all records, as applicable, necessary to document their compliance with the terms of this Agreement and all documents expressly required by this Agreement.
D. Implementation. Modification, and Termination
1. WPD shall implement immediately all provisions of this Agreement that involve the continuation ofcurrent WPD policies, procedures, and practices.. The remaining provisions shall be implemented either by the specified implementation date or, for those provisions that have no specified
21

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 22 of 26. PageID #: 62
implementation date, as soon as is reasonably practicable and no later than 150 days after this Agreement's effective date.
2. In· regard to any provision that provides for DOJ review and approval, decisions on approval or disapproval will be announced in a timely fashion provided that WPD action reasonably satisfies the requirements and standards set forth in the relevant provision(s).
3. The City, WPD, and DOJ] may jointly stipulate to make changes, modifications, and amendments to this Agreement. The parties shall move jointly for Court approval of agreed upon changes within 30 days of such final agreement.
4. The Parties agree to defend the provisions of this Agreement. The Parties shall promptly notify each other of any court or administrative challenge to this Agreement of which the Party is aware. In the event any provision of this Agreement is challenged in any State of Ohio oflocal court, the Parties shall seek removal to a federal court.
5. The City and WPD agree to promptly notify DO] if any term of this Agreement becomes subject to collective bargaining consultation and to consult with DO] in a timely manner regarding the position WPD and/or the City take in any collective bargaining consultation connected with this Agreement.
6. To ensure that the provisions of this Agreement are properly and timely implemented, the Court shall retain jurisdiction ofthis action for all purposes during the lifetime of this Agreement and until such time as the City and WPD hbave fully and faithfully complied with all requirements of this Agreement and maintained such compliance for two years.
7. Either Party may seek to terminate this Agreement. In the case of termination sought by the City and WPD, prior to filing a motion to terminate, the City and WPD agree to notify DOor] in writing when the City and WPD have determined that they are in full and faithful compliance with this Agreement and that such compliance has been maintained for no less than two years. Thereafter, the Parties shall promptly confer as to the status of compliance. If, after a reasonable period of consultation and the completion of any evaluation that DO}] may wish to undertake, including tours ofWPD's facilities, document review, and interviews with WPD and City personnel, the Parties cannot resolve any compliance issues, the City and WPD may file a motion to terminate this Agreement. If the City and WPD move for termination of this Ab7Jf'eeement, DO}] will have an adequate time after the receipt ofsuch motion to object to the motion. lfDOO}] does not object, the Court may grant the motion.. IfDOJ does make an objection, the Court shall hold a hbearing on the motion and the burden shall be on the City and WPD to demonstrate by a preponderance of evidence that they have fully
22

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 23 of 26. PageID #: 63
and faithfully implemented all provisions of this Agreement and maintained such compliance for at least two years. 8. The United States acknowledges the good faith of the City and WPD in trying to address the remedial measures that are needed to promote police integrity and ensure constitutional policing in Warren, Ohio. The United States, however, reserves its right to seek enforcement of the provisions of this Agreement if it determines that the City and WPD have failed to fuliy comply with any provision of this Agreement. The United States agrees to consult with officials from the City and WPD before instituting enforcement proceedings. 9. This Agreement will be posted on the website of the Special Litigation
Section of the Civil Rights Division of DOOll.
23

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 24 of 26. PageID #: 64

FOR THE UNITED STATES
ERIC HOLDER Attorney General
~ ~~ Ss~~hu~5 ;;::
United States Attomey Northern District of Ohio
~~!.'-;- - --'-"'"-- .- ..?..Lc'
R A istant]UDn·' .States Attorney
o o0 tthhee United States Attorney
United States Court House 801 West Superior Avenue, Suite 400 Cleveland,OH 44113-1852 (Ph) (216) 622-336600001/ (fax) (216) 522·2404 (email) michelle.heyer@usdoj.gov

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
ROY L. AUSTIN, JR. Deputy Assistant Attorney Genemral Civil Ri Di

Dated: I· \2'2,,- 1\22.

R. JONAS GEISSLER Senior Trial Attorney Special Litigation Section U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, D.C. 20530 (Ph) 202-51144--662255551/ (fax) 202-514-4883 (email)jonas.geissler@usdoj.gov
Attorneys for the United States
24

Case: 4:12-cv-00086-BYP Doc #: 4 Filed: 01/26/12 25 of 26. PageID #: 65
FOR THE CITY OF WARREN
~,. -'j. )~ ~.~
William "Doug" Franklin Director of Service-Safety
~ ~?es E. Sanders, Esq.
I Assistant Law Director City of Warren, Ohio rJ City Hall
391 Mahoning Ave., N.W. Warren, OR 44483-4634 330-841-2605 (telephone) 330-841-2906 (facsimile)
FOR WPD:
~.dJ~
Tim Bowers Chief of Police Warren Police Department 141 South Street, SE Warren, OH 44481 330-394-2521 (telephone) 330-394-3987 (facsimile)
25

26th

January

s/ Benita Y. Pearson

 
 Case: 4:12-cv-00086-BYP Doc #: 1 Filed: 01/13/12 1 of 5. PageID #: 1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

United States of America, Plaintiff, v.
City of Warren, Ohio and Warren Police Department,
Defendants.

)

)

)

No.

)

)

COMPLAINT

)

)

)

)

)

)

Plaintiff, the United States of America, by its undersigned attorneys, brings this civil

action for declaratory and injunctive relief, and alleges as follows:

1. The United States, on information and belief, brings this action under 42 U.S.C.

§ 14141 to remedy a pattern or practice of conduct by law enforcement officers of the Warren

Police Department ("WPD") that deprives persons of rights, privileges, or immunities secured or

protected by the Constitution and other laws of the United States. The United States has

reasonable cause to believe that WPD has engaged in a pattern or practice of subjecting

individuals to excessive force in violation of the Fourth Amendment. Accordingly, the United

States seeks a judgment granting injunctive and declaratory relief for the defendants' violations

oflaw.

DEFENDANTS

2. The Defendant City of Warren, Ohio ("City") is a chartered municipal corporation

in the State of Ohio.

3. The Defendant WPD is a law enforcement agency operated by the City.

Case: 4:12-cv-00086-BYP Doc #: 1 Filed: 01/13/12 2 of 5. PageID #: 2
JURISDICTION AND VENUE 4. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345. 5. The United States is authorized to initiate this action pursuant to the Violent Crime Control and Law Enforcement Act of 1994,42 U.S.C. § 14141. 6. Declaratory and injunctive relief is sought as authorized by 42 U.S.C. § 14141(b) and 42 U.S.C. § 3789d(c)(3). 7. Venue is proper in the Northern District of Ohio pursuant to 28 U.S.C. § 1391. Defendants reside in Ohio, and a substantial part of the events or omissions giving rise to this claim occurred in Ohio.
FACTUAL ALLEGATIONS 8. The defendants, through their acts or omissions, have engaged in a pattern or practice of conduct by WPD officers of using excessive force against persons in the City. 9. The defendants are, through their acts or omissions, engaging in a pattern or practice of systemic deficiencies that has resulted in the pattern or practice by WPD o~cers of uses of excessive force, described in paragraph 8 above. These systemic deficiencies include, but are not limited to:
a. failing to implement policies, procedures, and practices regarding use of force that appropriately guide and monitor the actions of individual WPD officers;
b. failing to train WPD officers adequately to prevent the occurrence of misconduct;
c. failing to supervise WPD officers adequately to prevent the occurrence of misconduct;

Case: 4:12-cv-00086-BYP Doc #: 1 Filed: 01/13/12 3 of 5. PageID #: 3
d. failing to monitor adequately WPD officers who engage in or may be likely to engage in misconduct;
e. failing to implement policies and procedures whereby complaints and other allegations ofWPD officer misconduct are adequately received and investigated;
f. failing to investigate adequately incidents in which an WPD officer uses force;
g. failing to fairly and adequately adjudicate or review citizen complaints, and incidents in which an WPD officer uses force; and
h. failing to discipline adequately WPD officers who engage in misconduct. CAUSE OF ACTION
10. Through the actions described in paragraphs 8-9 above, the defendants have engaged in and continue to engage in a pattern or practice of conduct by WPD officers that deprives persons of rights, privileges, or immunities secured or protected by the Constitution (including the Fourth and Fourteenth Amendments) or the laws of the United States, in violation of 42 U.S.C. § 14141.
PRAYER FOR RELIEF 11. The Attorney General is authorized under 42 U.S.C. § 14141 to seek declaratory and equitable relief to eliminate a pattern or practice of law enforcement officer conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. WHEREFORE, the United States prays that the Court:

Case: 4:12-cv-00086-BYP Doc #: 1 Filed: 01/13/12 4 of 5. PageID #: 4
a. declare that defendants have engaged in a pattern or practice of conduct by WPD officers that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, as described in paragraphs 8-9 above;
b. order the defendants, their officers, agents, and employees to refrain from engaging in any of the predicate acts forming the basis of the pattern or practice of conduct as described in paragraphs 8-9 above;
c. order the defendants, their officers, agents, and employees to adopt and implement policies and procedures to remedy the pattern or practice of conduct described in paragraphs 8-9 above, and to prevent WPD officers from depriving persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States; and
d. order such other appropriate relief as the interests ofjustice may require.

Case: 4:12-cv-00086-BYP Doc #: 1 Filed: 01/13/12 5 of 5. PageID #: 5

Respectfully submitted,
STEVEN M. DETTELBACH United States Attorney Northern District of Ohio
s/Michelle Heyer MICHELLE HEYER Assistant United States Attorney Office of the United States Attorney United States Court House 801 West Superior Avenue, Suite 400 Cleveland, OH 44113-1852 (ph) (216) 622-3600 I (fax) (216) 522-2404 (email) michelle.heyer@usdoj. gov

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division ROY L. AUSTIN, JR. Deputy Assistant Attorney General Civil Rights ·
Special Litigation Section

TIMOTHY . MYGATT Special Counsel Special Litigation Section

Dated: _Jan_ua_ry _ 13,_20_ 12 __

R. NAS GEISSLER Senior Trial Attorney Special Litigation Section U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., NW Washington, D.C. 20530 (ph) 202-514-6255 I (fax) 202-514-4883 (email) jonas. geissler@usdoj. gov
Attorneys for the United States

 
 Case: 4:12-cv-00086-BYP Doc #: 9 Filed: 08/12/19 1 of 1. PageID #: 80

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
CITY OF WARREN, OHIO AND WARREN POLICE DEPARTMENT,
Defendants.

) CASE NO.: 4:12CV86 ) ) JUDGE BENITA Y. PEARSON ) ) ) ) ) ) ) ORDER )

The Court, having received the Joint Motion to Terminate the Settlement Agreement entered in this case on January 26, 2012 (Doc. 4.), and the Parties having represented to the Court that the City of Warren and the Warren Police Department have complied with the material requirements of the Agreement,
IT IS HEREBY ORDERED that the Joint Motion is GRANTED.
IT IS FURTHER ORDERED that the Settlement Agreement (Doc. 4.) is TERMINATED, and this case is DISMISSED.

DATED:______A_u_g_u_s_t _1_2_, _2_0_1_9_____

___/_s/_B__e_n_it_a_Y_._P_e_a_r_s_o_n____ BENITA Y. PEARSON United States District Court

 
 U.S. Department of Justice
Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Avenue, N.W. Washington, DC 20530
March 2, 2006
Via Facsimile and U.S. Mail
Honorable Michael O'Brien, Mayor Honorable William Franklin, Director of Service-Safety Honorable Gregory V. Hicks, Law Director City of Warren, Ohio City Hall 391 Mahoning Ave., N.W. Warren, OH 44483-4634
John Mandopoulos Chief of Police Warren Police Department 141 South Street, S.E. Warren, OH 44483-5747
Re: Warren Police Department
Dear Gentlemen:
As you know, in December 2004, the Civil Rights Division initiated an investigation of the City of Warren, Ohio Police Department (“WPD”), pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). We would like to take this opportunity to express our appreciation for the cooperation we have received thus far from the City of Warren and the WPD.
To date we have reviewed relevant WPD policies and procedures, and conducted interviews with City of Warren officials, WPD command staff, a cross-section of WPD line officers and supervisors, representatives of the Ohio Patrolmen’s Benevolent Association (“OPBA”) and the Fraternal Order of Police/Ohio Labor Council, Inc., community leaders, and other citizens.
At the beginning of our investigation, we committed to providing the WPD with technical assistance to improve WPD practices and procedures and ensure compliance with constitutional rights. During our meetings with you and the WPD

command staff in April and August 2005, we told you that we would provide in writing more specifics about recommendations our police practices experts had made orally. In this letter, we convey our recommendations regarding the WPD’s written policies. Important aspects of our fact-gathering process have yet to be completed. Therefore, this letter is not meant to be exhaustive, but rather focuses on significant recommendations we can provide at this preliminary stage of our investigation.
Additionally, we hope this letter will assist in our mutual goal of ensuring that the WPD provides the best possible police service to the people of the City of Warren. We look forward to continued cooperation toward this goal. We would be happy to provide examples of policies used by other police departments that might address some of the issues we raise below.
I. WPD POLICIES AND PROCEDURES.
A. The WPD Should Revise and Update Its Policies and Procedures to Be Consistent and Comprehensive.
Policies and procedures are the primary means by which police departments communicate their standards and expectations to their officers. Accordingly, it is essential that the WPD’s policies be comprehensive, comprehensible, up-to-date, and consistent with contemporary police practices.
The WPD adopted its policy and procedure manual in 1979. While the WPD has added some policies over time, the manual has not been comprehensively updated since early 2002. As discussed in further detail below, a number of the WPD’s policies and procedures are inconsistent with accepted police practices and insufficiently detailed to provide the appropriate guidance for officer conduct.
In general, we recommend that the WPD review all of its policies and procedures and, where necessary, revise them to reflect current accepted police practices and to provide sufficient detail to appropriately guide officer conduct. Although we do not provide line-by-line edits and recommendations for all of the WPD’s policies and procedures, we have endeavored to provide the WPD with general recommendations regarding accepted police practices for significant WPD policies and procedures. Although not exhaustive, the examples and references to WPD policies and procedures illuminate suggested areas for revision.
We also recommend that the WPD distribute updated and complete policies and procedures to all officers and that all officers provide a written acknowledgment of their receipt, review and understanding of the policies and procedures. We suggest that the WPD designate an individual to be responsible
2


for reviewing the manuals and any revisions or new policies to ensure consistency. This individual would also be responsible for ensuring that all officers receive copies of the manuals and revisions thereto, and for maintaining copies of officers’ signed acknowledgments.
B. The WPD Must Ensure Compliance with Its Policies and Procedures.
Our investigation has thus far revealed that many officers are not following WPD policies and procedures. The WPD must ensure that officers are complying with all policies and procedures as written.
II. USE-OF-FORCE POLICIES.
In the course of their duties, police officers are sometimes required to use deadly and non-deadly force. Because the use of force can place officers, civilians, and subjects at serious risk of harm, it is incumbent upon law enforcement agencies to ensure that officers use force appropriately. Use-of-force policies and procedures must clearly set forth the legal standards for the appropriate use of force. We recommend that the WPD revise its use-of-force policies to provide a comprehensive policy that contains the following elements: appropriate definitions, a use-of-force continuum with intermediate weapons, guidance on the appropriate level of force allowed in specific circumstances, detailed use-of-force reports, and review of deadly force incidents by a Deadly Force Review Board.
A. Legal Standards Governing the Use of Force.
Uses of excessive force by police officers are violations of the Fourth Amendment and are analyzed under the Fourth Amendment’s objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 394 (1989). The analysis requires a balancing of the quality of intrusion on the individual’s Fourth Amendment interests against the governmental interests. Id. at 396. The criteria courts apply to assess an excessive force claim include the severity of the crime at issue, whether the suspect presents an immediate safety threat to the officers or others, and whether the suspect is actively resisting or attempting to evade arrest. Id.; St. John v. Hickey, 411 F.3d 762, 771 (6th Cir. 2005). Lack of specific policy guidance on the appropriate use of force may lead officers to believe that they are justified in using force in situations in which it would be unreasonable or unnecessary. Conversely, overly specific policies may result in officers refraining from using necessary and appropriate force out of an unwarranted fear of using excessive force.
The Supreme Court has determined that deadly force is permissible only when a suspect poses an immediate threat of
3


serious physical harm to the officer or another person. Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). The only exception to this general rule is the “fleeing felon” rule, which allows police officers to use deadly force to prevent the escape of a suspect in cases where there is probable cause to believe the suspect either poses an immediate threat of serious harm to the officer or another or has committed a crime involving the infliction or threatened infliction of serious physical harm. Id.; Sample v. Bailey, 409 F.3d 689, 696-697 (6th Cir. 2005). Yet even in those circumstances, police are required to provide a warning, if feasible, before using deadly force. Garner, 471 U.S. at 11. Deadly force is permissible only for as long as the threat remains. When the threat is over, the use of deadly force must stop. Based on responses to interviews we conducted, and reviews of policies and incident reports, it appears that the WPD’s use-of-force policies and practices do not consistently conform to these legal standards. Accordingly, as discussed in further detail below, we recommend that the WPD’s use-of-force policies and practices be revised to incorporate these legal standards.
B. Use-of-Force Definitions.
While generally good, the WPD’s use-of-force policy, Policy 96-007, (“use-of-force policy” or “Policy 96-007”) does not define “fleeing felon.” The lack of a clear definition of this key term could lead officers to fail to understand properly the bounds and limits of the use of force. Additionally, because officers should be reminded that their use of batons and other intermediate weapons can kill, the WPD should change the term “non-lethal force” to “less-lethal force” when referring to such weapons.
We also recommend that the WPD’s use-of-force policy identify any uses of physical force that are specifically prohibited or restricted to limited circumstances. For example, a carotid, or choke hold is typically considered a use of deadly force. Thus, the WPD’s use-of-force policy should explain that officers should use the carotid hold only in circumstances in which deadly force would be authorized.
C. Intermediate Weapons.
A comprehensive use-of-force continuum that includes intermediate weapons is central to effective and efficient policing. The continuum provides a useful tool in training officers to consider lower levels of force when appropriate, which protects the safety of both the officer and the civilian.
The WPD’s use-of-force policy sets forth a use-of-force continuum with four progressing levels: verbal force, physical force, intermediate force, and deadly force. The policy defines
4


intermediate force as the use of non-lethal weapons. Section VI.A. authorizes the use of the straight baton, flashlight, stun-gun, pepper spray, and Taser as intermediate non-lethal weapons. Importantly, while this section simply authorizes their use, it does not mandate that officers carry any non-lethal intermediate weapon. We found no other policy or order mandating intermediate weapons, and several officers confirmed that they were not required to carry these weapons. Thus, pursuant to WPD policy, officers have no intermediate weapon. They have only their handcuffs and their revolver (or service weapon).
Officers without intermediate weapons cannot apply intermediate force. Because officers may unnecessarily resort to their firearms if intermediate force options are not available, we recommend that the WPD require all officers to carry a standard impact weapon (e.g., straight baton) and a chemical agent, and, as detailed in the training section below, the WPD should train all officers on any weapon they carry.
As stated above, Section VI.A. authorizes officers to carry and use a straight baton. This section, however, should define “straight baton,” and specifically list and define all other authorized impact weapons. Moreover, this section should also spell out which weapons are prohibited (e.g., weighted gloves).
The WPD does not have a separate policy addressing the use of chemical agents. We recommend that the WPD create a separate policy that gives specific guidance and restrictions on the use of this intermediate weapon, which includes where this particular weapon falls within the use-of-force continuum, limits upon the acceptable use of the weapon, reporting procedures, and decontamination procedures.
D. Specific Uses of Force.
1. Firearms.
Unnecessarily or prematurely drawing and displaying a firearm limits an officer's alternatives in controlling a situation, creates unnecessary anxiety on the part of citizens, and may result in an unwarranted or unintentional discharge of the firearm. We recommend that the WPD add a section to Policy 96-007 identifying when an officer may display his or her firearm. The use-of-force policy should stress that officers should not draw or display a firearm unless the circumstances surrounding the incident create a reasonable belief that it may be necessary to use the firearm. Reasonable belief should be defined as an objective belief determined by the facts and circumstances reasonably available to the officer at the time and viewed from the perspective of an ordinary reasonable peace officer in the same situation.
5


2. Canines.
The WPD should discourage the use of canines for crowd control. Currently, Policy 96-004, Section II.B. lists “Assist with crowd control” as a canine duty and Section II.G.1. lists crowd control as reason to call in an off-duty canine team. We recommend that the WPD delete these references, and insert language that the use of canines for crowd control is generally discouraged.
3. Arrests.
Policy 04-001 sets forth the WPD policy for arrests. Section B.3. focuses on handcuffing. It states, “In addition to handcuffs, other restraints may be safely applied to the arrestee who is violent to prevent injury to the officer . . . .” We recommend that this policy specifically identify the “other restraints” that are permissible. Additionally, the policy should detail the dangers of positional asphyxia, and methods and procedures to avoid it. As with all arrest procedures, officers must be trained on any permissible “other restraints.”
E. Use-of-Force Reporting.
The WPD’s current use-of-force policy mandates that officers complete a use-of-force report form (“Use-of-Force Form”) anytime their actions allegedly result in injury or death, anytime they utilize a non-lethal weapon, and anytime they discharge their firearm. Additionally, the policy requires a detailed description of any use of physical force in the arrest report. The WPD should define the elements of the “detailed description” it requires in all arrest reports. We recommend that the WPD require both this detailed description, and a use-of-force report, for all uses of force beyond unresisted handcuffing. In addition, the policy should clarify which individuals are required to complete a detailed description or Use-of-Force Form. Currently the policy only appears to require the officer administering the force to report its use. The WPD should revise its policy to require that the arresting officer and all officers who took part or witnessed the use of force must prepare a Use-of-Force Form detailing the event.
The information regarding each use of force should be tracked in an Early Warning System, as discussed below. The WPD should train all officers in use-of-force reporting and in the Use-of-Force Form.
F. Deadly Force Review Board.
The WPD should consider forming a deadly force review board. This board would not be a board of public inquiry; but rather, the board would report directly to and advise the chief. Its
6


purpose would be to evaluate whether uses of deadly force were within policy, and prevent future situations calling for deadly force. This review board would not take the place of internal affairs or any criminal investigation, but would proactively identify training needs within the use-of-force policy. We recommend that a captain, an operations lieutenant, the training manager, and two operations sergeants comprise the review board.
III. BODY-CAVITY SEARCHES AND STRIP SEARCHES.
The WPD should retrain all its officers on its body-cavity and strip search policy.
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV. “Its ‘central requirement’ is one of reasonableness.” Illinois v. McArthur, 531 U.S. 326, 330 (2001).
The Fourth Amendment’s protection against unreasonable searches and seizures not only prevents searches and seizures that would be unreasonable if conducted at all, but also requires that courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989); see also Graham v. Connor, 490 U.S. 386, 395 (1989) (stating “the ‘reasonableness’ of a particular seizure depends not only on when it is made, but also on how it is carried out”).
Strip and body-cavity searches of arrestees by police officers are permitted only in very limited circumstances. The law on strip searches of arrestees for minor, non-violent offenses in the Sixth Circuit is clear:
a strip search of a person arrested for a traffic violation or other minor offense not normally associated with violence and concerning whom there is no individualized reasonable suspicion that the arrestee is carrying or concealing a weapon or other contraband, is unreasonable.
Masters, 872 F.2d at 1255. In Masters, the court distinguished cases upholding strip searches of arrestees for violent crimes, and rejected the county employees’ and officials’ argument that the strip search policy at issue was designed to prevent arrestees from distributing contraband to other detainees. Id. (citing Dufrin v. Spreen, 712 F.2d 1084 (6th Cir. 1983)).
In 2003, the WPD issued its body-cavity and strip search policy, Policy 03-001. We found the policy to be comprehensive and generally consistent with the above law; however, our
7


interviews revealed that officers were unclear on the policy’s standards and requirements. We recommend the law department re-brief and re-train all officers, including all command officers, on its body-cavity and strip-search policy.
IV. THE TRUMBULL METROPOLITAN HOUSING AUTHORITY.
The Trumbull Metropolitan Housing Authority Unit needs supervision and structure.
The WPD has established a unit of WPD officers to patrol housing complexes managed by the Trumbull Metropolitan Housing Authority (“TMHA”).1 The TMHA Unit is comprised of on-duty officers who patrol all housing authority properties for drug and violent crimes.
Our investigation revealed that no clear chain of command exists for this Unit. Presently, the WPD’s description of its TMHA Unit lists two patrol officers working flexible hours with only a WPD captain as their supervisor. This description lists no intervening lieutenant or sergeant as a first line supervisor, and TMHA Unit officers we spoke with appeared unclear as to the chain of command. Moreover, some TMHA Unit officers reported that they took direction from a TMHA civilian employee -- e.g., TMHA’s director of security -- while working for the WPD in the TMHA Unit. Accordingly, it appeared that sometimes the WPD abrogated supervision of the TMHA Unit officers to the TMHA.
The TMHA Unit needs direct field supervision by the WPD. We recommend that the WPD assign a sergeant as a direct field supervisor responsible for the TMHA Unit. This field sergeant should report directly to the second shift lieutenant, who should manage the TMHA Unit. We note that the shift commander is unavailable to act as the field supervisor because the TMHA officers work flexible hours that stretch over several shifts.
Additionally, the TMHA Unit does not have a clear objective beyond patrolling the housing authority properties and TMHA Unit officers acknowledged that no operations manual existed. We recommend that the WPD write a comprehensive operations manual outlining the duties and procedures of the TMHA Unit, and ensure that TMHA Unit officers are appropriately trained on this manual.

1


The TMHA is a political subdivision of the State of

Ohio, and is the public housing agency with jurisdiction over all

of Trumbull County, Ohio, except the Township of Mesopotamia.

See TMHA 2004 Annual Report, p. 8, available at http://www.

trumbulltmha.org/about/tmha_ar.pdf (last viewed February 7,

2006). The City of Warren is located in Trumbull County.

