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IN THE UNITED STATES DISTRICT COUR/lf'H ?3 PH /: 39

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

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scui••,:;:; i^: OHIO

UNITED STATES OF AMERICA,

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EAST. L";V, Cu_Ui'!GUS

Plaintiff,

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v.

C2 97- 966

CITY OF STEUBENVILLE, STEUBENVILLE POLICE DEPARTMENT, STEUBENVILLE CITY MANAGER, in his capacity as Director of Public Safety, and STEUBENVILLE CIVIL SERVICE COMMISSION.

CIVIL NO.

Defendants.

MAGISTRATE JUDGE KING

COMPLAINT
The United States brings this action under 42 U.S.C. § 14141 to remedy a pattern or practice of conduct by law enforcement officers of the Steubenville Police Department that deprives persons of rights, privileges, and immunities secured and protected by the Constitution or laws of the United States. The City of Steubenville, the Steubenville Police Department, and the Steubenville City Manager (in his capacity as Director of Public Safety) have engaged in a pattern or practice of subjecting individuals to excessive force; false arrests, charges, and reports; improper stops, searches, and seizures. These defendants have caused and condoned this conduct through their inadequate use-of-force policies; inappropriate off-duty-conduct policies; and failure to supervise, train, discipline, monitor, and investigate police officers and alleged misconduct.
U.S. v. City of Steubenville

PN-OH-002-002

The United States of America alleges: DEFENDANTS
1. The City of Steubenville ("City") is a municipality in the State of Ohio.
2. The Stesubenville Police Department ("SPD") is a law enforcement agency operated by the City.
3. The City Manager is an employee of the City who serves as the Director of Public Safety, and in that capacity, oversees the SPD and other agencies operated for the safety of persons in Steubenville.
4. The Steubenville Civil Service Commission is an agency of the City with authority for hiring and disciplining SPD officers. The Civil Service Commission is an appropriate party in this action because in its absence, complete relief cannot be accorded.
JURISDICTION AND VENUE 5. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345. 6. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141. 7. Venue is proper in the Southern District of Ohio pursuant to 28 U.S.C. § 1391, as the defendants reside in and the claim arose in the Southern District of Ohio.
FACTUAL ALLEGATIONS 8. From at least 1990 to the present, SPD officers have engaged and continue to engage in a pattern or practice of using
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excessive force against persons in Steubenville. This use of excessive force includes, but is not limited to:
a. use of excessive force in effecting arrests or detaining persons suspected of engaging in criminal activity;
b. use of excessive force against individuals in police custody (including persons handcuffed or otherwise physically restrained); and,
c. use of excessive force against individuals by police officers who are off-duty and involved in private disputes but acting under color of law.
9. From at least 1990 to the present, SPD officers have engaged and continue to engage in a pattern or practice of falsely arresting and charging persons in Steubenville. These false arrests and charges include, but are not limited to:
a. false arrests or charges against persons who witness incidents of police misconduct, who are known critics of the SPD, or who are disliked by individual SPD officers;
b. false arrests or charges against persons who are believed likely to complain of police misconduct; and
c. false arrests or charges against persons who behave disrepectfully but noncriminally to police officers.
10. From at least 1990 to the present, SPD officers have engaged in other misbehavior, including, but not limited to:
a. falsifying official reports; b. tampering with official police recorders so that police misconduct is not recorded;
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c. improperly searching dwellings or places of business without lawful aiuthority; and
d. improperly seizing property of persons arrested or stopped by SPD officers without lawful authority for such seizures.
11. The acts or omissions of SPD officers, described in paragraphs 8-10, above, constitute a pattern or practice of conduct by law enforcement officers that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
12. From ait least 1990 to the present, the City of Steubenville, the SPD, and the City Manager (collectively, "the City defendants") have caused and condoned the acts of individual officers, described in paragraphs 8-10, above, through their acts or omissions. These acts or omissions include, but are not limited to the following:
13. The City defendants have failed to implement policies on use of f.orce and off-duty behavior that appropriately guide the actions of individual officers.
14. The City defendants have failed to train SPD officers adequately to prevent the occurrence of misconduct.
15. The City defendants have failed to supervise SPD officers adequately to prevent the occurrence of misconduct.
16. The City defendants have failed to monitor adequately SPD officers who engage in or who are likely to engage in misconduct.
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17. The City defendants have failed to investigate adequately civilian complaints and other allegations of police misconduct.
18. The City defendants have failed to discipline adequately SPD officers who engage in misconduct.
19. The City defendants have condoned or encouraged retaliation against individuals who complain of misconduct by SPD officers or by the SPD as a whole.
CAUSE OF ACTION 20. Through the actions described in paragraphs 8-19 above, the City defendants have engaged in and continue to engage in a pattern or practice of conduct by SPD officers that deprives persons in Steubenville of rights, privileges, or immunities secured and 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 21. 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: a. declare that the City defendants have engaged in a pattern or practice by SPD officers of depriving persons of
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rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, as described in paragraphs 8-19,, above;
b. order the City defendants to refrain from engaging in any of the predicate acts forming the basis of the pattern or practice of conduct as described in paragraphs 8-19, above;
c. order the City defendants to adopt and implement policies and procedures to remedy the pattern or practice of conduct described in paragraphs 8-19, above, and to prevent officers from depriving persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States; and
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d. order such other appropriate relief as the interests of justice may require.
Respectfully submitted,
JANET RENO Attorney General of the
United States

SHARON J. ^
United States Attorney Southern District of Ohio Two Nationwide Plaza 4th Floor 2 80 North High Street Columbus, OH 43215 (614) 469-5715

ISABELLE KATZ BttNZLI Acting Assistant Attorney
General Civil Rights Division
STEVEN H. ROSENBAUM Chief MELLIE H. NELSON Deputy Chief U.S. Department of Justice Civil Rights Division Special Litigation Section

MARGO SCHLANGER MARK MASLING Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202) 616-8657

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

UNITED STATES OF AMERICA,

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Plaintiff,

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CITY OF STEUBENVILLE,

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STEUBENVILLE POLICE DEPARTMENT, )

STEUBENVILLE CITY MANAGER, in )

his capacity as Director of

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Public Safety, and STEUBENVILLE )

CIVIL SERVICE COMMISSION,

)

Defendants.

)

)

CIVIL NO.
J!|f8F ^5/f
^ 3 S T ^ 7 E JUDQEKING

JOINT MOTION FOR ENTRY OF CONSENT DECREE

The United States, plaintiff, and the City of Steubenville, Steubenville Police Department, Steubenville City Manager (in his capacity as Director of Public Safety), and Steubenville Civil Service Commission, defendants, respectfully move this Court for entry of the consent decree filed simultaneously with this motion.
The United States has simultaneously filed its Complaint against the defendants, alleging that officers of the Steubenville Police Department have engaged in a pattern or practice of conduct that deprives persons of rights, privileges, or immunities secured and protected by the Constitution and the laws of the United States, and that the City of Steubenville, the Steubenville Police Department, and the Steubenville City Manager (in his capacity as Director of Public Safety) have caused and condoned this conduct through inadequate policies and failure to
U.S. v. City of Steubenville

PN-OH-002-003

train, monitor, supervise, and discipline police officers, and to investigate alleged misconduct, all in violation of 42 U.S.C. § 14141. The defendants deny the allegations advanced by the United States.
After negotiations, the United States and the defendants have reached an agreement that resolves these claims. The Steubenville City Council by City Ordinance authorized the City's agreement. For the reasons stated in the Memorandum of Law in support of this Motion, and the accompanying declaration of James J. Fyfe, entry of the decree is lawful and appropriate. Therefore, the United States and the City hereby jointly move for entry of the Consent Decree.
Respectfully submitted: FOR THE PLAINTIFF, THE UNITED STATES OF AMERICA:

SHARON J. ZEALEY United States Attorney Southern District of Ohio

ISABELLE KATZ PINZLER Acting Assistant Attorney
General Civil Rights Division

JAMES RATTAN (#0018632) Civil Chief Office of the U.S. Attorney Southern District of Ohio 280 North High St., 4th floor Columbus, OH 43215 (614) 469-5715

STEVEN H. ROSENBAl Chief MELLIE H. NELSON Deputy Chief U.S. Department of Justice Civil Rights Division Special Litigation Section

MARGO SCHLANGER Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202) 616-8657

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FOR THE DEFENDANTS, CITY OF STEUBENVILLE, El
« a.* • 1 7
GARY REPELLA City of Steubenville
Law Director Attorney of Record 308 Market Street Steubenville, OH 43952 (614) 283-6031
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 AUG 2 C 1997
K E N N F T H J M U R P H Y Clerk COLUMBUS OHIO

I N T H E mi^ED

STATES DISTRICT COURT

F 0 R T H E SOUTHERN D I S T R I C T OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

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Plaintiff,

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)

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U.S. L ; ; ; . : : M)o\\
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EA5;. L: ,. L '..i;i;;JU3

CITY OF STEUBENVILLE,

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STEUBENVILLE POLICE DEPARTMENT, )
STEUBENVILLE CITY MANAGER, in )

his capacity as Director of

)

Public Safety, and STEUBENVILLE )

CIVIL SERVICE COMMISSION,

)

Defendants.

)

CIVIL NO.

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CONSENT DECREE INTRODUCTION
1. The United States brings this action to enforce Section 210401 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141. The United States alleges that officers of the Steubenville Police Department have engaged in a pattern or practice of conduct that deprives persons of rights, privileges, or immunities secured and protected by the Constitution and the laws of the United States, and that the City of Steubenville, the Steubenville Police Department, and the Steubenville City Manager (in his capacity as Director of Public Safety) have caused and condoned this conduct through inadequate policies and failure to train, monitor, supervise, and discipline police officers, and to investigate alleged misconduct.
U.S. v. City of Steubenville
PN-OH-002-005