8


V. Complaint Investigations.
An open, fair, and impartial process for receiving and investigating citizen complaints serves several important purposes. An appropriate citizen complaint procedure ensures officer accountability and supervision, deters misconduct, and helps maintain good community relations, increasing public confidence in, and respect for the WPD. Improving the current procedure for handling citizen complaints would maximize these goals.
The WPD’s current policies and procedures regarding citizen complaint process are located in the WPD Manual in Policy 02-006. Based on review and inspection of the WPD Manual provided to us, no separate policy concerning the conduct of internal affairs investigations exists; rather, we understand that the WPD conducts internal affairs investigations under the citizen complaint policy set forth in Policy 02-006, alone. Accordingly, we address herein the citizen complaint process as outlined in the WPD Manual and appendices thereto. We then turn to the conduct of internal affairs investigations, where we draw from the applicable portions of the citizen complaint policy and then add further information for areas of concern for which the WPD does not currently have a policy.
A. Complaint Intake and Forms.
The WPD should develop and implement a centralized, formal, structured, and consistent system for receiving complaints, without discouraging the filing of complaints.
Currently, the WPD has both formal and informal processes for investigating and resolving citizen complaints. The WPD utilizes two separate forms for the intake of complaints: (1) the City of Warren Police Department Citizen Complaint Form (“Complaint Form”), which is used both externally and internally for all formal investigations; and (2) the Minor Incident Resolution Form, which is for informal complaints resolved without a full investigation. As discussed below, we recommend that the WPD use only the Complaint Form for all citizen complaints and eliminate its use of the Minor Incident Resolution Form. Moreover, the WPD should improve the Complaint Form and intake process in several ways.
1. Complaint Intake.
A complaint process should allow unfettered public access to make complaints. WPD policy should require that a Complaint Form be readily accessible and available to any person who wishes to lodge a complaint. Accordingly, we recommend the following changes in policy and practices.
9


The availability of Complaint Forms and the process for the handling of complaints should be prominently posted at the WPD headquarters and other public facilities. The WPD should provide Complaint Forms in publicly accessible locations that should permit the forms to be obtained without a specific request by a citizen, e.g., blank forms placed in a publicly accessible area for the taking.
The citizen complaint process set forth in Policy 02-006 is inconsistent in many areas with the actual complaint intake practices reported to us by WPD personnel, City personnel, and citizens. Moreover, the WPD Manual does not provide sufficient guidance to WPD officers regarding the complaint intake process. For example, Policy 02-006 provides that the Chief designate “Command Officers” to receive complaints from citizens. Policy 02-006 defines a Command Officer as a “police officer of the rank of Lieutenant or above, or a Sergeant who is acting (being paid) as a Lieutenant.” Yet, the WPD informed us that it has placed only a single Lieutenant in command of internal affairs investigations. To be sure, the WPD command staff has informed us that if the appointed Lieutenant is unavailable, complaints can be accepted by a second Lieutenant who formerly headed internal affairs investigations, and the Chief and his secretary may also accept Complaint Forms. Even so, some citizens have informed us that they have not been permitted to submit a Complaint Form to anyone other than the appointed Lieutenant. Additionally, we have been informed that the WPD accepts complaints only during limited working hours. Accordingly, the practice of the WPD has apparently been inconsistent and, at a minimum, in conflict with the WPD’s current policy by not allowing the submission of Complaint Forms to any WPD officer meeting the Command Officer definition. Moreover, this practice limits the citizens’ access to the citizen complaint system, and is inconsistent with policy, thereby deterring genuine complaints of misconduct and undercutting the legitimacy of the resolution process.
We recommend that the WPD revise its policy to allow any member of the WPD to accept complaints, and to provide that citizens may submit complaints to any WPD officer, designated City offices, or drop boxes located in the police station and other public buildings. We also recommend the WPD change its policy to allow citizens to submit complaints at any time. We recommend revision to the WPD’s policy to provide a consistent and comprehensive outline of the procedures that all WPD officers should follow to accept a complaint that, if true, would constitute a violation of the WPD’s rules and regulations. This policy should include instructions to any officer that upon accepting a form, he or she should deliver that form to a supervisor promptly, or as soon as one becomes available. We further recommend that the WPD conform its practices with respect
10


to accepting complaints so that its practices will meet each of these new, suggested policies.
Whoever accepts a Complaint Form should properly identify him/herself on the Complaint Form as its recipient. The Complaint Form currently provides room for the signature of the employee who receives the complainant. As discussed above, the WPD’s practice has reportedly been to limit who may actually accept Complaint Forms. In order to assure that the person who collects a Complaint Form can be properly identified, the person receiving the form should identify him/herself by printing his or her name and/or badge number, along with the date and time of receipt, on the form. Accordingly, the WPD should revise the Complaint Form to accommodate such information.
2. The WPD Should Not Discourage the Filing of Complaints.
An open complaint process contemplates that complaints will not be actively discouraged. The WPD Complaint Form currently notifies citizens that they can be subject to civil or criminal action by the WPD and by the employee who is the subject of the complaint pursuant to Ohio Revised Code (“O.R.C.”) § 2921.15, for intentionally filing untrue statements. We recommend that the WPD remove this language as it may inappropriately discourage the filing of complaints. We recommend that the WPD should not give any direction -- either as part of the Complaint Form or in separate written material or oral instructions -- to complainants that may discourage potential complainants from filing legitimate complaints.
As a preliminary matter, we note that the WPD has previously agreed to remove the language referencing the Ohio Revised Code from the Complaint Form in 2002. On March 26, 2002, the WPD Chief signed a Letter of Understanding between the City of Warren, the Warren Minority Coalition, and the NAACP.2 In that document, representatives of the Warren Minority Coalition and the NAACP informed the WPD that they perceive the above-referenced portion of the Complaint Form to be an “intimidation tactic.” The WPD agreed to amend the Complaint Form to remove reference to O.R.C. § 2921.15 and provide the information as a separate item. As of the time our review, these changes had not been made.
It is appropriate for a complainant to acknowledge that he or she attests to the facts of a complaint by signing the complaint. However, a prominent threat of reprisal, particularly

2


The Department of Justice, Community Relations Service

facilitated and witnessed this Letter of Understanding, but is

not a party to the document.

11

by the officer who is the subject of the complaint, deters individuals from filing complaints and undermines the legitimacy of the complaint system. We recommend that the WPD redesign the Complaint Form to contain an attestation that the complaint is made to the best of complainant’s knowledge and made in good faith. Such an attestation would convey to the complainant the gravity of filing a complaint.
In addition to removing the language in the current Complaint Form, we recommend that the WPD revise its policy regarding Complaints which may also discourage complainants from filing legitimate complaints. In pertinent part, Policy 02-006 currently provides:
1. Command Officers are to make every reasonable effort to resolve complaints with the concurrence of the citizen, at the lowest possible level without submission of a formal complaint.
2. If a citizen concurs with the Command Officers effort to resolve the matter informally, the Command Officer must submit a Minor Incident Resolution form (Appendix 2) through the Chain of Command to the Office of the Chief of Police describing the complaint and the manner in which it was resolved.
3. If the citizen does not concur with the effort of the Command Officer to resolve the matter informally, or does not concur with the action(s) taken by the Command Officer, a formal Citizen Complaint will be initiated in accordance with this Directive.
The above language permits a Command Officer to attempt to resolve citizen complaints “informally.” Though this language appears benign on it face, we understand that WPD officers have discouraged a number of citizens from filing complaints through this informal process.
Similarly, the WPD uses a separate Minor Incident Resolution Form in lieu of the Complaint Form in some instances, such as complaints that are resolved “informally,” or complaints of purportedly insignificant policy violations. We recommend that the WPD discontinue the use of this alternative form. According to our consultants, all incidents that warrant the initiation of an investigation should be reported and recorded on the same form and treated uniformly in their intake and tracking. Moreover, the use of this form to informally resolve allegations of officer misconduct allows for the possibility of inappropriate handling and resolution of allegations of constitutional violations. Additionally, this informal mechanism deprives the WPD of useful
12


and critical information regarding officer conduct, which could potentially expose the WPD to liability. Accordingly, we recommend that the WPD eliminate the Minor Incident Resolution Form and, instead, employ the Complaint Form for the intake of all incidents involving WPD employees.
Our experts also agree that the WPD should accept all complaints of actions that, if true, would constitute a violation of the applicable laws, or WPD’s rules and regulations. Once accepted through standardized intake and tracking systems, the Chief of Police may then assign matters of less significant alleged infractions, e.g., discourtesy without further violation, to an informal resolution through shift commanders as discussed later herein. Under no circumstances should a policy of informal complaint resolution be used as a subterfuge to bar citizens from submitting complaints. We recommend that the WPD update its policy to explicitly state that a member of the public has the right to file a complaint, and that no WPD officer should discourage the submission of any complaint.
3. Anonymous and Third-Party Complaints.
The WPD should investigate all complaints, including those received from anonymous sources. The WPD has advised us that, in practice, anonymous complaints are not accepted. We strongly recommend that WPD policy be revised to require the acceptance and investigation of all complaints that allege conduct constituting a violation of policy, including anonymous complaints and those submitted in forms other than the standard Complaint Form -- e.g., by telephone, e-mail, TDD, or other means. Policy 02-006 currently states: “Anonymous or third party complaints or allegations of misconduct will be handled as a Departmental Inquiry.” Policy 02-006 defines a Departmental Inquiry as “[a]n investigation initiated by the department into a specific incident or allegation of a rules violation.” The policy offers no further explanation of the process for handling anonymous or third-party complaints. The WPD should consider the complainant’s failure to execute the form only in weighing that fact among all evidence in the investigation.
The WPD should also accept third-party complaints. The Complaint Form currently requires an attestation that the information the complainant submits is based only on his/her own experiences or observations. Similarly, Policy 02-006 requires that:
Formal Citizen Complaints will only be accepted from parties who have first-hand knowledge. This means that the person was either involved in the incident or was an eyewitness to the incident.
The policy makes no exception for a witness or a representative
13


of an aggrieved person, e.g., a parent, minister, or attorney, to file a complaint on behalf of another person. The WPD should investigate third-party complaints, but, like anonymous complaints, also be able to consider the complainant’s lack of first-hand knowledge in weighing the allegation among all other evidence in the investigation. Accordingly, we also strongly recommend that the WPD modify its policy and practices to accept and investigate third-party complaints.
4. Incomplete Complaint Forms.
The WPD should investigate complaints that fail to meet all the formalities of its Complaint Form. Policy 02-006 states:
If a complainant is unable to process a formal complaint on a Citizen Complaint Form, the Command Officer will record the information on a Citizen Complaint Form as accurately as possible. The Command Officer will also note the reason(s) why the complainant was unable to complete the form and will then process the complaint in accordance with the procedures established within this Directive.
By the use of “process the complaint,” the WPD policy appears to indicate that the WPD will investigate even incomplete Complaint Forms. However, our interviews of WPD personnel and others revealed that the WPD does not investigate unsigned or incomplete complaints. For example, our review revealed a complaint filed in March 2004 by a mother on behalf of her son alleging that the son was assaulted by officers while restrained in handcuffs. The complaint was not “process[ed].” Rather, the WPD’s internal affairs officer disregarded the content of the complaint because the form was incomplete and unsigned. Accordingly, we recommend that the WPD change its procedures to require the investigation of complaints to the fullest extent possible and appropriate, even if submitted through incomplete Complaint Forms.
5. Identification of WPD Employees by Complainants.
A complainant should be encouraged to identify the WPD employee and the complainant’s case or ticket number that relate to the incident described in the complaint.
The WPD has advised us that the WPD keeps a “yearbook,” i.e., a notebook containing the photos and names of all WPD sworn officers. We understand that the WPD recently updated this yearbook in response to a technical assistance recommendation from our consultants, but the only copy of this yearbook is kept in the Chief’s office which may limit its availability to complainants. We recommend that the WPD keep the yearbook up to date and make copies of the yearbook accessible to complainants at all times at the WPD headquarters and during all working hours
14


at City Hall or other appointed city office where Complaint Forms may be submitted.
We also recommend that the WPD update the Complaint Form to provide a space for a complainant to submit the case number or ticket number of the police action from which the complaint arises. Obtaining this information from complainants should facilitate an accurate and more efficient resolution to complaints.
6. Confidentiality of Complaint Form.
Most police departments prohibit the unnecessary disclosure of information contained in complaints. The current Complaint Form contains an option for the complainant to request that the information be kept confidential and not released to the public. While possibly reassuring to the complainant, this portion of the Complaint Form may also be misleading. Confidentiality cannot be assured given that the Complaint Form itself may serve as evidence in administrative, civil, or criminal proceedings.
We recommend that the WPD omit from the Complaint Form the sentence regarding confidentiality. Accordingly, we recommend that the WPD revise its Complaint Policy to require that WPD personnel keep confidential the contents of citizen complaints except for such disclosures that are required for the investigation of the complaints, or prosecution or defense of related administrative, civil, or criminal proceeding.
C. Assignment of Citizen Complaints.
The WPD should develop objective criteria for the assignment of complaints for the appropriate level of review, including a policy and protocol that requires allegations of potentially criminal conduct be timely and appropriately referred for investigation and appropriate action.
1. Objective Criteria for Assignment.
Policy 02-006 states:
The Chief of Police or his designee will determine if a formal Citizen Complaint is to be investigated by the Office of Internal Affairs, Division, or at the Turn Level.
The policy presents no objective criteria for the assignment of citizen complaints to any office other than the WPD Internal Affairs Division. We received reports from WPD staff and officers that the handling of complaints within the WPD is biased by personal relationships between the subject of the complaints and some of the WPD management members. Several of these
15


individuals allege that favored WPD employees are permitted informal resolution of complaints, while disfavored WPD employees are subject to formal investigations of complaints and greater discipline.
We recommend that, in instances where internal review or complaints reveal misconduct that qualifies as serious under the WPD’s policies, the Chief should make the ultimate determination as to whether and how an allegation is referred for investigation within the WPD. The Chief’s determination should be memorialized in writing. Further, when an allegation of misconduct qualifies as minor, the Chief may choose to assign both the investigation and disposition of the matter to the shift level commander. In making all such determinations, the Chief should apply consistent and objective criteria. For example, all allegations of discourtesy on the first occasion of such an allegation may qualify as minor. Any allegation of excessive force or other constitutional violation should not be considered minor, and should be subject to full investigation through the internal affairs division. Whichever objective criteria the Chief applies -– e.g., number of incidents involving the same officer, type of incident, repeat complaints from the same complainant about the same officer, allegations of criminal conduct -- should be set out in writing in the WPD Manual. By applying these objective criteria to the assignment of complaints, the WPD should thereby implement a consistency in the assignment for investigation of complaints that will support a greater perception of legitimacy in the complaint process by both WPD personnel and citizens.
2. Potentially Criminal Investigations.
Some allegations of misconduct, including those that are the subject of complaints from a member of the public, may be so serious as to warrant a referral to local or federal prosecutors, or other appropriate entity. The WPD policies and procedures make no reference to this possibility. In revising its policy regarding complaints, the WPD should provide guidance as to which complaints are appropriate for internal review and which complaints should be referred outside the WPD for potential criminal investigation.
The determination of whether the allegations of a complaint would potentially require a criminal investigation also should be made as early as possible. We are aware of an instance in which the City of Warren hired an attorney to be a special prosecutor to investigate specific alleged instances of strip and body-cavity searches by WPD personnel. The attorney’s review indicated that the WPD officers had acted in contravention of Ohio law, but he could not pursue criminal prosecution because “2933.32 [regarding the conduct of body-cavity and strip searches] is a misdemeanor and, unfortunately, the applicable
16


two-year statute of limitations had run by the time the cases were referred to me.” (Emphasis added.)
Whether or not a conviction or acquittal would have ultimately resulted in the particular matters, the failure to refer those matters in a timely fashion illustrates the need for a uniform policy on the referral of potentially criminal matters. Accordingly, we recommend that the WPD adopt and adhere to a policy requiring that the Chief, in consultation with the Law Director, timely refer allegations of potentially criminal conduct to appropriate local or federal prosecutors.
The policy and procedure that the WPD implements should also clarify the rights of officers involved. During investigations of potentially criminal misconduct: officers may be read rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), before questioning; may be entitled to have counsel present; and may be required to be polygraphed. Moreover, each WPD officer is entitled to protection pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967), against the use in subsequent criminal proceedings of statements compelled from him or her in administrative proceedings under threat of disciplinary action. This policy should be consistent and coordinated with the policy regarding the investigation and evaluation of complaints. This coordination will prevent a situation in which the investigative protocol used to investigate a complaint turns out to be incompatible with the requirements for the investigation of serious misconduct, thus compromising the integrity of each. For example, if a complaint alleges that serious misconduct might have occurred, WPD policy should require that such a complaint be investigated under the heightened standards, rather than the standards applicable to complaints that do not involve allegations of potentially serious misconduct.
D. Investigations.
The WPD should have a consistent policy regarding the appropriate investigation of complaints by trained and objective internal affairs investigators.
Under the current system of complaint investigation and resolution, if the WPD accepts a Complaint Form, the WPD’s internal affairs officer will provide a written notice to some or all of the officers involved that they must submit a written statement regarding the incident. In practice, it appears that in some, but not all, instances the internal affairs officer will also solicit statements from civilian witnesses or written statements from other law enforcement officers or corrections officers -- i.e., involved police officers from neighboring jurisdictions or county jailers. WPD policy does not, however, require that basic investigative techniques, including questioning WPD personnel through personal interviews or
17


gathering extrinsic evidence -- e.g., third-party witness accounts, or photographs of alleged injuries.
We were also informed that it is the practice of the WPD to focus only on the specific policy violation of the allegations in the complaint that initiated an investigation, even if further policy violations come to light -- or would come to light in the exercise of reasonable due diligence -- in the course of the investigation. We further noted that the WPD officer charged with command of internal affairs is also in command of the WPD’s narcotics division; this is of concern because of the potential appearance of conflicts of interest between these two commands. Additionally, we understand that the Chief may or may not become aware of the existence of a complaint, and often there is no written record that the Chief has reviewed the outcome of an investigation or rendered a disposition as to the matter. These policies and practices are inconsistent with the internal affairs investigations of most police departments.
The policy and practice of internal affairs investigations at the WPD, therefore, could be substantially improved by implementing the following recommendations.
1. Consistent, Objective Process.
We recommend that the WPD adopt a policy concerning the investigation of complaints received from either members of the public or internal complaints. The policy should provide that the Chief be notified of complaints as soon as possible. For complaints alleging the excessive use of force or violation of a person’s constitutional rights, the Chief should be notified no less than twenty-four hours after receipt of a complaint.
The policy should delineate and specify responsibility for the citizen complaint investigation process. A designated supervisory officer(s) should be responsible for the investigation and recommended resolution of complaints. We recommend that the WPD appoint a qualified WPD officer whose position does not give rise to a potential appearance of a conflict of interest to command its internal affairs investigations. We further recommend that the WPD invest in outside training programs for this internal affairs commander, who could then, in turn, train all the WPD command officers regarding the proper handling of internal affairs investigations. We recommend that all WPD officers charged with handling complaints, whether conducting intake or investigating complaints, receive specialized training before beginning intake or investigative responsibilities. The training should include investigative and interview techniques for formal complaints, including examining and interrogating witnesses; identifying misconduct, including misconduct that is not specifically named in a complaint; ethics; integrity; professionalism; the factors
18


to consider when evaluating complainant or witness credibility; and the appropriate burden of proof -- i.e., preponderance of the evidence. The training should also clarify the limited circumstances in which informal complaints are appropriate, objective criteria used to separate formal from informal complaints, and discuss the methods for investigating those complaints.
The WPD policy should clearly define the nature and scope of the complaint investigation. In the course of our investigation, we heard complaints from both citizens and officers that the complaint procedure can be erratic and irregular. The lack of a formal, structured, and consistent policy poses difficulties to the complainant as well as the officer involved in the incident, both of whom are entitled to know in advance what their rights and responsibilities are in the course of the investigation. In defining the scope and nature of the investigation, the WPD policy should provide that any investigation include an interview with the complainant and all witnesses, citizen or police. The policy should require that all forensic or other evidence be obtained and analyzed.
We also recommend that the WPD policy on complaints specify a clear time line under which the complaint will be investigated and adjudicated. We recommend that the policy require that, absent exigent circumstances, any investigation be completed within 45 days, including review of the investigation by the Chief within that time frame. Internal adjudication, if any, of the results of the investigation should be timely completed within deadlines specified under the WPD’s labor agreements. Imposition of discipline, if any, should occur within 30 days of the end of the Chief’s review or the end of internal adjudication. Extensions beyond these time periods should require the Chief’s written approval and be communicated in writing to the complainant.
Finally, WPD policies and procedures do not explicitly state that officers must report violations of law or WPD codes of conduct that would be subject to disciplinary action. We recommend that the WPD revise its policy to require that officers who witness misconduct by other officers report such conduct to the sergeant on duty and, in the event that such misconduct is the subject of a citizen complaint, to any supervisory officer investigating such complaint. We recommend that the failure of an officer to report the misconduct of another officer be subject to a serious level of discipline. Similarly, we recommend that internal affairs investigators be required to report and investigate evidence of violations of law or policy that come to light in the course of internal affairs investigations.
19


2. Internal Affairs Interviews of WPD Personnel.
The WPD command staff we interviewed indicated that in the course of conducting all internal affairs investigations, written statements from WPD officers and not oral interviews were used because the WPD believed this to be a requirement of the union collective-bargaining contracts. The counsel for the OPBA reviewed that union’s contract in the presence of both a Department of Justice team on tour and the WPD’s counsel, and he stated that there was no such requirement within the contract. Accordingly, there should be no current contractual reason that the WPD’s line officers are only requested to submit written statements for internal affairs investigations.
In the course of our review of incident investigations, it was readily apparent that many officers’ written statements were identical or nearly so, leading to the conclusion that officers had the opportunity to confer among themselves to corroborate their written statements before submitting them to the Internal Affairs officer. In fact, a letter from one officer contained in an internal affairs investigation file evidences that the officer requested -- and was apparently granted -- an extension of time to submit his written statement in order that he have the opportunity to first review other officers’ statements concerning the same incident. Accordingly, the WPD’s use of written statements, alone, for internal affairs investigation may lead to unreliable statements that may affect the perceived legitimacy of the complaint resolution process.
We recommend that the WPD internal affairs conduct personal interviews of all the WPD personnel involved in, or a witness to, alleged incidents that give rise to internal affairs investigations. A subject officer should also be required to produce all statements, reports, and notes completed in his or her course of duties that are related to the allegations. We recommend that the WPD policy require that all interviews be mechanically recorded using an audio or video tape. The WPD should also establish guidelines as to when to compel statements from officers pursuant to Garrity. The WPD should ensure that, to the extent that the complaint implicates possible criminal activity by the officer, officers are adequately informed of their rights against self-incrimination under Miranda. As noted above, the investigative protocol for complaints should require an early assessment of whether serious misconduct may have occurred that may warrant a referral to local or federal prosecutors.
3. Thorough Gathering of Evidence.
The WPD should require the gathering of available, relevant evidence for internal affairs investigations, including witness statements. The WPD should interview all available complainants.
20


Some citizen complainants have advised us that they have not been contacted by the WPD to investigate their claims. Failing to contact the complainant to investigate his or her complaint does not conform to practice of most police departments. The Complaint Form allows little space for a complainant to list his or her contact information, or the contact information of witnesses. In order to facilitate the WPD’s ability to contact the complainants, we recommend that the WPD revise its Complaint Form to allow greater space on which to fill in the address and multiple telephone numbers of the complainant and any witnesses.
While the WPD should retain the use of the current Complaint Summary portion of the Complaint Form, that summary should not take the place of an interview with the complainant. Instructions for the Complaint Summary portion of the Complaint Form direct the complainant to give a detailed account of the alleged action of the employee that gave rise to the complaint. Whether complainants provide only sparse information on the Complaint Form or a thorough description, the WPD should interview them and conduct thorough investigations. We further recommend that, in practice, the WPD make all reasonable efforts to contact complainants –- including on-site visits, telephone conversations, and registered mail -– and interview them rather than rely only upon the statements contained in the Complaint Form.
We further recommend that the WPD policy require that all internal affairs investigators attempt to gather and review extrinsic evidence. This should include video and audio recording of the incidents, where available, medical records of injuries to officers or citizens, arrest reports, etc. The record of this attempt to gather such extrinsic evidence, as well as copies of the evidence gathered should be kept in the investigation file.
4. Adjudication and Resolution of Complaints.
The WPD should develop a protocol for the adjudication and resolution of complaints, including the use of a discipline matrix.
We recommend that the WPD develop a protocol that requires a summary of the investigation and an assessment of the alleged misconduct be presented to the Chief for adjudication and any imposition of discipline. The policy should address the possibility that a complaint may require disciplinary action. The officer conducting the investigation of the complaint should be required to recommend a finding concerning the complaint. The supervisor of the officer concerned should recommend whether any disciplinary measures should be imposed based upon the complaint, provided that supervisor was not also involved in the conduct
21


that was the subject of the complaint.3 If the concerned officer’s supervisor was also involved in the conduct that was the subject of the complaint, then the next higher level supervisor should recommend whether any disciplinary measures should be imposed based upon the complaint. Recommended disciplinary measures should be based upon an objective discipline matrix, as discussed below. Both the recommended adjudication of the complaint and the recommended discipline of the officer should be provided to the Chief, for his approval, disapproval, or justified modification.
The policy should require a finding as to whether: (1) the police action was in compliance with policy, training, and legal standards; (2) the incident involved additional misconduct; (3) investigation of the incident revealed other incidents of misconduct by the same officer, or instances of misconduct by other officers; (4) the use of different tactics should or could have been employed; (5) the incident indicates a need for additional training, counseling, or other non-disciplinary corrective measures; or (6) the incident suggests that WPD should revise its policies, training, tactics, or equipment. The WPD protocol should state that the standard of proof for such administrative investigations is a preponderance of the evidence.
We also recommend that the WPD develop a discipline matrix. Such a matrix should include the levels of discipline available to address violations of policy -- e.g., retraining, verbal counseling, letters of counseling, forfeiture of leave time, suspension, demotion, and termination. The matrix should specify for each type of policy violation and what level of discipline shall be utilized for sustained violations of policy in the first instance, second instance, etc.
We recommend that the WPD policy regarding complaints require a clear resolution of every complaint from a member of a the public, with notice provided to all relevant parties. Policy 02-006 currently states that a complainant will be contacted in writing with respect to the outcome of the complaint. Many citizens we interviewed, however, told us that they have no idea what the outcome of the complaints they have filed is because they do not receive any response to their inquires and the WPD has not affirmatively contacted them to inform them of the status or outcome of their complaints. Indeed, a review of the internal affairs investigation files provided to us by the WPD revealed that only a handful of those files contained a copy of a letter notifying the complainant of the outcome of the investigation.