2. The defendants in this action are the City of Steubenville, a municipality in the State of Ohio,- the Steubenville Police Department ("SPD"), a law enforcement agency operated by the City of Steubenville; the Steubenville City Manager, an employee of the City of Steubenville who serves as the Director of Public Safety, and in that capacity, oversees the SPD and other agencies operated for the safety of persons in Steubenville; and the Steubenville Civil Service Commission, an agency of the City of Steubenville with authority for hiring and review authority for disciplining SPD officers. The defendants are hereinafter referred to collectively as "the City."
3. The City denies the allegations advanced by the United States. The City acknowledges that allegations have been advanced against the City relating to the its management systems for police training, misconduct investigations, supervision, and discipline. The City denies such allegations. However, the parties agree that the manner and means of avoiding such claims is to achieve and maintain good practices and procedures for police management. The parties enter into this Decree jointly and for the further purpose of avoiding the risks and burdens of litigation.
4. 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.C. § 14141. Venue is proper in the Southern District of Ohio pursuant to 28 U.S.C. § 1391.
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5. This Decree resolves all claims in the United States' Complaint filed in this case, and all claims the United States may have under 4 2 U.S.C. § 14141 regarding a pattern or practice of racial discrimination in law enforcement by the defendants.
6. This Decree is enforceable only by the parties. Nothing in this Decree shall be construed to impair the right of any person or organization to seek relief against the City for its conduct or the conduct of its law enforcement officers. Nothing in this Decree is intended to alter the collective bargaining agreement between the City and the Fraternal Order of Police, Fort Steuben Lodge No. 1. Nothing in this Decree alters the authority of police officers to effect arrests, conduct searches or seizures, or otherwise fulfill their law enforcement obligations to the people of the City of Steubenville.
7. This Decree shall constitute the entire integrated agreement of the parties. No prior drafts or prior or contemporaneous communications, oral or written, shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding.
8. This Decree is binding upon the United States and on the City, by and through their officials, agents, employees, and successors.
9. The City hereby affirms and acknowledges its obligation to discourage activity by City law enforcement officers that deprives persons of rights, privileges, and immunities secured and protected by the Constitution and laws of the United States.
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10. The City, by and through its officials, agents, employees, and successors, is permanently enjoined from and shall not engage in a pattern or practice of conduct by law enforcement officers of the SPD that deprives persons of rights, privileges, and immunities secured and protected by the Constitution and laws of the United States.
DEFINITIONS 11. The following definitions apply to this Decree: a. "Complaint history" means a summary, with a narrative
description of the allegations, of all events that trigger Internal Affairs (or "IA") investigation pursuant to this Decree, along with a summary of the resulting investigation, disposition, and management responses. b. "Counseling" means a meeting or meetings between an officer and an Employee Assistance Program, substance abuse, or psychological counselor, as the City determines appropriate for the circumstances. c. The terms "document" and "record" include all "writings and recordings" as defined by Federal Rules of Evidence Rule 1001(1) . d. "Field Training Officer" or "FTO" means an experienced police officer whose responsibilities include providing on-the-job training and supervision of probationary police officers, and continual training of all police officers.
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e. "Police officer" or "officer" means any law enforcement officer employed by the SPD, including supervisors and senior supervisors.
f. "Serious injury" means any injury requiring or resulting in professional medical care or treatment, or in death.
g. "Senior supervisors" means SPD captains and the Chief of Police.
h. "Supervisor" means a police officer with oversight responsibility for other officers. The term encompasses sergeants and also senior supervisors. In the event the SPD develops other ranks above patrolmen, it will categorize each additional rank as a supervisor or senior supervisor rank. TRAINING
12. The City shall develop and implement a training policy for all SPD officers. Prior to implementation, the policy must be reviewed by the independent auditor (described in ^ 82-83), and approved by the United States. The policy shall incorporate the provisions of this Decree set out below ( H 13-20):
13. The City shall appoint a supervisor as training officer, and arrange for the training officer to receive adequate training to enable him or her to carry out the duties here specified.
a. The training officer shall design and administer an entry level training program specifically tailored for SPD officers, to be provided at the start of officers'
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tenure (following academy training). The training program shall include systematic field training for all new officers. The field training shall be by designated Field Training Officers, and shall last at least 12 weeks. Field training shall include both daily and monthly evaluations of the probationary officer's performance. The results of these evaluations shall be reviewed by the Chief of Police and made a key part of the decision to confirm a new officer's appointment at the end of his or her probationary period. b. The training officer shall design and administer an inservice training program, in which each sworn officer must participate for at least 40 hours each year. c. The training officer shall design and administer a prepromotion training program for every member of the department who is advancing in rank, at the start of the promoted officer's tenure in his or her new rank. d. The training officer shall design and administer annual supervisory and leadership training, which shall be mandatory for all supervisors, and shall include command accountability, integrity, and cultural diversity. 14. Both entry and annual in-service training shall cover the following areas, among others to be set out in the training policy:
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a. Cultural diversity. This training shall be by qualified instructors, and shall include, at a minimum, training on police interactions with persons from different racial, ethnic, and religious groups, and persons of the opposite sex. The City also shall provide training in communications skills and avoiding . improper racial, ethnic, and sexual communications.
b. Uses of force, including verbal de-escalation techniques as an alternative to the use of force and other tactics for avoidance of confrontation. Such training also shall cover the proper application of various types of force, as well as examples of situations that do not require the use of force but may be mishandled, resulting in force being used (for example, individuals verbally challenging an officer's authority or asking for an officer's identifying information).
c. Integrity and ethics. This training shall cover the duties of truthfulness and reporting misconduct by fellow officers, the importance of avoiding misconduct, professionalism, and the duty to cooperate in misconduct investigations.
d. Domestic violence response and investigation, including community resources.
15. In addition, in-service training shall include annual sessions on search and seizure law and methods and other relevant legal developments. Other topics that shall be covered every two
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years (or more frequently if needed) are hostage and barricade situations, emotionally disturbed persons, persons with mental disabilities, and vehicular pursuits.
16. After the City has adopted new policies and procedures in compliance with this Decree, every SPD officer shall be trained in the new policies and procedures, including use of force and use-of-force reporting, and complaint procedures. In the first year after adoption of the new policies, compliance training shall be at least 40 hours in addition to the training discussed above in \% 11-15.
17. The City and the training officer shall monitor complaints of police misconduct and other events specified in H 65 as triggering an IA investigation to gauge the effectiveness of training and to detect the need for new or further training.
18. The City shall establish formal eligibility criteria for training instructors and Field Training Officers based on their performance evaluations and previous superior performance as police officers. The City shall disqualify any instructor or FTO, or candidate for those positions, with a poor disciplinary record or complaint history.
19. The City shall ensure that all training instructors and FTOs receive adequate training to enable them to carry out their duties. Training instructors and FTOs shall be required to maintain, and demonstrate on a regular basis, their proficiency in their areas of instruction. The City shall maintain current documentation of instructors1 and FTOs1 proficiency and training. The City may use SPD officers as training instructors only if
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they have been trained and are qualified to fulfill such duties; the City also may use outside training officers, if they are demonstrably qualified.
20. The City shall maintain records documenting all training of officers. At a minimum, these records shall reflect officer's names, the dates of the training, the reasons for any mandatory training (including any IA file number or other related cross references), the general subject matter of the training (including lesson plans where available), and whether the training was completed satisfactorily.
USES OF FORCE 21. The City shall develop and implement use of force policies that comply with applicable law and current professional standards. The policies shall include provisions governing use of deadly force, other uses of force, drawing of weapons, roadblocks, vehicular pursuits, and hostage situations. The City also shall develop and implement new policies on off-duty responsibilities and off-duty gun use. Prior to implementation, the policies must be reviewed by the independent auditor and approved by the United States. 22. The City shall develop, and require all officers to complete, a written report each time: any type of force is used against an individual; an officer engages in a vehicular pursuit; a firearm is discharged by an officer, except at a firing range; a person in custody receives a serious injury or has received a serious injury while being taken into custody; and any officer is injured in the line of duty. Types of force to be reported
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include, but are not limited to, body locks, joint locks, mechanical restraints, pressure points, chokes or chokeholds, takedowns, throws, striking weapons, kicks or strikes, chemical weapons, electrical weapons, and lethal weapons (including drawing of a gun and pointing it at a person). No report for use of force need be filled out where force was limited to a firm grip and/or use of handcuffs. Reports shall include, at minimum, the following information: officer name and badge number; description of incident; each specific type of force used; the effectiveness of each type of force used; description of any injuries to either a civilian or officer, and medical/hospital data,- name, race; and gender of the person against whom force was used; names and contact information for all witnesses; whether the individual against whom force was used was arrested or cited, and if so, the charges; date, time, and location of the incident; and the signatures of the officer and his immediate supervisor.
23. Each report prepared as required by \ 22 above shall be reviewed, along with any associated arrest report, by the reporting officer's chain of command within one week of the precipitating incident. Supervisors shall refer to the IA Officer for investigation all incidents where a report reasonably indicates a possible violation of SPD policies or other misconduct; the IA staff shall investigate all incidents where they receive a referral, and issue findings. Any supervisor who believes there is a possible violation shall make the referral to the IA Officer; the decision to refer is not subject to modification. Supervisors shall be held accountable and
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evaluated for their referral decisions. Referral shall be automatic and shall take place immediately at the time of the incident for all incidents resulting in serious injury either to a civilian or to an officer where a use of force or a vehicular pursuit report was required to be completed, and for all reports of firearm discharges.
STOPS, SEARCHES, AND SEIZURES 24. The City shall develop, and require all officers to complete, a written report each time an SPD officer performs a search without a warrant (excluding searches incident to arrests, frisks, and pat downs), seizes any property without a warrant (excluding towing vehicles), or conducts a traffic stop, or an investigative stop based on suspicion of criminal activity (a stop authorized by Terry v. Ohiof 392 U.S. 1 (1968)). The record shall include the officer's name and badge number; description of incident; the specific type of stop, search, or seizure; the basis for the stop, search, or seizure; whether the subject was asked to consent to any search; whether the subject granted such consent; the name, race, and gender of all persons involved in the stop, search, or seizure; any weapons, evidence, or contraband found; whether the individual involved in the stop, search, or seizure was arrested or cited, and if so, the charges; date, time, and location of the incident; and the signatures of the officer and his immediate supervisor. For stops, the report shall include whether the stop involved a frisk or pat-down search; for warrantless searches and seizures, the report shall include names and contact information for all witnesses.
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25. Each stop, search, and seizure report prepared as required by % 24 above shall be reviewed by the reporting officer's chain of command within one week of the stop, search, or seizure. Supervisors shall refer to the IA Officer for investigation all incidents where a report reasonably indicates a possible violation of SPD policies or other misconduct; the IA staff shall investigate all incidents where they receive a referral, and issue findings. Any supervisor who believes there is. a possible violation shall make the referral to the IA Officer; the decision to refer is not subject to modification. Supervisors shall be held accountable and evaluated for their referral decisions. Referral shall be automatic and shall take place immediately at the time of the incident for all incidents resulting in serious injury to a civilian where a report was required by this paragraph to be completed.
REVIEW OF CERTAIN ARRESTS OR CHARGES 26. SPD officers shall give detainees warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), on taking a suspect into custody, without delay. The City shall randomly audit compliance with this requirement. 27. Arrests or charges that fall in the following categories shall be the subject of arrest reports by officers, and the reports shall be reviewed by the reporting officer's chain of command within one week of the arrest or charge: arrests in which officers are the only complainants; possessory arrests not stemming from a search for another offense or a warrant search, and not made pursuant to an arrest warrant;
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obstruction of justice; resisting arrest; assault on an officer; disorderly conduct; public intoxication; and like charges. Where the charge is resisting arrest or assault on an officer, supervisors should ensure that there is an associated use-offorce report. Supervisors shall refer to the IA Officer for investigation all incidents where an arrest report or other documentation in this category reasonably indicates a possible violation of SPD policies; the IA staff shall investigate all incidents where they receive a referral, and issue findings. Any supervisor who believes there is a possible violation shall make the referral to the IA Officer; the decision to refer is not subject to modification. Supervisors shall be held accountable and evaluated for their referral decisions.
INTERNAL AFFAIRS 28. The City shall develop and implement an Internal Affairs policy and manual for the SPD, detailing policies and investigative procedures. Prior to implementation, the policy and manual must be reviewed by the independent auditor and approved by the United States. Once adopted, the City shall make the manual available for inspection and copying by the public and officers at SPD headquarters, the Steubenville Public Library, and the City offices. The policy and/or manual shall include the following provisions (^| 29-63) : 29. The City shall appoint a police supervisor as IA Officer and shall arrange for the IA Officer to receive adequate training to enable him or her to carry out the duties here specified, including training in techniques for questioning
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individuals. Other officers may be detailed to Internal Affairs as needed, and shall receive the training necessary to carry out these duties. (Collectively, the IA Officer and the detailed officers are referred to herein as the "IA staff.")
30. The IA Officer and staff shall be evaluated on the basis of the professionalism and thoroughness of the investigations they conduct or supervise, and on their competence in following the policies and procedures for investigations.
31. The City shall provide the IA Officer with sufficient staff, funds, and resources to perform the functions required by this Decree. The City shall encourage highly qualified candidates to become IA staff. The City shall establish formal eligibility criteria for the IA Officer and staff, including previous superior performance as police officers, including management potential. The City shall disqualify candidates with poor disciplinary records and complaint histories. An IA Officer shall serve in that capacity for no more than five years, for the first IA Officer appointed, and no more than four years thereafter.
32. The IA Officer shall report on IA functions directly to the Chief of Police. Except for the Chief of Police and subsequent review by the City Manager, and (if applicable) the Civil Service Commission, authority and responsibility for determining the disposition of an investigation shall rest with the IA Officer. The accused officers' supervisors shall not have the authority to modify or reverse any disposition of any investigation.
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Initiation of an IA investigation 33. The IA staff, supervised by the IA Officer, shall be
responsible for investigating all potential misconduct allegations. These include each referral described in 1H 23, 25, and 27, as well the other matters listed in H 65. There shall be no discretion by the IA Officer or by any SPD officer to refuse to accept a complaint or referral.
34. No civilian shall be asked or allowed to waive his or her right to sue about police misconduct unless the civilian is represented by legal counsel and has consulted with counsel about such a waiver, and at least 24 hours have passed since the incident in question. No civilian shall be asked or allowed under any circumstances to waive his or her right to complain about police misconduct either in criminal court, or through a complaint filed with the SPD, or with a federal law enforcement agency.
35. Civilians may initiate a complaint against an officer either in person or by telephone (or TDD), mail, or facsimile transmission. Complainants shall not be required to file a complaint "form" to initiate an investigation, although the City may develop and offer a form to complainants to assist them in relating useful information.
36. A complainant may file an anonymous verbal or written complaint. The SPD shall accept and investigate complaints filed by individuals other than the alleged victim of misconduct (third-party complaints). The IA staff shall ask anonymous and third-party complainants for corroborating evidence, but even if
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none is available or offered, the IA staff shall investigate such complaints to the fullest extent possible to determine whether the complaint can be corroborated.
37. The City shall require officers to report misconduct by other officers. Officers shall report misconduct by fellow officers either directly to the IA Officer or through the reporting officer's chain of command.
38. No complainant shall be required to go to a police station to file a complaint or provide a statement. The SPD shall make complaint forms and pamphlets describing the complaint process available at several non-police locations around Steubenville, so that complainants can initiate a complaint without coming to the SPD station. The IA Officer shall have a telephone number, with a 24-hour answering machine, so that a complainant need not call the SPD main number. The City shall hold yearly open meetings to inform the public about various methods for filing civilian complaints against police officers. The IA staff shall receive complaints at these open meetings. At least one week before such meetings, the City shall publish the telephone number of the IA Officer and the time and location of each meeting in a prominent location in all City buildings, and in each local newspaper. Complaints received by the IA staff at such meetings may relate to any SPD or officer misconduct and shall be treated like any other civilian complaint.
39. The IA Officer shall notify the supervisors of an accused officer whenever a civilian complaint has been filed against that officer.
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Conducting the IA Investigation 40. Under no circumstances shall an officer who is the
subject of an IA investigation be allowed to participate in any way in conducting that investigation.
41. The IA Officer shall monitor and be responsible for the progress and completeness of all IA investigations. The City shall not permit any SPD officer to attempt to settle a civilian complaint through informal means.
42. The IA Officer shall not close any investigation without rendering a disposition. Withdrawal of a complaint or unavailability of a complainant to make a statement shall not be a basis for closing an investigation or rendering a disposition of "unresolved" without further attempt at investigation. The IA Officer shall investigate such complaints to the fullest extent possible to determine whether the complaint can be corroborated.
43. If complainants or witnesses are reluctant to come to the SPD station, or unavailable to be interviewed during business hours, the IA staff shall offer to interview them at alternate sites and times, including at residences or places of business, and during reasonable weekend or after-business hours. IA staff shall provide reasonable notice before all complainant and civilian witness interviews.
44. All interviews of complainants, involved officers, and witnesses shall be tape-recorded and transcribed. These tapes shall be maintained and kept as part of the IA investigative file. If a complainant or witness refuses to be tape-recorded, then the IA stsiff shall prepare a written narrative of the
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statement to be signed by the complainant or witness. The IA staff shall not conduct group interviews, and shall not accept a "special report" or written statement from any officer in lieu of an interview. The IA staff shall have the authority to question all interviewees and to challenge their version of the facts.
45. In order to interview officers effectively, the IA Officer shall obtain (and be given full access to) information from the information system described in \ 71, and the following information regarding the accused officer and officer witnesses: performance evaluations, assignment history, and training/qualification records.
46. Officers shall be obligated to appear at the IA interview and to answer questions, under penalty of discipline. Officers who are the subject of an IA investigation shall be informed of their rights and obligations under Garrity v. New Jersey. 385 U.S. 493 (1967).
47. Supervisors on the scene of incidents that result in an IA investigation shall be interviewed. Supervisors shall be required to detail their handling of the situation during and after the alleged incident and their observations of the complainant (if any) and officers.
48. The IA staff shall canvass the scene of an incident for witnesses as soon as possible after receiving a complaint of misconduct or any other referral.
49. The IA staff shall itself aggressively collect all appropriate evidence to document each incident of potential misconduct, or any injury of a complainant, including medical
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records and photographs of injuries. The IA staff shall not require complainants or other witnesses to provide evidence that the IA staff can itself obtain, but shall seek appropriate releases where useful in obtaining evidence.
50. The IA Officer shall assess the propriety of all officer conduct during an incident the IA staff investigates. If, during the course of an IA investigation, the IA Officer has reason to believe that misconduct other than that alleged by a complainant (or indicated by a triggering report) has occurred, the IA staff must investigate and make findings with respect to such misconduct, as well. Evaluating the Complaint
51. At the end of the investigation, the IA officer shall give the investigative file to the Chief of Police, and shall make one of the following dispositions:
"Sustained," where a preponderance of the evidence shows that misconduct or inappropriate behavior occurred. "Unfounded," where a preponderance of the evidence shows that misconduct or inappropriate behavior did not occur. "Not resolved," where there is insufficient evidence to decide what happened. "Exonerated," where the conduct described by the complainant or other referral source occurred, but did not violate SPD policy.
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52. There shall be no automatic preference of an officer's statement over a. complainant's statement. In making credibility determinations, the IA staff shall consider the officer's history of complaints (including those with dispositions other than "sustained") and disciplinary records and the complainant's criminal history for crimes involving untruthfulness. Any credibility determinations shall be explained fully in writing'.
53. Where the IA staff has completed an investigation, and determines that "exonerated" is the likely disposition, and the claim involves an allegedly unconstitutional stop, search, or seizure, or a false arrest, the IA staff may call upon the SPD's legal advisor for legal advice. Such advice shall be in writing, and shall be made a part of the investigation file.
54. At the conclusion of each investigation, the IA Officer shall issue a report describing the alleged misconduct, any other misconduct identified during the course of the investigation, a summary of all evidence gathered during the investigation (including an explanation for any absence of evidence), documentation of all credibility determinations, the accused officer's complaint history, the IA Officer's findings with respect to all potential misconduct, and the analysis supporting the IA officer's findings. The report shall include the disposition of the investigation, and shall be made a part of the investigation file. The IA Officer shall not recommend discipline or supervisory responses to the disposition and findings. Except in the case of an especially complex
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investigation, the IA Officer shall finish the report within 30 days of receipt of the complaint or referral.
55. The IA Officer shall give the report described in 1 54 to the Chief of Police, who shall read it and evaluate the investigation. If the Chief thinks that other investigatory steps should be taken, he or she shall require the IA Officer to take such steps, and report the results. The original report and disposition shall remain in the investigation file. The Chief of Police shall not attempt to influence the findings or disposition made by the IA officer.
56. On completion of a final investigation that satisfies the Chief of Police, the Chief shall review the investigation and report, and shall report, in writing, his or her agreement or disagreement with the IA Officer's findings and disposition. If the Chief draws different conclusions, he or she shall detail his or her rationale, in writing, and shall render express findings and a final disposition, along with a decision, pursuant to ^| 69, on appropriate supervisory or disciplinary steps.
57. Pursuant to the requirements of the Steubenville City Charter, after the Chief has reviewed the investigation, the matter shall proceed to the City Manager, who can approve the investigation or return it to the Chief for further investigation, and can approve or disapprove the findings, disposition, and supervisory or disciplinary steps taken. It is primarily the responsibility of the Chief of Police to ensure appropriate investigation and compliance with SPD policy; rather than taking on the primary responsibility, the City Manager shall
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insist that the Chief carry out this duty appropriately, and shall evaluate the Chief on the basis of success or failure in this function.
58. If, pursuant to State and City law, the Civil Service Commission reviews any determination made pursuant to the above procedure, it shall do so in compliance with the obligation, imposed by law and by this Decree, to ensure that SPD officers do not engage in misconduct, and to discipline them for misconduct. Management and Public Oversight
59. Every complaint or other referral received by the IA Officer shall be assigned a control number.
60. In addition to preparing and maintaining investigation files, the IA staff shall maintain summary records that include the IA file control number, the names of all involved officers, contact information for all officers and complainants, the race and gender of all involved officers and complainants, a narrative description of the allegations, significant dates, the street address of the incident, and the disposition of the complaint. When the City prepares a complaint history, the history shall include, at a minimum, the officer's name, the IA file number, the date of the incident, a narrative description of the allegations, the disposition, and the management responses. The actual investigation files shall be maintained for at least ten years from the date of the disposition of the complaint. All IA information shall be maintained in a readily accessible manner during that officer's employment with the SPD and for three years
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after the officer leaves the SPD. Data regarding an officer who has left the SPD shall be maintained indefinitely in an archive.
61. IA files and records relating to a particular officer shall be available to personnel within that officer's chain of command who are responsible for that officer's training, supervision, or discipline.
62. Once a. complaint is finally resolved by the Chief and the City Manager, the IA Officer shall inform the complainant of the resolution, in writing, including the investigation's significant dates, general allegations, disposition, and any resulting supervisory steps or discipline.
63. The IA officer shall prepare, and the SPD shall issue, a twice-yearly public report of its investigations. Such reports shall include each investigation's significant dates, general allegations, disposition, and any resulting supervisory steps or discipline.
SUPERVISION OF OFFICERS 64. The City, by and through its officials, agents, employees, and successors, has an affirmative obligation to supervise, monitor, and discipline its officers. 65. The City shall use the following sources as supervisory tools alerting management to potential misconduct, inappropriate behavior, and areas in which additional training or policy modification may be necessary: a. The reports discussed in HI 22, 24, and 27; b. criminal case orders suppressing evidence because of
constitutional violations (including violations of the
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First Amendment, the Fourth Amendment, the Fifth Amendment) or for other reasons, or other judicial findings or comments about SPD misconduct made in the courses of a criminal proceeding; c. civilian complaints; d. civil suits alleging misconduct by an officer in the course of his or her duties, or against an officer and including allegations of untruthfulness, physical force,, racial bias, or domestic violence; e. criminal arrests or charges against officers; f. reports of misconduct by officers about other officers. The reports listed in subparagraph (a) shall be referred to the IA Officer under the terms specified in HH 23, 25, and 27. Each of the other events listed in this paragraph shall trigger an IA investigation. The IA Officer shall conduct an independent investigation on receipt of the referral, and shall not wait for resolution of any criminal or civil court case. The fact that the City settled a civil litigation shall have no bearing on the need or findings of an IA investigation or on the supervisory or disciplinary results. 66. In addition, the City shall use the information system described in ^ 71, below, in order to decide on appropriate supervision of officers. In particular: a. The City shall develop a protocol for use of the information revealed by the information system quarterly audits described in ^ 74-77, below. Prior to implementation, the protocol must be reviewed by the
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independent auditor and approved by the United States. The protocol shall specify what types of audit results will require review by senior supervisors, and where appropriate, supervisory meetings with officers, retraining, counseling, assignment to a FTO, transfer, or reassignment, b. The City shall identify for review by senior supervisors, all officers with three or more complaints of misconduct or other IA referrals in three years, whether or not the disposition of the investigation was "sustained". Such review shall result, where appropriate, in supervisory meetings with the officer, retraining, counseling, assignment to a FTO, transfer, or reassignment. The City's supervisory response shall address the types of misconduct alleged. 67. The City shall require all officers to notify the Chief of Police and the IA Officer when the officer has been arrested or criminally charged, or named as a party in any civil suit involving his or her conduct as an SPD officer or including allegations of untruthfulness, physical force, racial bias, or domestic violence. The Chief or the IA Officer shall notify the City Manager and the Law Director, and the City and the SPD shall monitor all criminal prosecutions of officers, and all such civil litigation. 68. The City shall monitor all criminal proceedings containing allegations of false or unconstitutional arrests or improper searches or seizures by SPD officers. Whenever such a
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court finds an SPD officer to have falsely arrested an individual or conducted an improper search or seizure, such judicial findings, shall be included along with the information gathered by the IA investigation, in the information system described in 1 71 and in an officer's complaint history. A finding of notguilty, without more, shall not be considered a judicial finding of misconduct under this paragraph.
69. After cin IA investigation is complete, and findings and a disposition have been made, the Chief of Police shall decide an appropriate supervisory and/or disciplinary response. In particular:
a. At the close of every IA investigation (whatever its disposition), the Chief shall evaluate the need for non-disciplinary supervisory steps, including remedial training, counseling, assignment to an FTO, transfer, or reassignment. The Chief's decision shall be made in writing, shall set forth its rationale and the factors considered, and shall be part of the investigation record.
b. Whenever the disposition of an IA investigation is "sustained," the City shall impose appropriate discipline and supervision. Except where the discipline is termination, the City shall require the officer to receive remedial training and counseling, in addition to whatever other steps are taken. Where appropriate, the City also shall transfer or reassign any officer when a "sustained" disposition is made.
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c. In deciding the appropriate discipline for each officer who is the subject of a "sustained" disposition, the City shall consider an officer's complaint history and the immediate misconduct. Prior remedial training, counseling, discipline, transfer, or reassignment for allegations of related misconduct also shall be considered in assessing the severity of the discipline imposed. Anonymous complaints determined by the IA officer after investigation to be uncorroborated may not be the basis of discipline of any officer.
d. The City shall discipline and appropriately re-train, counsel, re-assign, or transfer officers found guilty or liable by a court or jury of misconduct related to their SPD duties.
e. The IA report and additional reports by the Chief of Police and (if applicable) the City Manager shall be reviewed by the subject officer's chain of command within one week of completion of the IA investigation.
70. The City shall maintain records documenting all mandatory counseling of officers. At a minimum, these records shall reflect the name of the officer, the reasons for the referral (including any IA file number or other related cross references), the general subject matter of the mandatory counseling, and whether the mandatory counseling sessions were attended.
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INFORMATION SYSTEM 71. The City shall develop a plan for maintaining information necessary for supervision and management of the SPD. Prior to implementation, the plan must be reviewed by the independent auditor and approved by the United States. The information system developed shall include the following features: a. The system shall collect and maintain, in accessible
form, information about SPD arrests, stops, searches, seizures, uses of force, vehicular pursuits, officer injuries, weapons discharges, complaints and commendations, training, discipline, and counseling. b. The system shall include, at a minimum, the following information, in a form searchable by officer, date and range of dates, supervisor, squad, shift, special unit, and charge: all arrests with the location of each arrest, the race of each arrested person, and the code violation(s); uses of force, vehicular pursuits, serious injuries, and weapons discharges as documented in the reports described in ^ 22; stops, searches, and seizures, as documented in the reports described in U 23; a detailed description of all allegations that have triggered IA investigations, including all information described in 1 60; discipline, training, reassignments, transfers, and mandatory counseling imposed, and related IA file numbers (if any); commendations and other indicia of positive
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performance; status of any administrative appeals or grievances. c. Information regarding an officer shall be maintained in the information system during that officer's employment with the SPD and for three years after the officer leaves the SPD. Information regarding an officer that is removed from the information system shall be maintained indefinitely in an archive. 72. The City shall gather records relating to each civilian complaint, civil suit, judicial finding of misconduct, and criminal charge relating to SPD officer misconduct since 1990, and shall incorporate into the information system as much of the information as possible about each one. This information shall be included in the complaint history of each officer, and shall be audited and evaluated as discussed below. 73. The City shall use the information system described in H 71 to supervise the behavior of officers. At a minimum, the City shall use the information system to conduct regular audits in the areas discussed in the following paragraphs (1H| 74-77): 74. The City shall conduct regular audits and reviews of the uses of force by all officers. The City and SPD supervisors shall have an affirmative obligation to act on this data with the goal of preventing the use of excessive force. In addition to reviewing each use of force, as discussed in % 22, at a minimum, SPD senior super-visors shall analyze use of force information on a quarterly, cumulative basis to detect trends in SPD use of force. The analysis shall include a review of use of force
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incidents by officer, by injury, and by type of force used. The City, and SPD senior supervisors shall act on this data to ensure that SPD officers are using appropriate types and amounts of force.
75. The City shall conduct regular audits and reviews of stops, searches, and seizures by all officers. The City and SPD supervisors shall have an affirmative obligation to act on this data with the goal of preventing improper stops, searches, and seizures by their officers. In addition to reviewing each stop, search, and seizure, as discussed in 1 25, at a minimum SPD senior supervisors shall analyze stop, search, and seizure information on a. quarterly, cumulative basis to detect trends in SPD practices. The analysis shall include a review of incidents by officer, by injury, and by type of stop, search, or seizure used. The City and SPD senior supervisors shall act on this data to ensure that SPD officers are using appropriate types and methods of stops, searches, and seizures.
76. The City shall conduct regular audits and reviews of arrest and charging practices by all officers. The City and SPD supervisors shall have an affirmative obligation to act on this data with the goal of preventing improper arrests by their officers. At a minimum, SPD senior supervisors shall analyze arrest and charge information on a quarterly, cumulative basis to detect trends in SPD arrests and charging practices. The analysis shall include a review of arrests for the charges listed in 1 27 by officer. SPD senior supervisors shall act on this data to ensure that SPD officers are bringing only appropriate
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charges, and are not violating other department policies or legal rules.
77. The City shall conduct regular audits and reviews of potential racial bias (including use of racial epithets) by all officers. The City and SPD supervisors shall have an affirmative obligation to act on this data with the goal of eliminating actions that reflect racial bias by officers. At a minimum, SPD senior supervisors shall analyze racial information on a quarterly, cumulative basis to detect trends of possible racial bias. The analysis shall include a review of race statistics in the categories of arrest listed in ^ 27, and in uses of force, stops, searches and seizures, and complaints; use of racial epithets; or other indicators of possible racial bias.
PERSONNEL MATTERS 78. The City shall develop and implement a performance evaluation policy for officers. Prior to implementation, the policy must be reviewed by the independent auditor and approved by the United States. The policy shall set out objective, jobrelevant criteria, and provide for review of these criteria by each officer. It shall provide that each officer receive periodic face-to-face and written performance evaluations by supervisors during which his or her performance is discussed and evaluated, including recommendations for necessary improvement. Evaluations shall include narrative discussion of the officer's performance, and shall explain fully the weight and substance of all factors used to evaluate an officer. Supervisors shall include in the evaluation consideration of uses of force,
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civilian complaints, disciplinary actions, injuries, etc., focusing on possible patterns of misconduct or inappropriate action. The performance evaluations shall be part of promotion decisions made about any officer. Anonymous complaints determined by the IA officer after investigation to be uncorroborated may not be the basis of denial of promotion of any officer. Supervisors and senior supervisors' evaluations shall include assessment of their ability to monitor, deter, and appropriately address misconduct or inappropriate action by officers they supervise.
79. The City shall implement a performance evaluation system for the Chief of Police, who shall be evaluated by the City Manager. Each year, the City Manager and the Chief of Police shall together formulate the performance criteria, goals, and objectives for that year. The City Manager shall evaluate the Chief's performance on the basis of the City Manager's ongoing oversight of the SPD, and also of twice-yearly reports by the Chief discussing progress and problems and addressing specifically the goals and objectives. The Chief's performance evaluation shall consider and address progress on implementation of this Decree and its objectives.
80. Because peculiar and exceptional qualifications of a managerial and professional character are required, and because competition in such special case is impracticable and the position can best be filled by selection of a person of high and recognized attainments, pursuant to the provisions of Ohio law, when a vacancy occurs in the position of Chief of Police, the
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City shall suspend the provisions of Ohio Revised Code §§ 124.01 to 124.64. Selection of a new Chief of Police shall be conducted in accordance with the following provisions:
a. A written and/or oral competitive examination may be part of the selection process. The search and selection process proposed by the City, including any competitive exam, must be reviewed by the independent auditor and approved by the United States.
b. The City shall search (or shall contract with a qualified search organization) for a Chief who is qualified to implement this Decree and its objectives, and shall select a Chief with sufficient expertise. Candidates who are already employed by the SPD at the time of the search shall receive preference in the hiring process for Chief of Police. The degree of preference will be one provision of the selection process developed as set out in subparagraph a.
c. Officers who are employed by the SPD on the effective date of this decree and who would otherwise be eligible to sit for a competitive exam for the position of Chief of Police, at the time of selection, need not meet the education qualification set out in subparagraph d, below, in order to be eligible for selection.
d. Mandatory qualifications, except as set out in subparagraph c, shall include a four year college degree, appropriate administrative experience, and a demonstrated commitment to police excellence.
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e. The salary offered to any new Chief of Police shall be commensurate to his or her experience and qualifications.
81. The City shall contract for or provide an employee assistance program ("EAP"). This program shall at a minimum provide counseling and stress management services to officers. The program shall be staffed by sufficient licensed and certified counselors who are trained and experienced in addressing psychological and emotional problems common to police officers. The City shall publicize the availability of these services to all officers. Except when the City imposes mandatory counseling as a supervisory tool, officers shall be free to attend counseling confidentially, and without any adverse actions taken against them. The City shall refer officers to EAP counseling where the City believes an officer's job performance may benefit from EAP services.
IMPLEMENTATION 82. Within 60 days after the entry of this Decree, the City and the United States shall together select an independent auditor who shall report on a quarterly basis the City's compliance with each provision of this Decree. The auditor shall be an agent of the Court and shall not be retained by any current or future litigant or claimant in a claim or suit against the City or its officers. The auditor shall not issue statements or make findings with regard to any act or omission of the City, the SPD, or the IA Officer or staff, except as required or expressly authorized by the terms of this Decree. The auditor may testify
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in court regarding any matter relating to the implementation, enforcement, or dissolution of this Decree. The auditor shall be acceptable to both parties. If the parties are unable to agree on an auditor, each party shall submit two names, along with resumes or curricula vitae and cost proposals, to the Court and the Court shall appoint the auditor from among the names submitted. The City shall bear all costs of the auditor.
83. The auditor shall offer the City technical assistance in coming into compliance with this Decree, including with: policy development, forms, training, management information systems. The auditor shall perform the policy review function specified in the Decree, and also shall audit and evaluate compliance with the Decree.
84. If the parties agree both that a particular technical assistance function should be provided by someone other than the auditor, and on who the alternative consultant should be, limited technical assistance tasks may be performed by someone other than the auditor. The City shall bear all costs of any additional consultant.
85. Within eight months of the effective date of this Decree, the City shall provide the auditor and the United States with its preliminary policies, manuals, and forms required to be developed under this Decree. Once the policies and manuals have been reviewed by the auditor, and approved by the United States, the City shall implement them within 30 days. If agreement proves impossible, the decision shall be made by the auditor.
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86. The City shall provide the auditor with full access to: all IA staff and records (including databases, files, and quarterly summaries); the information system described in ^ 71; all information regarding officer use of force, stops, searches and seizures (including all reports required by \% 23, 25, and 27); all records kept by a legal advisor of any advice or counsel, sought by an officer,- and all relevant City policies and procedures that the auditor deems necessary to fulfill his or her duties, as defined below. At a minimum, the auditor shall review and evaluate the following, and issue a quarterly report to the parties and the Court describing the review and analysis:
a. All IA reports, along with any additional reports by the Chief of Police and the City Manager, and any findings by the Civil Service Commission. The City shall forward all such records to the auditor immediately upon their completion.
b. All records specifying the imposition of, and completion of supervisory steps and disciplinary actions, taken after an IA investigation or an information system audit. The City shall forward all such records to the auditor immediately upon their completion.
c. The substance and timeliness of at least 50% of all IA investigations completed during each evaluation period.
d. All officer uses of force, stops, searches and seizures, and arrests in the categories specified in 1 27.
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87. The City shall re-open for further investigation all investigations the auditor determines to be incomplete. The auditor shall provide written instructions for completing the investigation.
88. Ninety days following entry of this Decree and every six months thereafter until this Decree is terminated, the City . shall file with the Court and the auditor, with a copy to the United States, a status report delineating all steps taken-during the reporting period to comply with each provision of this Decree. The first two reports also shall include timetables setting out the steps the City has taken and will take to meet the deadline in H 85.
89. The City shall maintain all records necessary to document their compliance with all terms of this Decree. The City shall also maintain any and all records required by or developed under this Decree.
90. During all times while the Court maintains jurisdiction over this action, the auditor shall have unrestricted access to and, upon request made to the City's Law Director, receive copies of any documents and any databases relating to the implementation of this Decree. The auditor shall have immediate access to all City staff and facilities as necessary to monitor the City's compliance with the terms of this Decree.
91. During all times while the Court maintains jurisdiction over this action, the United States shall have access to and, upon request made to the City's Law Director, receive copies of any documents and any databases necessary to evaluate compliance
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with this Decree. The United States shall have immediate access to all staff and facilities as necessary to evaluate the City's compliance with the terms of this Decree.
92. This Decree shall become effective on entry by the Court.
COMPLIANCE 93. The City shall immediately provide copies of, and explain the terms of this Decree to all current and future officers and employees, and all City officials with oversight or responsibility for SPD operations, in order to ensure that they understand the requirements of this Decree and the necessity for strict compliance. All such individuals shall sign a statement indicating that they have read and understand this Decree and acknowledge receiving an individual copy of the Decree. These statements shall be retained by the City. 94. Except where otherwise specifically indicated, the City shall implement all provisions of this Decree within ninety days after entry of this Decree. 95. If the United States seeks a finding of contempt against the City, it shall be obligated to show that the City is not in substantial compliance with the relevant provision of this Decree. 96. The Court shall retain jurisdiction of this action for all purposes during the term of this Decree. At any time after both five years have elapsed since the date of entry of this Decree, and substantial compliance has been maintained for no less than two years, the City may move to dismiss this Decree.
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Any motion to dismiss must detail all aspects of the City's compliance with each provision of this Decree, supported by affidavits and supporting documentation. The United States shall have ninety days from receipt of the City's motion to dismiss to file any objections. In the event the United States files objections to the City's motion, the Decree shall remain in effect at least until entry of a court order disposing of the motion and thereafter as dictated by the court's order. In the event the United States objects to termination of the Decree, the Court shall hold a hearing, at which both parties may present evidence, before ruling on the City's motion to dismiss. At the hearing, the burden shall be on the City to demonstrate that it has fully and faithfully implemented all provisions of this Decree and maintained substantial compliance for at least two years.
MODIFICATIONS 97. No changes, modifications, or amendments of this Decree shall be effective unless they are ordered by the Court.
SEVERABILITY 98. The parties agree to defend the provisions of this Decree. The parties shall notify each other of any court or administrative challenge to this Decree. In the event any provision of this Decree is challenged in any local or state court, removal to a federal court shall be sought. 99. In the event any provision of this Decree is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Decree.
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We consent and seek entry of this Decree-. FOR THE PLAINTIFF, THE UNITED STATES OF AMERICA:

SHARON J. ZEALEY United States Attorney Southern District of Ohio

ISABELLE KATZ PINZLER Acting Assistant Attorney
General Civil Rights Division

JAMES "RATTAN (#0018632) Civil Chief Office of the U.S. Attorney Southern District of Ohio 280 North High St., 4th floor Columbus, OH 43215 (614) 469-5715

STEVEN H. ROSENBAUM Chief MELLIE H. NELSON Deputy Chief U.S. Department of Justice Civil Rights Division Special Litigation Section

MARGO SCHLANGER Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202) 616-8657

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FOR

DEFENDANTS, C/TY OF STEUBENVILLE, KL &L-/te /

DOMINIC MUCCI/ Mayor City of Steubenville
300 Market Street Steubenville, OH 43952

!

/

/

!

•

—

.-City Manager City of ''Steubenville 302 Market Street Steubenville, OH 43952 (614) 283-6133

GARY REPELLA ' City of Steubenville
Law Director Attorney of Record 308 Market Street Steubenville, OH 43952 (614) 283-6031

SO ORDERED this

1997.

United States District Judge

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 U.S. v. City of Steubenville

PN-OH-002-007 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

S8JUL23 PHI2--30
'-.S. !V\J^ir-T rru.'r:r
EAST. tiV. COLUMBUS

vs. CITY OF STEUBENVILLE, OHIO, et al.,
Defendants.

Civil Action 2:97-CV-966 Judge Smith Magistrate Judge King

OPINION AND ORDER This action was commenced on August 28,1997 by the United States of America ["United States"] pursuant to 42 U.S.C. §14141 in connection with an alleged pattern or practice of conduct on the part of law enforcement officers of the City of Steubenville which conduct allegedly deprived persons of rights secured by the United States Constitution. The defendants in the action include: the City of Steubenville ["City"], the Steubenville Police Department ["SPD"], the Steubenville City Manager and the Steubenville Civil Service Commission. The parties entered into a consent decree ["decree"] resolving the subject matter of this action and the Court approved the decree on September 3, 1997. The Fraternal Order of Police, Fort Steuben Lodge No. 1 ["FOP"] now contests portions of the decree and seeks to intervene in the action as a third-party plaintiff. This matter is before the Court on the FOP's motion.

I. Background The City and FOP are parties to a collective bargaining agreement ["CBA"] pursuant to

which the FOP is recognized as "the exclusive bargaining agent for all members of the Steubenville Police Department." (See Exhibit A attached to FOP's Motion to Intervene). The CBA provides for arbitration in the event of a dispute concerning application of the agreement. In its motion to intervene, the FOP states that arbitration involving its concerns with regard to the decree is pending but that the City has taken no action to bring arbitration forward. (FOP's Motion to Intervene at 1).
The FOP contends that certain portions of the decree interfere with the right of police officers to collectively bargain and that, therefore, the decree violates the FOP's contract with the City and the City charter. Specifically, the FOP seeks to challenge portions of the decree dealing with changes in working conditions, changes in disciplinary procedures and changes in the procedure for selection of chief of police. (See Motion to Intervene at 7-8). The FOP asserts that implementation of the consent decree deprives it of a property interest without due process of law. (Id.).
II. Discussion A. Rule 24 Intervention The FOP seeks to intervene as third party plaintiff in the instant action pursuant to Fed.
R. Civ. P. 24. This rule provides in relevant part: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional night to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common . [ ]. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
The FOP asserts that it is entitled to intervene in this action pursuant to Rule 24(a)(2) and/or
Rule 24 first requires that an application for intervention of right or for permissive
intervention be timely. The United States Court of Appeals for the Sixth Circuit has identified
five factors for consideration in assessing whether an application is timely:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.
Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989). The consent decree in the instant action
was entered approximately one week after the action was filed. The FOP's motion to intervene
was filed approximately six weeks thereafter. In light of the relevant factors, the Court concludes
that the FOP's motion to intervene is timely. The Court will now proceed to the merits of the
motion.
Intervention as a matter of right is proper when the proposed intervenors demonstrate, in
addition to the timeliness of the motion, that they have a significant legal interest in the subject
matter of the pending action; that disposition of the action may impair or impede their ability to
protect the legal interest; and that the parties to the action cannot adequately protect the proposed

intervenors' interest. Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). As to the first requirement, the FOP asserts that it has a "significant legal interest" in the subject matter of this action because the police officers, by virtue of ORC §124.11(B)(1)', have a constitutionally protected property interest in their employment. See Cleveland Board ofEduc. v. Loudermill, 470 U.S. 532 (1985). The FOP contends that implementation of the decree effectively alters the officers' interest in their jobs without having first afforded the officers, through the FOP, an opportunity to be heard. The provisions which allegedly alter the officers' employment are those related to the process for selection of chief of police, changes in working conditions and changes in disciplinary measures.
Whether the FOP's asserted interest is sufficient to warrant intervention as of right, depends upon whether it has a "significantly protectable" interest. See Donaldson v. United States, 400 U.S. 517, 532 (1971); Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir. 1990). The proposed intervenors must have a "direct" and "substantial" interest in the litigation. Meyer Goldberg, Inc. ofLorain v. Goldberg, 717 F.2d 290, 292 (6th Cir. 1983). While these terms are not easily defined, the United States Court of Appeals for the Sixth Circuit has held that its view of an interest sufficient to warrant intervention as of right is "expansive." Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997); Bradley v. Milliken, 828 F.2d 1186,1192 (6th Cir. 1987) ("interest" is to be liberally construed). Furthermore, the proposed intervenor need not possess the same standing as would be required to initiate a lawsuit. Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991).
'This provision states that persons employed by civil service police departments which have ten or more full-time paid employees, are members of classified civil service.

Despite the apparent "expansive" view of an interest sufficient to warrant intervention as of right, this Court concludes that the FOP does not have a "significantly protectable" interest in this action. The Court finds the FOP's asserted interest distinguishable from the type of interest which merits intervention pursuant to Rule 24(a). For example, in Jansen v. City of Cincinnati, supra, a group of black applicants for employment in the fire department sought to intervene in an action brought by a group of white applicants who challenged an earlier consent decree regarding minority hiring, to which the black applicants were a party. The proposed intervenors in that case held a significant legal interest in the action because of the impact the court's ruling would have on the earlier consent decree and on their employment. Similarly, in Grubbs v. Norris, 870 F.2d 343 (6th Cir. 1989), a local government intervened as of right in an action concerning state prison conditions since a ruling regarding restrictions on the state prison population would necessarily affect the local government's prison population. In contrast, the FOP's asserted interest in preserving its ability to collectively bargain and to uphold the city charter is unaffected by this Court's adoption of the consent decree at issue. As explained, infra, the Court finds that the changes in working conditions, changes in disciplinary measures, and changes in the process for selection of chief of police to be implemented pursuant to the decree do not alter the officers' interest in their employment or the ability of the FOP to collectively bargain on the officers' behalf.
First, while it is undisputed that the FOP is the exclusive bargaining agent for the officers, the Court finds that the provisions of the decree related to the officers' "working conditions" do not affect the FOP's ability to bargain. The decree provides for the adoption of policies related to the areas of officer training; uses of force; stops, searches and seizures; internal affairs; officer
5

supervision and officer performance. The CBA provides that "all benefits, whether monetary or otherwise conferred by ordinance or law . . . shall not be changed nor modified." (Exhibit A attached to Motion to Intervene). While the adoption of policies pursuant to the decree can be interpreted as a change in the officers' working conditions, or "benefits," in light of Ohio R.C. §4711.08 and the CBA, the Court finds that, such changes are not subjects for collective bargaining. §4711.08(A) states that all matters relating to "wages, hours, or terms and other conditions of employment... are subject to collective bargaining between the public employer and the exclusive representative . . . ." However, §4711.08(C) provides that unless otherwise agreed to in the relevant collective bargaining agreement, nothing in §4711 impairs the right of the public employer to determine, inter alia, matters of "inherent managerial policy;" to "improve the efficiency and effectiveness of governmental operations;" and to "[effectively manage the work force." R.C. §4711.08(C)(l), (3), (8). The terms of the CBA entered into between the City and the FOP do not require bargaining on the various policy issues embodied in the decree. Therefore, the Court finds that the decree does not change the officers' interests in their employment, nor does it hinder the FOP's ability to bargain on the officers' behalf.2 Moreover, the decree specifically states that "[n]othing in this Decree is intended to alter the collective bargaining agreement between the City and the [FOP]." {Consent Decree at 1)6).
For these same reasons, the Court finds that changes in disciplinary measures (Consent Decree at ^64-77) to be implemented pursuant to the decree are not subject to collective
2To the extent that implementation of the policies eventually leads to changes in aspects of employment which pursuant to the CBA, are subject to bargaining between the City and the FOP, the FOP must then be allowed to bargain on the officers' behalf. The United States acknowledges this possibility. (Memorandum contra at 10 n.6).

bargaining and therefore do not impact upon the FOP's bargaining right. In addition, the proposed changes in disciplinary measures do not affect the officers' interest in their employment.
Finally, the Court concludes that the provisions regarding the change in the process for the selection of chief of police do not infringe upon any employment interest of the officers, nor do they infringe upon the FOP's collective bargaining interest. The decree provides that in the event of a vacancy in the position of chief of police, the City is to suspend its current method of selection of the chief, pursuant to R.C. §124.01, et seq., in favor of the process outlined in the decree. {Consent Decree at TJ80). However, the decree provides that a written and/or oral competitive examination may be part of the selection process. {Id. at ^|80a). The decree outlines mandatory qualifications for the position of chief of police, including a four year college degree, appropriate administrative experience, and a demonstrated commitment to police excellence. {Id. at TJ80d). The decree contemplates a search for chief from outside the ranks of the SPD, however, the decree states that officers employed on the effective date of the decree, who are otherwise eligible to take an examination, are exempt from the educational requirement and shall receive preference in the selection process. {Id. at 1|80b, c).
The FOP asserts; that this change in the selection process violates both the City charter and the Ohio Revised Code, and that it operates to deprive officers of the expectation of becoming chief of police. {Motion to Intervene at 8). The Court concludes that the selection provisions, although a departure from the current method of selection, do not deprive the officers of a constitutionally protected property interest in their employment. Neither do the provisions infringe on the FOP's bargaining interest. The provisions are not in violation of the Revised
7