3


In some cases, the officer conducting the investigation

could be the subject officer’s supervisor, in which case that

supervisor would recommend both the disposition of the complaint

as well as any disciplinary measures.

22


Of those letters that did exist, many were not dated, such that the timeliness of notification could not be assessed.
Consistent with Policy 02-006, the WPD should keep complainants apprised of the status of the complaints they have filed. At the conclusion of the investigation, the complainant should receive a letter from the Chief setting forth the key facts of the complaint, including the name of the complainant, the internal control number, the date of the incident, the name(s) of the officer(s) involved, and whether the complaint was withdrawn, exonerated, deemed unfounded, inconclusive,4 or sustained. If sustained, the letter should indicate whether remedial actions will be taken.5
The letter advising the complainant of the resolution of the complaint should be prepared by the supervisor conducting the investigation, and then provided to the Chief at the conclusion of the investigation. If the Chief modifies the supervisor’s recommendation, the reason for such modification should be in writing, and kept with the original recommendation in the complaint file. Thus, every complaint should begin with a Complaint Form, and end with a letter, with each document reflecting the same control number for ease of reference and later review, if any.
VI. SUPERVISORY OVERSIGHT.
A. Risk Assessment and Management.
WPD command staff should examine and review officer conduct on a regular basis as a proactive measure to minimize and detect misconduct, and to identify training and policy issues.
Our investigation thus far has revealed a lack of structured oversight of WPD officers by command staff. There do not appear

4


As part of the recommended change in the internal

affairs protocol, we recommend that the WPD adopt the finding of

“inconclusive,” and discontinue its current use of “not

sustained.” The current “not sustained” label indicates an

exoneration where there is an absence of evidence to support a

finding either for or against the alleged violation of policy.

If evidence supports exoneration, the “exonerated” finding should

be used.

5


The protocol for internal affairs investigations should

also allow for a finding that the subject officer acted in

accordance with WPD policy, but that the complaint reveals a

failure in the policy, itself.

23


to be regular review procedures formalized in policy, and review of officer activity appears to be informal and ad hoc. Though the WPD has a high number of command officers for a police department of its size, day-to-day management of certain units also appeared to be lacking. Accordingly, the WPD’s supervision and oversight could be improved by implementing the following recommendations.
We recommend that the WPD implement policies and procedures for WPD supervisors to routinely review all aspects of WPD officer conduct, including a review of: (1) all uses of force, as set forth above; (2) probable cause for arrests and the appropriateness of charges filed; and (3) reasonable suspicion for stops and searches that do not result in an arrest.
We recommend that WPD policy require supervisors to review and approve all arrest reports and search-and-seizure reports, and to record their approval on the arrest or incident reports by handwritten or electronic signature. We recommend that the Chief, or his or her designee, meet annually with every WPD officer to discuss positive aspects of his or her police work, his or her complaint history, if any, and to discuss any problems or concerns officers may have concerning the department.
As discussed above, we recommend that the WPD establish a clear line of direct supervision over the TMHA Unit. We recommend that the WPD reassert its authority over officers in the TMHA Unit and not permit those officers to be directed by the TMHA.
B. Early Warning System.
Although the WPD’s use-of-force policy contains an informal process for reviewing all use-of-force reports on an annual basis, this policy does not constitute a comprehensive, systematic risk assessment system or an Early Warning System (“EWS”). The WPD, therefore does not have, but should adopt, an EWS as an integral part of its risk management program. The WPD should develop an EWS that is appropriate and applicable to its needs and size. Whether paper-based or computer-based, even a simple EWS would provide a useful assessment of each officer’s conduct as well as the department as a law enforcement agency.
We recommend that the WPD implement policies and procedures to collect data on individual officers for the purpose of maintaining, integrating, and retrieving information necessary for effective supervision and management of WPD personnel. The EWS should contain information on all investigations and complaints, including non-sustained complaints and complaints prior to final disposition, discipline and other corrective actions, uses of force, arrests and charges, searches and seizures, service calls, training, awards and commendations, sick
24


leave, civil lawsuits, and other items relevant to an officer’s conduct. The WPD should then use this data regularly and proactively to: (1) promote best professional police practices; (2) improve accountability and management; (3) manage the risk of police misconduct and potential liability; and (4) evaluate and audit the performance of officers and units on a regular basis. We recommend that the WPD require supervisors, including command staff, to review this data for every officer they supervise on a regular, predetermined basis, such as every quarter.
The policy implementing these recommendations should also establish guidelines regarding specific events that will trigger an additional supervisory review, such as a specific number of uses of force or citizen complaints within a discrete period. Once an officer has been selected for this additional review, a report should be prepared that details all use-of-force reports, formal and informal complaints, calls for service, sick leave, counseling reports, civil lawsuits, and commendations pertaining to the officer within the past five years. The officer’s immediate supervisor and command staff should then meet to discuss the report and determine if any corrective action is warranted. The supervisor’s and command staff’s recommendations should then be forwarded to the Chief for his or her timely review and implementation. The effectiveness of the implemented recommendations should be determined by monitoring the officer and drafting written reports on the officer’s conduct on a monthly basis. Both the supervisory recommendations and the written monthly report should be included in the officer’s personnel file.
We recommend that the WPD consider utilizing peer reviews of the information contained in the reports by comparing complaints, use-of-force reports, and other pertinent information about a particular officer with similar information from other officers on the same patrol team or shift. In addition, the policy should provide explicit guidance to supervisory officers reviewing reports to ensure that patterns of possible misconduct are identified, analyzed, and addressed properly by command staff. The aim of this process is to give supervisors valuable information that, if received early, could identify potential problem officers before misconduct actually develops.
C. The WPD Should Develop an Employee Evaluation System.
At the start of our first tour, the WPD had no system to periodically evaluate its employees. We understand that, pursuant to the technical assistance recommendations of our consultants, the WPD is currently developing an employee-evaluation system. When implementing this system, we recommend that one person timely train the entire department on the composition and use of the system. This person should train all managers how to evaluate their staff, and inform all line
25


officers as to how they will be evaluated. This uniform training should eliminate different interpretations of the system, and ensure the integrity of the evaluation information.
Direct supervisors should evaluate their subordinates annually. Prior to the evaluations, supervisors should explain the evaluation process and the expectations to their subordinates. After the direct supervisor completes the evaluation, the entire chain of command should review the evaluation and add comments. The evaluations should be stored in the employee’s training or personnel file. The WPD should tie these evaluations into its promotion process, to the extent permitted by law and the WPD’s collective bargaining agreements.
VII. OFFICER TRAINING
The WPD should continue to develop comprehensive training programs for new and experienced WPD officers.
A. Policy Re-Training.
Much of the technical assistance offered in this letter calls for the creation of new policy or revision of existing policy. We recommend that as the WPD updates or creates each new policy, the WPD re-train all WPD personnel, including command staff, on each new policy and its effects. Such training should be comprehensive to cover all aspects of the change in policy so that WPD personnel are aware of what would no longer be within policy, as well as what new material would then be included in the WPD’s revised policies.
Most significantly among the policy topics for which the WPD should stress re-training for all its personnel are: (1) acceptable and non-acceptable uses of forces; (2) less-lethal uses of force; (3) use-of-force continuum; (4) use-of-force reporting; and (5) citizen complaint process.
Policy re-training should be competency-based. Accordingly, once trained, each WPD member should demonstrate competency of his or her knowledge of the new subject matter through performance or examination. Each member of the WPD, including command staff, should be required to pass competency-based performance or examination for each new policy.
B. In-Service Training.
The WPD has provided us documentation regarding its newly initiated 40-hour block of in-service training. We thank the WPD for providing this information and are encouraged by the WPD’s effort to offer training to its line officers and some command staff. It does not appear, based on the schedule provided to us, however, that all command staff, particularly the Chief, are
26


required to attend all 40 hours of training. As we discussed during our most recent tour of the WPD, it is imperative that the WPD’s command staff partake in the WPD’s new in-service training. The Chief, in particular, should participate in as much of this training as he is capable of attending. In so doing, the WPD command staff will convey to all WPD personnel the import of the in-service training.
Though a marked improvement from the prior absence of any formalized annual training, the newly initiated 40-hour block of training could be improved in several ways. The training schedule provided to us indicates that all WPD officers in attendance would receive three hours of training concerning use of canines. For non-canine officers, the use of canines may be taught within one hour. The current training should include at least four hours on use of the WPD’s approved impact weapon -- e.g., a baton –- and for all officers who use or may use Tasers, four to eight hours on use of Tasers. We also recommend that WPD personnel receive training on each piece of equipment that he or she carries that may have to be used as a weapon –e.g., a flashlight, or radio. The current training should also include what restraints are considered permissible and what the impact of the use of restraints may have on the restrained individual.
We recommend that all training be conducted by instructors who have been trained and certified to be instructors, and who are competent in the subject matter they are to teach. Accordingly, the WPD should validate the qualification and expertise of its current trainers. The WPD may do so through certification programs outside of the WPD.
We further recommend that the WPD commit to provide all its officers 40 hours of in-service training every year. The WPD should formalize this commitment in its policy. Each year, the training program should be revised with an update to cover new subject areas and revisions in policies, as well as perishable skills that should be re-taught and practiced at regular intervals. According to our consultants, the 40-hour requirement should be in addition to firearms re-qualification. We recommend that officers receive separate firearms training biannually for all service weapons used by WPD officers.
Each year’s training curricula should include police topics, such as: use of force, firearms, defensive tactics, policies and procedures, current legal issues or other issues that are essential to police work, searches and seizures, legal developments, and police integrity. The WPD’s in-service training should include de-escalation techniques, particularly for interactions with persons with mental illness and those who may be under the influence of drugs or alcohol. This training should also include role-playing and interactive exercises
27


regarding situational, ethical, and use-of-force scenarios, including de-escalation techniques, cultural diversity, and community policing. Training curricula and lesson plans should incorporate comprehensive and updated police practices and be approved by legal counsel and the Chief.

We note that one potential resource for the WPD in establishing and improving in-service programs may be the longstanding training and grant programs administered by other components of the Department of Justice, such as the Office of Justice Programs. While these programs are completely separate and independent of the Civil Rights Division’s investigation, we would be pleased to provide you with contact information for exploring the possibility of such assistance.

VIII.

THE WPD SHOULD WORK TO IMPROVE COMMUNITY RELATIONS.

Citizen interviews revealed that the WPD must improve its relations with the community. To improve relations, we recommend the WPD: (A) overhaul its citizen surveys; and (B) hold quarterly community outreach meetings.

A. Citizen Surveys.

Citizen surveys provide a valuable tool to gauge the community’s perception of the WPD’s performance. While the WPD already takes citizen surveys, the WPD could improve its surveys with a more frequent and focused approach, and objective methodology. The WPD should abandon the potentially intimidating, and therefore less reliable, practice of taking citizen surveys itself. We recommend that the WPD enlist the help of a local college or university to co-design and administer the survey. These institutions should be familiar the survey process. Having a third party administer the surveys will make them less intimidating, improving frankness and accuracy. We recommend a comprehensive survey at least every two years. Our consultants have offered to provide survey examples upon request.

B. Community Outreach Meetings.

To improve community relations, the WPD should hold community outreach meetings. The meetings should be an open forum for all citizens to discuss issues with the WPD. These community outreach meetings should occur as needed, but at least quarterly. The shift commanders, who head the Emergency Services Division that interacts with the community most, should attend these community outreach meetings. We recommend that a shift commander chair each of these community outreach meetings.

28


IX. CONCLUSION. We strongly urge the WPD to adopt these technical assistance
recommendations as it revises its policies and procedures. We look forward to working with you and the WPD. If you have any questions, please do not hesitate to contact me at (202) 514-6255, Jonas Geissler at (202) 353-8866, or Cathleen Trainor at (202) 616-9009.
Sincerely,
/s/ Shanetta Y. Cutlar
Shanetta Y. Cutlar Chief Special Litigation Section cc: Gregory A. White, United States Attorney Northern District of Ohio
29


 
 Hom e » Briefing Room » Justice News

Department of Justice

FOR IMMEDIA TE RELEA SE

Office of Public A ffairs

Friday , January 13, 2012

Justice Department Settles with Warren, Ohio, Police Department
Agreement Resolves Findings of Excessive Force Uncovered During Pattern or Practice Investigation
WA SHINGTON – Following a comprehensiv e inv estigation, the Justice Department today announced that it has resolv ed its inv estigation of the city of Warren, Ohio, Police Department (WPD) through a settlement agreement filed with the U.S. District Court.

The inv estigation focused on whether WPD engages in unconstitutional or unlawful policing through the use of ex cessiv e force. WPD cooperated throughout the inv estigation. The Justice Department found reasonable cause to believ e that WPD engages in a pattern or practice of ex cessiv e force in v iolation of the Fourth Amendment of the U.S. Constitution and the Violent Crime Control and Law Enforcement Act of 1 994. The Justice Department, WPD and city of Warren officials reached an agreement that, once implemented, will resolv e the Justice Department’s inv estigation. To create sustainable reform, the agreement requires WPD to continue to dev elop and implement:

new use of force policies and protocols; sy stems to ensure that uses of force are documented and ev aluated; sy stems to track citizen complaints and ensure they are inv estigated promptly ; and officer training on conducting effectiv e and constitutional policing.

“Effectiv e policing and constitutional policing go hand in hand. Dev eloping and implementing meaningful reforms through this cooperativ e agreement will assist in reducing crime, upholding the Constitution and ensuring that the community has confidence in the police department’s commitment to fair and effectiv e law enforcement,” said Thomas E. Perez, Assistant A ttorney General for the Civ il Rights Div ision. “The issues within the Warren Police Department hav e been present for many y ears and will take time to fix , but we look forward to continuing our positiv e partnership with the people of Warren, May or Doug Franklin, Police Chief Tim Bowers and his officers to implement sustainable reform.”
“This agreement puts in place a structure in which officers will be trained on appropriate use of force and citizens can register complaints if they feel they ’v e been mistreated,” said Stev en M. Dettelbach, U.S. Attorney for the Northern District of Ohio. “I am confident that the Justice Department and Warren officials will continue to work cooperativ ely to insure the safety of the officers and people of Warren.”
The Justice Department’s inv estigation inv olv ed an in-depth rev iew of WPD documents, as well as ex tensiv e community engagement. The department rev iewed thousands of pages of documents, including written policies and procedures, training materials and internal reports; data; v ideo footage; and inv estigativ e files. Justice Department attorney s and inv estigators also conducted interv iews with WPD officers, superv isors, command staff and city officials, and conducted interv iews with community members and local adv ocates. Throughout the inv estigation, the Justice Department prov ided feedback and technical assistance to WPD, and in response, WPD has already begun to implement a number of remedial measures.
This inv estigation was conducted jointly by the Special Litigation Section of the Civ il Rights Div ision and the U.S. Attorney ’s Office for the Northern District of Ohio, with the assistance of law enforcement

professionals, including former police chiefs. For more information on the Justice Department’s Civ il Rights Div ision, please v isit www.justice.gov /crt.

If y ou hav e any comments or concerns, please feel free to contact us at1 -87 7 -21 8-5228.

1 2-0 5 4

Civ il Rights Div ision

 
 Cat03,Limbert,Termed
U.S. District Court Northern District of Ohio (Youngstown) CIVIL DOCKET FOR CASE #: 4:12−cv−00086−BYP

United States of America v. City of Warren, Ohio et al Assigned to: Judge Benita Y. Pearson Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 01/13/2012 Date Terminated: 01/26/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Corey M. Sanders U.S. Department of Justice − Civil Rights Division 601 D Street, NW Washington, DC 20579 202−305−3229 Fax: 202−514−4883 Email: corey.sanders@usdoj.gov ATTORNEY TO BE NOTICED

Michelle L. Heyer Office of the U.S. Attorney − Cleveland Northern District of Ohio Ste. 400 801 Superior Avenue, W Cleveland, OH 44113 216−622−3686 Fax: 216−522−2404 Email: michelle.heyer@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant City of Warren, Ohio
Defendant Warren Police Department

represented by James E. Sanders City of Warren Department of Law 391 Mahoning Avenue, NW Warren, OH 44483 330−841−2605 Fax: 330−841−2906 Email: dpetiya@warren.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hilary S. Taylor Weston Hurd − Cleveland INVALID ADDRESS Ste. 1900 1301 East Ninth Street Cleveland, OH 44114 216−241−6602 Fax: 216−621−8369 Email: htaylor@westonhurd.com (Inactive) ATTORNEY TO BE NOTICED
represented by

James E. Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hilary S. Taylor (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/13/2012
01/13/2012
01/13/2012 01/13/2012
01/13/2012 01/26/2012
02/06/2012
02/10/2012
09/12/2017 07/03/2019 08/12/2019

# Docket Text
1 Complaint against City of Warren, Ohio, Warren Police Department.. Filed by United States of America. (Attachments: # 1 Civil Cover Sheet) (Heyer, Michelle) (Entered: 01/13/2012)
2 Joint Motion to Enter the Parties' Settlement Agreement filed by City of Warren, Ohio, Warren Police Department, Plaintiff United States of America. Related document(s) 1 . (Attachments: # 1 Proposed Settlement Agreement, # 2 Proposed Order)(Heyer, Michelle) (Entered: 01/13/2012)
Judge Benita Y. Pearson assigned to case. (BR,S) (Entered: 01/13/2012)
Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In the event of a referral, case will be assigned to Magistrate Judge George J. Limbert. (BR,S) (Entered: 01/13/2012)
3 Magistrate Consent Form issued. (BR,S) (Entered: 01/13/2012)
4 Settlement Agreement Between The City of Warren and The United States of America (Department of Justice). Judge Benita Y. Pearson on 1/26/2012. (S,L) (Entered: 01/26/2012)
5 Notice of Appearance for Hilary S. Taylor and James E. Sanders filed on behalf of City of Warren, Ohio, Warren Police Department. (Taylor, Hilary) Modified on 2/7/2012 (S,R). (Entered: 02/06/2012)
6 Amended Attorney Appearance Hilary S. Taylor and James E. Sanders by Hilary S. Taylor filed by on behalf of City of Warren, Ohio, Warren Police Department. (Taylor, Hilary) (Entered: 02/10/2012)
7 Attorney Appearance by Corey M. Sanders filed by on behalf of United States of America. (Sanders, Corey) (Entered: 09/12/2017)
8 Joint Motion to Terminate Settlement Agreement filed by Plaintiff United States of America. (Attachments: # 1 Proposed Order)(Sanders, Corey) (Entered: 07/03/2019)
9 Order granting the parties' 8 Joint Motion to Terminate Settlement Agreement. Judge Benita Y. Pearson on 8/12/2019. Related document(s) 4 . (JLG) (Entered: 08/12/2019)

 
 JS:TM:JG:JM 
 DJ 207-57-4 


U.S. Department of Justice Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Ave, NW Washington DC 20530
December 18, 2013

Honorable Greg Hicks Law Director City of Warren, Ohio City Hall 391 Mahoning Ave., N.W. Warren, OH 44483-4634
Re: United States v. City o(Warren (4:12-cv-00086)
Dear Mr. Hicks:
We write to provide you our assessment of the City of Warren's compliance with the Settlement Agreement entered in the above-captioned action. The City has made significant progress in implementing the Agreement, although much work still remains. We appreciate the City's willingness to implement the Agreement promptly, and we note, in particular, that the Warren Police Department's newly inaugurated Chief, Erik Merkel, has demonstrated a willingness to adopt policies and take actions consistent with the requirements of the Settlement Agreement. This is a positive sign, and we hope that we can continue to build on this momentum to ensure the successful implementation of the Agreement.
Our assessment is based on inforn1ation we have received from multiple sources, including an on-site assessment of the Warren Police Department on September 16 and 17, 2013, which included interviews with Department executives and counsel, and review of documents that the Department provided to us both before and after our visit. During that visit we not only assessed the Department's compliance with the Agreement, but we also provided extensive technical assistance. Regrettably, the federal government shutdown, and the resultant backlog of government business, has substantially delayed our delivery of this compliance assessment to you. Because of the delay, however, we have included information that we acquired from the Department since our visit. We appreciate that the Department has kept us apprised of changes it has begun and events it has addressed since our visit.
In short, we found that the Department has implemented some provisions of the Settlement Agreement and has not yet acted fully on some other provisions. For example, the Department has implemented appropriate use-of-force policies and timely referred allegations of criminal conduct to law enforcement agencies. The Department also has begun more robust use-of-force investigations and internal affairs investigations, though these are not yet fully satisfactory. Unfortunately, prior to Chief Merkel's installation, the Department began

implementation of an important Settlement Agreement provision-a risk management system­ without tailoring the effort and expenditure to the requirements of the Settlement Agreement. This attempt, though an improvement in some data tracking, did not result in an effective risk management system that meets the requirements of the Settlement Agreement.
For each provision of the Settlement Agreement not yet in compliance, we would like to assist the Department in understanding the necessary steps it must take to reach substantial compliance. In the attached appendix, we list each provision of the Settlement Agreement and for each provision we state our finding of the Department's compliance status: substantial compliance, partial compliance, or non-compliance. For each finding, we add qualitative analysis and, where appropriate, offer technical assistance. For provisions of the Settlement Agreement with multiple requirements, we have focused our review on those areas most in need of remediation to come into compliance with the Settlement Agreement. The Department, with the guidance of its counsel, should use this appendix as a roadmap to come into compliance with the Settlement Agreement.
Pursuant to our authority under Section VII.A.3 of the Settlement Agreement, we are also notifying you that the City of Warren must re-open certain use-of-force and internal affairs investigations. We identified certain investigations in which the justification for uses of force 'iVere not clear, or for :which the Department did not fully inve£tigate allegation£ of officer misconduct in a manner consistent with the Settlement Agreement. Specifically, the Department must reopen investigations of use of force for Response-to-Resistance Report 2013-12; Response-to-Resistance Report 2013-21; Response-to-Resistance Report 2013-25; and Internal Affairs Investigation 2013-002. In identifying these incidents for further investigation, we do not opine on the lawfulness of the force used. Rather, the Department's objectives for these re-opened investigations should be both: (1) to determine the appropriateness of the Department's uses of force; and (2) to develop internal expertise in the assessment of force incidents or allegations of officer misconduct. After these additional investigations are complete, please provide us with copies of the final investigations for our review and further assessment of the Department's compliance with the Settlement Agreement.
We will continue to assist the Department in fully implementing the remedial measures required by the Settlement Agree1nent. We anticipate traveling to Warren on a regular basis until the Department achieves substantial compliance in all operative provisions. Between our on-site assessments, we encourage the Department to keep in contact with us. If any concerns arise during the implementation of the Settlement Agreement, we would be happy to provide you with technical assistance to ensure successful in1plementation.
If you have any questions about our findings in this letter or to discuss further technical assistance, please contact Jack Morse at (202) 305-4039, or me at (202) 353-8866.
2 


cc: Michelle Heyer Assistant United States Attorney for the Northern District of Ohio

Sincerely,
Jonas Geissler Senior Trial Attorney Special Litigation Section

3 


 
 APPENDIX
Warren Police Department
Settlement Agreement Compliance Chart – December 18, 2013
Section II. UOF Policies and Practices.
1. The City shall maintain UOF policies that:
a. define terms clearly;
b. define “force” as that term is defined in this Agreement;
c. incorporate a use-of-force model that relates the force options available to officers to the types of conduct by individuals that would justify the use of such force, and that teaches disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements or calling in specialized units as appropriate responses to a situation, and that requires the use of a verbal warning before the use of force, when possible;
d. state that, whenever possible, individuals should be allowed to submit to arrest before force is used;
e. state that the use of excessive force shall subject officers to discipline, possible criminal prosecution, and/or civil liability;
f. ensure that sufficient less lethal alternatives are available to all patrol officers; and
g. explicitly prohibit the use of choke holds and similar carotid holds except where deadly force is authorized.

Status

Substantial compliance – ongoing obligation

Analysis

Upon Chief Merkel’s appointment, WPD and Department of Justice resolved all outstanding issues surrounding long-pending policies for use of force and force tools. See Policy 96-007, Use of Force; Policy 02-003, Taser; Policy 12-004, ASP Tactical Baton; Policy 12-003, Oleoresin Capsicum Spray. WPD reports that it has promulgated the policies to all sworn officer and trained all officers on the new policy. WPD provided us records indicating that all sworn officers had received the new force policies. Accordingly, WPD is in substantial compliance with the Settlement Agreement’s requirements to maintain a use of force policy that meets the above provisions.

Technical Having a policy and consistently abiding by it are separate matters. Below, you Assistance will see that WPD still needs to improve its use-of-force reviews to ensure that all
uses of force are consonant with the approved policy and constitutional standards.

1

2. For the duration of this Agreement, WPD shall ensure that its use-of-force policy meets the above criteria. If notified by DOJ that WPD’s policies do not meet the above criteria at any point during the term of this Agreement, WPD shall revise its policies consistent with the above criteria and submit the revised policy to DOJ for approval. DOJ will review and comment on WPD’s revised use-of-force policies. WPD shall further revise its use-of-force policies consistent with the DOJ comments, and WPD shall resubmit the revised policies to DOJ for its consideration for approval. WPD shall not implement any revisions to its use-of-force policies unless approved by DOJ. Once the DOJ has approved these policies, WPD shall immediately implement any revisions. Within thirty days of DOJ’s approval of WPD’s revised use-of-force policies, WPD shall retrain all WPD officers on the revised policies, and shall keep a written record of such training of all existing and new WPD employees as part of each employee’s personnel file.

Status

Substantial compliance – ongoing obligation

Analysis

WPD’s compliance with the immediately prior, force-policy provision brings WPD into compliance with this provision, too. This provision, however, operates to ensure that any changes to force policy, including changes to requirements for reporting uses of force, are subject to Department of Justice approval.