Code, as the decree does not completely dispense with competitive examination and current
officers are to receive preference in the selection process without having to meet the educational
requirement. (Consent Decree at ^[80b,c). R.C. §124.30(B) specifically allows for a departure
from the competitive appointment requirements of §§124.01-124.64 under the following
circumstances:
[Wjhere peculiar and exceptional qualifications of a scientific, managerial, professional, or educational character are required, and upon satisfactory evidence that for specified reasons competition in such special case is impracticable and that the position can best be filled by a selection of some designated person of high and recognized attainments in such qualities, the director may suspend the provisions of sections 124.01 to 124.64 of the Revised Code, requiring competition in s;uch case, but no suspension shall be general in its application, and all such cases of suspension shall be reported in the annual report of the director with the reasons for the suspension.
R.C. §124.30(B). The United States asserts, and this Court agrees that, pursuant to this section,
suspension of the normal selection procedure is justified in light of the investigation into alleged wrongdoing in the operation of the SPD.3
Moreover, the City charter and collective bargaining agreement do not preclude a change
in the process for selection of chief. Article 5, section 5 paragraph D of the City charter provides
that, when a vacancy in the position occurs, the Chief is to be selected by competitive
examination pursuant to Article 6, section 1. Article 6 section 1 provides that the general law
applicable to civil service positions, i.e. R.C. §124.01, et seq., is to remain in effect. Since the
selection provisions are within the parameters of the Revised Code, the Court finds no violation
3The Court cautions however, that, pursuant to §124.30(B), the suspension of §§124.01-124.64 cannot be generally applied. However, in light of the decree's reference to competitive examination and to consideration of promotion of officers to the position of chief, the Court assumes that the suspension of R.C. §§124.01-64 is not a general suspension.
8

of the City charter. Furthermore, as the CBA makes no reference to the method for selection of the chief of police, the Court finds that the provisions are not in violation of the CBA.
In sum, the Court finds that the provisions of the decree which the FOP seeks to challenge do not impact upon the officers' interest in their employment or upon the FOP's bargaining status.4 Therefore, the FOP does not possess a significantly protectable interest in the subject matter of this action sufficient to warrant intervention as of right. In light of this conclusion, the Court need not address the remaining requirements for intervention pursuant to Rule 24(a).
The FOP also asserts that permissive intervention pursuant to Rule 24(b) is appropriate. Even if intervention is unavailable as a matter of right, the Court has discretion to permit an applicant to intervene in an action when the "applicant's claim or defense and the main action have a question of law or fact in common," as long as intervention will not "unduly delay or prejudice the adjudication of the rights of the original parties." Rule 24(b). The Court finds intervention by the FOP on this basis to be inappropriate in light of the fact that the consent decree resolving this case was entered prior to the filing of the motion for leave to intervene.
B. Rule 19 Joinder The FOP also seeks to enter the instant action by asserting that it should have been joined as a party pursuant to Rule 19(a). This rule provides for joinder of a party to an action if:
"The Court finds the FOP's interest distinguishable from situations in which unions have been permitted to intervene and challenge consent decrees. See e.g., EEOC v. AT&T, 506 F.2d 735 (3rd Cir. 1974).

(1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may
(i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed. R. Civ. P. 19(a). The Court finds that complete relief can be afforded in the absence of the FOP, and as previously stated, the Court finds that the FOP does not have a significant legal interest in the subject matter of this action.
III. Conclusion In light of the foregoing, the FOP's motion to intervene in the instant action is DENIED. If any party seeks reconsideration of this Order, that party may, within ten (10) days, file
and serve on all parties a motion for reconsideration by the Court, specifically designating this Opinion and Order, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(l); Rule 72(a); Fed. R. Civ. P.; Eastern Division Order 91-3 (I)(F)(5).
Norah Mcyann King United States Magistrate Judge
10

 
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FOR THE SOUTHERN DISTRICT OF OHIO

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UNITED STATES OF AMERICA,

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Plaintiff,

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v. CITY OF STEUBENV~LLE, et al.,

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CIVIL NO. C2-97-966

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Defendants.

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UNITED STATES' MEMORANDUM IN OPPOSITION TO INTERVENTION BY FRATERNAL ORDER OF POLICE. FORT STEUBEN LODGE NO. 1

INTRODUCTION AND SUMMARY

On August 28, 1997, the parties moved jointly for this Court to enter a Consent Decree in

settlement of the United States' Complaint in this case. The Court entered the Decree on

September 3, 1997. The Fraternal Order of Police, Fort Steuben Lodge No. 1 ("FOP" or

"Union") now seeks pursuant to Fed. R. Civ. P. 24 to intervene in this action, presumably as a

defendant, and, apparently, to vacate the Decree. The FOP moves for intervention as of right, or,

alternatively, permissive intervention.1'

The United States respectfully requests this Court to deny the intervention motion. As set

out in the parties' Joint Motion for Entry ofthe Consent Decree, filed concurrently with the

Decree, and incorporated herein by reference, the Decree's entry and each of its terms were and

are appropriate. The Decree resolves the allegations in the United States' Complaint that officers

of the Steubenville Police Department ("SPD") have engaged in a pattern or practice of conduct

that deprives persons of rights, privileges, or immunities secured and protected by the

Constitution and the laws of the United States, and that the City of Steubenville, the Steubenville

11 Exhibit D to the intervention motion is an unsigned "Third Party Complaint," not ·· separately filed and not referred to in the motion. The "complaint" is improperly filed and in any event raises no issues separate from the motion.

Police Department, and the Steubenville City Manager (in his capacity as Director of Public

Safety) have caused and condoned this conduct tlrrough inadequate policies and failure to train,

monitor, supervise, and discipline police officers, and to investigate alleged misconduct, all in

violation of 42 U.S.C. § 14141. The Decree was carefully drafted to help the Steubenville Police

Department satisfy constitutional requirements by implementing a comprehensive system that

enhances accountability and supervision of officers and managers of the Steubenville Police

Department, and meets current standards in the law enforcement profession.

In opposition to this resolution reached by two governmental entities with shared concern

for effective and constitutional law enforcement, the FOP asserts a set ofvague and non-legal

interests. Although the FOP purports not to oppose the entire Decree, it fails to identify

specifically which provisions it considers unlawful (or even inadvisable). Because the Decree

does not infringe a "significantly protectable interest" of the FOP, under either state or federal

law, the Court should deny intervention."

ARGUMENT

I.

THE APPROPRIATE FORUM.

Preliminarily, the United States agrees with the FOP that this Court is the most

appropriate forum for assessment of the Union's rights and the relation ofthose rights to the

Decree. ~Local 1814 v. New York Shipping Ass'n, 965 F.2d 1224 (2d Cir.),~ denied,

506 U.S. 953 (1992) (approving district court injunction against labor arbitration over whether

employer's accession to consent decree with federal government infringed the union's collective

bargaining rights). The assessment should, moreover, take place in the Court's decision

regarding the motion to intervene. If the Court finds that, under state and federal law, the

21 The only other court to have considered a similar motion in the context of a case brought under 42 U.S.C. § 14141 rejected the Pittsburgh FOP's motion to intervene, holding that the proposed Consent Decree in that case (which was very similar to this Decree) violated neither the FOP's Collective Bargaining Agreement nor state law governing collec~ive bargaining · agreements. See Transcript of Hearing in United States v. Citv of Pittsburgh (No. 97-354, W.D.
Penn., Apr. 16, 1997) at 76, 77 (copy attached as Exhibit A).

"
Consent Decree infringes none of the asserted rights of the FOP and its members, it should deny intervention at this time.JI II. INTERVENTION AS OF RIGHT
A. The A~plicable Standard The requirements for intervention as of right are set forth in Fed. R. Civ. P. 24(a), which states in pertinent part:
Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject ofthe action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. Under Sixth Circuit authority, proposed Rule 24(a)(2) intervenors "must meet four criteria before intervention by right is permitted: (1) the application for intervention must be timely; (2) the applicant must have a substantial, legal interest in the subject matter of the pending litigation; (3) the applicant's ability to protect that interest must be impaired; and (4) the present parties do not adequately represent the applicant's interest. The proposed intervenor must prove each of the four factors; failure to meet one of the criteria will require that the motion to intervene be denied." Grubbs v. Norris, 870 F.2d 343, 344 (6th Cir. 1989). In this case, the most important factor is the second one - the asserted interest of the FOP in this litigation. The procedural right to intervene depends on the assertion and the facial merits of an underlying substantive right possessed by the would-be intervenor; mere concern with the topic of the litigation, however sincere, does not suffice. Thus the Supreme Court has emphasized that to meet the requirement of Rule 24(a)(2) the asserted right must be "a significantly protectable interest." Donaldson v. United States, 400 U.S. 517, 530 (1971). In
'J/ If at some point in the future, the FOP has some additional claim based on a new cognizable injury (for example, that implementation of the policies adopted pursuant to the Decree-mandated process would violate the Union's rights in a manner not currently in issue), it can always raise the claim later.
...
- .J -

Donaldson, the applicant was not entitled to intervention in a proceeding to enforce an IRS summons issued to his former employer, because he had no right to suppress the government's acquisition of the materials with which he was concerned, though they contained details about his income. The Sixth Circuit has conducted similar inquiries - assessing the merits of the "right" asserted by the would-be-intervenor-to decide if the requirements of Rule 24 have been met. See,~. Purnell v. Citv of Akron, 925 F.2d 941 , 945 (6th Cir. 1991) (whether intervention should be granted depends on the movants' right under state law to sue for damages in certain circumstances; if they "have no such rights, then [they have] no basis to intervene under Rule 24(a)(2)"); United States v. Kentuckv Utilities Co., 927 F.2d 252 (6th Cir. 1991) (whether intervention should be granted depends on claimant's "strong claim of entitlement" under Freedom of Information Act to certain documents); Donovan v. Westside Local 174, 783 F.2d 616, 623 (6th Cir. 1986) (intervention as of right is appropriate where the intervenor "is the defeated candidate for union office who satisfactorily alleges violations" oflabor election law). As discussed below, the Decree does not infringe any rights of the FOP, and, accordingly, the Union is not entitled to intervene..!'
B. The Asserted Rights It is difficult to decipher the precise interests in this litigation asserted by the FOP. Apparently, the FOP objects to several provisions of the Decree that allegedly conflict with its current Collective Bargaining Agreement ("CBA"), and other provisions that allegedly infringe
~ Even if the Decree did alter the state-law rights of the FOP in some way, such minor alterations are well within the remedial authority of this federal Court, asked to approve a consent decree that fairly and reasonably settles a case about systemic civil rights violations. See Brown v. Neeb, 644 F.2d 551 , 563 (6th Cir. 1981) (remedial authority of federal court extends to abrogation of state law seniority rights in consent decree settling employment discrimination suit); Smith v. Citv of Cincinnati, 929 F.2d 702 (6th Cir. 1991) (table) (copy attached as Exhibit B) (under Supremacy Clause, federal consent decree settling employment discrimination suit
defeats state law promotional rights). CT Local 1814, suora (approving district court injunction
of labor arbitration premised on the court's acknowledgment that it might approve a settlement that violated state law bargaining rights of employees).
- 4-

its right to bargain over terms and conditions of employment. Motion for Intervention of Right
or Permissive Intervention (hereinafter "FOP Motion") ii 4; Memorandum in Support of the
Motion for Intervention of Right or Permissible Intervention (hereinafter "FOP Mem.") at 2. Related to this second interest, the FOP argues that it should have been more fully included in the negotiation process that led to joint submission of the Decree by the parties. FOP Mem. at 2.
In addition, the FOP argues that if 80 of the Decree, which alters the selection process for the
successor to the current Steubenville Chief of Police, is unlawful as a·m;tter of state law. FOP Mem. at 8. And the FOP seems to state that it is entitled to a hearing on the underlying allegations in the United States' Complaint because its members have a due process right in continued employment. FOP Mem. at 5. Although the analysis ofeach of these alleged interests is different, none of the Consent Decree provisions infringes any right of the FOP, and
accordingly none creates a right to intervene. We address the FOP's asserted interests in tum.
1. The Alleged Conflict With the Collective Bargaining Agreement. The Decree in this case requires systemic reforms to the Steubenville Police Department addressing: (1) training of police officers and supervisors (Decree~~ 12-20); (2) reporting and oversight of certain activities of police officers, including uses of force; stops, searches, and
seizures, vehicular pursuits; certain types of arrests (Decree ifif 20-27); (3) internal affairs
investigations and civilian complaints (Decree,, 28-63); (4) management and supervision of police officers and supervisors, on the basis of specified sources of information, including the various activity reports required by the Decree, civilian complaints of misconduct, and civil and criminal findings by courts (Deere~ ~if 65-77); (5) discipline of officers on the basis of sustained
findings of misconduct (Decree ir 69); (6) performance evaluations of officers and supervisors (Decree ifif 78-79); (7) selection of the best available candidate for Chief of Police, when a
vacancy occurs, by a comprehensive search process, rather than written examination of inside
candidates only (Decree ir 80). In each of these areas, the Decree does not set new policies a.nd
procedures for the Steubenville Police Department. Rather, implementation of the Decree
-5 -

'•

requires the City to develop and implement a number of new policies and procedures, subject to

review by an independent auditor and approval by the United States. Moreover, the Decree does

not attempt to state how supervisory issues should be resolved - it merely sets parameters for the

process. For example, the Decree requires that "Whenever the disposition of an [internal affairs]

investigation is 'sustained,' the City shall impose appropriate discipline and supervision," Decree
~"".... if 69(b), but does not purport to decide for the City what range of disciplinary options is

appropriate for what offenses.

The FOP attached its collective bargaining agreement to its motion, as FOP Exhibit A.

Examination of the terms of the agreement reveals unmistakably that no provision of the Decree

creates even a colorable conflict with the CBA, whose scope is extremely limited. See~
Decree if 6 ("Nothing in this Decree is intended to alter the collective bargaining agreement

between the City and the Fraternal Order of Police, Fort Steuben Lodge No. l."). The CBA

primarily covers salary and other monetary and fringe benefits (~, clothing allowance,

"longevity fringe benefit," bonuses, overtime, holidays and holiday pay, vacations, funeral leave,

personal days, life insurance). The _Decree does not conflict with these terms - indeed, the

Decree does not contain any provision setting or altering police officers' wages or other benefits.

In addition, the CBA has terms relating to: recognition of the FOP as the bargaining agent for

officers; union dues; strikes; the life of the agreement; arbitration of any 11dispute concerning the

application and interpretation of a violation of this agreement"; and provision of safety

equipment.

The •

only

provision

of

the

CBA.
: , ;·

t· h·~a: >-t:.-r.,::<.~?la~t-·es

to

management

of officers

is

Item

27,

which requires assignment of a minimum of four patrol officers to the shift of 4:00 to midnight,

subject to certain limitations. Again, nothing in the Decree poses any conflict with these

bargained-for items.

The final provision of the CBA, Item 28, states "Unless specifically modified or changed

herein, all benefits, whether monetary or otherwise conferred by ordinance or law, presently

enj oyed by the parties to this Agreement shall not be changed nor modified." The FOP appears

-.
to argue that this provision marks a contractual agreement to leave unaltered not simply the types of provisions ordinarily classified as "benefits," but "rules ofconduct, policies and procedures." FOP Mem. at 6. Such a reading defies the actual meaning of the term 11benefits,'1 in both ordinary usage, and state and federal law.11 It is even more untenable in light of the CBA's focus on traditional benefits - wages and other elements of compensation. Moreover, it would mark a
very significant departure from the rule under Ohio law, discussed in this briefs next section, that the collective bargaining rights of public employees coexist and are defined with reference to the managerial prerogatives of employers.
Because the Decree does not infringe the asserted interest of the FOP in preserving its current CBA, intervention premised on that interest should be denied.
2. The Alleged Conflict With the Right to Bargain. Next, the FOP asserts that the Decree infringes on its right to bargain collectively with its .employer. As a·matter of state law, this assertion is clearly incorrect, and accordingly, does not give the FOP a grounds for intervention in this action. Under Ohio law, there are three categories of work-related issues, for purposes of public employees' collective bargaining rights - mandatory, permissive, and impermissible subjects of bargaining. The delineations between the three are the subject of Ohio Rev. Code§ 4117.08,
which provides: (A) All matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative, except as otherwise specified in this section. (B) The conduct and grading of civil service examinations, the rating of candidates, the establishment of eligible lists from the examinations, and the original appointments from the eligible lists are not appropriate subjects for collective bargaining.
21 See, ~. Ohio Rev. Code§§ 3307.0l(L)(l); 3309.01(0(1); 4141.0l(C) (each deflrung "benefits" to mean money payments related to employment rights); 29 U.S.C. § 1002(1) (defining "employee welfare benefit plan" under ERISA).

(C) Unless a public employer agrees otherwise in a collective bargaining agreement, nothing in Chapter 4117 of the Revised Code impairs the right and responsibility of each public employer to:
(1) Determine matters of inherent managerial policy which include, but are not limited to areas of discretion or policy such as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, and organizational structure;
(2) Direct, supervise, evaluate, or hire employees; (3) Maintain and improve the efficiency and effectiveness of governmental operations; (4) Determine the overall methods, process, means, or personnel by which governmental operations are to be conducted; (5) Suspend, discipline, demote, or discharge for just cause, or lay off, transfer, assign, schedule, promote, or retain employees; (6) Determine the adequacy of the work force; (7) Determine the overall mission of the employer as.a unit of government; (8) Effectively manage the work force: (9) Take actions to carry out the mission of the public employer as a governmental unit. The employer is not required to bargain on subjects reserved to the management and direction of the governmental unit except as affect wages, hours, terms and conditions of employment, and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement.
Thus Ohio law imposes on public employees and employers a mutual duty to bargain on
"wages, hours, or terms and other conditions of employment," but defines "terms and conditions"
subject under§ 4117.08(A) to mandatory bargaining by reference to§ 41l7.08(C)'s exclusion.
See United Black Firefighters Ass'n v. Citv of Akron, 976 F.2d 999, 1005-06 (6th Cir. 1992)
(subjects enumerated in §4117.0S(C) are pennissive not mandatory subjects for bargaining). The
Decree fits squarely in the category of "permissive" subjects of bargaining, under§ 41l7.08(C):
it deals with the "functions and programs" of the Steubenville Police Department, the
"direct[ion], supervis[ion], (and] evaluat[ion]" of employees; it is aimed at "maintain[ing] and
i.oprov[ing] the efficiency and effectiveness of [police] operations"; it sets out the requirement
that employees be "disciplin[ed] for just cause"; and it is required for the City to "effectively
manage" the police department.
- 8-

Ohio law emphasizes that, notwithstanding the collectiv<? bargaining rights _of police officers, "[t]he responsibility and authority to control all police department employees therefore remains squarely with the city." Citv of Kettering v. State Emp. Relations Bd., 26 Ohio St. 3d 50, 53, 496 N.E.2d 983, 986 (1986). See filQ In re State Emp. Relations Bd v. City of Canton, SERB 94-011, 11 Ohio Pub. Employee Rep., 1433 (June 29, 1994) (copy attached as Exhibit C) (managerial discretion is given particularly broad scope where the affected jobs are "safetysensitive" because in such circumstances many management problems can "requireO immediate action by the City in the interest of public safety or in furtherance of the City's overall mission"). A governmental entity's ability to manage and supervise its police force is required by federal law as well. See 42 U.S.C. § 14141(a); Monell v. Department of Social Services, 436 U.S. 658 (1978) (42 U.S.C. § 1983 makes governmental entities liable where "execution of a government's policy or custom" causes violation of federal rights).
As the Ohio State Employment Relations Board, which speaks authoritatively on such issues, has explained, Ohio law dictates that many changes proposed by management are fairly easily assigned as managerial prerogatives, and therefore as permissive but not mandatory subjects of bargaining - for example, "the tape recording of a pre-disciplinary hearing by an employer . . . does not affect wages, hours, terms and other conditions of employment." ~ State Emp. Relations Bd. v. Youngstown Citv School District Bd. of Educ., SERB 95-101 (12 Ohio Pub. Employee Rep. 11543 (June 30, 1995) (copy attached as Exhibit D) (hereinafter Younistown). Moreover, even where a proposed exercise of managerial prerogative has a "material influence on11 wages, hours, terms and other conditions of employment, state law compels bargaining over "how the decision affects wages, hours, terms and other conditions of employment," id. (emphasis added), but not over the decision itself, unless the outcome of a balancing test favors mandatory bargaining of the entire issue.21
21 Thus to the extent that implementation of any term of the Decree eventually affects (continued ... )
-9-