Technical Assistance

It is our understanding that WPD is considering changes in the reporting requirements for lethal-cover scenarios, where no discharge occurs. We encourage WPD to retain the reporting of all active targeting. To the extent that WPD would change any portion of the use-of-force policy to change the way in which its officers report active targeting, this change would be subject to review and approval by the Department of Justice before WPD implements any such change.

3. WPD represents that every uniformed WPD officer is provided an intermediate force weapon. WPD shall continue to provide every uniformed WPD officer with an intermediate force weapon, which all uniformed officers shall carry on their person at all times while on duty and may be used when appropriate under law and policy. WPD has previously selected the telescoping baton as WPD’s current assigned intermediate force device for all sworn officers. WPD may select a different intermediate force weapon, provided that WPD make the selection uniform across all sworn officers. WPD shall incorporate its selected intermediate force weapon into WPD’s force policy, and shall continue to train all its sworn officers on an annual basis on the proper use of the selected intermediate force weapon.

2

Status

Substantial compliance – ongoing obligation

Analysis

WPD represents that its patrol officers carry ASP batons. WPD has an approved policy for ASP batons, as well. WPD has not selected a different intermediate force tool since the entry of the Settlement Agreement. Accordingly, WPD is currently in substantial compliance with this Settlement Agreement provision.

Technical Assistance

In future compliance audits, the Department of Justice will continue to monitor the tools carried by uniformed officers. The Department of Justice has reviewed training curriculum and records of receipt of policies, as discussed below, but will attend training session in 2014 to ensure that officers are all trained on the use of the approved intermediate force weapon. WPD’s obligation to ensure that all officers are equipped with and trained on a standard intermediate force weapon is ongoing.

Section III. Evaluation, Documentation, and Review of UOF
1. WPD requires all uses of force to be documented in writing. Each WPD officer involved in a use-of-force incident shall separately complete a use-of-force report, or a separate addendum to the original use-of-force report. Each officer shall indicate on his or her respective report each and every type of force he or she used or was a party to. Each officer involved in a use-of-force incident shall include in his or her report a narrative description of the events preceding the use of force, a description of the force used, and a description of the care given after force was used. All use-of- force reports shall indicate whether or not the subject on whom force is used was restrained or not at the time force was used. WPD shall ensure that WPD officers complete and submit all use-of-force reports within twenty-four hours of the end of the shift on which a use of force occurs.

Status

Non-compliance - ongoing obligation

Analysis

We reviewed all “response to resistance reports,” i.e., use of force reports, that WPD provided to us. We note a substantial improvement in WPD’s reporting of force as compared with older samples of WPD reports. Despite this improvement, WPD’s reports do not consistently meet this Settlement Agreement provision.
Notably, not all officers on the scene of uses of force have completed use of force reports. In some cases officers involved in uses of force failed to complete useforce-reports, and supervisors did not correct this omission. For those that did provide narratives, not all explained the justification of uses of force.
There were also un-reconciled inconsistencies in use of force reports, which supervisors should have noted and for which supervisors should have required

3

supplemental reports to address the inconsistencies.

Technical Assistance

WPD’s new management appears willing to meet the requirements of this provision. Since our tour, WPD has endeavored to instruct all officers on the requirements of force reporting, specifically on the requirement that officers articulate the objectively reasonable basis for each separate application of force. As we continue to assess compliance with this provision, we will review newer use-offorce reports as WPD produces them. We are hopeful that the technical assistance already provided during our tour will yield reports that fully describe the legal basis for use of force, or will lead to an elimination of use of force when no legal basis exists for its use.

Also, we note a technical hurdle WPD faces in meeting the requirements of this provision and the needs of a modern, efficient police force. WPD described to us a process for reporting force whereby officers must return to the station to complete a fillable pdf document on a computer for all of the officers’ reports. In other words, for any given report, officers spend time to travel back to the station to complete the report and then travel time back to their assignment, unless completed at the end of their shift. In any case, the time spent in transit is both a large expenditure of time and leaves fewer officers on the street to provide assistance to one another. Instead, it would be helpful if WPD could provide its officers with the ability to fill in forms on the mobile data terminals, i.e., laptop computers, already in their cruisers.

2. Officers shall notify their immediate supervisors following all uses of force or upon the receipt of an allegation of excessive force. Upon such notification the immediate supervisor of the involved officer(s) shall promptly respond to the scene, examine the subject for injury, interview the subject, and ensure that the subject receives needed medical attention. When a Sergeant is involved in a use of force or an allegation of excessive force, the Lieutenant on duty shall be the immediate supervisor. The Chief of Police, or his or her designee, shall promptly respond to the scene of any use of deadly force.

Status

Substantial compliance – ongoing obligation

Analysis

Since the implementation of the new force policy, WPD reports supervisors reporting to the scenes of uses of force. An analysis of the use-of-force reports provided to us largely reflects that supervisors have responded to the scenes of uses of force to conduct in-person force investigations. While the quality of those assessments varies (see paragraph 4 below) the conduct of force investigations is a significant step forward and provides senior-level WPD reviewers with more data for assessing the objective reasonableness of the uses of force.

4

WPD had a recent use of deadly force. The requirements of this provision also govern, in part, response to such an incident. As was evident in our review of mobile video recordings taken immediately after that incident, WPD meet those requirements in timely calling the Chief of Police and designees to the scene.

Technical Assistance

This provision also requires that supervisors ensure injured subjects receive necessary medical attention. WPD has advised us that a nurse is not on duty at the Trumbul County Jail outside of business hours. WPD relies upon the judgment of emergency medical technicians (“EMTs”) in the field or medical staff at an emergency room when a nurse is not available in the jail. Supervisors must remain vigilant to ensure that officers call EMTs to the scene or transport injured subjects to an emergency room whenever subjects complain of injury or request medical care, or when officers of supervisors should reasonably seek medical assistance.

3. The immediate supervisor shall review, evaluate, and document each use of force in the supervisor’s review section of the use-of-force report including his or her determination of whether or not the officer’s actions were within WPD policy, and whether or not the force used was objectively reasonable. Any officer or supervisor who used force during the incident, or whose conduct led to an injury, or who authorized conduct leading to the use of force or allegation of excessive force, will not be eligible to review the incident.

Status

Non-compliance - ongoing obligation

Analysis

We analyzed all use of force reports that WPD provided to us. While we were on site, we systematically reviewed all of these reports with WPD executives and their counsel. As discussed during those reviews, a significant shortcoming is evident in the reviews of uses of force. Notably, the WPD Captain in charge of WPD’s Emergency Services Division, i.e., its uniformed patrol units, almost never applied correct legal or policy standards to the reviews of use of force. Nearly uniformly, he found that WPD officers used the “minimal” force and, with slight exception, did not assess the objective reasonableness of force used nor did he reconcile inconsistencies in officers’ statements about some uses of force. This executive’s lackadaisical approach to use-of-force reviews flowed downward to intermediate and direct supervisors who often likewise failed to assess force based on the objective-reasonableness and policy standards.
We understand that after our review of force reports with WPD that Chief Merkel and WPD’s training staff implemented ad hoc training session for all WPD personnel on the appropriate standards for reviews of uses of force, i.e., objective reasonableness and within policy. We applaud this effort. We have requested that WPD provide us an audio recording of such a training, and we anticipate reviewing and opining of that training when WPD furnishes the recording to us. At this time,

5

however, the corrective action is in its infancy. Accordingly, WPD must still demonstrate internalization of the appropriate standards for use-of-force review for a sustained period to come in to compliance. We will continue to review all use-offorce reports to ensure that WPD had internalized this skill.
There were few samples of reports in which supervisors were involved in the use of force, itself. For one such incident, however, the Lieutenant involved in the hobble restraint of a subject also signed off approving his and other officers’ use of force. Here, too, the WPD Captain in Emergency Services Division failed to correct the improper review.

Technical Assistance

WPD previously developed a checklist as a useful tool for review of uses of force. WPD may utilize that tool at all supervisory levels to ensure that its reviews apply the appropriate objective-reasonableness standard to each and every application of force.

If supervisors find that officers’ reports fail to demonstrate the objectively reasonable basis for the use of force, supervisors should require officers to submit supplemental reports to explain their actions. If officers cannot adequately explain their uses of force on an objectively reasonable analysis, the WPD supervisor should refer that use of force to internal affairs.

4. Supervisors shall conduct a review of all uses of force or an injury resulting from a use of force by any officer under their command. As part of this review, supervisors shall interview all witnesses to a use-of-force incident or an injury resulting from a use of force.

Status

Partial-compliance - ongoing obligation

Analysis

In the use-of-force reports WPD provided to us, supervisors often interviewed subjects who were subjected to uses of force. However, these interviews did not occur in all instances, nor did WPD supervisors interview all identified witnesses.

Technical Assistance

As part of WPD’s effort toward improvement in the review of uses of force, WPD should also ensure that supervisors interview all identifiable witnesses and the subjects of uses of force. This is a necessary step to come into compliance with the Settlement Agreement.

5. Consistent with the requirements of the collective bargaining agreement and/or other applicable authority, supervisors shall ensure that all officer witnesses provide a statement regarding use-of-force incidents. Officers shall not be permitted to see one
6

another’s statements prior to submission of their own statement. Supervisors shall ensure that all use-of-force reports identify all officers who were involved in the incident or were on the scene when it occurred. Supervisors shall ensure that all reports indicate whether an injury occurred, whether medical care was provided, and whether the subject refused medical treatment. Supervisors shall ensure that all reports include contemporaneous photographs or videotapes taken of all injuries at the earliest practicable opportunity, both before and after any treatment. Supervisors shall document their review of the use-offorce report in the supervisor’s review section of every use-of-force report. Supervisors shall record therein their evaluation of the basis for the use of force, a determination of whether the officer’s actions were within WPD policy, and whether the force used was objectively reasonable.

Status

Partial-compliance - ongoing obligation

Analysis

As noted, WPD’s current use-of-force reports indicate a vast improvement over WPD’s historical use-of-force reports. Whereas historical reports clearly indicated that officers shared their narratives, current reports appear to indicate that officers are now authoring their own narratives. Even though WPD significantly improved its force reporting, it has not yet come into compliance with this Settlement Agreement provision.
Most reports reviewed did not include photographs of injuries. Also, WPD had many uses of electronic control weapons, e.g., Tasers. However, WPD did not photograph AFIDs, i.e., numbers confetti dispersed by Tasers when they are discharged in probe mode. Additionally, WPD had not included in their use-offorce reports data that is downloadable from any Taser regarding the time of discharge, number of discharges, and duration of each discharge. WPD informs us that they recently acquired the hardware necessary to begin the download process for Tasers, without having to utilize another police department’s hardware.
Many of the reports reviewed noted that the mobile video recording device in officers’ cruisers were either inoperable or were not available in the cruiser used. Most often, the force review did not note whether the officers or supervisors had referred the affected units to WPD’s motor pool for repair of the devices or installation of a new device. The recurrent absence of video recording makes more difficult WPD’s reviews of uses of force. Video recording also serves to protect officers from allegations of misconduct by providing a contemporaneous record of police interactions.

Technical Assistance

Supervisors should ensure that all officers on the scene of a use of force provide a report or supplement. For all officers involved in a use of force, supervisors should ensure that their reports contain a narrative explaining why each application of force is objectively reasonable. To the extent that force reports fail to do so, officers must provide supplemental reports to provide a complete picture of the

7

justification for applications of force. If officers are incapable of articulating such an objectively reasonable basis, then WPD should refer such uses of force for full internal affairs investigation.
WPD should make sure to take photos of injuries to subjects, including the site of application of electronic control weapons. Additionally, WPD should photograph the distribution of AFIDs whenever WPD officers discharge a Taser in probe mode. And, WPD should download Taser data for every single discharge – drive stun or probe mode – and include a print out of that data in the associated use-of-force report.
We also recommend that WPD assess all its cruisers to ensure that video recording equipment is in working order. We further encourage WPD to issue a directive to all officers that they note faulty or missing equipment for repair or replacement.

6. The Parties agree that it is improper for WPD personnel conducting reviews of use-offorce incidents to ask officers or other witnesses leading questions that improperly suggest legal justifications for officers’ conduct when such questions are contrary to appropriate law enforcement techniques. In each use-of-force review, WPD shall consider all relevant evidence including circumstantial, direct and physical evidence, as appropriate, and make credibility determinations, if feasible. WPD will make all reasonable efforts to resolve material inconsistencies between witness statements.

Status

Partial-compliance - ongoing obligation

Analysis

In each of WPD’s newer use-of-force reports, supervisors memorialize their reviews of uses of force. Supervisors’ assessments indicate that they do not necessarily ask leading questions, however, they also do not always identify the objectively reasonable basis, if any, for uses of force. Moreover, on the occasions when WPD officers have deployed an electronic control weapon, supervisors have not gathered physical evidence, i.e., photos of injuries, AFIDs, photos of AFID disbursement in probe mode, and data downloads for probe and contact mode. Accordingly, these supervisory assessments cannot be viewed as complete. Also, when material inconsistencies have arisen in certain use-of-force reports, supervisors did not identify those inconsistencies or seek to reconcile them.

Technical Consistent with the prior technical assistance, herein, WPD must ensure that its Assistance supervisors interview all identifiable witnesses and collect all applicable physical
evidence.

8

7. For each use-of-force incident, a WPD Captain will timely evaluate each use of-force review supervisors conducted for such incident, identify any deficiencies in those reviews, and require supervisors to timely correct any deficiencies. WPD shall hold supervisors accountable for the quality of their reviews. WPD shall take appropriate nondisciplinary corrective action and/or disciplinary action whenever a supervisor fails to conduct a timely and thorough review of a use of force, or neglects to recommend appropriate corrective action, or neglects to properly implement appropriate corrective action.

Status

Non-compliance - ongoing obligation

Analysis

As noted in Section III.3, above, the WPD Captain failed to appropriately review uses of force. It is our understanding that Chief Merkel and WPD training officers have taken corrective action to train all sworn officers on the appropriate standards for uses of force.

Technical Assistance

There is simply no substitute for taking the required action under this provision of the Settlement Agreement. We are pleased that WPD is taking corrective action. The efficacy of that action will be borne out in future use-of-force report reviews. We will assess future use-of-force reports and their supervisors-level and command-level reviews to determine whether WPD comes into compliance.

IV. Citizen Complaint Process.
A. Public Information
1. WPD has developed and implemented a program to inform persons that they may file complaints regarding the performance of any officer. The complaint form is presently available at www.warren.org, the City’s website. The City also presently makes complaint forms and directions for submitting complaints publicly available at all governmental properties. The City has proceeded to make the public aware of the complaint form process. During the performance of this Agreement, WPD shall continue to make complaint forms, directions on submitting complaints, and informational materials publically available at government properties including, but not limited to: WPD headquarters, all City public libraries, the Office of the Director of Public Safety, the Internet, and, upon request, to community groups and community centers.

Status

Substantial compliance – ongoing obligation

Analysis This provision is a statement regarding the availability of WPD’s complaint forms and directions at the time the parties entered into the Settlement Agreement. This

9

provision also requires that WPD maintain the availability of those forms and directions. We have periodically confirmed that WPD maintains the complaint form on its website and in accessible buildings. The complaint form includes instructions on the filing of a citizen complaint. WPD’s complaint policy also memorializes the requirement that WPD make complaint forms available at certain governmental offices and the offices of the Urban League. Policy 07-001, Sec. V.A.1.
Technical We applaud WPD for continuing to make complaint forms widely available. This Assistance is a significant improvement over historical practices under prior WPD
administrations.
We suggest that WPD update its complaint form and website to include the name and telephone number of the WPD officers assigned to internal affairs. As noted herein, complainants did not always receive a response from WPD to their complaints. Including contact information for internal affairs on the complaint form should facilitate improved communication with complainants.

2. Within 30 days of the effective date of this agreement, WPD shall permanently post in a public space at WPD headquarters a placard describing the complaint process and include the relevant phone numbers. WPD shall require all officers to carry informational brochures and complaint forms in their official vehicles at all times while on duty. If a citizen objects to an officer’s conduct, that officer will inform the citizen of his or her right to make a complaint. Officers shall not discourage any person from making a complaint.

Status

Substantial compliance – ongoing obligation

Analysis

WPD has posted the compliant process in the publically accessible portion of the police records office in the WPD headquarters. WPD also has complaint brochures widely available in the police headquarters. Based on our interviews with officers, WPD also has complied with the requirement that officers carry complaint forms and accept complaints. Based on a review of the complaint forms submitted to internal affairs, WPD has accepted all manner of complaints. Previously, WPD removed from its complaint forms language that discouraged the filing of complaints. WPD has also memorialized in its policy the requirements that officers carry and make available complaint forms and the prohibition on discouraging complaints. Policy 07-001, Sec. V.A.2 - 4; Sec. V.B.1.

Technical Consistent with the prior technical assistance, we suggest that WPD include in its Assistance complaint brochures the name and telephone number of the WPD officers assigned

10

to internal affairs.

B. Means of Filing and Tracking of Complaints
1. WPD shall continue to maintain clear complaint acceptance and complaint resolution policies and procedures. WPD shall ensure that all officers are trained in acceptance of complaints. Training on the complaint acceptance policy and procedure will be a part of in-services to all officers at the implementation of this Agreement.

Status

Partial-compliance - ongoing obligation

Analysis

WPD maintains a clear policy on the acceptance of complaints. Policy 07-001, Sec. V.B. Our review of the complaint forms and investigations revealed that in most cases the officers about whom complaints were submitted were subject to investigation. In some instances, however, the not all officers identified by complainants were subject to investigation. Complainants are entitled to a resolution of their complaint that provides them a finding for all officers they identify or whom WPD can identify based on the complaint. Also, officers who are the subject of a complaint are entitled to a final outcome so as not to proceed under the unresolved pallor of an unanswered allegation. Additionally, WPD’s resolution procedures lacked clarity in that WPD did not consistently inform complainants of outcome of their complaints. Accordingly, complaint acceptance policies meet compliance; however, complaint resolution procedures do not yet meet compliance.
WPD has represented to us that all officers have been trained on the complaint acceptance policies and procedures. These training sessions occurred at a time we were not present in Warren. We intend to observe such training in the upcoming 2014 in-service training sessions.

Technical Assistance

WPD must be consistent in its processing of complaints to ensure that: (1) all officers identified in a complaint are subject to investigation and a finding; and (2) all complainants receive a written response informing them on the status of their investigation, progress if resolution is delayed, and final findings for all claim for all identifiable officers.

2. The complaint-acceptance policy shall specify that WPD shall accept complaints in writing or verbally, in person or by mail, telephone (or TDD), facsimile, electronic mail, or drop box. The policy shall require that all WPD employees accept complaints and promptly deliver them to a supervisor. The policy shall state that an employee accepting a complaint may describe facts that bear upon a complainant’s demeanor and physical condition but may not express opinions regarding his/her
11

mental competency or veracity. The complaint-resolution policy shall require that WPD resolve each complaint in writing.

Status

Substantial compliance – ongoing obligation

Analysis

WPD’s policy meets the requirements of this provision for the methods by which complainants may submit their complaints. Policy 07-001, Sec. V.B. WPD’s policy also requires that WPD produce written reports for all complaints that are subject to a full internal affairs investigation. Policy 07-001, Sec. V.C.8. The policy lacks clarity, however, on what means WPD will use to memorialize the outcome of actions that do not rise to the level of internal affairs investigations. Policy 07-001, Sec. V.C.2. Nevertheless, in practice, WPD has assigned internal affairs numbers to all complaints and, thereby, tracked the outcome of complaints.

Technical WPD should include in its policy a requirement that allegations which do not rise to Assistance the level of an internal affairs complaint pursuant to Policy 07-001, Sec. V.C.2,
nevertheless require a written resolution for the officer(s) and complainant(s).

3. WPD shall refer copies of allegations of misconduct against WPD to WPD’s Internal Affairs Unit (“IA”) within three business days of receipt of a complaint. Within 90 days of the effective date of this Agreement, WPD shall institute a centralized numbering and tracking system for all complaints. Immediately upon receipt of a complaint, WPD shall assign each complaint a unique identifier, which WPD shall provide to the complainant. WPD shall track in a database each complaint according to the basis for the complaint (e.g., excessive force, discourtesy, improper search, etc.).

Status

Substantial compliance – ongoing obligation

Analysis

WPD’s policy includes requirements that WPD employees notify the Chief within 24 hours of the receipt of complaints involving allegations of excessive force and with 72 hours for all other allegations. In practice, complaint forms reveal that the assigned internal affairs investigator receives most complaints, without need for a referral to internal affairs. Accordingly, WPD is in compliance with the requirement that internal affairs receive all complaints within 72 hours.
WPD’s assigned internal affairs investigator has instituted a tracking system that is a significant improvement over historical practices of prior WPD administrations. This system includes assignment of unique “IA” numbers to each complaint and a cross reference in the associated incident, arrest, or use-of-force report number stemming from the action that gave rise to the complaint. WPD’s records indicate that WPD has tracked all complaints received since the entry of the Settlement

12

Agreement. WPD’s policy requiring the tracking of complaints by case number, date, complainant, nature of complaint, assigned investigator, subject officer, disposition and notice also support WPD’s compliance with this provision of the Settlement Agreement. Policy 07-001, Sec. V.B.9.
Technical WPD would benefit from making its policy clear that the WPD supervisor advised Assistance of a complaint must ensure that he or she provides all the complaint material to
internal affairs as quickly as practicable, but in no even longer than 72 hours.

C. Investigation of Complaints 1. WPD shall investigate every complaint of employee misconduct.

Status

Partial-compliance - ongoing obligation

Analysis

WPD’s tracking system appears to indicate that each complaint WPD has received has resulted in a finding. Looking deeper into the complaints, however, raises two important issues. First, in certain complaints involving incidents with multiple officers, WPD did not investigate allegations raised against all officers. Instead, WPD investigated only some of the officers. This undercuts the fidelity of the internal affairs system. Even though apparently an oversight, the selection of only some officers as subjects of the investigation may lead to the appearance of favoritism or leave unresolved allegations that are capable of a final finding for the benefit of both the complainant and the accused officers. Second, when complainants do not characterize their complaints of misconduct, WPD must try to identify what violations of policy the complaint implicates, if true. WPD did not always investigate all potential violations of policy raised by the complainants, e.g., categorizing a force complaint as a discourtesy complaint. Accordingly, WPD failed to subject to investigation and resolution these portions of misconduct allegations.

Technical Assistance

WPD must act to ensure that it investigates all officers identified or capable of being identified in a complaint of officer misconduct. WPD must also act to ensure that the allegations raised in complaints match the alleged policy violations for which internal affairs produce a recommended finding. In part, WPD may achieve compliance by a more thorough effort within internal affairs. Ultimately, however, the onus falls upon the Captains and Chief who review the internal affairs reports to ensure the identification of officers and accuracy of charged policy violations.

13

2. WPD shall explicitly prohibit from investigating an incident any officer involved in that incident.

Status

Partial-compliance - ongoing obligation

Analysis

In practice, WPD has not assigned an officer to investigate an internal affairs complaint if that same officer was involved in the underlying incident. WPD’s citizen complaint policy, however, does not require this explicit prohibition. Accordingly, WPD effectively met the uninvolved-officer standard of the Settlement Agreement, but still must add the explicit prohibition to its policy to come into full compliance.

Technical WPD should revise its policy consistent with this Settlement Agreement provision. Assistance

3. WPD shall complete all investigations of officer misconduct within 40 days of the earlier of WPD’s receipt of a complaint or WPD’s discovery of alleged officer misconduct, unless the Chief of Police extends that deadline in writing at the written request of the assigned investigator. The Chief of Police may permit only one extension at a time of no more than 30 days per extension, and shall not permit more than a maximum of two possible extensions. The Chief of Police shall record, as part of the investigative file for the incident, his or her basis for granting or denying the request for extension. WPD shall provide written notice to the complainant of any extensions.

Status

Substantial compliance – ongoing obligation

Analysis

WPD has completed internal affairs investigations within 40 days. There were two exceptions to this, neither of which bring WPD out of compliance with this provision. In both of these exceptional cases, WPD properly referred the incidents to Ohio’s Bureau of Criminal Investigation (“BCI”) for investigation. BCI’s investigations have or will span more than 40 days. In one instance, BCI’s investigation of alleged officer misconduct has delayed the outcome of WPD internal affairs investigation. WPD, however, acted responsibly in placing the subject officer on administrative leave during the pendency of the investigation.

Technical Assistance

WPD should ensure that internal affairs records include the required written extensions whenever internal affairs investigations take longer than 40 days. Also, WPD should work with BCI to ensure timely resolution of BCI’s investigations. Many police departments conduct concurrent internal affairs and criminal investigations. WPD should consider when it is appropriate to do so in consultation

14

with prosecutors. If WPD conducts concurrent investigations, it must ensure both the protection of the accused’s rights against self incrimination in the criminal proceeding and protection of the prosecution’s case from contamination by statements compelled in the internal affairs proceeding.

4. Within 90 days of the effective date of this agreement, WPD shall adopt a single policy concerning the investigation of misconduct complaints, regardless of whether the investigation is conducted by IA or a chain-of- command supervisor. WPD shall apply a preponderance of the evidence standard to the evaluation of all allegations contained in a complaint or collateral misconduct discovered during the course of investigating a complaint.

Status

Partial-compliance - ongoing obligation

Analysis

WPD has adopted a single policy concerning the categorization and investigation of complaints. Policy 07-001. This includes the specific criteria WPD must consider in determining whether to subject complaints to full internal affairs investigations or chain-of-command investigations by the turn commander of division commander. Policy 07-001, C.2. In practice, WPD subjects even rudeness complaints to internal affairs investigation. This is a positive step. This should support the public faith in a system that fully investigates even minor complaints.
The policy also properly requires that the Chief apply a preponderance of evidence standard to the findings of each allegation. Policy 07-001, C.10.
In practice WPD has not always identified collateral misconduct that arises in the investigation of a complaint. Therefore, WPD cannot be said to have applied a preponderance of evidence standard to such potential misconduct.

Technical Assistance

WPD use of internal affairs, rather than chain of command investigations, for all complaints is helpful. To the extent that WPD finds it necessary to direct complaints to an officer’s chain of command for investigation, WPD should make clear in its policy that chain-of-command investigations are subject to the same tracking, findings, and notification requirements are internal affairs investigations. Like full internal affairs investigations, officers and complainants are entitled to an outcome of alleged policy violations, even if capable of being resolved merely through command counseling. Likewise, to have useful data for WPD’s risk management system, WPD should ensure that chain-of-command investigations reach a resolution that WPD can track in its database.

15

5. The personnel participating in IA have presently been trained on the factors to consider when evaluating complainant or witness creditability, examination and interrogation of accused officers and other witnesses; identifying misconduct even if it is not specifically named in the complaint; and using the preponderance of the evidence standard as the appropriate burden of proof.

Status

Substantial-compliance - ongoing obligation

Analysis

WPD’s principle internal affairs investigator has taken training on the conduct of internal affairs investigations. He displays the certificate of training form the Ohio Peace Officer Training Academy in his office.

Technical Assistance

Like other skills, the investigation of internal affairs complaints can encompass perishable skills. Accordingly, WPD should provide on-going training to all personnel assigned to conduct internal affairs investigations. The Federal Law Enforcement Training Center (“FLETC”) offers some courses online as podcasts without a fee. See, e.g., “Self Incrimination: Interrogating Government Employees,” available at http://www.fletc.gov/training/programs/legaldivision/podcasts/fletc-legal-division-self-incrimination-roadmap-podcasts/selfincrimination-roadmap-podcasts-transcripts/self-incrimination-interrogatinggovernment-employees-podcast-transcript.html/?searchterm=internal%20affairs. FLETC also offers for a fee a week-long advance internal affairs program, focusing on federal internal affairs programs, but teaching mostly transferable general internal affairs skills. See “Internal Affairs Investigations Training Program (IAITP)”, available at http://www.fletc.gov/training/programs/investigativeoperations-division/general-investigative-skills-branch/internal-affairsinvestigations-training-program-iaitp/?searchterm=internal%20affairs.

6. IA or chain-of-command investigators assigned to the investigation of complaints shall interview all witnesses to the incident who are capable of being identified through the exercise of reasonably diligent investigation. All interviews of WPD employees regarding the incident shall be recorded (audio or video). All interviews of non-WPD employees regarding the incident shall be recorded (audio or video), unless the interviewee specifically requests not to be recorded. If an interviewee requests not to be recorded, WPD shall secure a written declination of recording executed by the interviewee. An interviewee’s refusal to have an interview recorded will not relieve WPD of its obligation to interview all witnesses to an incident giving rise to a complaint. Consistent with the requirements of the collective bargaining agreement and/or other applicable authority, the assigned investigators shall ensure that all officer witnesses provide a statement regarding the incident. Officers shall not be permitted to see one another’s statements prior to submission of their own statement. For all allegations involving injury to a person, the assigned investigator
16

shall obtain contemporaneous photographs or videotapes of all injuries at the earliest practicable opportunity, both before and after any treatment, including cleansing of wounds.

Status

Non-compliance - ongoing obligation

Analysis

Most of the internal affairs investigations we reviewed did not include separate interviews of the complainants. Rather, WPD relied upon the complainants’ statements in their submitted forms. This reliance on the initial forms, without the benefit of an interview, fails to permit WPD investigators to fully develop the underlying factual allegation, nor to permit clarification of unclear statements, nor subject to the allegations to critical questions. WPD also identified some witnesses in most internal affairs investigations, but did not consistently interview all witnesses. Additionally, WPD did not have photographs of all injuries in the documents provided to us. Accordingly, WPD is not in compliance with this critical Settlement Agreement provision.

Technical Assistance

We understand that WPD already has begun corrective action to interview complainants. WPD must fully operationalize this change. WPD should identify in its internal affairs reports all witnesses capable of being identified. For each such witness, WPD should record witness interviews. If WPD cannot record an interview, or cannot conduct an interview at all, WPD must memorialize in its internal affairs reports the efforts it took and clearly explain why compliance with this provision for any given internal affairs interview is impossible. WPD should also make sure to photograph all injuries. If a complainant alleges WPD caused an injury that is no longer visible, WPD should memorialize in its internal affairs reports its requests for photographs of the injury when it was perceptible from the complainant.

7. In each misconduct investigation, WPD shall consider all relevant evidence including circumstantial, direct and physical evidence, as appropriate, and make credibility determinations, if feasible. WPD specifically shall not give an automatic preference for an officer’s statement over a non-officer’s statement, nor will WPD disregard a witness’ statement merely because the witness has some connection to the complainant. WPD will make efforts to resolve material inconsistencies between witness statements.

Status

Non-compliance - ongoing obligation

Analysis As discussed above, WPD has not routinely interviewed complainants. In so doing, WPD effectively has given more weight to officers’ rather than complainants’

17

statements. And, WPD’s failure to interview complainants may have made impossible the resolution of inconsistencies given that WPD deprived itself of the interview process to address such inconsistencies with complainants.
Technical To come into compliance, WPD must fully operationalize the practices of Assistance collecting and considering all data and interviewing all identifiable witnesses.

8. During a misconduct investigation, WPD will continue to investigate all relevant police activity, including each use of force (i.e., not just the type of force complained about). The investigation shall also evaluate any searches or seizures that occurred during the incident. WPD shall not close an investigation simply because the complaint is withdrawn or the alleged victim is unwilling or unable to provide medical records or proof of injury or the complainant will not provide additional statements or written statements; rather, WPD shall continue its investigation as necessary to determine whether the original allegation(s) can be resolved based on the information, evidence, and investigatory procedures and techniques available. In each investigation, the fact that a complainant pled guilty or was found guilty of an offense will not be considered as evidence of whether a WPD officer used or did not use a type of force, nor will it justify discontinuing the investigation.

Status

Partial-compliance - ongoing obligation

Analysis

As discussed, herein, WPD did not consistently identify collateral misconduct or allegations raised against all officers. For those allegations that WPD investigated, however, WPD completed investigations without regard to whether the complainant pled guilty to an underlying charge. There were no sample internal affairs investigations that gave rise to unaddressed search and seizure issues.

Technical Like other provisions, WPD corrective action to address all allegations against all Assistance identifiable officers should help bring WPD into substantial compliance with this
provision.

9. For each allegation, the assigned investigator shall make a written recommended determination to the Division Commander as to whether: (1) the police action was in compliance with policy, training and legal standards regardless of whether the complainant suffered harm; (2) the incident involved misconduct by any officer; (3) the use of different tactics should or could have been employed; (4) the incident indicates a need for additional training, counseling or other non-disciplinary corrective measures; and (5) the incident suggests that WPD should revise its

18

policies, training, or tactics. WPD shall ensure that assigned investigators’ reports contain a written recommended determination on each of these elements.

Status

Partial-compliance - ongoing obligation

Analysis

WPD’s internal affairs investigation reports largely achieve many of the requirements of this provision. In its internal affairs reports, WPD should have identified problematic tactics in the use of electronic control devices as contact stun weapons. Also, like other provisions of the Settlement Agreement, WPD needs to address allegations against all identifiable officers in order to come into compliance with this provision.

Technical Assistance

It is our understanding that WPD has already taken corrective action on the use of electronic control weapons in close proximity to the heart or head. Subsequent useof-force reports indicate that WPD is addressing this issue. WPD corrective action to address all allegations against all identifiable officers should help bring WPD into substantial compliance with this provision.

10. The misconduct-investigation policy shall require that WPD reach a separate investigative finding for each allegation. WPD shall ensure that a separate recommended investigative finding is reached and recorded in the assigned investigator’s report for each allegation of employee misconduct. Each allegation in an investigation shall be resolved by making one of the following investigative findings:
a. “Unfounded,” where the investigation determines, by a preponderance of the evidence, that no facts to support that the incident complained of actually occurred;
b. “Sustained,” where the investigation determines, by a preponderance of the evidence, that the person’s allegation is supported by sufficient evidence to determine that the incident occurred and the actions of the officer were improper;
c. “Inconclusive,” where the investigation determines, by a preponderance of the evidence, that there are insufficient facts to decide whether the alleged misconduct occurred; and
d. “Exonerated,” where the investigation determines, by a preponderance of the evidence, that the alleged conduct did occur but did not violate WPD policies, procedures, or training.

Status

Partial-compliance - ongoing obligation

19

Analysis

WPD’s internal affairs investigation reports and the WPD chief’s reviews of those reports do a good job of identifying a definitive finding for allegations that WPD investigates. WPD’s failure to investigate all allegations against all identifiable officers prevents a finding of substantial compliance with this provision, at this time.

Technical WPD corrective action to address all allegations against all identifiable officers Assistance should help bring WPD into substantial compliance with this provision.

11. IA shall track and monitor chain-of-command investigations to ensure timely and thorough completion of investigations.

Status

Substantial-compliance - ongoing obligation

Analysis

As discussed in paragraph four, above, WPD has subjected even minor complaints to full internal affairs investigations. WPD has not had any chain-of-command investigations, therefore, that have been untimely or which internal affairs did not track.

Technical Assistance

To the extent that WPD finds it necessary to direct complaints to an officer’s chain of command for investigation, WPD should make sure that internal affairs continues to track and monitor the timeliness of the investigation, as internal affairs does now for formal investigations.

12. Within one week of completion of the IA’s review of the investigative file, the Captain in command of the personnel at issue shall, in writing, either accept or reject the recommended findings, or return the investigative report for further IA investigation, and shall set forth, in the investigative file, his or her basis for doing so unless referred to the Chief of Police for further action.

Status

Partial-compliance - ongoing obligation

Analysis

The Captain in charge of the Emergency Services Division, i.e., the same Captain that failed to properly analyze use-of-force reports discussed in III.3, above, also usually did not have a written acceptance or rejection of internal affairs findings contained in the internal affairs files provided to us. Rather, the internal affairs investigative report dutifully described the incident, investigation, and outcome, which the Chief could then either accept or change. The Captain’s response – necessary to effectively manage officers under his command – was usually absent.

20

Technical WPD should ensure that the Captain in the chain of command for subject officers Assistance receives and timely reviews the internal affairs investigative report.

13. WPD shall keep all non-anonymous complainants informed periodically regarding the status of the complaint investigation. Within one week of the completion of the investigation, WPD shall notify, in writing, all non-anonymous complainants of the investigation’s outcome, including an appropriate statement regarding whether any non-disciplinary corrective action or disciplinary action was taken.

Status

Non-compliance - ongoing obligation

Analysis

WPD has not provided written responses to all of the private individuals who have filed complaints regarding WPD conduct. This omission undercut the public faith in the system and gives the appearance of non-responsiveness, even when WPD has dedicated resources to the completion of an internal affairs investigation.

Technical Assistance

It is our understanding that WPD was responsive to the technical assistance provided while we were in Warren. It is also our understanding that for at least some of the internal affairs file provided to us, letters to complainants may have been missing, but were completed. WPD’s current administration seems willing to inform all complainants of the outcome of their complaint. WPD should ensure that it documents its written attempts to contact complainants with the finding reached by WPD for each separate allegation raised in a complainant’s complaint.

14. Subject to the protection against self incrimination in criminal proceedings for statements compelled consistent with Garrity v. New Jersey, 385 U,S. 493 (1967), but without withholding non-compelled statements or compelled statements that may be used in a criminal proceeding against a person other than the compelled witness, WPD shall make a written referral of all allegations of criminal misconduct by WPD employees to the City, County, or Federal Prosecuting Attorney or other appropriate agency for possible criminal prosecution, pursuant to that prosecutor’s own prosecutorial discretion, as soon as allegations of criminal conduct are reported to IA or are uncovered by the assigned investigator. WPD shall ensure the referral of all allegations of criminal conduct by WPD employees to the appropriate criminal prosecutor within one day of WPD’s discovery of those allegations of criminal conduct. The misconduct-investigation policy shall continue to require the completion of an administrative investigation irrespective of the initiation or outcome of criminal proceedings, with the appropriate coordination with the criminal matter.

21

Status

Substantial compliance – ongoing obligation

Analysis

The internal affairs files provided to us demonstrate that WPD routinely provides written Garrity notices to subject officers. This is a sound practice.
Significantly, we applaud WPD for its current practice of referring allegations of potentially criminal actions to outside law enforcement, i.e., BCI, and coordinating WPD’s internal investigation with that law enforcement agency. As described in our original technical assistance letter to WPD, a former administration had failed to refer allegations of potentially criminal conduct until after a statute of limitations had run. WPD’s current efforts are a dramatic and much-needed change.

Technical We encourage WPD to continue its coordination with outside law enforcement to Assistance ensure the competition of WPD’s internal affairs investigation and administrative
procedure as quickly as possible.

V. Management and Supervision
A. Risk Management System
1. Within 150 days of the effective date of this Agreement, WPD shall develop and implement an early intervention system, i.e., a risk management system, to include either a computerized relational database or paper system for maintaining, integrating, and retrieving information necessary for supervision and management of WPD. WPD will regularly use this data to promote civil rights and best police practices; to manage risk and liability; and to evaluate the performance of WPD officers across all ranks, units, and shifts.

Status

Non-compliance - ongoing obligation

Analysis

Unfortunately, prior to Chief Merkel’s installation, WPD began implementation of a risk management system – sometime called an early intervention system or early warning system – without tailoring the effort and expenditure to the requirements of the Settlement Agreement. This attempt, though an improvement in some data tracking, did not result in an effective risk management system.
A risk management system should aim, as accurately as feasible, to identify problematic behavior before that behavior manifests into civil right violations or career-ending behavior. The need for such a system is evident in the findings we previously reached and in the anecdotal accounts, known to WPD, of officers whose behavior went unchecked and ultimately ended their careers.

22

Technical WPD must develop a workable risk management system to come into compliance Assistance with this provision

2. The risk management system shall collect and record the following information for each officer:
a. all uses of force;
b. the number of canisters of chemical spray used by officers;
c. all discharges of conductive energy devices;
d. all injuries to prisoners;
e. all instances in which force is used and a subject is charged with "resisting arrest," "assault on a police officer," "disorderly conduct," or "obstruction of official business";
f. all firearm discharges, both on- and off-duty, including unintentional discharges, but excluding discharges in planned training exercises or hunting;
g. all complaints (and their dispositions);
h. all criminal proceedings initiated, as well as all civil or administrative claims filed with, and all civil lawsuits served upon, the City and its officers, or agents, resulting from WPD operations or the actions of WPD officers;
i. all incidents involving the pointing of a firearm at a person (if any such reporting is required);
j. all discipline and non-disciplinary corrective action taken against officers; and
k. all positive personnel reviews, commendations, awards, etc.;

Status

Non-compliance - ongoing obligation

Analysis

WPD uses an off-the-shelf product, which neither WPD, nor its vendor, customized to meet the requirements of this Settlement Agreement. These above-listed data are a necessary minimal data set for an effective risk management system. Accordingly, WPD has not adequately recorded or analyzed data as required by the Settlement Agreement. Contrary to the assumption of the previous chief, the IA Pro system did not fulfill the risk management system requirements of the Settlement Agreement.
Currently, the IA Pro system tracks: (1) administrative inquiries, which are

23

complaints generated internally within WPD; (2) citizen complaints; (3) firearm discharges, including those at animals and accidental discharges; (4) supervisory counseling; (5) vehicle accidents; (6) vehicle pursuits; and (7) every use of force. The tracking of only this data is insufficient to meet the requirements of the Settlement Agreement.

Technical Assistance

WPD must track all of the domains listed in this settlement agreement provision.
WPD also identified absenteeism as a significant problem. Absenteeism can create logistical problems in ensuring sufficient officer coverage, officer safety issues, and overtime costs. Accordingly, we also encourage WPD to use the opportunity created by developing a risk management system to include domains relating to absenteeism, in addition to the domains listed in the Settlement Agreement.

3. The risk management system shall include, for the incidents included in the database, appropriate identifying information for each involved officer (e. g., name, badge number, shift and supervisor) and civilian (e.g., race, ethnicity or national origin, if available).

Status

Non-compliance - ongoing obligation

Analysis

For the data domains that WPD currently tracks through IA Pro, WPD has the identifying characteristics listed in this Settlement Agreement provision. The IA Pro entries relate to the underlying use of force reports and internal affairs reports. Those reports include the underlying data. However, because IA Pro and WPD’s ad hoc use of a spread sheet do not yet meet the requirements of the Settlement Agreement for an effective risk management system covering all of the required domains, WPD is not yet in compliance with this provision.

Technical Assistance

WPD must develop a workable risk management system to come into compliance with this provision. WPD may continue to use cross reference from its arrest, incident, traffic, and internal affairs reports to record by such references the underlying identification data of the involved officers and civilians.

4. Within 210 days of the effective date of this Agreement, WPD shall prepare a protocol for using the risk management system.

Status

Partial-compliance - ongoing obligation

Analysis WPD has recently proposed a formal policy for a risk management tool, an Early

24

Intervention System (“EIS”). Heretofore, WPD did not have a protocol as required by the Settlement Agreement. The protocol is more than a mere ministerial effort. The protocol is intended to give useful effect to the risk assessment system and set clear expectations for all WPD sworn members. As discussed, below, the draft protocol, while a positive step, still requires revision to comply with the Settlement Agreement.

Technical Assistance

We have reviewed WPD’s proposed EIS policy. We have provided to WPD extensive revisions to the policy to conform to this Settlement Agreement. We anticipate that WPD may have some responses to our revisions. Ultimately, however, we anticipate that WPD’s proposed policy can be a workable solution to comply with this Settlement Agreement provisions and, importantly, to administer an effective system to mitigate risk.

5. At a minimum, the protocol for using the risk management system shall include the following provisions and elements:
a. The protocol is comprised of the following components: data storage, data retrieval, reporting, data analysis, pattern identification, supervisory assessment, supervisory intervention, documentation and audit.
b. The protocol will require the risk management system to analyze the data according to the following criteria: (i) number of incidents for each data category by individual officer and by all officers in a unit; (ii) average level of activity for each data category by individual officer and by all officers in a unit; and (iii) identification of patterns of activity for each data category by individual officer and by officers in a unit.
c. The protocol will require the system to generate reports on a monthly basis describing the data and data analysis and identifying individual and unit patterns.
d. The protocol will require that WPD Captains, Lieutenants, and supervisors review, on a regular basis but not less than quarterly, system reports, and evaluate individual officer, supervisor, and unit activity.
e. The protocol will require that WPD Captains, Lieutenants, and supervisors initiate intervention for individual officers, supervisors and for units based on appropriate activity and pattern assessment of the information contained in the risk management system.
f. The protocol will require that intervention options include discussion by Captains, Lieutenants, supervisors, and officers; counseling; training; and supervised, monitored, and documented action plans and strategies designed to correct inappropriate activity.
25

g. The protocol will specify that actions taken as a result of information from the risk management system be based on all relevant and appropriate information, including the nature of the officer’s assignment, crime trends and crime problems, and not solely on the number or percentages of incidents in any category of information recorded in the risk management system.
h. The protocol will require that WPD Captains, Lieutenants, and supervisors promptly review the risk management system records of all officers recently transferred to their sections and units.
i. The protocol will require that WPD Captains, Lieutenants, and supervisors be evaluated on their ability to use the risk management system to enhance effectiveness and reduce risk.
j. The protocol will require that the risk management system be managed and administered by IA. IA will conduct quarterly audits of the risk management system to ensure that analysis and intervention are taken according to the process described above.
k. The protocol will require regular reviews, at no less than quarterly intervals, by appropriate managers of all relevant risk management system information to evaluate officer performance citywide, and to evaluate and make appropriate comparisons regarding the performance of all WPD units in order to identify any significant patterns or series of incidents.

Status

Partial-compliance - ongoing obligation

Analysis

WPD has properly placed responsibility for its EIS within WPD’s internal affairs office. IA has begun the process of tracking data, but does not yet have a fully operational system that tracks all the domains required by this Settlement Agreement. In the absence of a full, working system, WPD is not able to comply with the requirements of this Settlement Agreement provision concerning managerial review and audits.
Also, as mentioned above, WPD recently proposed a formal EIS policy. The proposed EIS policy omits may of the operative provisions of this Settlement Agreement provision.

Technical Assistance

We have specifically revised the proposed EIS policy with reference to the missing Settlement Agreement provisions. We anticipate that once we reach agreement with WPD regarding the revisions, the proposed policy will comply with this Settlement Agreement provision. To give effect to this Settlement Agreement provision, WPD still needs to make its EIS operational—covering all required domains—and then engage in the required use of EIS data and systemic auditing functions.

26

6. WPD shall maintain all personally identifiable information about an officer included in the risk management system during the officer’s employment with WPD for at least five years. Information necessary for aggregate statistical analysis will be maintained indefinitely in the risk management system. WPD shall enter information into the risk management system in a timely, accurate, and complete manner, and maintain the data in a secure and confidential manner. WPD shall input new or changed information, if any new or changed information addressing the aforementioned risk management categories exists, at least on a monthly basis, if not sooner, subject to the confidentiality provisions of Section 149.43 of Ohio Revised Code and current collective bargaining agreements.

Status

Non-compliance - ongoing obligation

Analysis

Because WPD has not yet established a risk management system, WPD in not yet in compliance with this Settlement Agreement provision regarding data retention. WPD has timely input data used in IA Pro for the tracking of use-of-force reports and internal affairs systems.

Technical With the development of a robust and effective risk management system, WPD Assistance must develop a data retention practice to meet this Settlement Agreement provision.

7. WPD shall either purchase the risk management system off-the-shelf (and customize the system, if necessary to meet the requirements of this agreement), or WPD may develop and implement its own risk management system. In either case, WPD shall adhere to the following schedule:
a. Within 210 days of the effective date of this Agreement, WPD will submit a protocol for using a risk management system to DOJ for review and approval. WPD will share drafts of this document with DOJ to allow DOJ to become familiar with the document as it develops and to provide informal comments on it. WPD and DOJ will together seek to ensure that the protocol receives final approval within 30 days after it is presented for review and approval.
b. Within 270 days of the effective date of this Agreement, WPD shall prepare, for the review by and subject to the approval of DOJ, a plan for including appropriate fields and values of new and historical data into the risk management system (the "Data Input Plan"). The Data Input Plan will identify the data to be included and the means for inputting such data (direct entry or otherwise), the specific fields of information to be included, the past time periods for which information is to be included, the deadlines for inputting the data, and the responsibility for the input of the data. The Data Input Plan will
27

include historical data that is up to date and complete in the risk management system. WPD and DOJ will together seek to ensure that the protocol receives final review and approval within 30 days after it is presented for approval.
c. Within 270 days of the effective date of this Agreement, subject to the review and approval of DOJ, WPD will issue a Request for Proposal (“RFP”) for the design and implementation of the risk management system consistent with this Agreement, or WPD will set forth parameters for its own development and implementation of a risk management system constructed by WPD.
d. Within 360 days of the effective date of this Agreement, or later with the agreement of DOJ, WPD will select the contractor to design and implement the risk management system, or, if WPD has chosen to construct its own risk management system, WPD will contract for all the necessary components for such an in-house risk management system by this time.
e. Within 450 days of the effective date of this Agreement, WPD will have ready for testing a beta version of the risk management system consisting of: (i) any necessary hardware and operating systems, configured and integrated with WPD’s existing automated systems; (ii) any necessary data base software installed and configured; (iii) data structures created, including interfaces to source data; and (iv) the use-of- force information system completed, including historic data. DOJ will have the opportunity to participate in testing the beta version using use-of-force data and test data created specifically for purposes of checking the risk management system.
f. Within 540 days of the effective date of this Agreement, the risk management system will be operational and fully implemented.

Status

Non-compliance - ongoing obligation

Analysis

Given the unfortunate misstep, prior to Chief Merkel’s installation, WPD does not have an effective risk management system. Accordingly, WPD has not met the deadlines set forth in the Settlement Agreement.

Technical We will discuss with WPD a new time frame based on WPD’s recent efforts to Assistance restart the process of creating a risk management system.

8. Prior to implementation of the new risk management system, WPD will continue to use existing databases and resources to the fullest extent possible, to identify patterns of conduct by WPD officers or groups of officers.

Status

Substantial compliance – ongoing obligation

28

Analysis

Though WPD does not have a fully functional risk management system, WPD has utilized the software available to it and data collected in a spreadsheet to emulate a risk management system accessible to WPD’s senior administration. See, e.g., Section IV.B.3, above, regarding the tracking of internal affairs complaints.

Technical Until WPD has a fully function risk management system, WPD should continue its Assistance current practice to identify patterns of conduct by WPD officers or groups of
officers.

9. Following the initial implementation of the risk management system, and as experience and the availability of new technology may warrant, WPD may propose to add, subtract, or modify data tables and fields, modify the list of documents scanned or electronically attached, and add, subtract, or modify standardized reports and queries. WPD shall submit all such proposals for review and approval by DOJ before implementation.

Status

Inapplicable at this time - ongoing obligation

B. Oversight
1. WPD shall develop a protocol for utilizing the risk management system to conduct audits of all WPD officers’ performance and management of risk. Each supervisor charged with conducting audits shall use the protocol. The protocol will establish a regular and fixed schedule to ensure that such audits occur with sufficient frequency, and cover all WPD shifts and units.

Status

Partial-compliance - ongoing obligation

Analysis WPD has recently proposed a formal EIS policy. Heretofore, WPD did not have a protocol as required by the Settlement Agreement.

Technical Assistance

We have offered WPD revisions to the proposed EIS policy. These revisions include the required auditing and managerial review functions as described in paragraph 5, above. Once fully adopted and implemented, these functions should meet the requirements of this Settlement Agreement provision.

29

C. Discipline
1. The Chief of Police shall have just cause to dispense appropriate discipline when he/she determines, based on the outcome of an administrative investigation, that a preponderance of evidence demonstrates that a violation of WPD policy bas occurred.

Status

Statement of a standard; not an obligation unless WPD deviates from standard ongoing obligation

2. WPD will continue to follow the disciplinary process in place in the collective bargaining agreements (“CBAs”). WPD shall ensure that its disciplinary procedures penalize uses of excessive force, improper searches and seizures, discrimination, or dishonesty, and reflect the seriousness of those infractions. WPD will impose appropriate punishment for violations when WPD believes the officer’s misconduct exhibits a lack of fitness for duty. WPD shall submit this revised process for the review and approval of DOJ.