The balancing test examines:
1) The extent to which the subject is logically and reasonably related to wages, hours, terms and conditions of employment;
2) The extent to which the employer's obligation to negotiate may significantly abridge its freedom to exercise those managerial prerogatives set forth in and anticipated by O.R.C. 4117.0S(C), including an examination ofthe type of employer involved and whether inherent discretion on the subject matter at issue is necessary to achieve the employer's essential mission and its obligations to the general public; and
3) The extent to which the mediatory influence of collective bargaining and, when necessary, any impasse resolution mechanism available to the parties are the appropriate means of resolving conflicts over the subject matter.
Thus Ohio case law, from the Ohio Supreme Court to the opinions issued by the State
Employment Relations Board, dictates that the FOP's argument that the Decree infringes its
collective bargaining rights is incorrect. For example, in Jurcisin v. Cuvahoga County Bd. of
Elections, 35 Ohio St. 3d 137, 145, 519 N.E.2d 347, 354 (Ohio 1988), the Ohio Supreme Court
held that police officers had no right to bargain prior to imposition ofcivilian review of
allegations ofpolice misconduct, and creation of an Office of Professional Standards that would
receive, investigate, and recommend resolution of complaints. These changes were rather a
"proper exercise of management powers." Similarly, in In re State Emp. Relations Bd. v. Citv of
Cincinnati. SERB 93-010, 10 Ohio Pub. Employee Rep.~ 1358 (June 10, 1993) (copy attached
as Exhibit E), the Employment Relations Board held that the City could unilaterally implement a
new policy of taping pre-disciplinary hearings and using the tapes "in furtherance of the
[Cincinnati Police Department's] right to 'suspend, discipline, demote or discharge for just cause,
or lay off, transfer, assign, schedule, promote, or retain employees."' In State Emp. Relations Bd.
v. Citv of Canton, 1991WL643135, 1991SERB4-69 (Ohio Com. Pl. June 18, 1991) (copy
9! ( •..continued) wages, hours, or terms or conditions of employment, the FOP will be entitled to bargain about such effects. For example, once policy and procedure is developed to implement the Decree's new training requirements, it may be that the new policy will impact working hours for some officers. The FOP would certainly be entitled to bargain over any changes in working hours caused by implementation.
- 10 -

attached as Exhibit F), the Court of Common Pleas upheld the Employment Relations Board's decision that the city could unilaterally impose new rules expanding and supervising police officers' traffic enforcement duties, without collective bargaining. (Standards described in State Emp. Relations Bd. v. City of Canton, 7 Ohio Pub. Employee Rep. , 7908 (Sept. 14, 1990) (copy attached as Exhibit G).) And in State Emp. Relations Bd. v. Citv of Mansfield, 6 Ohio Pub. Employee Rep., 6708 (SERB, Oct. 4, 1989) (affirming 6 Ohio Pub. Employee Rep., 6228 (Feb. 22, 1989)) (copies of both opinions attached as Exhibit H), the Employment Relations Board held that there was no duty to bargain over a reorganization ofthe police department that
eliminated numerous supervisory positions as they became vacant. & ~ State Emp.
Relations Bd. v. Afqon Citv School District Bd. of Educ., 13 Ohio Pub. Employee Rep. , 1428 (May 28, 1996) (non-police case holding that elimination ofone employee position and replacement with another, with different job duties, comes within managerial prerogatives and is not a mandatory subject of bargaining), aff.Q.Qll~ grounds, SERB 96-013, 14 Ohio Pub. Employee Rep., 1114 (Dec. 30, 1996) (copies of both opinions attached as Exhibit I).
The FOP has not sharpened its challenge sufficiently for the United States even to know which provisions it objects to on the basis of failure to bargain-the only specific request in the FOP's "Third Party Complaint", see note 1, ~that seems applicable is the prayer for invalidation of the "record keeping requirements ofthe Consent Decree . .. as they apply to officer promotion, discipline, or other aspects of employment. 111' But the City's Decree-related record-keeping obligations are simply a way of maintaining accurate information with which to fulfil its nondelegable federal and state law obligation to manage the police force in a way that minimizes misconduct. Citv of Ketterini v. State Emp. Relations Bd., 26 Ohio St. 3d 50, 53,
11 The FOP also seems to ask for the entire Decree to be declared invalid. FOP
Corr.plaint at 2. But earlier in its filings, the FOP states "it should be observed from the outset that it is not the desire of the FOP to challenge the Consent Decree in its entirety." FOP Mein. at
2. The United States cannot reconcile these conflicting statements, and accordingly deals only with the specific requests discussed in text.
- 11 -

496 N.E.2d 983, 986 (1986) ("The responsibility and authority to control all police department employees therefore remains squarely with the city."). Like tape-recording of pre-disciplinary hearings, record-keeping does not even affect terms or conditions of employment, and is therefore easily categorized as a permissive but not mandatory subject of bargaining. See
Youngstown,~-
Even if this or any other provision of the Decree could be seen as somehow influencing terms and conditions of employment, it is clear under the Ohio precedents set out above that "inherent discretion on the subject matter at issue is necessary to achieve the employer's essential mission and its obligations to the general public," Youngstown, supra, and therefore that the balancing test weighs against mandatory bargaining. The centrality ofthe provisions in the Decree to effective management and supervision of a police force was the very subject of the parties' joint motion to this Court to enter the Decree. Rather than repeat, we refer the Court tc,> the declaration of Professor James Fyfe, a former police officer and leading authority on police administration, which was attached to that filing. Professor Fyfe1s expert opinion is that the types of management strategies mandated by the Decree are required for effective management and supervision of a police department. Moreover, in this context - where the changes are, in the opinion of the United States, necessary to remedy a current pattern or practice of police misconduct that violates the civil rights of persons in Steubenville - the "mediatory influence of collective bargaining" is a completely inappropriate "means of resolving conflicts over the subject matter." Youngstown, supra. See In Re State Emp. Relations Bd. v. Ohio Dep't of Transportation, SERB 93-005, 10 Ohio Pub. Employee Rep.~ 1262 (April 29, 1993) (copy attached as Exhibit J) (the "mediatory influence of collective bargaining" is inappropriate means of conflict-resolution where "the employer ... must assume the liability for potential ... claims" based on failure to adopt challenged managerial decision), affd sub Il.Qfil. Ohio Civil Service Em:plovees Ass'n. Local 11 v. Ohio Dept. of Transportation, 93-CVF-04-3413 (Oh. Com. Pl., Aug. 9, 1994), vacated as IDQQl, 94-APE-08-1252 (Ct. App. July 1, 1995); test reaffirmed and
~· 12 -

procedural history discussed in Youngstown, ~· Moreover, the public interest in resolution and progress in this area also counsels against imposition of a duty to bargain. Cf. In re State Emp. Relations Bd v. Citv of Canton, supra (Exhibit C) (finding "the mediatory influence of collective bargaining" an inappropriate method of resolution where a decision is justified by "broad public health and safety concerns").
Related to its claim of a right to bargain, the FOP argues that it should have been more fully included in the negotiation process that led to joint submission of the Decree by the parties. FOP Mem. at 2. Because the Decree does not trigger the FOP's collective bargaining nghts, the:e was no requirement that the Union be included in any negotiations. Nonetheless, in an effort to be inclusive and cooperative, the parties did, in fact, invite the FOP's participation in negotiations. The FOP's submissions on this point are contradictory and misleading.!! As supported by the attached declarations of counsel for the City of Steubenville (attached as Ex.i.ibit K) and of undersigned counsel for the United States, along with the latter declaration's exhibits (correspondence between counsel for the United States and for the FOP) (attached as Exhibit L), the FOP asked for an opportunity to be included in negotiations over the terms ofthe Decree, and was indeed included. The City had three meetings with the FOP1s president and lawyer, in which the FOP's concerns were discussed. Negotiations over the language of the Decree proceeded by telephone, prior to finalization of the Decree. During those negotiations, counsel for the FOP raised just three concerns, seeking: clarification of the scope of the res judicata effects of the Decree; elimination of the possibility of discipline and/or negative impact
Y The FOP's filings state that it was "precluded from any substantive input into the Consent Decree language and was not allowed ... to participate in the negotiations which led up to the Consent Decree." FOP Mem. at 1. Although the FOP's memorandwn directs the Court to an affidavit, purportedly attached, "which reflects continuing attempts on.the part ofthe FOP to be included in the process which led to the adoption of the Consent Decree," no such affidavit
"no was submitted. At the same time, the FOP acknowledges that it was included in "a few
meetings," and given an opportunity to make "suggestions." It complains, however, that substantive changes were made. 11 FOP Mem. at 4. This description of events is inaccurate and is rebuned in the text.
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on promotion from anonymous complaints;2' and alteration of1f 80 of the Decree, governing future selection of a Chiefof Police.W As set out in the attachments, the FOP was offered
substantive alterations on each of these points. Counsel for the United States followed up the
letter with repeated phone calls to the FOP's counsel; to conduct further negotiations - but the
calls were not returned. As a result, the parties themselves conducted further negotiations on the areas of concern of the FOP. Indeed, three of the four modifications offered to the FOP were
included in the final version of the Decree submitted and entered b.y this Court.
As already argued, the FOP is not entitled to bargain over management prerogatives such as those in the Decree. But in any event, the FPP has received all that it was due, when it was offered the chance to negotiate, and walked away after a good faith proposal was placed on the
table. 3. The Alleged Violation of Ohio Rev. Code§ 124.44.
The FOP argues that if 80 of the Decree, which alters the selection criteria for the
successor to the current Steubenville Chief of Police, is unlawful as a matter of state law. This
claim is incorrect.
Preliminarily, if 80 does not have the sweeping impact the FOP claims for it. Certainly it
does not uoperateO so as to effectively preclude virtually all the officers from ever becoming the chief of police." FOP Mem. at 8. The Decree simply provides that, if there is a vacancy in the position during the life of the Decree, selection of a new Chief ofPolice will not necessarily be
by written competitive exam, and that outside candidates will be searched out and considered.
'l! Under Decree if 36, the Police Department is obligated to accept and investigate
anonymous complaints. Unless such complaints are corroborated on investigation, however, if~ 69 and 78 state that anonymous complaiD:ts may not be the basis of discipline or denial of promotion of any officer. Thus anonymous complaints are to serve as tips to the police department about potential misconduct by its officers, which are then investigated, like crimerelated tips, to determine if there has been wrongdoing.
lQI The rationale for Decree , 80 is set out in Professor Fyfe's Declaration, attached to the
parties' Joint Motion for Entry of the Consent Decree, at~~ 29-30. The relationship ofif 80 to
state law is discussed in the next section of this brief.
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The actual search and selection process is not yet developed; like other new policies, it is to be proposed by the City, subject to the review of the Decree auditor and the approval of the United States. Certain limitations on the process, protecting the interests of current Steubenville police officers, are, however, set out. The Decree expressly states: "Candidates who are already employed by the SPD at the time of the search shall receive preference in the hiring process for Chief of Police." Moreover, although the Decree sets minimum educational requirements for outside candidates, inside candidates "who are employed by the SPD on the effective date of this Decree and who would otherwise be eligible to sit for a competitive exam for the position of Chief of Police, at the time of selection, need not meet the education qualification." Apart from this educational requirement (which the FOP cannot complain about since its members are not affected), the only additional "mandatory qualifications" for applicants for the Chiefs position are "appropriate administrative experience, and a demonstrated commitment to police excellence." A person without such qualifications is obviously unfit to serve as Chief of Police, supervising 50 officers and a large budget.
It is true that under Steubenville's pre-Decree custom, the Chief of Police is a member of the classified civil service, promoted from within on the basis of competitive exam. See Ohio Rev. Code§ 124.3 l(A) ("vacancies in the classified service shall be filled insofar as practicable by promotions"). But under Ohio Rev. Code § 124.30(B), the Civil Service Commission of a city is authorized to alter the method of selection ofhigh ranking civil servants, under certain circumstances:
In case of a vacancy in a position in the classified service where peculiar and exceptional qualifications of a scientific, managerial, professional, or educational character are required, and upon satisfactory evidence that for specified reasons competition in such special case is impracticable and that the position can best be filled by a selection of some designated person of high and recognized attainments in such qualities.!.l!
l!/ Nor does Decree if 80 contradict the Steubenville City Charter (which is Exhibit B to
(continued...) - 15 -

As the Ohio Supreme Court explained in Moore v. Agin, 12 Ohio St. 3d 173, 175, 465
N .E. 2d 1293, 1294-95 (1984), this provision authorizes the Commission to have the otherwise
"required competitive examination ... dispensed with and the pool of candidates widened to include all qualified applicants." In Moore, the court approved invocation ofthe provision in a
circumstance very similar to those here. In that case, outside investigation of the Zanesville
Police Department led to accusations of wrongdoing against managerial level officers, and the
resignation of the Chief. The situation justified invocation ofthe statute. Id. at 175, 465 N.E.2d
at 1295 (also noting that "the qualities sought in the new appointee could not be accurately
identified by such examination"). Here, the United States Department ofJustice spent over a
year investigating the operation ofthe Steubenville Police Department, and submitted allegations
of wrongdoing against the Department in its Complaint. The City agreed in response that the
current Chief's successor should "be qualified to implement this Decree and its objectives," and agreed to use the available state law procedures in order to 11 select a Chief with sufficient expertise.11 Decree~ 80.
The City chose to exercise its state-law discretion in this area by signing the Consent
Decree. This is certainly permissible, under state and federal law. See DeVeooish v. Citv of
Columbus, 57 Ohio St. 3d 163, 566 N.E.2d 668 (Ohio 1991) (Civil Service Commission's
discretion to set requirements for promotional examination eligibility may be bound by consent
decree signed by the City in settlement of employment litigation); Lawver v. Department of
!J.I (••.continued) the FOP Mem.). The Charter provides that the Chief of Police is a classified civil servant. Charter Art. V, Sec. 5.D.l; Art. VI, Sec. 1.D.1.a. Paragraph 80 does not take the Chiefs position out of the classified civil service; the next Chief will still have the removal and other protections of the Civil Service rules. ~Moore v. Agin, 12 Ohio St 3d 173, 465 N.E.2d 1293 (1984); Ohio Rev. Code§ 124.271. In addition, Charter Art. V, Sec. 5.D.l. provides that the next Chief "shall be selected by competitive examination as set forth in Article 6, Section 1," and Article 6, Section 1 in tum provides that "the general law applying to civil service shall remain in full force and effect unless otherwise provide by this Charter." Ohio Rev. Code§ 124.30(8), which authorizes selection of a high ranking civil servant by procedures other than promotion and competitive examination, is part of the general law applying to the civil service.
- 16 -

Justice, 117 S.Ct. 2186, 2193 ( 1997) (upholding entry of a consent decree signed by the state Attorney General, rather than approved by the state legislature, because "the State has selected its opportunity [to make its own decisions] by entering into the settlement agreement"). Thus, the Decree's alteration of the method for choosing the next Chiefof Police, in the event of a vacancy during the life of the Decree, does not abrogate state law.
Moreover, although Ohio law empowers the City to eliminate completely the ability of current employees to apply for a given promotion "where peculiar and exceptional qualifications of a scientific, managerial, professional, or educational character are required,11 the Decree actually protects any expectations current Steubenville police officers have that they be allowed to apply to become the Chief of Police, on vacancy of that position. As already explained, any person currently employed by the Police Department, who would under pre-Decree rules have been allowed to sit for the competitive exam for the Chiefs position, will be allowed to apply for that position in the event of vacancy - and will receive preference in that application. No more is required, under state or federal law.J.Y
C. The Alleged Right to a Hearing on the Underlying Allegations in the United States' Complaint.
Even where a third party has a significant legal right at stake in a litigation between two other parties, it is permitted to intervene only as to those parts of a litigation that affect its own rights. See FTC v. Owens-Corning Fiberglas Corp., 853 F.2d 458 (6th Cir. 1988) (denying intervenor's right to appeal decision adverse to plaintiff, where intervenor had no legal right at stake; intervention as of right was limited to other issues as to which intervenor did have a
J1! The federal Due Process Clause does not alter the analysis. The FOP's members have no definite non-contingent property right to the Chiefs position, but rather a mere expectation that they may, someday, be eligible to apply for the job - an interest that is defeasible under state law itself. This type of unilateral expectation does not rise to the level of a protected property interest. See Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972) ("To have a property interest in a benefit, a person clearly must have more than an abstract need or desire.for it. He must have more than a unilateral expectation of it."); Perrv v. Sindermann, 408 U.S. 593, 599 (1972); Banks v. Block, 700 F.2d 292, 295-96 (6th Cir.), cert. denied, 464 U.S. 934 (1983).
- 17 -

significant interest), cert. denied 489 U.S. 1015 (1989). Thus, where an applicant for intervention objects to a consent decree, the decree "may be challenged only on the ground that its substantive provisions unlawfully infringe upon the rights ofthe complainant." Voiel v. City of Cincinnati, 959 F.2d 594 (6th Cir.), ~..denied, 502 U.S. 827 (1992). Here, the FOP can challenge the Decree only insofar as it infringes the rights of the Union (which, as already explained, it does not). But even if the Decree did impact substantial legal rights of the Union, that impact would mean that the FOP could object to the relevant aspects of the Decree - not that it could object to settlement of the case altogether. Yet it appears the FOP seeks from this court "the fundamental right to be heard and to respond to the allegations that formed the basis of the Consent Decree." FOP Mem. at 5. Ifthe FOP is indeed seeking to litigate this action, the Court should deny its request. There is no due process right to be heard on someone else's case. ~ Local 93 v. Cleveland, 478 U.S. 501, 528-29 (1986) ("It has ne.ver been supposed that one party - whether an original party, a party that was joined later, or an intervenor - could preclude other parties from settling their own disputes.").
The FOP is not a defendant on the merits of the case before this court. Indeed, the United States does not contend that the FOP is liable under 42 U.S.C. § 14141; the statute holds only a "governmental authority, or any agent thereof, or any person acting on behalfof a governmental authority" liable for law enforcement officer misconduct. The proposed Decree ''does not bind [the FOP] to do or not to do anything. It imposes no legal duties or obligations on the Union at all; only the parties to the decree can be held in contempt of court for failure to comply with its terms." Local 93, 478 U.S. at 530. The FOP is not entitled to assert the rights of the plaintiff, and seek to enforce the Decree. Y2grl v . Citr of Cincinnati, 959 F.2d 594, 598 (1992) (citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975)) . ~Decree~ 6 ("This Decree is enforceable only by the parties.") Nor may the FOP argue against adoption of the Decree on the grounds that it is "unfair" or "unreasonable," except insofar as the Decree infringes the Union's rights. United States v. City of Chicago, 908 F.2d 197, 200 (7th Cir. 1990), cert.

m denied sub

Feldman v. United States, 498 U.S. 1067 (1991); EEOC v. Pan American World

Airwavs. Inc., 897 F.2d 1499, 1509 (9th Cir.),~ denied sub llQID.. Ke.iili v. EEOC,

498 U.S. 815 (1990). Nor, finally, is the FOP entitled to assert the rights of a defendant and

insist on litigation of the underlying cause ofaction. Hfilii..s. v. Pemslev, 820 F.2d 592, 599-600

(3d Cir.),~ denied sub rum:L. Castille v. Harris, 484 U.S. 947 (1987); Howard v. McLucas, 782