Status

Substantial compliance – ongoing obligation

Analysis

To WPD’s credit, since the implementation of the Settlement Agreement, WPD has actively pursued the imposition of discipline wherein WPD believes it is possessed of just cause for such discipline. At this time, we did not find any concerns regarding WPD’s decisions to impose discipline when WPD sustained findings of alleged misconduct and to defend that discipline in arbitration.
WPD has memorialized the possible punishments for violations of WPD policy, as well as the progressive discipline process. Policy 07-001, Section V.C.17-18.

Technical Assistance

There are pending investigations of allegations of officer misconduct. If proven true by a preponderance of evidence, WPD will be possessed of just cause to impose discipline. We will continue to assess the efficacy of WPD’s disciplinary process as the pending investigations are completed.

3. Absent exceptional circumstances, WPD will take disciplinary corrective action when an appropriate disciplinary matrix indicates that imposition of discipline should take place. In a case where discipline has been imposed on an officer, WPD must also consider whether non-disciplinary corrective action also is required. Whenever discipline is warranted, WPD shall impose discipline within the timeframe permitted by WPD’s CBAs and applicable statute.

30

Status

Substantial compliance – ongoing obligation

Analysis

WPD has actively pursued the imposition of discipline wherein WPD believes it is possessed of just cause for such discipline. WPD has acted timely to impose discipline without permitting the passage of a deadline that would have barred discipline. At this time we agree with the WPD’s determinations to impose discipline when WPD has sustained allegations of officer misconduct.

Technical Assistance

WPD should conduct full internal affairs investigations of all allegations of officer misconduct and continue to impose discipline whenever WPD is possessed of just cause to do so based on a preponderance of evidence. WPD’s imposition of discipline in such cases should not be hindered by the possibility of an arbitrator’s reaction.

VI. Training
A. Management Oversight
1. WPD shall continue to ensure that its use-of-force training complies with applicable laws and WPD policy. WPD may continue to seek technical assistance from DOJ on the content and conduct of WPD’s use-of-force training.

Status

Substantial compliance – ongoing obligation

Analysis

WPD has provided us with its use-of-force PowerPoint presentations that WPD uses to train its officers. This material usefully and accurately highlights key language from the Settlement Agreement and WPD’s revised use-of-force policies regarding when force is constitutionally justified and related issues.

Technical We will observe WPD’s training in the 2014 training cycle to further assess Assistance compliance with this provision.

2. WPD’s director of training shall, consistent with applicable law and WPD policy:
a. ensure the effectiveness of all use-of-force training by implementation of competency-based written examinations covering the use-of-force policies and requiring a minimum passing score of 90% for all WPD officers;
b. develop and implement use-of-force training curricula;
c. select and train WPD officer trainers;

31

d. develop, implement, approve, and oversee all in-service training;
e. in conjunction with the Chief of Police, develop, implement, approve, and oversee a patrol division roll call protocol designed to effectively inform officers of relevant changes in policies and procedures;
f. establish procedures for evaluating all training curricula and procedures; and
g. conduct regular needs assessments to ensure that use-of-force training is responsive to the knowledge, skills, and abilities of the officers being trained.

Status

Partial-compliance - ongoing obligation

Analysis

WPD has developed and implemented a use-of-force training curriculum that includes training on the use of force as well as lethal and less lethal weapons. WPD reports having trained all of its active, sworn officers on its revised use-of-force policies. In 2013, following the training WPD provided to its officers regarding use-of-force policies during the 40-hour training block, WPD required officers to take a 25-question test comprised of True/False and multiple choice questions covering the use-of-force policy, but not the electronic control weapon policy. Supervisors then reviewed the test with officers, who were allowed to correct their answers. Correcting of answers undercuts the 90%-threshold requirement of the Settlement Agreement.
Supervisors currently are providing training and policy updates at various times during roll call. Following our visit to Warren, WPD began, but has not yet completed, further roll call training concerning the standard for justification of use of force.
WPD has not provided us with evidence showing that it has developed a systemic methodology for assessing the efficacy of its training and addressing shortcomings. In fact, our assessment of use-of-force-report reviews indicated that WPD supervisors did not adequately understand legal and policy standards for uses of force. Accordingly, WPD should have been able to identify this deficiency to address it through training.

Technical Assistance

WPD should ensure that it is assessing officers’ retention of all use-of-force information presented during training, including specific blocks of instruction concerning lethal and less lethal weapons. As required by the Settlement Agreement, WPD should ensure that officers pass training exams by answering at least 90% of the questions correctly before officers are allowed to correct their answers. WPD must also institute competency-based examination for WPD’s electronic control weapon policy, too. WPD should ensure that it is tracking such training and documenting which officers receive training, the subjects covered during training, and when the training is received. WPD must also establish procedures for evaluating the effectiveness of training curricula and procedures. In

32

addition, WPD must conduct needs assessments to ensure use-of-force training is responsive to the knowledge, skills, and abilities of the officers being trained. WPD should consider contacting other police departments regarding effective quality assurance mechanisms to help the department evaluate the effectiveness of training.

3. WPD shall provide training consistent with WPD policy, law, and current best police practices, and will ensure that only mandated objectives and approved lesson plans are taught by instructors. WPD policy requires a minimum of 40 hours per calendar year of training for each sworn officer. WPD will continue to ensure that each officer receives training in use of force and other matters for a minimum of 40 hours per calendar year for each sworn officer. WPD will make best efforts to train each work shift as a team in their use-of- force training.

Status

Substantial compliance – ongoing obligation

Analysis

In 2013, WPD provided its officers with the required 40 hours of instruction. Officers also spend two to three hours every six months qualifying with firearms. The previous year, WPD engaged in training regarding traffic stops with the Youngstown Police Department.
WPD plans to continue providing its officers with 40-hour training blocks annually, pursuant to the Settlement Agreement.
We will continue to assess compliance with this provision, including qualifications of training of officers and completed tests, in the 2014 training cycle.

Technical WPD should be sure it offers tailored training that emphasizes areas of expertise in Assistance which officers generally seem to be less informed based on needs assessments.
DOJ also recommends that WPD take advantage of alternative training opportunities, such as those provided online by the Federal Law Enforcement Training Center. FLETC offers a two-week Use of Force Instructor Training Program for a fee. See http://www.fletc.gov/training/programs/enforcementoperations-division/use-of-force-instructor-training-programuofitp/?searchterm=use%20of%20force
Also, WPD must ensure that its new officers and recently reinstated officers have complied with this requirement, as well. No officer should assume or reassume duties without first being trained on WPD’s policy and the constitutional requirements for the use of force and on force reporting requirements.

33

4. WPD will continue to utilize written records of lesson plans and other training materials, and continue to maintain records of training each officer has received.

Status

Partial-compliance - ongoing obligation

Analysis

As noted previously, WPD has provided DOJ with UOF Power Point presentations it uses to train its officers. WPD has not provided DOJ with any additional lesson plans, printed curricula, training records, or other similar documents. DOJ requests that WPD do so.

Technical WPD should ensure that it is tracking when, where, and how officers are trained, Assistance and it should record trainings when feasible.

B. Curriculum
1. The director of training shall review all use-of-force training and use-of-force polices on at least a semi-annual basis to ensure compliance with applicable laws and WPD policy. The director of training shall produce a written record of this review. The director of training will consult with the City’s Law Department on any additions, changes and/or modifications regarding use-of-force training or policies to ensure compliance with applicable law.

Status

Partial-compliance - ongoing obligation

Analysis

WPD has represented that it trained its officers on its use-of-force policy and provided an updated, roll-call training on revised policies. The failure of officers to adequately report the objectively reasonable basis for each separate use of force indicates that further training is necessary. It is our understanding that WPD is engaged in that process now.

Technical We will observe WPD’s training in the 2014 training cycle to further assess Assistance compliance with this provision.

2. WPD shall provide all recruits, officers, supervisors, and managers with training on use of force at least annually. Such training shall include and address the following topics: a. WPD’s use-of-force policy, as described in this Agreement; b. proper use-of- force decision making; c. WPD’s use-of-force reporting requirements;
34

d. the Fourth Amendment and other constitutional requirements;
e. examples of scenarios faced by WPD officers that illustrate proper use-offorce decision making;
f. interactive exercises that emphasize proper use-of-force decision making;
g. de-escalation techniques that encourage officers to make arrests without using force, and instruction that disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, calling in specialized units, or delaying arrest may be the appropriate response to a situation even when the use of force would be legally justified;
h. threat assessment; and
i. appropriate training on conflict management.

Status

Partial-compliance - ongoing obligation

Analysis

As noted previously, in 2013, WPD provided its officers with the required 40 hours of instruction, of which two hours were devoted to newly revised use-of-force policies. WPD instructors spent additional hours on specific lethal and less lethal weapons (one hour per weapon).
As of our September tour, WPD had trained all of its officers on its revised and newly-implemented use-of-force policies.
During our September tour, we provided WPD with several recommendations regarding its use-of-force reporting. Subsequently, WPD developed a document memorializing changes and making clarifications to its use-of-force reporting and reviews. As of October 21, 2013, WPD had trained most of its officers on the revisions.
WPD training in 2013 has also included instruction on crisis intervention and deescalation techniques, and the use-of-force Power Point notes that verbal direction, advice, persuasion, and similar techniques may obviate the need for physical force.
Some WPD training, such as that regarding the ASP baton, included practical, hands-on exercises. Based on the training materials WPD provided to us, however, WPD does not appear to incorporate into its training scenario-based training for alternatives to uses of force, e.g., crisis intervention and de-escalation.

Technical While the Power Point use-of-force presentation WPD provided to us does mention Assistance that verbal direction, advice, persuasion or similar techniques may eliminate the
need for force, we recommend that WPD make this area of training more robust

35

and do more to emphasize such policing tactics. WPD should also ensure that its instruction blocks include threat assessments and appropriate conflict management. WPD should expand its practical, hands-on training to include scenario-based training and interactive exercises that emphasize proper use-of-force decision making, per the Settlement Agreement. To enhance its scenario-based and interactive training regarding proper use-of-force decision making, WPD should consider using or partnering with other police agencies that use police training simulator systems. In addition, while WPD does well to train all officers on crisis intervention, we recommend that it assign certain volunteering officers to a Crisis Intervention Team that receives more extensive training in crisis management and may be called upon to respond when WPD officers are engaging with suspects with mental illness or perceived mental illness.
36

 
 JS:TDM:JRG:TJM DJ 207-57-4

U.S. Department of Justice Civil Rights Division
Special Litigation Section - PHB 950 Pennsylvania Ave, NW Washington DC 20530

January 21,2015
Mr. Greg Hicks Law Director City of Warren, Ohio City Hall 391 Mahoning Ave., N.W. Warren, OH 44483-4634
Re: United States v. City of Warren (4:12-cv-00086), Compliance Assessment
Dear Mr. Hicks:
This letter provides our updated assessment of the City of Warren's compliance with the 2012 Settlement Agreement in the above-captioned action. This letter builds on our December 18, 2013 compliance letter and is based upon: our extensive review of documents, including policies, use of force reports, and internal affairs investigations; conference calls and correspondence with Warren Police Department ("WPD") supervisors and representatives from the City's Law Department; and on-site tours during which we observed training, engaged in ride-alongs with patrol officers, and again spoke with WPD supervisors and Law Department representatives.
We appreciate the collaborative and accommodating spirit evinced by city and police department leaders, administrators, staff members, and officers. Everyone we have interacted with at WPD- from patrol officers up to Chief Erik Merkel- has demonstrated a willingness to effect positive change and a desire to ensure that WPD is a professional police department that promotes constitutional policing. Throughout this compliance process, WPD leadership has been receptive to our feedback and technical assistance. Due in very large part to the leadership and hard work of Chief Merkel and many ofWPD's supervisors and patrol officers, WPD has made significant progress toward achieving compliance with the Settlement Agreement. While much work is left to be done, WPD police officers should be pleased with what they have accomplished.
Since December 2013, when we issued our last compliance assessment, WPD has improved its use-of-force reporting and review process; bolstered its citizen complaint investigation and resolution procedures; and developed and implemented an early intervention system that tracks more data points than the Settlement Agreement requires. However, more work is necessary to ensure that officers have the proper guidance, training, supervision, and oversight to perform their law enforcement responsibilities safely and in accordance with the Constitution and the Settlement Agreement.
1 


As with our December 18, 2013 compliance letter, we are attaching an appendix that lists each paragraph of the Settlement Agreement with which WPD must attain compliance. After each paragraph, we state our finding regarding WPD' s compliance status. "Substantial Compliance" means that the police department is consistently satisfying the requirements of the provision in question; violations are minor or occasional and are not systemic. "Partial Compliance" means that the police department is consistently satisfying some components of the provision or all components of the provision on an intermittent basis; a moderate amount of work remains to achieve substantial compliance. "Non-compliance" means the police department is consistently failing to meet the requirements of the provision in question; significant work remains. Along with each finding, we also include an analysis ofWPD's compliance efforts and, where we thought it would be helpful, we provide technical assistance.
The Settlement Agreement has 47 paragraphs that contain substantive requirements with which WPD must maintain compliance. Currently, we have found WPD to be in substantial compliance with 29 paragraphs, and we have found WPD to be in partial compliance with 18 paragraphs. We made no findings of non-compliance. By comparison, in December of2013, we found WPD to be in substantial compliance with 17 paragraphs; in partial compliance with 18 paragraphs; and non-compliant with 11 paragraphs (we also found one paragraph to be inapplicable at the time). Over the past year, we have seen no shift in the status of27 of the paragraphs with which WPD was in substantial compliance or partial compliance; we have seen WPD shift upward from "non-compliant" to "partial compliance" regarding six paragraphs; WPD has shifted from "partial compliance" to "substantial compliance" regarding another seven paragraphs; and from "non-compliant" to "substantial compliance" regarding five paragraphs. WPD also shifted from "inapplicable at this time" to "substantial compliance" regarding one paragraph.
Unfortunately, we found that WPD slipped from "substantial compliance" to "partial compliance" regarding one paragraph which relates to WPD's complaint policy (Par. IV.B.2). WPD should pay particular attention to this provision as it moves forward in its compliance efforts. In the future, as WPD works to attain substantial compliance regarding the remaining provisions in which it is deficient, it should also aggressively maintain those areas in which it has already achieved substantial compliance. WPD must maintain simultaneous, substantial compliance regarding all 47 provisions for two consecutive years before tl1e City may move to end the Agreement.
We are available to assist WPD as it continues to reform, improve, and modernize its police department. We appreciate your willingness to embrace change and develop new policies and procedures in line with the Settlement Agreement and national policing standards. We will continue to work collaboratively with you, the City, and the police department, and we are optimistic that WPD will continue to progress quickly.
2 


If you have any questions about this letter, please contact me at (202) 305-4039. Sincerely,

cc: Michelle Heyer Assistant United States Attorney for the Northern District of Ohio

Jack Morse Trial Attorney Special Litigation Section

3 


 
 APPENDIX
Warren Police Department
Settlement Agreement Compliance Chart – January 21, 2015
Section II. UOF Policies and Practices.
1. The City shall maintain UOF policies that:
a. define terms clearly;
b. define “force” as that term is defined in this Agreement;
c. incorporate a use-of-force model that relates the force options available to officers to the types of conduct by individuals that would justify the use of such force, and that teaches disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements or calling in specialized units as appropriate responses to a situation, and that requires the use of a verbal warning before the use of force, when possible;
d. state that, whenever possible, individuals should be allowed to submit to arrest before force is used;
e. state that the use of excessive force shall subject officers to discipline, possible criminal prosecution, and/or civil liability;
f. ensure that sufficient less lethal alternatives are available to all patrol officers; and
g. explicitly prohibit the use of choke holds and similar carotid holds except where deadly force is authorized.

Status

Substantial compliance – ongoing obligation – no change from Dec. 2013

Analysis

As noted in our December 18, 2013 compliance chart, WPD’s current use-of-force policies are consistent with the terms of the Settlement Agreement (“Agreement”). See Policies 96-007, Use of Force; 02-003, Electronic Control Weapons (“ECWs”); 12-004, ASP Tactical Baton; 12-003, Oleoresin Capsicum (“OC”) Spray. All were updated in June 2013. Along with other WPD policies, officers maintain copies of these policies in their patrol cars or in their lockers. WPD trained all officers on these policies in 2013. During 2014 in-service training, WPD again trained officers on its use-of-force and weapons policies. WPD’s use-of-force policies include the definitions and other terms required by the Agreement. WPD is in substantial compliance with this provision.

Technical As case law and national best practices in policing continue to develop, it is Assistance incumbent on WPD to continually improve and update its policies to ensure its
policies are consistent with the Constitution, case law, and national policing

1

standards. WPD should move forward with its current plan to update and augment its use-of-force policies, pursuant to our recommendations. Specifically, WPD should develop in consultation with us a new policy regarding the use and deployment of patrol rifles. WPD should amend its weapons policies to direct when officers should reholster a sidearm or ECW, when practicable, before going hands-on with a subject. WPD should also give clear direction on the mandate that all supervisors be aware of any approved personal weapons their officers are actively carrying on any given shift, and audit to ensure officers do not carry unapproved personal weapons on duty.

2. For the duration of this Agreement, WPD shall ensure that its use-of-force policy meets the above criteria. If notified by DOJ that WPD’s policies do not meet the above criteria at any point during the term of this Agreement, WPD shall revise its policies consistent with the above criteria and submit the revised policy to DOJ for approval. DOJ will review and comment on WPD’s revised use-of-force policies. WPD shall further revise its use-of-force policies consistent with the DOJ comments, and WPD shall resubmit the revised policies to DOJ for its consideration for approval. WPD shall not implement any revisions to its use-of-force policies unless approved by DOJ. Once the DOJ has approved these policies, WPD shall immediately implement any revisions. Within thirty days of DOJ’s approval of WPD’s revised use-of-force policies, WPD shall retrain all WPD officers on the revised policies, and shall keep a written record of such training of all existing and new WPD employees as part of each employee’s personnel file.

Status

Substantial compliance – ongoing obligation – no change from Dec. 2013

Analysis

As noted above, WPD’s use-of-force policies currently meet the requirements of the Agreement. Nonetheless, we have recently raised concerns about the deployment of patrol rifles; WPD going hands-on with a weapon drawn; and officers’ use of personal weapons. WPD has chosen to address these concerns, in part, by revising its use-of-force policy, and we commend WPD for doing so.

Technical Assistance

This provision requires that WPD seek DOJ approval before implementing any revisions to its use-of-force policies. As noted above, WPD is planning to augment its use-of-force policies with certain additions we have recommended. WPD should submit drafts of the changes to us for approval and possible revision before promulgating the new policies. Implementation of the approved policies will necessarily require training on the new policies.

3. WPD represents that every uniformed WPD officer is provided an intermediate force weapon. WPD shall continue to provide every uniformed WPD officer with an intermediate force weapon, which all uniformed officers shall carry on their person at all times while on duty and may be used when appropriate under law and policy. WPD has previously selected the telescoping baton as WPD’s current assigned intermediate force

2

device for all sworn officers. WPD may select a different intermediate force weapon, provided that WPD make the selection uniform across all sworn officers. WPD shall incorporate its selected intermediate force weapon into WPD’s force policy, and shall continue to train all its sworn officers on an annual basis on the proper use of the selected intermediate force weapon.

Status

Substantial compliance – ongoing obligation – no change from Dec. 2013

Analysis

All WPD patrol officers are assigned and are required to carry ASP batons and OC spray. In addition, 35 officers are issued ECWs. During roll call, supervisors visually check each patrol officer to ensure that they are carrying their assigned weapons. WPD has in place approved policies for all three of these intermediate weapons. WPD policy requires that all officers be trained on their assigned weapons annually. All officers have been trained on the ASP and OC spray for 2014. In addition, WPD has provided ECW training for those officers assigned an ECW. Accordingly, WPD is currently in substantial compliance with this Agreement provision.

Technical Assistance

Currently, WPD provides ECW training only to those officers who are assigned ECWs. Recognizing that even an officer assigned no ECW may at some point be called upon to operate an ECW belonging to another officer, WPD has elected to provide ECW training to all officers beginning in 2015. WPD has also opted to include ECW training in its annual in-service training beginning in 2015. We approve both of these changes. We will audit training records to ensure that WPD follows through on both changes.

Section III. Evaluation, Documentation, and Review of UOF
1. WPD requires all uses of force to be documented in writing. Each WPD officer involved in a use-of-force incident shall separately complete a use-of-force report, or a separate addendum to the original use-of-force report. Each officer shall indicate on his or her respective report each and every type of force he or she used or was a party to. Each officer involved in a use-of-force incident shall include in his or her report a narrative description of the events preceding the use of force, a description of the force used, and a description of the care given after force was used. All use-of- force reports shall indicate whether or not the subject on whom force is used was restrained or not at the time force was used. WPD shall ensure that WPD officers complete and submit all use-of-force reports within twenty-four hours of the end of the shift on which a use of force occurs.

Status

Partial-compliance - ongoing obligation – change from non-compliance

Analysis DOJ has reviewed all “response to resistance reports,” or use-of-force reports, that WPD has provided to us. In December 2013, we found WPD to be non-compliant

3

with this provision of the Agreement. Not all officers involved in or present during use-of-force incidents were completing use-of-force reports. Not all use-of-force reports explained the justification for the use of force. We now find that patrol officers involved in use-of-force incidents or present at such incidents consistently complete the required reports. In addition, officers consistently state the type of force used and whether the subject was restrained at the time; with very few exceptions, they also submit their reports on time. However, while some officers consistently submit narratives that adequately describe the type of force used and the events preceding the use of force, others fail to do so, resorting to canned jargon and ambiguous terminology that does not adequately describe, for example, exactly how an officer took a subject to the ground. In addition, officers consistently fail to clarify the sequence of events, omitting what commands, if any, they gave to a subject before using force and what actions subjects took in response to officers’ actions.
Overall, however, officers’ reporting has improved, and, thus, we find that WPD is now in partial compliance with this provision of the Agreement.

Technical Assistance

As part of its annual in-service training, WPD includes an instruction block on proper report writing which stresses the need for an officer to describe in detail the actions that the officer as well as the subject took during a use-of-force incident. WPD should continue to include this instruction as part of its in-service training. WPD would benefit from brief segments of retraining on report writing during rollcall throughout the course of the year. While supervisors have generally been more adept at identifying and correcting deficiencies in report writing during the past year, as discussed more thoroughly below in Section III.3, supervisors must be even more vigilant in identifying deficient reports, asking the officers to correct the deficiencies and, where needed, referring the officer for retraining on report writing.

In December 2013, DOJ also noted a technical hurdle that impeded WPD’s efficiency and effectiveness regarding use of force reporting: WPD had in place a process for force reporting that required officers to return to the station to complete a fillable pdf document on a desktop computer. The time spent traveling back and forth to the station to complete the reports hindered officers’ ability to more effectively patrol the streets and provide assistance to other officers. WPD has recently transitioned officers to the BlueTeam software as part of its recently implemented Early Intervention System. With BlueTeam, officers can complete their use-of-force reports on the mobile computers in their patrol cars. This should eliminate the need to make multiple, time-consuming trips back to the station.

2. Officers shall notify their immediate supervisors following all uses of force or upon the receipt of an allegation of excessive force. Upon such notification the immediate supervisor of the involved officer(s) shall promptly respond to the scene, examine the

4

subject for injury, interview the subject, and ensure that the subject receives needed medical attention. When a Sergeant is involved in a use of force or an allegation of excessive force, the Lieutenant on duty shall be the immediate supervisor. The Chief of Police, or his or her designee, shall promptly respond to the scene of any use of deadly force.

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

We have found that officers consistently notify their immediate supervisors after they have resorted to force with a subject, and supervisors, consistent with policy and the terms of this Agreement, have responded to the scene. Supervisors examine and interview the subject and ensure the subject receives medical attention, if needed.
WPD has also ensured that supervisors involved in use-of-force incidents have not then been responsible for investigating the same incidents.

Technical None at this time. Assistance

3. The immediate supervisor shall review, evaluate, and document each use of force in the supervisor’s review section of the use-of-force report including his or her determination of whether or not the officer’s actions were within WPD policy, and whether or not the force used was objectively reasonable. Any officer or supervisor who used force during the incident, or whose conduct led to an injury, or who authorized conduct leading to the use of force or allegation of excessive force, will not be eligible to review the incident.

Status

Partial-compliance - ongoing obligation – change from non-compliance

Analysis

In December 2013, we noted that the supervisory review for use-of-force incidents was consistently deficient. We specifically observed that the WPD Captain in charge of Emergency Services at the time consistently failed to apply the correct legal or policy standards to the use of force reviews and almost never provided any details or analysis in his limited comments. Deficiencies and inconsistencies in officers’ reports and narratives also regularly went unchecked. WPD’s supervisory reviews of use-of-force incidents have improved since then. With few exceptions, reviewing supervisors up the chain of command now evaluate officers’ uses of force according to WPD policy and the “objectively reasonable” standard, taking into account the factors discussed in the Supreme Court case Graham v. Connor, 490 U.S. 386 (1989). WPD also consistently ensures that supervisors involved in a use-of-force incident are not among those supervisors who review the incident.
Now, supervisors often identify and address incomplete reports, inadequate narratives, inconsistencies, and other deficiencies in patrol officers’ reports,

5

requiring the officers to supplement their initial reports with additional information. However, while such supervisory actions now occur more frequently than they did a year ago, supervisors still too often fail to identify and address discrepancies within an officer’s own report or between officers’ reports. Also, supervisors too often fail to identify and address jargon or ambiguous language in officers’ narratives. In addition, supervisors too frequently fail to identify and address incomplete narratives that do not adequately describe the sequence of events or the actions taken by the officer and subject.
While supervisors now consistently and properly assess officers’ uses of force by applying the standard set forth in Graham, we have found that, on several occasions, WPD supervisors have determined uses of force to be reasonable where the circumstances surrounding the incidents and the subjects’ actions documented in the use-of-force reports fail to establish the reasonableness of the use of force. In one instance, an officer kneed a handcuffed subject in the abdomen in order to get him to sit down in a patrol car after the subject refused to do so. (RR # 14-49). In another, an officer who was straddling a subject struck him in the face with his elbow in order to control and handcuff the subject. (RR # 14-64). At the very least, WPD should have flagged such instances for further review.
Overall, however, supervisory reviews have improved. Accordingly, WPD is no longer non-compliant but is in partial compliance with this provision of the Agreement.

Technical Assistance

Where officers’ reports contain insufficient information, include discrepancies, or are otherwise inadequate, supervisors must be more diligent in identifying such inadequacies and directing the officers to supply the missing information by submitting supplemental reports.

In the course of our on-site visits and teleconferences we have reviewed with WPD management and their counsel all use-of-force reports that WPD provided to us. WPD has matured as an organization developing greater strengths in its analysis of force events. We expect WPD management and counsel to internalize the level of scrutiny routinely applied to use-of-force reports in our meetings together. Now, WPD management should assist lieutenants and sergeants in likewise developing such critical analysis. WPD also should set the expectation that supervisors apply that scrutiny to assure force reports present a clear justification for officer’s actions if such justification exists.

WPD supervisors must also more closely scrutinize and assess officers’ actions when resorting to force by more thoroughly evaluating each Graham factor and other relevant information.

We have asked WPD to re-examine certain incidents where the use-of-force narratives failed to establish the reasonableness of the use of force. Depending on the revised reports WPD resubmits to us—i.e., whether there was an objectively

6

reasonable basis for the uses of force in a lawful police interaction—WPD may need to open full Internal Affairs investigations into these incidents.

4. Supervisors shall conduct a review of all uses of force or an injury resulting from a use of force by any officer under their command. As part of this review, supervisors shall interview all witnesses to a use-of-force incident or an injury resulting from a use of force.

Status

Partial-compliance - ongoing obligation – no change since Dec. 2013

Analysis

In December 2013, DOJ found that supervisors failed to reliably identify and interview witnesses to use-of-force incidents. WPD supervisors have greatly improved in this regard and now consistently identify and interview both officer and civilian witnesses to use of force incidents.
However, as discussed above in Section III.3, supervisors do not consistently conduct adequate reviews of use-of-force incidents. Thus, WPD remains in partial compliance regarding this provision of the Agreement.

Technical See comments in Section III.3, above. Assistance

5. Consistent with the requirements of the collective bargaining agreement and/or other applicable authority, supervisors shall ensure that all officer witnesses provide a statement regarding use-of-force incidents. Officers shall not be permitted to see one another’s statements prior to submission of their own statement. Supervisors shall ensure that all use-of-force reports identify all officers who were involved in the incident or were on the scene when it occurred. Supervisors shall ensure that all reports indicate whether an injury occurred, whether medical care was provided, and whether the subject refused medical treatment. Supervisors shall ensure that all reports include contemporaneous photographs or videotapes taken of all injuries at the earliest practicable opportunity, both before and after any treatment. Supervisors shall document their review of the use-offorce report in the supervisor’s review section of every use-of-force report. Supervisors shall record therein their evaluation of the basis for the use of force, a determination of whether the officer’s actions were within WPD policy, and whether the force used was objectively reasonable.

Status

Partial-compliance - ongoing obligation – no change from Dec. 2013

Analysis

WPD supervisors consistently ensure that officers involved in use-of-force incidents, as well as those officers who witness use-of-force incidents, provide written narratives describing the uses of force and the events precipitating the uses of force. Nothing suggests that officers are sharing narratives. Use-of-force reports

7

consistently identify all officers involved in or present at the incident; reports also consistently indicate whether an injury occurred and whether medical care was provided or refused. In addition, WPD now more consistently provides photographs of subjects’ injuries than it did in the past.
As in December 2013, we note again that there is no video available of some useof-force incidents because the relevant mobile video recording device (“MVR”) was inoperable at the time. WPD seems to be repairing these as quickly as it can and is in the process of transitioning to newer MVR models.
In December 2013 we also noted WPD’s failure to provide ECW downloads and photographs of AFIDs when officers deployed their ECWs. Since then, WPD has begun including ECW downloads for all use of force incidents involving ECWs, and investigators take pictures of AFIDs when the environment and situation allows. When it is impractical to do so – e.g., when the AFIDs are concealed by tall grass – supervisors document why AFIDs were not photographed.
As noted in Section III.3, however, we have found that supervisors do not effectively evaluate officers’ use-of-force incidents on a consistent basis. Accordingly, WPD remains in partial compliance with this provision.

Technical Assistance

We have found that while some narratives officers provide as part of their use-offorce reports are lacking sufficient detail, those same officers, in fact, do provide sufficient detail in the incident reports that accompany the use-of-force reports. In such instances, officers – and their supervisors – should ensure that the use-of-force narratives are of the same quality as the incident report narratives.

We also encourage WPD to continue to ensure that as many officers as possible are in patrol cars with operable MVRs. As WPD is aware, recordings of use-of-force incidents not only assist supervisors in their use-of-force investigations but can also protect officers from unfounded allegations of misconduct.

6. The Parties agree that it is improper for WPD personnel conducting reviews of use-offorce incidents to ask officers or other witnesses leading questions that improperly suggest legal justifications for officers’ conduct when such questions are contrary to appropriate law enforcement techniques. In each use-of-force review, WPD shall consider all relevant evidence including circumstantial, direct and physical evidence, as appropriate, and make credibility determinations, if feasible. WPD will make all reasonable efforts to resolve material inconsistencies between witness statements.

Status

Partial-compliance - ongoing obligation – no change since Dec. 2013

Analysis

WPD has improved its collection of material evidence, including pictures and ECW downloads. We have seen use-of-force reviews, however, in which an officer’s account of an incident differed from the account supplied by the subject or another

8

witness and, without explanation, the investigating supervisor has accepted the officer’s version of events. Supervisors have also failed to identify and address material inconsistencies within an officer’s own report and between multiple officers’ reports.

Technical Assistance

When officers or other individuals who have been involved in or who have witnessed a use-of-force incident provide conflicting statements regarding the incident, the investigating supervisor must determine the credibility of each individual’s account and explain why the investigator chose to accept one version of events over another. Supervisors must also resolve any material inconsistencies between statements provided by multiple officers in use-of-force packets. If supervisors gather additional information from officers, they should require the officers to submit supplemental reports. WPD must then maintain both the original record and supplement as part of the force review.

7. For each use-of-force incident, a WPD Captain will timely evaluate each use of-force review supervisors conducted for such incident, identify any deficiencies in those reviews, and require supervisors to timely correct any deficiencies. WPD shall hold supervisors accountable for the quality of their reviews. WPD shall take appropriate nondisciplinary corrective action and/or disciplinary action whenever a supervisor fails to conduct a timely and thorough review of a use of force, or neglects to recommend appropriate corrective action, or neglects to properly implement appropriate corrective action.

Status

Partial-compliance - ongoing obligation – change from non-compliant

Analysis

The evaluations conducted by WPD captains have improved since December 2013. Currently, WPD captains more frequently identify deficiencies in use-of-force packets and require their subordinates to make the requisite changes. However, as noted above in Section III.3, WPD captains, like other reviewing supervisors, still too often fail to identify and address deficiencies and discrepancies between multiple accounts that are included within the use-of-force packets.
Overall, however, these reviews have improved. Notably, we consistently find captains analyzing use-of-force incidents under the appropriate standard. Accordingly, we find that WPD is no longer non-compliant but is in partial compliance with this provision of the Agreement.

Technical WPD captains should more diligently identify and address deficiencies and Assistance discrepancies in use-of-force packets. See comments in Section III.3, above.

IV. Citizen Complaint Process. A. Public Information

9

1. WPD has developed and implemented a program to inform persons that they may file complaints regarding the performance of any officer. The complaint form is presently available at www.warren.org, the City’s website. The City also presently makes complaint forms and directions for submitting complaints publicly available at all governmental properties. The City has proceeded to make the public aware of the complaint form process. During the performance of this Agreement, WPD shall continue to make complaint forms, directions on submitting complaints, and informational materials publically available at government properties including, but not limited to: WPD headquarters, all City public libraries, the Office of the Director of Public Safety, the Internet, and, upon request, to community groups and community centers.

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

WPD’s complaint form has been available online and elsewhere throughout the community for some time. WPD recently updated and improved its complaint form by adding a contact number people can call if they need assistance completing the form as well as a “What Happens Next” section at the end of the form. The section helps explain the complaint process and outlines other resources available to individuals who are dissatisfied with the complaint process. Complaint forms are currently available at the Warren Police Department; city hall; the Urban League; and at other locations throughout Warren.
We commend WPD for recently improving its complaint form and for continuing to make it available to members of the community in a variety of locations.

Technical None at this time. Assistance

2. Within 30 days of the effective date of this agreement, WPD shall permanently post in a public space at WPD headquarters a placard describing the complaint process and include the relevant phone numbers. WPD shall require all officers to carry informational brochures and complaint forms in their official vehicles at all times while on duty. If a citizen objects to an officer’s conduct, that officer will inform the citizen of his or her right to make a complaint. Officers shall not discourage any person from making a complaint.

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

WPD continues to maintain a placard at the police department, visible to visitors, that includes relevant contact numbers and describes the complaint process. In addition, all officers carry complaint forms in their patrol cars while on duty. Officers have been trained to avoid discouraging complaints and, when needed, to

10

inform citizens of the right to make a complaint.

Technical None at this time. Assistance

B. Means of Filing and Tracking of Complaints
1. WPD shall continue to maintain clear complaint acceptance and complaint resolution policies and procedures. WPD shall ensure that all officers are trained in acceptance of complaints. Training on the complaint acceptance policy and procedure will be a part of in-services to all officers at the implementation of this Agreement.

Status

Substantial compliance - ongoing obligation – change from partial compliance

Analysis

WPD maintains a policy that clearly describes the complaint process (Policy 07001). WPD has trained all officers on the proper procedure to accept complaints, and WPD continues to include a four-hour block of instruction on the complaint policy as part of its annual in-service training. In December 2013, DOJ found WPD to be partially compliant with this provision of the Agreement because WPD at times failed to investigate all officers identified by complainants and because WPD did not consistently inform complainants of the outcomes of their complaints. We now find that WPD has remedied these substantial deficiencies. Accordingly, WPD is in substantial compliance with this provision.

Technical None at this time. Assistance

2. The complaint-acceptance policy shall specify that WPD shall accept complaints in writing or verbally, in person or by mail, telephone (or TDD), facsimile, electronic mail, or drop box. The policy shall require that all WPD employees accept complaints and promptly deliver them to a supervisor. The policy shall state that an employee accepting a complaint may describe facts that bear upon a complainant’s demeanor and physical condition but may not express opinions regarding his/her mental competency or veracity. The complaint-resolution policy shall require that WPD resolve each complaint in writing.

Status

Partial compliance – ongoing obligation – change from substantial compliance

Analysis

As noted in 2013, the complaint policy lacks clarity on how WPD uses the outcome of allegations that do not rise to the level of internal affairs investigations. Policy 07-001, Section V.C.2. We now also note that WPD’s complaint policy fails to state that an employee accepting a complaint may not express opinions regarding a complainant’s mental capacity or veracity. Because WPD failed to address the first

11

deficiencies and because of our recent discovery of the second deficiency, we now find WPD to be in partial, rather than substantial, compliance with this provision.

Technical Assistance

In practice, WPD has routed all complaints to internal affairs, even though the policy allows for the turn or division commander to conduct the investigation. WPD should revise its policy to state that all complaints will be routed to internal affairs; in the alternative, WPD should revise its policy to state that allegations which do not rise to the level of an internal affairs complaint nevertheless require a written resolution for the officer(s) and complainant(s).

WPD should also revise its policy to note that an employee accepting a complaint may not express opinions regarding a complainant’s mental capacity or veracity.

3. WPD shall refer copies of allegations of misconduct against WPD to WPD’s Internal Affairs Unit (“IA”) within three business days of receipt of a complaint. Within 90 days of the effective date of this Agreement, WPD shall institute a centralized numbering and tracking system for all complaints. Immediately upon receipt of a complaint, WPD shall assign each complaint a unique identifier, which WPD shall provide to the complainant. WPD shall track in a database each complaint according to the basis for the complaint (e.g., excessive force, discourtesy, improper search, etc.).

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis WPD is in substantial compliance with this provision of the Agreement.

Technical Assistance

In December 2013, we recommended that WPD make its policy clear that the WPD supervisor advised of a complaint must ensure that he or she provides all the complaint material to internal affairs as quickly as practicable, but in no event longer than 72 hours. We renew this recommendation.

C. Investigation of Complaints 1. WPD shall investigate every complaint of employee misconduct.

Status

Partial-compliance - ongoing obligation – no change since Dec. 2013

Analysis

In December 2013, we noted that for certain complaints involving multiple officers, WPD did not investigate each officer that was a subject of the complaint. WPD now consistently investigates all officers that are the subjects of complaints. In December 2013 we also noted that WPD failed to investigate all potential violations of policy raised by the complainants. Again, WPD now consistently addresses all potential policy violations that potentially arise from misconduct

12

allegations.
Based on the information provided to DOJ, it appears that WPD investigated every complaint of employee misconduct it received during the past year. However, as discussed previously with WPD, we note that on one occasion the investigating officer told the complainant – who had called WPD to make a complaint – that she could come to police headquarters to make her complaint. As made clear in this Agreement and WPD policy, whether WPD accepts and resolves a complaint must not depend on the manner in which an individual makes a complaint. In addition, as required by the Agreement and WPD policy, a WPD police officer must not discourage an individual from filing a complaint. In this instance, the complainant, indeed, did go to the police station and fill out several complaint forms. WPD investigated the allegations, finding two of them to be exonerated and one to be unfounded. Even if this complainant had not driven to the WPD police station and had not filled out a complaint form, however, WPD nonetheless would have been required to accept and resolve her verbal complaint.
We have been informed that the City recently settled a civil complaint resolving allegations against WPD officers. It is further our understanding that WPD did not reach an administrative finding during the pendency of the civil claim. WPD may not avoid its court-ordered obligation to investigate complaints of employee misconduct merely because a parallel civil litigation is pending. Rather, WPD must timely complete internal affairs investigations for the sake of the effective administration of policing operations and compliance with the Agreement. For all complaints of employee misconduct WPD receives, including complaints of which WPD is made aware through the process of civil litigation, WPD must timely complete investigations, reach findings, and inform the complainants of the outcomes.
We understand that WPD will now investigate the complaint related to the civil lawsuit mentioned above. We commend WPD for doing so. However, because WPD failed to initiate an administrative investigation into this complaint of its own accord – and because it had no intention of doing so until prompted by DOJ – WPD remains in partial compliance with this provision.

Technical Assistance

As required by the Agreement and WPD policy, WPD must accept and resolve all complaints whether they are submitted in writing or verbally, and whether they are submitted in person or via phone, mail, fax, email, or drop box. WPD must do so and must continue to do so to come into full compliance and maintain full compliance with the Agreement.

WPD must also investigate every complaint of employee misconduct, regardless of the manner in which WPD is made aware of the complaint, and regardless of whether parallel civil litigation is pending. WPD should change its citizen complaint policy to make clear that WPD will investigate all complaints of

13

employee misconduct, including those complaints filed in a civil action.

2. WPD shall explicitly prohibit from investigating an incident any officer involved in that incident.

Status

Partial compliance - ongoing obligation – no change since Dec. 2013

Analysis

WPD’s citizen complaint policy does not include this explicit prohibition. In practice, WPD has not assigned an officer to investigate an internal affairs complaint if that same officer was involved in the underlying incident. WPD must add the explicit prohibition to its policy, however, to achieve substantial compliance with this provision.

Technical WPD should revise its policy consistent with this Settlement Agreement provision. Assistance

3. WPD shall complete all investigations of officer misconduct within 40 days of the earlier of WPD’s receipt of a complaint or WPD’s discovery of alleged officer misconduct, unless the Chief of Police extends that deadline in writing at the written request of the assigned investigator. The Chief of Police may permit only one extension at a time of no more than 30 days per extension, and shall not permit more than a maximum of two possible extensions. The Chief of Police shall record, as part of the investigative file for the incident, his or her basis for granting or denying the request for extension. WPD shall provide written notice to the complainant of any extensions.

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

WPD’s IA investigations typically range from around 10 to around 25 days. One recent investigation actually took 43 days, though we realize this is an aberration – and the investigating officer noted that it was due to an oversight. However, as noted in our analysis in Section IV.C.1, WPD has only recently begun an IA investigation into the allegations underlying a civil lawsuit Warren recently settled. We remind WPD that WPD must commence an investigation after WPD receives a complaint or discovers alleged officer misconduct – regardless of the manner in which WPD learns of the allegation. In addition, before an investigation exceeds the 40-day mark, the investigator must receive written permission from the Chief. Because we have found that WPD has consistently completed its investigations into officer misconduct within the allotted 40 days, we find that WPD remains in substantial compliance with this provision.
We also note that, in the past, some IA investigations have been prolonged because the matters were referred to Ohio’s Bureau of Criminal Investigation (“BCI”) and

14

WPD awaited the conclusion of the BCI investigation before proceeding with the IA investigation. WPD now conducts its IA investigations concurrently with the BCI criminal investigations, and thus now avoids such delays.

Technical WPD should ensure that internal affairs begins investigations promptly upon Assistance receipt of an allegation and that it obtains the required written extensions whenever
investigations take longer than 40 days.

4. Within 90 days of the effective date of this agreement, WPD shall adopt a single policy concerning the investigation of misconduct complaints, regardless of whether the investigation is conducted by IA or a chain-of- command supervisor. WPD shall apply a preponderance of the evidence standard to the evaluation of all allegations contained in a complaint or collateral misconduct discovered during the course of investigating a complaint.

Status

Substantial compliance – ongoing obligation – change from partial compliance

Analysis

WPD has adopted a single policy concerning the categorization and investigation of complaints (Policy 07-001). Though its policy allows a chain-of-command supervisor to conduct complaint investigations, in practice, WPD conducts a full internal affairs investigation into all complaints. WPD also applies a preponderance of the evidence standard when making its investigative findings.
In December 2013, we noted that WPD failed to reliably identify and investigate collateral misconduct that arose in the investigation of a complaint. We now find that WPD consistently does so.

Technical Assistance

As we noted above and in December 2013, if WPD policy is to allow for complaints to be directed to an officer’s chain of command for investigation, WPD should make clear in its policy that chain-of-command investigations are subject to the same tracking, findings, and notification requirements as internal affairs investigations.

5. The personnel participating in IA have presently been trained on the factors to consider when evaluating complainant or witness creditability, examination and interrogation of accused officers and other witnesses; identifying misconduct even if it is not specifically named in the complaint; and using the preponderance of the evidence standard as the appropriate burden of proof.

Status

Substantial-compliance - ongoing obligation – no change since Dec. 2013

Analysis As we noted in December 2013, WPD’s principle internal affairs investigator has taken training on the conduct of internal affairs investigations. He displays the

15

certificate of training form the Ohio Peace Officer Training Academy in his office.

Technical We continue to encourage all WPD IA investigators to engage in continuing Assistance education courses regarding the proper execution of IA investigations.

6. IA or chain-of-command investigators assigned to the investigation of complaints shall interview all witnesses to the incident who are capable of being identified through the exercise of reasonably diligent investigation. All interviews of WPD employees regarding the incident shall be recorded (audio or video). All interviews of non-WPD employees regarding the incident shall be recorded (audio or video), unless the interviewee specifically requests not to be recorded. If an interviewee requests not to be recorded, WPD shall secure a written declination of recording executed by the interviewee. An interviewee’s refusal to have an interview recorded will not relieve WPD of its obligation to interview all witnesses to an incident giving rise to a complaint. Consistent with the requirements of the collective bargaining agreement and/or other applicable authority, the assigned investigators shall ensure that all officer witnesses provide a statement regarding the incident. Officers shall not be permitted to see one another’s statements prior to submission of their own statement. For all allegations involving injury to a person, the assigned investigator shall obtain contemporaneous photographs or videotapes of all injuries at the earliest practicable opportunity, both before and after any treatment, including cleansing of wounds.

Status

Partial-compliance - ongoing obligation – change from non-compliance

Analysis

In December 2013, we noted that most of the internal affairs investigations we reviewed did not include separate interviews of the complainants. Rather, at the time, WPD relied upon the complainants’ statements in their submitted complaint forms. To its credit, WPD now consistently supplements the information provided in the complaint with information gleaned from recorded interviews with the complainants. Indeed, it seems that WPD’s IA investigator has spent much time tracking down complainants, placing multiple phone calls, repeatedly leaving voicemails, knocking on doors, and leaving business cards.
However, WPD still fails to consistently interview all witnesses – whether civilians or other police officers – who may have witnessed an event that is the subject of a complaint. If there are reasons why a potential witness was not interviewed – e.g., an investigator was unable to locate the witness despite good faith efforts to do so, or a video recording of the incident makes additional information unnecessary – the investigation packet should note this information.
For allegations involving injury to a person, the IA investigator consistently obtained the relevant photographs.
Because WPD now consistently interviews complainants rather than merely relying

16

on their initial complaint forms, WPD is no longer non-compliant with this provision. We find WPD is only partially compliant, however, because WPD still fails to consistently interview or attempt to interview all relevant witnesses.

Technical Assistance

While we understand that WPD records interviews of all police officers as well as interviews of civilian complainants and witnesses – unless they object to the recording – it is unclear from the investigative packet that this is taking place. As previously discussed with WPD, WPD should note in the investigative packet which interviews have been recorded and any complainant or witness interviews that are not recorded owing to the interviewee’s objections.

7. In each misconduct investigation, WPD shall consider all relevant evidence including circumstantial, direct and physical evidence, as appropriate, and make credibility determinations, if feasible. WPD specifically shall not give an automatic preference for an officer’s statement over a non-officer’s statement, nor will WPD disregard a witness’ statement merely because the witness has some connection to the complainant. WPD will make efforts to resolve material inconsistencies between witness statements.

Status

Partial-compliance - ongoing obligation – change from non-compliance

Analysis

In December 2013, we found WPD to be non-compliant with this provision because WPD failed to routinely interview civilian complainants. Accordingly, we noted, WPD was effectively giving more weight to officers’ statements. Now, we find that WPD consistently interviews complainants. In addition, while we find that WPD still fails to interview all witnesses, WPD seems just as likely to fail to interview officer witnesses as civilian witnesses, thus indicating no bias towards officers’ statements. Nothing suggests that WPD is not considering other evidence and making the relevant credibility determinations.
Nevertheless, because WPD still fails to consistently interview all relevant witnesses, as noted in Section IV.C.6, WPD fails to consider all relevant evidence and still falls short of substantial compliance with this provision. We now find WPD to be in partial compliance.

Technical To come into compliance, WPD must consistently interview or make a good faith Assistance effort to attempt to interview all identifiable witnesses.

8. During a misconduct investigation, WPD will continue to investigate all relevant police activity, including each use of force (i.e., not just the type of force complained about). The investigation shall also evaluate any searches or seizures that occurred during the incident. WPD shall not close an investigation simply because the complaint is withdrawn or the alleged victim is unwilling or unable to provide

17

medical records or proof of injury or the complainant will not provide additional statements or written statements; rather, WPD shall continue its investigation as necessary to determine whether the original allegation(s) can be resolved based on the information, evidence, and investigatory procedures and techniques available. In each investigation, the fact that a complainant pled guilty or was found guilty of an offense will not be considered as evidence of whether a WPD officer used or did not use a type of force, nor will it justify discontinuing the investigation.

Status

Substantial-compliance - ongoing obligation – change from partial compliance

Analysis

In December 2013, we found WPD to be in partial compliance regarding this provision because we found that WPD did not consistently identify and address collateral misconduct or allegations raised against all officers. We now find that WPD consistently does so.
We have also determined that WPD does not close investigations if complaints are withdrawn or if the complainant is uncooperative. WPD also completed investigations without regard to whether the complainant pled guilty to an underlying charge.
Thus, we now find WPD to be in substantial compliance with this provision.

Technical None at this time. Assistance

9. For each allegation, the assigned investigator shall make a written recommended determination to the Division Commander as to whether: (1) the police action was in compliance with policy, training and legal standards regardless of whether the complainant suffered harm; (2) the incident involved misconduct by any officer; (3) the use of different tactics should or could have been employed; (4) the incident indicates a need for additional training, counseling or other non-disciplinary corrective measures; and (5) the incident suggests that WPD should revise its policies, training, or tactics. WPD shall ensure that assigned investigators’ reports contain a written recommended determination on each of these elements.

Status

Partial-compliance - ongoing obligation – no change from December 2013

Analysis

While the information required in this provision may be generally gleaned from the completed internal affairs investigative packets, investigators fail to specifically provide the written recommendations this provision requires.

Technical When completing the final internal affairs memo that details the findings of the Assistance investigation, the assigned investigator must include, as part of the conclusion or
elsewhere in the document, a segment that makes specific recommendations

18

regarding each of the five subject areas addressed in this provision. Each recommendation must be supported by sufficient facts and analysis to support the recommendation.

10. The misconduct-investigation policy shall require that WPD reach a separate investigative finding for each allegation. WPD shall ensure that a separate recommended investigative finding is reached and recorded in the assigned investigator’s report for each allegation of employee misconduct. Each allegation in an investigation shall be resolved by making one of the following investigative findings:
a. “Unfounded,” where the investigation determines, by a preponderance of the evidence, that no facts to support that the incident complained of actually occurred;
b. “Sustained,” where the investigation determines, by a preponderance of the evidence, that the person’s allegation is supported by sufficient evidence to determine that the incident occurred and the actions of the officer were improper;
c. “Inconclusive,” where the investigation determines, by a preponderance of the evidence, that there are insufficient facts to decide whether the alleged misconduct occurred; and
d. “Exonerated,” where the investigation determines, by a preponderance of the evidence, that the alleged conduct did occur but did not violate WPD policies, procedures, or training.

Status

Partial compliance - ongoing obligation – no change from Dec. 2013

Analysis

In December 2013, we found that WPD’s failure to investigate all allegations against all identifiable officers prevented a finding of substantial compliance with this provision. As noted above in Section IV.C.1, WPD failed to initiate an administrative investigation into a matter that was the subject of a civil lawsuit against WPD officers, and WPD policy does not require it to do so. Accordingly, WPD remains in partial compliance with this provision.