F.2d 956, 960 (11th Cir. 1986) (intervenors can challenge only those parts of a settlement that

allegedly infringe their rights; they lack standing to contest "any ... issue concerning the merits
of the dispute''); Kirkland v. New York State Dept. of Correctional Services, 711 F.2d 1117,
1126 (2d Cir. 1983) (intervenors' rights "depends upon the nature of the intervenor's interest"; where their interest is in particular aspect of remedy, they cannot "force a trial" on the merits), ~denied .mQrn Althiser v. New York State Dept. of Correctional Services, 465 U.S. 1005
(1984). Cf. Lawver v. Justice, 117 S.Ct. at 2194 (petitioner could not "demand an adjudication
that the [defendant] could indeed have demanded, but instead waived") (citation omitted).
Moreover, on this issue, the Court should deny intervention on the independent ground
that the "present parties ... adequately represent the applicant's interest." Grubbs v. Norris, 870
F .2d at 344. The City has a more than sufficient interest in defending itself against a claim of
unconstitutional conduct; its representation on this point needs no supplementation. "Where
official policies and practices are challenged, it seems unlikely that anyone could be better
siruated to defend than the governmental department involved and its officers." Commonwealth of Pennsvlvania v. Rizzo, 530 F.2d 501, 505 (3d Cir.), cert. denied .s.l.!b. nom,. Fire Officers Union v. Pennsvlvania, 426 U.S. 921 (1976).
III. PER.i\IHSSIVE INTERVENTION Permissive intervention is governed by Fed. R. Civ. P. 24(b), which states:
Upon timely application, anyone may be permitted to intervene in an action: ... (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

- 19 -

For much the same reasons as it should deny intervention as of right, this Court should deny permissive intervention. Simply put, the FOP has no viable "claim or defense11 - and certainly not one that shares a question of law or fact with the main action. Moreover, allowing intervention would "unduly delay or prejudice" the parties' effort to resolve the managerial problems that have
plagued the Steubenville Police Department. The Decree requires development of a host ofnew
policies and procedures over the next six months. See if 85 (''[w]ithin eight months of the
effective date ofthis Decree, the City shall provide the auditor and the United States with its preliminary policies, manuals, and forms required to be developed under this Decree"). The FOP has no rights at stake, and its appearance in this case would serve only to obstruct the negotiated solution.
CONCLUSION For the foregoing reasons, the Court should deny the FOP's motion to intervene in its entirety. Respectfully submitted,

SHARON J. ZEALEY United States Attorney Southern District of Ohio
EBORAHSANDER Civil Chief
Office of the U.S. Attorney Southern District of Ohio
280 North High St., 4th floor
Columbus, OH 43215 (614) 469-5715

~-

ISABELLE KATZ PINZLER Acting Assistant Attorney
General Civil Rights Division

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S EVEN H. ~ SENBAUM

Chief

MELLIE H. NELSON

Deputy Chief

MARGO SCHLANGER

Trial Attorney

U.S. Department ofJustice

Civil Rights Division

Special Litigation Section

P.O. Box 66400

Washington, D.C. 20035-6400

(202) 616-8657

- 20 -

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing, United States'

Memorandum in Opposition to Intervention by Fraternal Order of Police, Fort Steuben Lodge

No. I, with attachments, was served upon each counsel listed below, by U.S. Mail, first class,
postage prepaid, on this ~ay of ·7?/a.v;~~-, 1997:

Gary Repella Law Director 308 Market St. Steubenville, OH 43952

William E..Reed, II
630 Market St. Steubenville, OH 43952

1{)_4~

Deborah sandeis

·

Civil Chief

Office of the United ~tates Attorney

Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G ExhibitH
Exhibit I
Exhibit J ExhibitK ExhibitL

TABLE OF CONTENTS
EXHIBITS TO UNITED STATES' MEMORANDUM IN OPPOSITION TO INTERVENTION
Partial Transcript of Hearing in United States v. City of Pittsbur2h (No.
97-354, W.D. Penn., Apr. 16, 1997)
Smith v. City of Cincinnati, 929 F.2d 702 (6th Cir. 1991)
In re State Emp. Relations Bd v. Citv ofCanton, SERB 94-011, 11 Ohio
Pub. Employee Rep. 'if 1433 (June 29, 1994)
In re State Emp. Relations Bd. v. Youngstown City School District Bd. of
Educ., SERB 95-101 (12 Ohio Pub. Employee Rep. if 1543 (June 30,
1995)
In re State Emp. Relations Bd. v. Citv of Cincinnati. SERB 93-010, 10
Ohio Pub. Employee Rep., 1358 (June 10, 1993)
State Emp. Relations Bd. v. City of Canton, 1991WL643135, 1991 SERB 4-69 (Ohio Com. Pl. June 18, 1991)
State Emp. Relations Bd. v. City of Canton, 7 Ohio Pub. Employee Rep. if
7908 (Sept. 14, 1990)
State Emp. Relations Bd. v. City of Mansfield, 6 Ohio Pub. Employee
Rep. if 6708 (Oct. 4, 1989)
State Emp. Relations Bd. v. City of Mansfield, 6 Ohio Pub. Employee
Rep. if 6228 (Feb. 22, 1989)
State Emp. Relations Bd. v. Akron Citv School District Bd. of Educ.,
SERB 96-013, 14 Ohio Pub. Employee Rep. if 1114 (Dec. 30, 1996)
State Emp. Relations Bd. v. Akron Citv School District Bd. of Educ., 13
Ohio Pub. Employee Rep. if 1428 (May 28, 1996)
In Re State Emp. Relations Bd. V. Ohio Dep't of Transportation, SERB 93-005, 10 Ohio Pub. Employee Rep. , 1262 (April 29, 1993)
Declaration of Gary Repella
Declaration of Margo Schlanger

U.S. Departmt of Justice
United States Attorney Southern District of Ohio
Two Narioriwidt! Pla:a '180 N. High Slnel, 4llr Floor· ColJ1mb1Lr, Ohio 43215
November 12, 1997

(614) 469-5715 FAX (614) 469-524()

Marge Schlanger, Esq. United States Department ofJustice P .O. Box 66400 Washington, D.C. 20035-6400
RE: United States v. City of Steubenville. et al. Case No. C2-97-966
Dear Ms. Schlanger:
Enclosed please find a copy of the United States Memorandum in Opposition to Intervention regarding the above-captioned case.
Please contact me, if you have any questions or concerns.
Sincerely yours.
SHARON J. ZEALEY United States Attorney

Enclosure

 
 NOV-15-2001 12: 10

.DOJ/CRD/SPL

- 202 514 0212

P. 02/ 25

UNITED STATES DISTRICT COURF:u,ED

SOUTHERN DISTRICT OF OHIO

SEP 10 2001

~ s..,bply. CWk Coblmbl.. Ollie

Captain Mark Sweeney. Plaimiff,
v.
City of Steubenville, et al. Defendants.

JUDGMENT IN A CIVIL CASE
Case No: C2-01-322 C2-97~966 (Consolidated)
Judge Sargus Magistrate Judge King

O Jury Verdict. This action came before the Collrt for a 1riaJ by jury. The issues have been uied and the jury has
rendered its veJdict.
0 Decision by Court. This action came to rrial or bearing before rhe Cowt. The issues have been tried or beard and a
decision bu been rendered.
[X] Decision by Courtw A decision has been rendered by the Coun without a hearing or trial.
IT IS ORDERED AND ADJUDGED that pursuant to September 7, 2001 OPINION AND ORDER the
Defendants motions for summary judgment is GRANTED. This action is hereby DISMISSED .

Dare: Sep1ember IO, 2001

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NOU-15-2001 12=10

..DOJ/CRD/SPL

• 202 514 0212

P.03/25

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

CAPTAIN MARK SWEENEY, Plaintiff,
Y.
CITY OF STEUBENVILLE, et al., Defendants.

CASE NO. C:Z-01·322 CASE NO. C:Z-97-966 (Consolidated)
JUDGE EDMUND A. SARGUS, JR.
MAGISTRATE JUDGE NORAH MCCANN KING

OPINION AND ORDER This matter is before the Court for consideration of cross Motions for Summary Judgment filed by Plaintiff, Captain Mark Sweeney (Doc. #24), Defendants, City of Steubenville, et al. (Doc. #22), and Intervenor, United States Department of Justice'(Doc. #23).
me Following oral argument on the motions, Court ruled from the bench that the motion of
Captain Mark Sweeney is DENIED, while the motions of the Defendants and Intervenor are GRANTED. This Opinion and Order memorializes the decision rendered from the bench on the various motions.
I.
The procedural posture ofrhis case is fully set forth in the Court's previous Opinion and Order of June 15, 2001. In summary, the Plaintiff, Captain Mark Sweeney, a member of che Steubenville Police Department. initiated this action in the Jefferson ColUlty Court of Common Pleas. Plaintiff challenges the procedure undertaken by the City of St:::ub~nvill~ for considerati_on of applicants for the position of Chief of Police. Phintiff alleges that the consideration given to applicants who are not current members of the Steubenville Police

NOU-15-2001 12:11

• 202 514 0212

P.04/25

Department, is contrary re Ohio law. The Defendants, City of Steubenville, et al., removed the

case to this Court claiming that the relief sought by the Plaintiff is in direct contradiction of the

provisions of the Consent Decree entered by this Court in 1997.

In its June 15, 2001 Opinion, this Court determined that it hadjurisdiCtion to hear

the case, while at the same time finding that Captain Mark Sweeney was not bound by the terms

of the Consent Decree. Captain Sweeney was not a party to the prior action which resulted in the

Consent Decree, nor was the Fraternal Order of Police of Steubenville, of which Sweeney is a

member. Following this decision, the parties stipulated to the relevant facts not in dispute. The

Court then directed the parties to file cross Motions for Summary Judgment as to whether

Paragraph 80 of the Consent Decree was valid and enforceable under either federal-or Ohio law.

The u~disputcd facts presented to the Court are as follows:

l. Defendant City of Steubenville is a charter city located in southeast Ohio. The City Charter for the City of Steubenville subjects the City and its Civil Service Commission to the requirements of the Ohio Revised Code as sec out in O.R.C. Chapter 124 with regards to the Civil Service.

2. Defendant Dominic Mucci is an elected official as provided
for by O.R.C. § 705.78.

3. Defendant Steubenville Civil Service Commission is charged with enforcing civil service law in the city of Steubenville, Ohio.

4. Defendants Robert D'Annabelle, Delores Wiggins, and Pana Mastros are Civil Service Commissioners for the City of Steubenville and are required to follow civil service law of the City o f Steubenville.

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5.

Plaintiff Captain Mark Sweeney is a civil service employee

in a police department as defined by O.R.C. § 124.0l(A).

6. On September 3, 1997, Judge George C. Smith of the
United States District Court for the Southern District of Ohio entered a Consent Decree in United States v. City of Steubenville. resolving the United States' claims pursuant to 42 U.S.C. § 14141 that officers of the Steubenville Police Department C'SPD") have
engaged in a pattern or practice ofconduct that deprives persons of rights, privileges, or immunities secured and protected by the Constitution and the laws of the United States.

7.

The defendants in United States v. SteubenvilJe are the City

of Steubenville, the Steubenville Police Department, the

Steubenville City Manager (in his capacity as Director of Public

Safety). and the Steubenville Civil Service Commission, and are

referred to collectively in the Consent Decree as "the City."

8. This Court retains jurisdiction of United States v. Steubenvjlle for all purposes during the term ofthe Consent Decree. The City may move ro dismiss the Consent Decree at any time after five years have elapsed since the date· of entry oft.he Decree, and substantial compliance has been maintained for no less than two years. (Consent Decree para. 96).

9. Paragraph 8 of the Consent Decree provides: ''This Decree
is binding upon the United States and on the City, by and through their officials, agents, employees, and successors."

10. The City and the United States have selected an Independent Auditor, whose responsibility is to report on a quarterly basis the City's compliance with each provision of the Consent Decree during its term. (Consent Decree para 82).
11. Each calendar quarter since the effective date of the
Consent Decree, the Independent Auditor has filed with this Court
a report reviewing and evaluating the City's compliance with the
Consent Decree during the previous quarter.

12. Paragraph 80 of the Consent Decree provides: Because peculiar and axceptional qu~lifications of a managerial and professional character are required, and because competition in such case is impracticable and the position can best be filled by selection of;i person ofhigh :ir.tl rncognized attairunents, pursuant to the provisions of Ohio law, when a vac:mcy occurs in rhe

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position of Chief of Police, the City shall suspend the provisions of Ohio Revised Code§§ 124.01 ro 124.64. Selection of a new Chief of Police shall be conducted in accordance with the following prov1s1ons:

a. A written and/or oral competitive examination may be part of the selection process.
The search and selection process proposed by the City, including any competitive exam, must be reviewed by the independent auditor and approved by the United States.

b. The City shall search (or shall contract with a qualified search organization) for a Chief who is
qualified to implement this Decree and its objectives, and shall select a Chiefwirh sufficient expertise. Candidates who are already employed. by
the SPD at the time of the search shall receive
preference in the hiring process for Chief of Police. The degree of preference will be one provision of the selection process developed. as set out in
paragraph a.

c. Officers who are employed by the SPD on the effective date of this decree and who would otherwise be eligible to sit for a competitive exam for the position ofChief of Police, at the time of selection., need not meet rhe education qualification set out in paragraph d, below, in order to be eligible for selection.

d. Mandatory qualifications, except as set out in subparagraph c, shall include a four year college degree, appropriate administrative experience, and a demonstrated commitment to police excellence.

e. The salary offered to any new Chief of Police shall be commensurate to his or her
experience and qualifications.

10. Captain Mark Sweeney received a copy of the Consent
Decree in September of 1997. Captain Mark Sweeney signed an acknowledgment on September 17, 1997, stating that he understood th.:? Consent Decree.

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11. Captain Mark Sweeney was aware that O.R.C. Section

124.44 would not be followed and chat there was a possibility that

the Chiefs position could be filled by a person from outside the

Steubenville Police Department.

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12. In September of 2000 Chief Jerry McCartney retired as the
Chief ofPolice for the Steubenville Police Department.

13. In October 2000, the City of Steubenville began searching for a replacement for Chief McCartney.

14. At the time that the City began its search for a permanent chief. the Independent Auditor's Quarterly Reports reflected a lack of substantial compliance with the Consent Decree, which
continues to this day.

15. The City conducted its search for a pennanent police chief
according to the requirements ofparagraph 80 ofthe Consent Decree.

16. In January, 2001, the City contracted with the Ohio
Association of Chiefs ofPolice ('•OACP") to conduct a candidate search and assessment center for the chiefofpolice position.

17. Based on a preliminary evaluation of the written applications by the OACP Assessment Team, one applicant from within the Steubenville Police Department was rated among the top six of all applicants. This applicant was invited to participate in the Assessment Center, but declined. Captain Sweeney, as the next highest ranking applicant from within the Steubenville Police Department, was then invited to participate in the Assessment Center.

18. Captain Sweeney participated in the OACP Assessment Center on February 24, 2001 with four other applicants.

19. On March 8, 2001, the OACP completed the search process for the ChiefofPolice for the City of Steubenville and issued its
final recommendation to City Manag'!r Gary Dufour
recommending two candidates as being qualified. Both candidates were not member of the City of Steubenville Police Department.

20. On or about March 29, 200 I, the City of Steubenville announced that the new police chief would not be promoted from th~ ranks of the Steubenville Police Department

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21 . The City of Steubenville has not adopted a charter

modifying local civil service law in a manner inconsistent with

0 .R.C. § 124.44.

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22. The Civil Service Commission for the City of Steubenville has taken no action to invoke its power under O.R.C. §
124.30(A)(2) to suspend the requirements of the 0.R.C. reqwnng
competitive examination.

23. The Civil Service Commission has held no evidentiary hearings regarding the need fer a suspension of O.R.C. § 124.01124.64.

24. Since Novemberof2000, the City of Steubenville has expended approximately $15,000.00 of expenses related to the chief selection process as outlined in paragraph 80 of the Consent Decree.

D.

Plaintiff Sweeney contends that the City of Steubenville failed to follow Ohio law

in suspending the provisions of R.C. §124..44, which states, in pan:

No person above the rank of patrohnan in the police department shall be filled by original appointment. Vacancies in positions above the rank of patrolman in a police department shall be filled
by promotion from among persons holding positions in a rank lower than the position to be filled

An exception to this provision is found in R.C. §124.30(B), which provides for a

waiver of promotion from within a police department "[i]n case of a vacancy in a position in the

classified service where peculiar and exceptional qualifications ofa scientific, managerial,

professional or educational character are required ..." This precise language is incorporated in

P:ir:igraph SO of the Consent Decree. The City of Steubenville argues that a selection process for

a new chief of police which allows the City to undenake a search outside of the members of its

cutTent police department, comports with R.C. §124.30(8). The Plaintiff nonetheless contends

that the City did not act in accordance with Ohio law because it failed to make a specific finding

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of the need to waive the requirements of R.C. §124.44. Further, the Plaintiff contends that the

Steubenville Civil Service Commission never exercised its discretion to determine whether a

waiver of the hire from within policy was appropriate.

In response, the City of Steubenville and the Department of Justice argue that the

relief sought by the Plaintiff is barred by the doctrine of !aches. Further, the Defendants and the

Intervenor assert that the City of Steubenville, including the SteubenviJle Civil Service

Commission which is a Party~Defendant in both of the consolidared cases herein, agreed to the

terms of the Consent Decree which became binding upon all panics to the original action. 1

LA.CHES
The Court first considers whether the Plaintiff should be bound by the doctrine of
!aches. In Hylinski v. City of Allen Park, 169 F.3d 1001, 1003·(6th Cir. 1999), the Court held:
The doctrine of /aches is an equitable principle that bars recovery in circumstances in which a plaintiff's delay in seeking a judicial remedy prejudices a defendant. To prevail, a party invoking this equitable principle "must show that plaintiffs unreasonably delayed in bringing suit and that defendants were prejudiced by this delay." Environmental Defense Fund v, Tennessee Valley Authoricv, 468 F.2d 1164. 1182 (6th Cir. 1972).
The Consent Decree at issue was originally filed with this Court on September 3,
1997. As noted above, the Steubenville Fraternal Order of Police filed a Motion to Intervene on
September 3, 1997. On July 23, 1998, Magistrate Judge Norah McCann King issued an Opinion

1The parties agree tha[ this case does nor present the Court with the question of whether federal law may override the Civil Semce Law of Ohio. While relief which otherwise overrides state law may b~ appropriate in limited circumsr:mces, this 1s gener:illy rrue only in cases involving a fmding of a clear violation of federal law by a defend::int, e.g., Youngblood v. Palzell, 568 F.2d 506 (6th Cir. 1978). Jn this case, the very terms of the Consent D~crt:t: note that the City llf Steubenvill~ docli not admit liability or violations of t'i:deral law.
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and Order denying intervention as to the Fraternal Order of Police. No appeal was taken from

her decision.

It is also undisputed that Plaintiff Sweeney received a copy of the Consent Decree

in September of 1997 and signed a receipt acknowledging that he understood the terms of the

document. Consequently, he was on actual notice of Pax-agraph 80 of the Consent Decree in

1997.

While this Court held in its previous Order ofJune 15, 2001 that the Plaintiff was

not bound by the tenns of the Consent Decree, the Court did note that the Defendants and

Intervenor could still assert the defenses of /aches. From September of 1997 until April 6, 2001,

the Plaintiff did not pursue any legal remedy conceming his objections to the Consent Decree or

its implementation by the City of Steubenville. Further, the Plaintiff was aware as early as

September of 2000, that the incumbent Chiefof Police was retiring. The City began the search

for a replacement in October of 2000 and entered into a contract with the Ohio Association of

Chiefs of Police to conduct a candidate search and assessment for the Chief of Police position.

Plaintiff himself was an applicant for the position and participated in the assessment process in

February of 2001. During this time period, the City of Steubenville expended approximately

SlS,000.00 in the process of screening applicants for the new position.

As ~ll be more particularly described below, the Plaintiff also contends that the

Steubenville Civil Service Commission failed to hold hearings, make findings, and otherwise

comply with Ohio law regarding a waiver of the provisions ofR.C. §124.44. All of these alleged

deficiencies in the implementation of Paragraph 80 of the Consent Decree were, or could have

been known. with reasonable diligence, to the Plaintiff as early as 1997. Fwther, rhe Court notes

that. under Ohio law, specifically R.C. §121.22, any claim that [be Civil Service Commission

'

'

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failed to hold required hearings prior to official action is barred by the two year statute of

limitations set forth in R.C. §121.22(1)( I). Consequently, Plaintiffs assertion that the Civil

Service Commission failed to conduct public hearings and otherwise comply with Ohio

procedural law would be time barred ifbrought under the same starute which otherwise would

require such formality. This fact gives further support to the defense of the Ciry of Steubenville

that the Plaintiffhas siriiply waited too long to assert his rights.