Technical Assistance

WPD must investigate all allegations against WPD officers and make findings in each case according to this provision. This requirement applies to all allegations, including those that are the subject of a civil action against WPD. WPD policy should reflect this requirement.

11. IA shall track and monitor chain-of-command investigations to ensure timely and thorough completion of investigations.

19

Status

Substantial-compliance - ongoing obligation – no change since December 2013

Analysis

As noted in December 2013, WPD subjects even minor complaints to full internal affairs investigations. WPD has not had any chain-of-command investigations, therefore, that have been untimely or which internal affairs did not track.

Technical None at this time. Assistance

12. Within one week of completion of the IA’s review of the investigative file, the Captain in command of the personnel at issue shall, in writing, either accept or reject the recommended findings, or return the investigative report for further IA investigation, and shall set forth, in the investigative file, his or her basis for doing so unless referred to the Chief of Police for further action.

Status

Partial-compliance - ongoing obligation – no change since December 2013

Analysis

In December 2013, we noted that the Captain in charge of the Emergency Services Division consistently failed to include within the investigative file a written acceptance or rejection of the internal affairs findings. Since then, a new Captain has assumed command of the Emergency Services Division, and she consistently provides a written evaluation of the recommended findings in compliance with this provision. However, other supervisors are consistently failing to do this.

Technical Assistance

WPD must ensure that each Captain or acting Captain in the chain of command for subject officers either timely returns the investigative report for further investigation or accepts or rejects, in writing, the investigator’s recommended findings. In addition, in accordance with this provision, the Captain must provide the basis for his or her action.

13. WPD shall keep all non-anonymous complainants informed periodically regarding the status of the complaint investigation. Within one week of the completion of the investigation, WPD shall notify, in writing, all non-anonymous complainants of the investigation’s outcome, including an appropriate statement regarding whether any non-disciplinary corrective action or disciplinary action was taken.

Status

Substantial-compliance - ongoing obligation – change from non-compliance

Analysis In December 2013, we noted that WPD had failed to provide written responses to all non-anonymous complainants. We now find that WPD does so.

Technical None at this time.

20

Assistance

14. Subject to the protection against self incrimination in criminal proceedings for statements compelled consistent with Garrity v. New Jersey, 385 U,S. 493 (1967), but without withholding non-compelled statements or compelled statements that may be used in a criminal proceeding against a person other than the compelled witness, WPD shall make a written referral of all allegations of criminal misconduct by WPD employees to the City, County, or Federal Prosecuting Attorney or other appropriate agency for possible criminal prosecution, pursuant to that prosecutor’s own prosecutorial discretion, as soon as allegations of criminal conduct are reported to IA or are uncovered by the assigned investigator. WPD shall ensure the referral of all allegations of criminal conduct by WPD employees to the appropriate criminal prosecutor within one day of WPD’s discovery of those allegations of criminal conduct. The misconduct-investigation policy shall continue to require the completion of an administrative investigation irrespective of the initiation or outcome of criminal proceedings, with the appropriate coordination with the criminal matter.

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

The internal affairs files provided to us demonstrate that WPD consistently provides written Garrity notices to subject officers. In addition, WPD consistently refers allegations of potentially criminal conduct to BCI.
Accordingly, WPD remains in substantial compliance with this provision.

Technical None at this time. Assistance

V. Management and Supervision
A. Risk Management System
1. Within 150 days of the effective date of this Agreement, WPD shall develop and implement an early intervention system, i.e., a risk management system, to include either a computerized relational database or paper system for maintaining, integrating, and retrieving information necessary for supervision and management of WPD. WPD will regularly use this data to promote civil rights and best police practices; to manage risk and liability; and to evaluate the performance of WPD officers across all ranks, units, and shifts.

Status

Substantial compliance - ongoing obligation – change from non-compliance

Analysis In December 2013, we found WPD to be non-compliant regarding this provision because WPD had begun putting into place an Early Intervention System (“EIS”)

21

that did not comport with the requirements of the Agreement. WPD has made tremendous progress since then. WPD has now developed a computerized EIS database using a customized version of the IAPro software that effectively allows WPD to maintain information needed to assess, supervise, and manage WPD’s officers. WPD has also incorporated the use of IAPro’s BlueTeam software, which allows officers to enter use-of-force reports and other information from their patrol cars. With the assistance of DOJ’s expert consultant, WPD has also developed an EIS policy that details how WPD is to use its EIS to manage risk and liability and evaluate officer performance. All patrol officers and supervisors have now been trained on the EIS.
The EIS is now live and is tracking the requisite domains for each officer. The system already includes data points from the previous 12 months. Once an officer triggers an alert, as outlined in WPD’s EIS policy, WPD’s IA investigator will notify the officer’s commander and begin an evaluation.
WPD has made significant improvements regarding EIS, and we now find WPD to be in substantial compliance with this provision. We commend WPD, specifically the Lieutenant charged with the responsibility of establishing EIS, for their laudatory effort to bring EIS to fruition.
Technical Going forward, we will monitor WPD’s new EIS to assess its efficacy and provide Assistance technical assistance to adapt EIS to lessons learned during its implementation.
2. The risk management system shall collect and record the following information for each officer:
a. all uses of force;
b. the number of canisters of chemical spray used by officers;
c. all discharges of conductive energy devices;
d. all injuries to prisoners;
e. all instances in which force is used and a subject is charged with "resisting arrest," "assault on a police officer," "disorderly conduct," or "obstruction of official business";
f. all firearm discharges, both on- and off-duty, including unintentional discharges, but excluding discharges in planned training exercises or hunting;
g. all complaints (and their dispositions);
h. all criminal proceedings initiated, as well as all civil or administrative claims filed with, and all civil lawsuits served upon, the City and its officers, or agents, resulting from WPD operations or the actions of WPD officers;
22

i. all incidents involving the pointing of a firearm at a person (if any such reporting is required);
j. all discipline and non-disciplinary corrective action taken against officers; and
k. all positive personnel reviews, commendations, awards, etc.;

Status

Substantial compliance – ongoing obligation – change from non-compliance

Analysis

In December 2013, we found WPD to be non-compliant with this portion of the Agreement because the EIS WPD was putting into place did not track all of the data points itemized in this provision. WPD has now configured its EIS to track all of this information in addition to chronic absenteeism. Thus, we now find WPD to be in substantial compliance with this provision.

Technical None at this time. Assistance

3. The risk management system shall include, for the incidents included in the database, appropriate identifying information for each involved officer (e. g., name, badge number, shift and supervisor) and civilian (e.g., race, ethnicity or national origin, if available).

Status

Substantial compliance - ongoing obligation – change from non-compliance

Analysis

As set forth in this provision and in WPD’s new EIS policy, WPD includes the appropriate identifying information for both officers and civilians. Thus we now find WPD to be in substantial compliance with this provision.

Technical None at this time. Assistance

4. Within 210 days of the effective date of this Agreement, WPD shall prepare a protocol for using the risk management system.

Status

Substantial compliance - ongoing obligation – change from partial compliance

Analysis

WPD has recently finalized and distributed an EIS policy that incorporates edits from DOJ and comports with the requirements of this Agreement. Accordingly, we now find WPD to be in substantial compliance with this provision.

Technical None at this time. Assistance

23

5. At a minimum, the protocol for using the risk management system shall include the following provisions and elements:
a. The protocol is comprised of the following components: data storage, data retrieval, reporting, data analysis, pattern identification, supervisory assessment, supervisory intervention, documentation and audit.
b. The protocol will require the risk management system to analyze the data according to the following criteria: (i) number of incidents for each data category by individual officer and by all officers in a unit; (ii) average level of activity for each data category by individual officer and by all officers in a unit; and (iii) identification of patterns of activity for each data category by individual officer and by officers in a unit.
c. The protocol will require the system to generate reports on a monthly basis describing the data and data analysis and identifying individual and unit patterns.
d. The protocol will require that WPD Captains, Lieutenants, and supervisors review, on a regular basis but not less than quarterly, system reports, and evaluate individual officer, supervisor, and unit activity.
e. The protocol will require that WPD Captains, Lieutenants, and supervisors initiate intervention for individual officers, supervisors and for units based on appropriate activity and pattern assessment of the information contained in the risk management system.
f. The protocol will require that intervention options include discussion by Captains, Lieutenants, supervisors, and officers; counseling; training; and supervised, monitored, and documented action plans and strategies designed to correct inappropriate activity.
g. The protocol will specify that actions taken as a result of information from the risk management system be based on all relevant and appropriate information, including the nature of the officer’s assignment, crime trends and crime problems, and not solely on the number or percentages of incidents in any category of information recorded in the risk management system.
h. The protocol will require that WPD Captains, Lieutenants, and supervisors promptly review the risk management system records of all officers recently transferred to their sections and units.
i. The protocol will require that WPD Captains, Lieutenants, and supervisors be evaluated on their ability to use the risk management system to enhance effectiveness and reduce risk.
j. The protocol will require that the risk management system be managed and administered by IA. IA will conduct quarterly audits of the risk management
24

system to ensure that analysis and intervention are taken according to the process described above.
k. The protocol will require regular reviews, at no less than quarterly intervals, by appropriate managers of all relevant risk management system information to evaluate officer performance citywide, and to evaluate and make appropriate comparisons regarding the performance of all WPD units in order to identify any significant patterns or series of incidents.

Status

Substantial compliance - ongoing obligation – change from partial compliance

Analysis

As noted in Section V.A.4 above, WPD has recently promulgated a revised EIS policy. This policy incorporates the above requirements and is a tremendous improvement upon the draft policy EIS had in December 2013.
Additionally, WPD dedicated time and resources to working with our expert consultant to develop a protocol for the EIS administrator to use the system to identify outliers based on a quarterly analysis.
Accordingly, WPD is now in substantial compliance with this provision.

Technical None at this time. Assistance

6. WPD shall maintain all personally identifiable information about an officer included in the risk management system during the officer’s employment with WPD for at least five years. Information necessary for aggregate statistical analysis will be maintained indefinitely in the risk management system. WPD shall enter information into the risk management system in a timely, accurate, and complete manner, and maintain the data in a secure and confidential manner. WPD shall input new or changed information, if any new or changed information addressing the aforementioned risk management categories exists, at least on a monthly basis, if not sooner, subject to the confidentiality provisions of Section 149.43 of Ohio Revised Code and current collective bargaining agreements.

Status

Partial compliance – ongoing obligation – change from non-compliance

Analysis

In December 2013, we noted that WPD had not yet established its EIS and WPD was thus out of compliance with this provision. While now active and tracking the requisite domains for each officer, WPD’s EIS is in its infancy, and it is too early to tell whether WPD will meet some of the requirements in this provision. We do note, however, that though the system went live only recently, it includes data points for officers spanning the past year. WPD is also currently entering data in a manner consistent with this provision. Officers’ EIS files are kept separately from

25

their personnel files, so WPD can more effectively keep the information confidential.
Technical Though this Agreement does not require WPD to memorialize the requirements of Assistance this provision in writing, WPD should considering doing so in WPD’s EIS policy,
EIS manual, or elsewhere.
7. WPD shall either purchase the risk management system off-the-shelf (and customize the system, if necessary to meet the requirements of this agreement), or WPD may develop and implement its own risk management system. In either case, WPD shall adhere to the following schedule:
a. Within 210 days of the effective date of this Agreement, WPD will submit a protocol for using a risk management system to DOJ for review and approval. WPD will share drafts of this document with DOJ to allow DOJ to become familiar with the document as it develops and to provide informal comments on it. WPD and DOJ will together seek to ensure that the protocol receives final approval within 30 days after it is presented for review and approval.
b. Within 270 days of the effective date of this Agreement, WPD shall prepare, for the review by and subject to the approval of DOJ, a plan for including appropriate fields and values of new and historical data into the risk management system (the "Data Input Plan"). The Data Input Plan will identify the data to be included and the means for inputting such data (direct entry or otherwise), the specific fields of information to be included, the past time periods for which information is to be included, the deadlines for inputting the data, and the responsibility for the input of the data. The Data Input Plan will include historical data that is up to date and complete in the risk management system. WPD and DOJ will together seek to ensure that the protocol receives final review and approval within 30 days after it is presented for approval.
c. Within 270 days of the effective date of this Agreement, subject to the review and approval of DOJ, WPD will issue a Request for Proposal (“RFP”) for the design and implementation of the risk management system consistent with this Agreement, or WPD will set forth parameters for its own development and implementation of a risk management system constructed by WPD.
d. Within 360 days of the effective date of this Agreement, or later with the agreement of DOJ, WPD will select the contractor to design and implement the risk management system, or, if WPD has chosen to construct its own risk management system, WPD will contract for all the necessary components for such an in-house risk management system by this time.
e. Within 450 days of the effective date of this Agreement, WPD will have ready for testing a beta version of the risk management system consisting of: (i) any necessary hardware and operating systems, configured and integrated with
26

WPD’s existing automated systems; (ii) any necessary data base software installed and configured; (iii) data structures created, including interfaces to source data; and (iv) the use-of- force information system completed, including historic data. DOJ will have the opportunity to participate in testing the beta version using use-of-force data and test data created specifically for purposes of checking the risk management system.
f. Within 540 days of the effective date of this Agreement, the risk management system will be operational and fully implemented.

Status

Substantial compliance - ongoing obligation – change from non-compliance

Analysis

In December 2013, we found WPD to be out of compliance with this provision because WPD did not yet have in place an effective EIS. Now, WPD has promulgated a satisfactory EIS policy and its EIS, which tracks the domains required by this Agreement, is active. Thus, we now find WPD to be in substantial compliance with this provision.

Technical None at this time. Assistance

8. Prior to implementation of the new risk management system, WPD will continue to use existing databases and resources to the fullest extent possible, to identify patterns of conduct by WPD officers or groups of officers.

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

While WPD’s EIS is now active, three months must pass before WPD can calculate its quarterly use of force average per arrests and discretionary offense charges and thus assess its officers’ uses of force. In the meantime, WPD continues to utilize the software available to it and data collected in a spreadsheet to emulate a risk management system accessible to WPD’s senior administration.

Technical None at this time. Assistance

9. Following the initial implementation of the risk management system, and as experience and the availability of new technology may warrant, WPD may propose to add, subtract, or modify data tables and fields, modify the list of documents scanned or electronically attached, and add, subtract, or modify standardized reports and queries. WPD shall submit all such proposals for review and approval by DOJ before implementation.

27

Status

Substantial compliance – ongoing obligation – change from “inapplicable at this time”

Analysis WPD has already added, with our encouragement and approval, additional fields to the list of domains the Agreement requires WPD to track.

Technical WPD’s EIS is in its infancy and WPD has yet to propose other modifications. We Assistance encourage WPD to fine tune its EIS where WPD believes such modifications may
increase the system’s efficiency and effectiveness.

B. Oversight
1. WPD shall develop a protocol for utilizing the risk management system to conduct audits of all WPD officers’ performance and management of risk. Each supervisor charged with conducting audits shall use the protocol. The protocol will establish a regular and fixed schedule to ensure that such audits occur with sufficient frequency, and cover all WPD shifts and units.

Status

Substantial compliance - ongoing obligation – change from partial compliance

Analysis

In December 2013, we found WPD to be in partial compliance with this provision because WPD did not yet have an EIS protocol in place. WPD now has in place an EIS policy, approved by DOJ, that addresses the required auditing and managerial review functions. Thus WPD is now in substantial compliance with this provision.

Technical WPD’s EIS policy requires quarterly audits to ensure the system is functioning as Assistance intended. DOJ will review these audits to ensure they are both timely and
complete.

C. Discipline
1. The Chief of Police shall have just cause to dispense appropriate discipline when he/she determines, based on the outcome of an administrative investigation, that a preponderance of evidence demonstrates that a violation of WPD policy bas occurred.

Status

Statement of a standard; not an obligation unless WPD deviates from standard ongoing obligation

2. WPD will continue to follow the disciplinary process in place in the collective bargaining agreements (“CBAs”). WPD shall ensure that its disciplinary procedures penalize uses of excessive force, improper searches and seizures, discrimination, or dishonesty, and reflect the seriousness of those infractions. WPD will impose appropriate punishment for violations when WPD believes the officer’s misconduct

28

exhibits a lack of fitness for duty. WPD shall submit this revised process for the review and approval of DOJ.

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

In December 2013, we found WPD to be in substantial compliance regarding this provision, noting that WPD had actively imposed discipline when WPD believed it possessed just cause to do so.
DOJ notes that in May 2014 a WPD police officer accidentally discharged his ECW while handcuffing a subject. In the resulting review, a WPD Captain noted that the incident was “unfortunate” and suggested a need to retrain officers. However, WPD did not issue the police officer a counseling statement until prompted by DOJ.
This incident notwithstanding, WPD has otherwise imposed discipline on officers when WPD has sustained findings of alleged misconduct against them. Thus WPD remains in substantial compliance with this provision.

Technical None at this time. Assistance

3. Absent exceptional circumstances, WPD will take disciplinary corrective action when an appropriate disciplinary matrix indicates that imposition of discipline should take place. In a case where discipline has been imposed on an officer, WPD must also consider whether non-disciplinary corrective action also is required. Whenever discipline is warranted, WPD shall impose discipline within the timeframe permitted by WPD’s CBAs and applicable statute.

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

In December 2013, we found WPD to be in substantial compliance with this provision because WPD had pursued discipline when it determined it had just cause to do so. WPD remains in substantial compliance with this provision.

Technical None at this time. Assistance

VI. Training
A. Management Oversight
1. WPD shall continue to ensure that its use-of-force training complies with applicable laws and WPD policy. WPD may continue to seek technical assistance from DOJ on the content and conduct of WPD’s use-of-force training.

29

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

WPD has provided us with its use-of-force PowerPoint presentations that WPD uses to train its officers. DOJ also attended WPD’s in-service use of force training for 2014 and reviewed a video recording of the training. WPD’s use of force thoroughly covers WPD’s use-of-force policies, including proper use-of-force decision making, use of force reporting, and use of force review.

Technical We will observe WPD’s training in the 2015 training cycle to further assess Assistance compliance with this provision.

2. WPD’s director of training shall, consistent with applicable law and WPD policy:
a. ensure the effectiveness of all use-of-force training by implementation of competency-based written examinations covering the use-of-force policies and requiring a minimum passing score of 90% for all WPD officers;
b. develop and implement use-of-force training curricula;
c. select and train WPD officer trainers;
d. develop, implement, approve, and oversee all in-service training;
e. in conjunction with the Chief of Police, develop, implement, approve, and oversee a patrol division roll call protocol designed to effectively inform officers of relevant changes in policies and procedures;
f. establish procedures for evaluating all training curricula and procedures; and
g. conduct regular needs assessments to ensure that use-of-force training is responsive to the knowledge, skills, and abilities of the officers being trained.

Status

Partial-compliance - ongoing obligation – no change since Dec. 2013

Analysis

WPD has developed and implemented a use-of-force training curricula, and its training supervisor oversees all in-service training. During in-service use of force training in 2014, WPD required its officers to take a written examination covering each use-of-force policy. While some officers had to retest due to deficient scores, all officers eventually attained a passing score of 90%.
When WPD changes its policies or procedures, it informs patrol officers accordingly during roll call. Officers sign for new and revised policies, indicating that they have received them, not that they have read and understood them. When the revised policies are dispersed, officers receive a new copy of the revised policy. Changes are not marked in the policy, and changes are not explained. Officers keep a copy of WPD policies in their patrol car or in their locker, and twice a year, a

30

Lieutenant inspects all officers’ policies to be sure they are up to date.
WPD has in place no procedures to evaluate training; and WPD does not conduct needs assessment to ensure that use-of-force training is adequate or effective. Because of this and because WPD does not effectively explain to officers relevant changes in policy, WPD remains in partial compliance rather than substantial compliance.

Technical Assistance

When officers sign for new or revised policies, their signatures should indicate that they have read and understood them, not just that they have received them. When revising policies, WPD should distribute a copy of the revised policy with changes and revisions clearly marked so that officers can quickly determine how the new policy differs from the outdated version. In addition, when WPD distributes new or revised copies, a supervisor should clearly explain what has changed, why any change has made, and how the change will affect officers. Supervisors must give officers an opportunity to ask questions regarding new or revised policies.

We noted in December 2013 that WPD must establish procedures for evaluating the effectiveness of training curricula and procedures. In addition, we noted that WPD must conduct needs assessments to ensure use of force training is responsive to the knowledge, skills, and abilities of the officers being trained. We now note that WPD still has not done so, and WPD will not be in substantial compliance with this provision until it has.

3. WPD shall provide training consistent with WPD policy, law, and current best police practices, and will ensure that only mandated objectives and approved lesson plans are taught by instructors. WPD policy requires a minimum of 40 hours per calendar year of training for each sworn officer. WPD will continue to ensure that each officer receives training in use of force and other matters for a minimum of 40 hours per calendar year for each sworn officer. WPD will make best efforts to train each work shift as a team in their use-of- force training.

Status

Substantial compliance – ongoing obligation – no change since Dec. 2013

Analysis

In 2014, WPD provided officers with 40 hours of in-service training. This included eight hours of use-of-force training and related legal updates; four hours of complaint policy training; and four hours of report writing. WPD provided officers with hands-on training for OC Spray, ASP baton, ECWs, and firearms at other times throughout the year. We have reviewed WPD’s use-of-force training materials and have observed WPD’s in-service use-of-force classroom instruction, and we have found all to be consistent with WPD policy, law, and current best practices. Accordingly, WPD remains in substantial compliance with this provision.

31

Technical Assistance

As noted in December 2013, WPD should ensure it offers tailored training that emphasizes areas of expertise in which officers generally seem to be less informed based on needs assessments. We will continue to assess compliance with this provision during the 2015 training cycle.

4. WPD will continue to utilize written records of lesson plans and other training materials, and continue to maintain records of training each officer has received.

Status

Partial-compliance - ongoing obligation – no change since Dec. 2013

Analysis

As noted previously, WPD has provided DOJ with its use-of-force Power Point presentation and tests that WPD uses for classroom instruction during in-service and ECW training. WPD has no other written materials it uses for use of force training.
WPD has recently made improvements to the way in which it records training. Until recently, WPD’s training records essentially consisted of sign-in sheets containing the signatures of officers who attended in-service training. WPD now maintains an Excel spreadsheet on which it records the name of the class, the location or sponsor, the name of the officer trained, the date of training, the number of hours devoted to the training, and the cost of the training. While helpful, the spreadsheet is not specific enough. For example, the chart fails to break down “inservice training” into the various topics covered; instead, it merely lists a 40-hour block of in-service training for the participating officers. WPD should ensure that it is carefully tracking when, where, and how officers are trained. Because it is not doing so, WPD remains in partial compliance.

Technical Assistance

WPD is in the process of updating its use-of-force policy to address officers’ use of patrol rifles; to require officers to reholster their weapons, when practical, before going hands-on with a subject; and to ensure that shift commanders are aware of any and all approved personal weapons officers are carrying on that commander’s shift. WPD must ensure that it updates its use-of-force training to reflect these and any other changes.

In addition, WPD should maintain training records for each officer in which WPD documents all training that officer has received. In one central location, for each officer, WPD should be able to determine:

• Date training session took place • Setting where training session took place (In-service; roll call; etc.) • Subject matter (Taser, ASP, UOF policy, Fourth Amendment, etc.) • Type of training (classroom, scenario-based/hands on) • Number of hours devoted to topic • Exam score, if an exam was given, and whether retesting was necessary

32

Maintaining such training files will also assist WPD in implementing its EIS. Specifically, if EIS triggers review of an officer, individual training records will permit an assessment of the officer’s training or need for further training in any given area.
B. Curriculum
1. The director of training shall review all use-of-force training and use-of-force polices on at least a semi-annual basis to ensure compliance with applicable laws and WPD policy. The director of training shall produce a written record of this review. The director of training will consult with the City’s Law Department on any additions, changes and/or modifications regarding use-of-force training or policies to ensure compliance with applicable law.

Status

Partial-compliance - ongoing obligation – no change since Dec. 2013

Analysis

While WPD updates is use-of-force policies as new and updated information becomes available, it does not specifically and systematically review these policies on at least a semi-annual basis. Accordingly, WPD has also failed to provide a written record of the review this provision requires.

Technical WPD must review both its use of force policies and training materials at least twice Assistance a year and produce a written record of these reviews. WPD’s counsel should assist
WPD to ensure policies comport with current legal standards.

2. WPD shall provide all recruits, officers, supervisors, and managers with training on use of force at least annually. Such training shall include and address the following topics:
a. WPD’s use-of-force policy, as described in this Agreement;
b. proper use-of- force decision making;
c. WPD’s use-of-force reporting requirements;
d. the Fourth Amendment and other constitutional requirements;
e. examples of scenarios faced by WPD officers that illustrate proper use-offorce decision making;
f. interactive exercises that emphasize proper use-of-force decision making;
g. de-escalation techniques that encourage officers to make arrests without using force, and instruction that disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, calling in specialized units,

33

or delaying arrest may be the appropriate response to a situation even when the use of force would be legally justified;
h. threat assessment; and
i. appropriate training on conflict management.

Status

Substantial compliance - ongoing obligation – change from partial compliance

Analysis

As noted previously, in 2014, WPD has provided officers with eight hours of useof-force training during in-service training as well as additional use-of-force training, including hands-on and scenario-based training for firearms, OC Spray, and the ASP baton. WPD’s firearms training has included live-fire exercises as well as simulated indoor exercises that stress proper use-of-force decision making using a virtual firearms simulation system.
WPD has also provided crisis intervention training for 30 of its officers. WPD sends officers to this training annually and plans to eventually have all of its officers CIT trained.
In December 2013, we found WPD’s scenario-based training to be deficient. WPD has made improvements in this area, and we now find WPD to be in substantial compliance with this provision.

Technical Assistance

As noted, WPD provided officers with eight hours of use-of-force instruction during its 2014 in-service training. All eight hours were classroom instruction. While we acknowledge that WPD offered its officers scenario-based and hands-on instruction regarding weapons and use of force decision-making at other times throughout the year, we recommend that WPD include such training during inservice.

We will continue to observe and critique WPD’s training during 2015.

34