This Court .finds that the City of Steubenville has been prejudiced by Plaintiffs

delay. The City has spent a considerable swn of money to interview prospective candidates who

do not work within the department. The Court notes that the position of Chiefof Police is one of

great importance to a municipality and a delay in filling the position for an extended period of time presents particular prejudice here since the Chief of Police bears a responsibility in

implementing the terms of the 1997 Consent Decree. Finally, the funds already expended by the City in conducting a national search would be wasted if the relief requested by the Plaintiff were

granted. For these reasons, the Court concludes that the relief sought by the Plaintiff is barred by

the doctrine of laches.

B. COMPLIANCE WITH R..C. §124.30(8). In addition to finding that the doctrine of/aches bars relief sought by the Plaintiff,
the Court also concludes that the City of Steubenville, and specifically the Civil Service Commission, have, in the unique context of this case, substantially complied with the reGuirements of R.C. §124.30(B). The claim made by the Plaintiff that the Steubenville Civil Service Conunission failed to fonnally act to waive the requirement that a new Chiefof Police be hired from with.in th~ department is. at first blush, troubling. The concept of civil service is

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enshrined in the Ohio Constitution, Art. XV,§ 10/ and is an important public policy for the State cfOhio. Ohio law vests within a municipal Civil Service Commission che obligation to ensure that hirings and promotions within the civil service are based on merit, fir:ness, and with competitive examinations. The elected officials ofa municipality serving on the City Council are without authority to det~rmine the qualifications for an employee within the civil service. State ex rel Petit v. Wagner, 170 Ohio St 297 (1960). In this case, had the City Council simply acted to modify the requirements with regard to applicants for the Chief of Police position without the authority of the Steubenville Civil Service Commission, such action would be null arid void under Ohio law. The Steubenville Civil Service Commission, a party to both of the consolidated cases herein, expressly approved and entered into the Consent Decree.
The precise language of Paragraph 80 of the Consent Decree, however, makes
clear that an of the policies and purposes of the civil service amendment to the Ohio Constitution
are both respected and maintained. First, the paragraph establishes a written and oral competitive examination. Mandatory qualifications for all applicants are also set forth in the provisions of the agreement. In short, Paragraph 80 in no way undercuts the traditional notion of civil service promotions or hires based on merit, fitness, and objective competitive examination. Finally, R.C. §124.30(B) prohibits a "general" waiver of civil service law. Paragraph 80 waives only the specific requirement that the applicants be from within the police department; all other provisions ofR.C. Chapter 124 are still applicable.

2Art. XV,§ 10 states: Appoinnnents :ind promotions in the civil service of the state~ the sever.ii counties. and
cities, sh:ill be made according to merit and fitness, to be ascertained, as far as
practicable, by compenrive examinacions. Laws shall b~ passt:d providing for rht ~nforc(lllt:nt of this provision.
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The Plaintiff also takes issue with the Steubenville Civil Service Commission's failure to hold public hearings to determine if "exceptional circumstances" existed so as to me~t

the waiver requirement for R.C. §124.44, The Court first notes that, by the very terms of the

extensive consent decree filed in this case, major changes in the organization and operation of

the Steubenville Police Department are required. The Consent Decree sets forth a new

management structure, new reporting requirements, new methods of handling citizen complaints

and new training procedures for all officers. Given the major changes in which the police

department is to be operated, the Court has no difficulty in concluding that the Defendants,

which include the SteubenviJle Civil Service Commission, had a substantial basis in fact to conclude that "peculiar" and "exceptional circumstances" require at least the consideration of

candidates for the Chief of Police position who are not currently employed by the Steubenville

Police Department.

While it is undisputed that the Steubenville Civil Service Commission did not hold public hearings, the Court notes that, in the original action herein, the named Defendants included the Steubenville Civil Service Corrunission. The Commission was represented by the

City Attorney, who continues to represent the City in this case. The Consent Decree was signed

on behalfof all Defendants, including the Steubenville Civil Service Conunission. Thus, there is

no indication in this case that the elected branches ofgovernment, including the Mayor and City

Council, signed an agreement which varied the qualifications for the new ChiefofPolice of

Steubenville in the absence of n.pproval by the Steubenville Civil Service Commission.

While the taking of formal action by the Steubenville Civil Service Commission, i.e. public hearings and a recorded vote, may have been a more prudent route to follow at the conclusion of the Consent Decree, the Court is convinced that, under the circumstances of this
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"

case, the failure of the Civil Service Commission to act publically is not fatal to the

P.14/25

enforceability of Paragraph 80 of the Consent Decree. First, Paragraph 80 protects and enhances

the policies and purposes of the Civil Service laws ofOhio. Second, Paragraph 80 was

specifically approved by the Civil Service Commission -- not simply the elected officials of city

government. Third, the Consent Decree, taken as a whole, manifestly demonstrates the need for

consideration of qualified candidates who may or may not be current members of the

Steubenville Police Department3. Fourth, as noted above, any claim that the Civil Service

Commission failed to follow provisions of Ohio proceduraJ law, i.e., R.C. §121.22, is now time-

barred under state law. For these reasons, the Court finds that the Defendants have complied

with the requirements ofO.R.C. §124.30(B).

In conclusio~ the Court observes that to grant the relief requested by the Plaintiff

would undermine the finality ofjudgments and upset the major changes in the operation of the

police department in the City of Steubenville to which it long ago agreed. The Steubenville Civil

SeIVice Commission entered into a Consent Decree in 1997 with the United States Department

of Justice requiring a new process for the hiring of a future poJice chief. Four years later, a suit

by a party with actual knowledge of the Consent Decree now attempts to overturn the extensive

and carefully crafted agreement reached by the parties in the prior litigation. For the reasons

stared above, the Court concludes that Plaintiff Sweeney's attempt is without merit.

1This Cowt does not intend to imply that only applicants outside of the Steubenville Police Department arc qualified to serve as Chief and implement the Consent Decree, The Court is well aware
of many dedic:ited police: officers on the department whose commitment to public service should not be minimized. The selecciori of the nc:w Chief is, however, a decision to be: made by che Defondants,
cunsist~nt with Ohio law and the Consent Decree.
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Ill.

Based upon the foregoing, the Motion for Summary Judgment filed by the

Plaintiff(Doc. #24) is DENIED. The Motions for Summary Judgment filed by the Defendants

(Doc. #22) and the Intervenor (Doc. #23) are GRANTED. This case is hereby DISMISSED.

The Clerk is DIRECTED to enter judgment accordingly.

IT JS SO ORDERED.

DATED

13

 
 147 F.Supp.2d 872 (2001)
Captain Mark SWEENEY, Plaintiff, v.
CITY OF STEUBENVILLE, et al., Defendants.
Nos. C2-01-322, C2-97-966.
United States District Court, S.D. Ohio, Eastern Division.
June 15, 2001.
873*873 Michael W. Piotrowski, Akron, OH, for plaintiff.
S. Gary Repella, Law Director for the City of Steubenville, Steubenville, OH, for defendant.
OPINION AND ORDER
SARGUS, District Judge.
This matter is before the Court for consideration of the following four motions: 874*874Defendant's Motion to Consolidate this Case with Case No. C2-97-966, captioned United States of America v. City of Steubenville; the Defendant's Motion to Dismiss (Doc. # 3); the Plaintiff's Motion to Remand this case to the Jefferson County Court of Common Pleas (Doc. # 5); and the Motion of the United States of America to Intervene (Doc. # 12). For the reasons that follow, the Defendants' Motion to Consolidate is GRANTED. The Defendants' Motion to Dismiss is DENIED. The Plaintiff's Motion to Remand is DENIED. The Motion of the United States to Intervene is GRANTED.
I.
On April 6, 2001, Captain Mark Sweeney of the Steubenville Police Department, Plaintiff herein, filed a Verified Complaint for Declaratory Judgment in the Jefferson County, Ohio Court of Common Pleas. The Complaint names as Defendants the City of Steubenville, together with Mayor Dominic Mucci, the Steubenville Civil Service Commission, three members of the Civil Service Commission, and Gary DuFour, City Manager. The single count Complaint seeks a declaration that provisions of Ohio law, specifically Ohio Revised Code Section 124.44, prohibit the appointment of a person to the position of police chief from outside the ranks of the Steubenville Police Department. It is undisputed that the Complaint is limited to alleged violations of Ohio law by the various Defendants. On the same day the Complaint was filed, the Jefferson County Court of Common Pleas issued a temporary restraining order directing the named Defendants to follow Chapter 124 of the Ohio Revised Code.
On April 10, 2001, all Defendants joined the Notice of Removal transferring the case to this Court. The Notice includes the following:
6. On September 3, 1997, this Court entered a Consent Decree in United States v. City of Steubenville Police Department, No. C2-97-966, resolving the United States' claims pursuant to 28 U.S.C. § 1441 that the Steubenville Police Department is engaging in a pattern or practice of conduct that deprives persons of rights, privileges, or immunities secured and protected by the Constitution and the laws of the United States.

7. The above-mentioned Consent Decree was signed by United States District Judge George C. Smith. 8. Paragraph 80 of the Consent Decree states in pertinent part as follows (emphasis added): Because peculiar and exceptional qualifications of a managerial and professional character are required, and because competition in such special case is impracticable and the position can best be filled by selection of a person of high and recognized attainments, pursuant to the provisions of Ohio law, when a vacancy occurs in the position of Chief of Police, the City shall suspend the provisions of Ohio Revised Code Sections 124.01 to 124.64. 9. The sole purpose and effect of plaintiff's complaint is to challenge paragraph 80 of the Consent Decree. Indeed, the Temporary Restraining Order issued in the above-captioned case places defendants in the untenable position of being forced to violate either an Order of this Court in the form of the Consent or the Temporary Restraining Order of the state court. 10. Because the relief sought in plaintiff's claim is directly contrary to an Order of the federal court, this Court has original jurisdiction of the above-entitled action pursuant to 28 U.S.C. § 1331, and the action may therefore be removed to this Court pursuant to 28 875*875 U.S.C. § 1441(b). Sable v. General Motors Corp., 90 F.3d 171, 174 (6th cir. 1996) (removal appropriate where plaintiff sought a remedy "in direct conflict with a federal consent decree").
Following removal, the four motions outlined above were filed. All are ripe for determination.
II.
Because the Plaintiff's Motion to Remand challenges jurisdiction, this Court must first determine whether it has subject matter jurisdiction to proceed or whether the case should be remanded to the Jefferson County Court of Common Pleas. This Court has original jurisdiction over two general types of cases, one being suits involving diversity of citizenship under 28 U.S.C. § 1332, and the other involving cases raising federal questions under the Constitution, treaties or laws of the United States, 28 U.S.C. § 1331. It is undisputed that this Court's jurisdiction may not be invoked in this case on the basis of diversity of citizenship, since all parties are from the State of Ohio.
The Plaintiff argues that since his complaint contains no allegations or references to federal law and does not claim a violation of the United States Constitution, that remand of this action is appropriate. Generally, such jurisdiction exists only when a federal question is presented on the face of the wellpleaded complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 391-92, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Thus, the fact that a defense to a claim may implicate a federal law does not generally render the case removable to federal court. Jefferson County v. Acker, 527 U.S. 423, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999).
The Defendants contend that this Court has jurisdiction under the All Writs Act, 28 U.S.C. § 1651, which states, in part:
The Supreme Court and all Courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
According to the Defendants, the relief sought by the Plaintiff in state court, if granted, would directly contravene provisions of the consent decree issued by this Court on September 3, 1997 in Case No. C2-97-966.
Plaintiff's Complaint seeks a declaration that the Steubenville Police Department may not hire a police chief from outside the department. (Complaint ¶ 14). Further, the Plaintiff contends that the

City of Steubenville has not taken lawful action to modify the provisions of O.R.C. § 124.44, in violation of Ohio law.
This issue was specifically addressed in the Consent Decree entered into by the City of Steubenville and the United States of America. Paragraph 80 of the Consent Decree issued by Judge George Smith of this Court, states in its entirety:
Because peculiar and exceptional qualifications of a managerial and professional character are required, and because competition in such special case is impracticable and the position can best be filled by selection of a person of high and recognized attainments, pursuant to the provisions of Ohio law, when a vacancy occurs in the position of Chief of Police, the City shall suspend the provisions of Ohio Revised Code §§ 124.01 to 124.64. Selection of a new Chief of Police shall be conducted in accordance with the following provisions: a. A written and/or oral competitive examination may be part of the selection process. The search and selection process proposed by the city, including any competitive exam, must be reviewed by the independent 876*876auditor and approved by the United States. b. The City shall search (or shall contract with a qualified search organization) for a Chief who is qualified to implement this Decree and its objectives, and shall select a Chief with sufficient expertise. Candidates who are already employed by the SPD at the time of the search shall receive preference in the hiring process for Chief of Police. The degree of preference will be one provision of the selection process developed as set out in subparagraph a. c. Officers who are employed by the SPD on the effective date of this decree and who would otherwise be eligible to sit for a competitive exam for the position of Chief of Police, at the time of selection, need not meet the education qualification set out in subparagraph d, below, in order to be eligible for selection. d. Mandatory qualifications, except as set out in subparagraph c, shall include a four year college degree, appropriate administrative experience, and a demonstrated commitment to police excellence. e. The salary offered to any new Chief of Police shall be commensurate to his or her experience and qualifications.
It is clear from the language of the Consent Decree that the United States of America and the City of Steubenville agreed to depart from the requirement under Ohio law that the position of Police Chief be filled by an applicant currently in the same police department. Ohio law provides in § 124.44 that, "No position above the rank of patrolman in the police department shall be filled by original appointment. Vacancies in positions above the rank of patrolman in a police department shall be filled by promotion from among persons holding positions in a rank lower than the position to be filled."
Notwithstanding this provision of Ohio law, an exception is provided in O.R.C. § 124.30(B) which allows a waiver of promotion from within "[I]n case of a vacancy in a position in the classified service where peculiar and exceptional qualifications of a scientific, managerial, professional, or educational character are required ..." It is no coincidence that the Consent Decree refers to the Chief of Police position as requiring "peculiar and exceptional qualifications," the same language used in O.R.C. § 124.30(B). Further, the Consent Decree specifically requires the City to suspend the provisions of Chapter 124, pursuant to the conditions set forth in O.R.C. § 124.30(B), in the appointment of a new Chief of Police. Based upon the foregoing, the Court has no difficulty concluding that the relief sought in Plaintiff's Complaint is in direct conflict to the Consent Decree issued by this Court in 1997.
In Bylinski v. City of Allen Park, 169 F.3d 1001, 1002 (6th Cir.1999), certain taxpayers brought an action for a refund of property taxes imposed by the City of Allen Park as a condition of a consent decree which it entered into with the U.S. Environmental Protection Agency. Several years later, the

taxpayers brought an action in State Court alleging that the tax had been imposed in violation of Michigan law. The municipality removed the case to federal court alleging that the relief sought in the state court action would vitiate the validity of the district court's 1994 consent decree. The Court of Appeals held:
We also agree that the district court correctly invoked 28 U.S.C. § 1651(a), the All Writs Act, which gives federal courts the "authority to remove an otherwise unremovable state court case in 877*877 order to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425, 1431 (2nd Cir.1993) (internal quotation marks omitted). It follows that the district court did not err in denying the plaintiffs' motion to remand the state court.
Id. at 1003.
Similarly, in Sable v. General Motors, 90 F.3d 171 (6th Cir.1996) the administrator of an estate filed a complaint in state court alleging under state law that the defendants had trespassed upon land owned by the estate and had placed hazardous material on the property. The defendants contended that their entry upon the land was done pursuant to a consent decree entered into by the estate's decedent and subject to a continuing order from the U.S. District Court. The estate thereupon filed a motion to remand the case to state court claiming, as has Plaintiff in this case, that the complaint raised issues relating only to state law.
The Court of Appeals disagreed and concluded:
Understood in this way, plaintiffs' complaint seeks a remedy that is in direct conflict with the federal consent decree. Defendants entered a consent agreement in which they agreed to spend $40 million to contain chemicals on the property. The consent decree specifically rejects the option of removing the chemicals. Since plaintiff seeks relief that conflicts with the consent decree, plaintiffs' claim arises under federal law.
Id. at 174.
The Sixth Circuit reached the same conclusion in Striff v. Mason, 849 F.2d 240, 244 (6th Cir.1988). See also United States v. City of New York, 972 F.2d 464 (2nd Cir.1992);N.A.A.C.P. v. Metropolitan Council, 144 F.3d 1168 (8th Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 57 (1998); Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855 (2nd Cir.1988); Xiong v. State, 195 F.3d 424, 426 (8th Cir.1999).
In this case, the Consent Decree specifically provides at Paragraph 96:
The Court shall retain jurisdiction of this action for all purposes during the term of this Decree. At any time after both five years have elapsed since the date of entry of this Decree, and substantial compliance has been maintained for no less than two years, the City may move to dismiss this Decree ... [emphasis in original]
The Court concludes that the Decree entered on September 3, 1997 in Case No. C2-97-966 provides for continuing jurisdiction in this Court for the enforcement of the Order. Further, the relief sought by the Plaintiff, although framed solely in terms of state law, directly challenges a specific provision of the Consent Decree. Consequently, based upon the foregoing, the Court concludes that it has subject matter jurisdiction under 28 U.S.C. § 1331 and § 1651(a). For these reasons, the Plaintiff's Motion to Remand is DENIED.[1]

878*878 III.
In light to this Court's findings that the relief sought by Plaintiff's Complaint, if granted, would conflict with the Consent Decree issued in the case of United States v. City ofSteubenville, et al., C2-97-966, the Defendant's Motion to Consolidate is GRANTED. It is therefore ORDERED that the case of Captain Mark Sweeney v. City of Steubenville, et al., C2-01-322 be consolidated with the case of United States v. City of Steubenville, et al., Case No. C2-97-966. The consolidated matter will be entertained by the undersigned.
IV.
The United States of America seeks to intervene in this consolidated action as a matter of right under Fed. R.Civ.P. 24(a), or, alternatively, by permissive intervention pursuant to Fed.R.Civ.P. 24(b).
Rule 24(a) states:
Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Under Rule 24(a), the Sixth Circuit has held that intervention as a matter of right is established when the following four elements have been satisfied:
1. The Motion to Intervene is timely; 2. The proposed intervenors have a significant legal interest in the subject matter of the pending litigation; 3. The disposition of the action may impair or impede the proposed intervenors ability to protect their legal interests; and 4. The parties to the litigation cannot adequately protect the proposed intervenors' interest.
Stupak-Thrall v. Glickman, 226 F.3d 467, 471 (6th Cir.2000); Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir.1990). The Court will consider each of these four elements, seriatum.
The United States' Motion to Intervene was filed on June 1, 2000. While this case is proceeding on an expedited basis, briefing on the pending motions has recently closed while no determination has been made with respect to the merits of the case. With regard to timeliness only, no prejudice will result to any party if the United States is permitted to intervene.
The United States also contends that it has a significant legal interest in the subject matter of the pending litigation. As the Court has already determined, the state court action filed by Plaintiff Mark Sweeney seeks relief in direct contravention of the Consent Decree previously issued by this Court in a case brought by the United States. Clearly the United States retains an interest in the continuing enforcement of the Consent Decree. Thus, the Court concludes that it has a significant legal interest in the subject matter of this case to warrant intervention as of right.

879*879 The United States also contends that disposition of this case, in the absence of its participation, could impair or impede its ability to enforce the terms of the Consent Decree. While the City of Steubenville and the individual Defendants may also have an interest in enforcing the terms of the Decree, the Court cannot conclude that their interests are the same as the interest of the United States. Further, the Court notes that the Consent Decree was reached in the context of a lawsuit brought by the United States; if the Defendants had the same interest as the United States, the bringing of an action and the filing of a Consent Decree would not have been necessary. In short, the Court cannot conclude that prior adversaries who have reached a Consent Decree share identical interests in enforcing various terms and provisions of such continuing Order. Consequently, the Court concludes that the United States has interests which may not be protected or which could be impaired in the course of this litigation.
Finally, the Court must consider whether the parties currently named in this case may adequately protect the interests of the United States. The Consent Decree issued in this case was agreed to by the City of Steubenville and the United States. The very terms of the Decree indicate that the parties anticipated ongoing enforcement issues as well as the need for a lengthy term in which the jurisdiction of this Court was retained. (See Consent Decree at ¶¶ 95-97). Because the parties expressly anticipated future conflicts or disagreements, the Court must assume that their interests in enforcing the Consent Decree are not identical. Obviously, the interest of Plaintiff Mark Sweeney is in direct contravention of the interests of the United States. Consequently, the Court concludes that the interests of the United States are not adequately protected with regard to the integrity of the Consent Decree, should this case proceed in the absence of the Government's participation.
Based upon the foregoing, the Court concludes that the United States is entitled to intervene as a matter of right. Alternatively, the Court agrees that the United States is otherwise entitled to intervene on a permissive basis pursuant to Fed. R.Civ.P. 24(b) which states:
Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirements, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
The Court finds that under Fed.R.Civ.P. 24(b), intervention will not unduly delay or prejudice the adjudication of this case and will adversely effect the rights of the original parties.
For these reasons, the Motion of the United States to Intervene is GRANTED.
V.
The Defendants move to dismiss the Complaint filed by Plaintiff Mark Sweeney on the grounds of res judicata and laches. The doctrine of res judicata, 880*880 which essentially prohibits relitigation of issues previously adjudicated, was recently described by the Sixth Circuit in Becherer, et al. v. Merrill Lynch, 193 F.3d 415, 422 (6th Cir.1999) (en banc):
Res judicata bars a subsequent action "if the following elements are present: (1) a final decision on the merits by a Court of competent jurisdiction; (2) a subsequent action between the same parties or

their `privies'; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action."
Id., quoting Bittinger v. Tecumseh Products Co., 123 F.3d 877, 880 (6th Cir.1997).
In this case, it is undisputed that a final decision was reached by Judge Smith with regard to the Consent Decree entered in 1997. It is also undisputed that the issues raised in the Complaint filed by Plaintiff Mark Sweeney were the specific subject of a portion of the Consent Decree, as set forth above. Finally, the issues that Plaintiff raises in his state cause of action were precisely addressed in the Consent Decree previously entered.
Plaintiff Sweeney contends, however, that he may not be bound by the terms of the Consent Decree in that he was not a party or in privity with a party to such judgment.[2]The Sixth Circuit has identified three types of litigants who, under the concept of privity, may be bound by a prior judgment, even though such litigants were not actual parties to the prior suit. Becherer, 193 F.3d at 423. The first involves litigants who are successors in interest, such as the estate of a decedent who, before death, was a party in the prior adjudication. The second involves a nonparty who controlled the earlier lawsuit. Both of these categories of litigants are bound by a prior adjudication, even though they were not actual parties to the suit. Plaintiff Mark Sweeney fits neither of these categories.
The third category is that of a nonparty who was adequately represented by a party in the prior litigation. While Plaintiff Mark Sweeney is a member of the FOP, which attempted intervention in the earlier of these two consolidated cases, the fact remains that the FOP's Motion to Intervene was denied. Since the FOP was not a party in the prior lawsuit which resulted in the Consent Decree, neither it, nor one of its members, may be bound by the doctrine of res judicata.
In Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (superseded by statute), certain white firefighters brought an action alleging that they were being denied promotion in favor of less qualified minority applicants. The District Court found that a prior consent decree which required hiring and promoting minorities precluded the subsequent action filed by the white firefighters. Further, before the original consent decree was entered, the union representing the firefighters attempted to intervene and object to the same provisions of the consent decree—on the same basis asserted in the later action. The District Court had denied intervention in the earlier suit in which the consent decree was issued. The Supreme Court held:
881*881 A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly "settle," voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement.
Id. at 768, 109 S.Ct. 2180. Similarly, in Local No. 93, Intl. Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 529, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), the Court held that a District Court's approval of a consent decree cannot dispose of valid claims of nonconsenting intervenors.
Following the decision in Martin v. Wilks, supra, Congress, in 1991, amended federal employment discrimination laws contained in Title VII by adding the provisions set forth in 42 U.S.C. § 2000e2(n).[3] While this provision of federal law does not apply to this case, the procedure set forth therein illustrates the principle that only parties to suits, or persons with at least proper notice and an opportunity to be heard, may be bound by a consent decree. Under the amendment to Title VII, a procedure is provided whereby actual notice of a proposed judgment or consent decree may be submitted to any person who might be adversely affected thereby. Further, an opportunity must be made available for such person to present objections before entering of the order. The procedure is

designed to provide full opportunity to be heard by all parties affected by a proposed consent decree, while at the 882*882 same time preventing collateral attack upon the same decree.
As noted in Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir.1996), under eitherWilks or 42 U.S.C. § 2000e-2(n), persons must either be a party or be given notice as required by statute and an opportunity to object before a consent decree under Title VII may bind such person under the doctrine of res judicata. The Court in Edwards citedHansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 85 L.Ed. 22 (1940), for the proposition that a person prevented from intervening as a party may not be bound by the results of the action. Edwards, 78 F.3d at 998 n. 19.
From this, the Court concludes that the Plaintiff is not bound by the doctrine of res judicata as a result of the consent decree previously entered. The doctrine of res judicata does not, therefore, require dismissal of the complaint. Such conclusion does not, however, address the issue of whether the consent decree is permissible under federal law or whether, under Ohio law, the City of Steubenville may waive the requirements of O.R.C. § 124.44 as permitted by § 124.30(B) or conflicts with the Charter of the City of Steubenville. The parties have not briefed this issue and the matter is not ready for determination.
The Defendants also claim that the lawsuit filed by Plaintiff Mark Sweeney should be barred by the doctrine of laches. According to the Defendants, Plaintiff Sweeney has been aware of the provisions of the Consent Decree since 1997 and, through inaction, should now be barred from pursuing a stale claim. While the doctrine of laches may prevent equitable or declaratory relief, such a finding can only be based upon specific facts which, at this juncture, are not before the Court. The Defendants have submitted as an attachment to their Reply Memorandum a number of documents relating to prior meetings of the City Council, evaluations of potential police candidates, including the Plaintiff, and other factual matters relating to timeliness. Such factual claims may not be considered in a Motion to Dismiss made pursuant to Fed.R.Civ.P. 12(b)(6). The Defendants' motion simply challenges the sufficiency of the pleadings at this stage and the Court is not permitted to resolve disputed facts. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer,468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Further, the Court notes that the documents submitted by the Defendants are attached to their reply and that the Plaintiff has not had an opportunity to respond. Unless the parties can stipulate to the facts relevant to this issue, the matter must be resolved by way of a subsequent Motion for Summary Judgment or by trial.
Based upon the foregoing, the Defendant's Motion to Dismiss the Complaint to Plaintiff Mark Sweeney is DENIED.
VI.
In light of the foregoing, the Defendants' Motion to Consolidate (Doc. # 2) is GRANTED. The Defendants' Motion to Dismiss (Doc. # 3) is DENIED. The Plaintiff's Motion to Remand (Doc. # 5) is DENIED. The Motion by the United States to Intervene (Doc. # 12) is GRANTED.
IT IS SO ORDERED.
[1] The Court notes that the Notice of Removal filed by the Defendants does not specifically reference the All Writs Act, 28 U.S.C. § 1653 and instead cites only 28 U.S.C. § 1331. A defendant moving a case to federal court must state the basis for removal jurisdiction within the 30 day period provided for removal. While the issue has not been raised by the Plaintiff, the Court notes that the removal petition makes specific reference to portions of the Consent Decree which the Defendants claim are in conflict with the relief sought by the Plaintiff in his state court action. Further, the Defendants' Notice cites the case of Sable v. General Motors, supra, which addresses the All Writs Act and its application to cases involving lawsuits brought in state court which would undermine or conflict with provisions of federal consent decrees. Thus, this Court is

satisfied that the Petition for Removal more than adequately sets forth the All Writs Act as a basis for federal question jurisdiction.
[2] While in his Complaint Plaintiff Sweeney refers to himself as a member of the Steubenville Police Department, his counsel has signed a Complaint as the general counsel for the Fraternal Order of Police. The fact that the Plaintiff may be a member of FOP Lodge # 1 in Steubenville is not, in the Court's view, determinative of the issue presented. While the Steubenville Lodge of the FOP attempted intervention in the suit filed by the United States of America, such intervention was denied. Consequently, the FOP cannot be bound by the doctrine of res judicata.
[3] (n) Resolution of challenges to employment practices implementing litigated or consent judgments or orders
(1)(A) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or Federal civil rights laws may not be challenged under the circumstances described in subparagraph (B).
(B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws —
(i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had —
(I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and
(II) a reasonable opportunity to present objections to such judgment or order; or
(ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.
(2) Nothing in this subsection shall be construed to —
(A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which the parties intervened;
(B) apply to the rights of parties to the action in which a litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal Government;
(C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or
(D) authorize or permit the denial to any person of the due process of law required by the Constitution.
(3) Any action not precluded under this subsection that challenges an employment consent judgment or order described in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of Title 28.

 
 Case: 2:97-cv-00966-EAS-NMK Doc #: 54 Filed: 01/20/04 Page: 1 of 5 PAGEID #: 1
Fil..EO JAMES BONINI
IN THE UNITED STATES DISTRICT coulfiiK
1 FOR THE SOUTHERN DISTRic ooaFJO.HJO EASTERN DIVISION AN 20 P If: I 2

UNITED STATES OF AMERICA Plaintiff,
vs. CITY OF STEUBENVILLE, et al.,
Defendants.

)

)

)

)

CIVIL NO. C2-97-966

)

)

STATUS REPORT

)

)

)

Pursuant to item 88 of the Consent Decree entered in the above-described case, the City of Steubenville submits the attached status report which is dated January 2, 2004.

S. Gary Repella (#0005316) Law Director for the City of Steubenville Suite 212, City Annex Building 308 Market Street Steubenville, OH 43952 (740) 283-6031

CITY
OF
STEUBENVILLE

Case: 2:97-cv-00966-EAS-NMK Doc #: 54 Filed: 01/20/04 Page: 2 of 5 PAGEID #: 2

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Status Report was served upon the following, by U. S. regular mail on this /.)day of January, 2004.

Patricia O'Beirne, Senior Trial Atty. U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20035

Charles D. Reynolds P. 0. Box 396 Dover, NH 03821-0396
~di ~- {~ d~
S. Gary Repella Law Director for City of Steubenville

CITY

2

OF

STEUBENVILLE

Case: 2:97-cv-00966-EAS-NMK Doc #: 54 Filed: 01/20/04 Page: 3 of 5 PAGEID #: 3

Department of Police

CITY OF STEUBENVILLE, OHIO 43952

123 South Third Street

(740) 283-6090

Semi-Annual Status Report 01/02/04

Item 12
Item 13-20
Item 13a Item 13b Item 13c Item 13d Item 14a Item 14b Item 14c Item 14d
Item 15
Item 16
Item 17
Item 18
Item 19
Item 20
Item 21
Item 22 Item 23
Item 24 Item 25
Item 26
Item 27

Complied with
See following items:
Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with
Complied with
Complied with
Complied with
Complied with
Complied with
Complied with
Complied with
Complied with Complied with
Complied with Complied with
Complied with
Complied with

Case: 2:97-cv-00966-EAS-NMK Doc #: 54 Filed: 01/20/04 Page: 4 of 5 PAGEID #: 4

2

Item 28 Item 29 Item 30 Item 31 Item 32 Item 33 Item 34 Item 35 Item 36-43 Item 44 Item 45 Item 46-62 Item 63 Item 64 Item 65a-f Item 66a-b Item 67 Item 68 Item 69 Item 70 Item 71
Item 72 Item 73
Item 74 Item 75-77 Item 78 Item 79 Item 80 Item 81 Item 82 Item 83 Item 84

Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with Complied with
Complied with Complied with
Complied with Complied with Complied with Complied with City Manager's responsibility Complied with Complied with Auditor duties Auditor duties

Case: 2:97-cv-00966-EAS-NMK Doc #: 54 Filed: 01/20/04 Page: 5 of 5 PAGEID #: 5

3

Item 85 Item 86 Item 87 Item 88 Item 89
Item 90-91 Item 93 Item 94

Complied with Complied with Complied with Complied with Complied with
Complied with Complied with No longer applicable

 
 Case: 2:97-cv-00966-EAS-NMK Doc #: 58-2 Filed: 03/02/05 Page: 1 of 2 PAGEXEIHDI#B:I1T9 I

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

UNITED STATES OF AMERICA,

Plaintiff,

v. CITY OF STEUBENVILLE, et al.,

Civil Action No. 2:97-CV-966

Defendants.

DECLARATION OF CHARLES D. REYNOLDS I, Charles D. Reynolds, state as follows, pursuant to the provisions of 28 U.S.C. § 1746: 1. I am the independent auditor in United States v. City of Steubenville (No. 2:97-CV-966 S.D. Ohio). I have been the auditor since January 1998. Prior to that time, I served as Chief of Police for Dover, New Hampshire from 1972 to 1991, and President of the International Association of Chiefs of Police from 1988 to 1989. As a result of my training and experience, I have expertise in the area of police practices. 2. In my position as auditor, I have continually monitored the City of Steubenville's ("City") compliance with the Consent Decree ("Decree") since 1998. Beginning in April 1998, I have issued quarterly reports detailing my findings regarding the City's compliance with each provision of the Decree. 3. In April 2003, I found that the City had achieved substantial compliance with the Decree during the first quarter

Case: 2:97-cv-00966-EAS-NMK Doc #: 58-2 Filed: 03/02/05 Page: 2 of 2 PAGEID #: 20
of 2003, January 1, 2003 through March 31, 2003. During each of my seven subsequent quarterly reports, I have continued to find that the City is maintaining substantial compliance with the Decree. Most recently, I found that the City was still in substantial compliance with the Decree during the last quarter of 2004, October 1, 2004 through December 31, 2004. As a result, the City has maintained compliance with the Decree for two years.
4. In light of the City's fulfilling the requirements of Paragraph 96 of the Decree, I support the parties' joint request to terminate the Decree and dismiss the case.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on -q...., J'et../.I/c:<o o..s;-
:t!::::/~
Independent Auditor
2

 
 Mtpuvtmmt of Sfutititt

FOR IMMEDIATE RELEASE TUESDAY, AUGUST 26, 1997

CR (202) 616-2777 TDD (202) 514-1888

JUSTICE DEPARTMENT REACHES AGREEMENT WITH STEUBENVILLE. OHIO POLICE DEPARTMENT

WASHINGTON, D.C. — Resolving allegations that its police force engaged in a pattern of misconduct, the City of Steubenville, Ohio, has agreed to set up new and enhanced measures for managing its 50-member police department, under an agreement reached today with the Justice Department.
The agreement, which stems from an investigation launched last year, establishes guidelines for training, supervising and disciplining police officers, as well as processing complaints filed with the Steubenville Police Department.
Under the 1994 Crime Bill, law enforcement agencies are prohibited from engaging in a pattern or practice of conduct that violates the constitutional rights of individuals. A provision of the law gives the Justice Department the authority to investigate and seek civil remedies in litigation or by entry of a court-enforceable agreement. Separate criminal laws enable the Justice Department to prosecute individual police officers who engage in such misconduct.

(MORE) U.S. v. City of Steubenville

PN-OH-002-001

- 2-
"Police officers in Steubenville and across the country have
a very difficult job to do every day/" said Isabelle Katz
Pinzler, Acting Assistant Attorney General for Civil Rights. "The
measures outlined in today's agreement will help the Steubenville
Police Department fulfill its law enforcement duties while
safeguarding the rights of residents and others who come into
contact with the police."
Under today's settlement the southeastern Ohio city has
agreed to take a number of steps including:
• training all its officers on such topics as use of force, integrity and ethics, domestic violence, search and seizure law, cultural diversity, and vehicular pursuits;
• developing detailed use of force guidelines, to help officers avoid escalation of hostile encounters with civilians;
• requiring officers to complete a report whenever they use force against an individual, conduct a stop, search, or seizure, or engage in a vehicular pursuit. The reports will include racial data, and will be reviewed by supervisors and tracked by senior officers to analyze trends;
• establishing an internal affairs staff to review and investigate civilian complaints and other allegations of potential misconduct;
• using the reports of uses of force, stops, searches, and seizures, along with civilian complaints, civil lawsuits, and other sources to identify and track potential problems and to alert managers to possible patterns of misconduct;
• increasing training and supervision for officers with multiple complaints filed against them; and,
• hiring an independent auditor to monitor complaint investigations and compliance with the consent decree, and issue regular reports to the court, the city, and the Justice Department.
(MORE)

- 3 -

This is the second agreement the Justice Department has reached with a police department under the 1994 law. In February, the Department reached a similar agreement with the Pittsburgh police department.
The Justice Department continues to investigate other police departments around the nation to determine if they are engaged in patterns of misconduct, including police departments in Los Angeles and New Orleans. Last week, Attorney General Janet Reno indicated that, in the course of a pending criminal civil rights investigation in New York City, the Justice Department was gathering information to determine whether to open a pattern or practice investigation there.
"Today's agreement is a result of local and federal officials working together to design a plan that will benefit the citizens of Steubenville," added Pinzler.
The agreement is expected to be filed this week in U.S. District Court in Columbus and still must be approved by the court.

97-352

#

#

#

•

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

UNITED STATES OF AMERICA,
Plaintiff,
v.
CITY OF STEUBENVILLE, STEUBENVILLE POLICE DEPARTMENT, STEUBENVILLE CITY MANAGER, in his capacity as Director of Public Safety, and STEUBENVILLE CIVIL SERVICE COMMISSION,

•illllll U.S. v. City of Steubenville
PN-OH-002-004
CIVIL NO.

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF JOINT MOTION FOR ENTRY OF CONSENT DECREE
SUMMARY The parties have moved jointly for this Court to enter the proposed Consent Decree. Entry is appropriate under the law, and accordingly should be granted. A declaration in support of entry is attached to the Motion.
ARGUMENT A consent decrees has "attributes of both a contract and of a judicial act." Williams v. Vukovich. 720 F.2d 909, 919 (6th Cir. 1983). "[0]nee approved, the prospective provisions of the consent decree operate as an injunction." Id. at 920. Because of the consent decree's status as a judicial order, the district court should review the decree's provisions prior to entry. That review, however, is deferential in circumstances such as these, where the plaintiff is the United States government, and where voluntary agreement serves the interests of the statute underlying the cause of action.

Under applicable precedent, the review should simply ensure
that the consent: decree:
spring[s] from and serve[s] to resolve a dispute within the court's subject-matter jurisdiction. Furthermore, consistent with this requirement, the consent decree must 'com[e] within the general scope of the case made by the pleadings,' Pacific R. Co. v. Ketchumf 101 U.S. 289, 297 (1880), and must further the objectives of the law upon which the complaint was based. . - . . However, in addition to the law which forms the basis of the claim, the parties' consent animates the legal force of a consent decree. . . . Therefore, a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial.
Local 93. Int'1 Ass'n of Firefighters v. City of Cleveland,
478 U.S. 501 (1986). "[T]he trial court need only determine that
the proposed settlement is not unconstitutional, unlawful, . . .
or unreasonable before approval is granted. Moreover, . . . the
decree proposed in these circumstances is entitled to a
presumption of validity." United States v. City of Miami, 614 F.2d 1322, 1333(5th Cir. 1980).y
This decree meets these requirements because it fairly,
adequately, and reasonably resolves the allegations in the
Complaint; it furthers the purposes of Section 210401 of the
Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C.
§ 14141; its terms do not violate the law; and it serves the
public interest.
The proposed Consent Decree was carefully drafted to help
the Steubenville Police Department satisfy constitutional
1 Rule 23, Fed. R. Civ. P., does not apply to this "action . . . brought by a Government agency to enforce the federal law with whose enforcement the agency is charged." General Telephone Co. of the Northwest. Inc. v. EEOC. 446 U.S. 318, 323 n.5 (1980) .
- 2-

requirements by implementing a comprehensive system that enhances
accountability amd supervision of officers and managers of the
Steubenville Police Department, and meets current standards in
the law enforcement profession. By agreeing to the terms of this
Consent Decree, the United States and the defendants avoid
expensive, protracted litigation, and accelerate reforms in the
Steubenville Police Department.
The provisions of the decree are entirely within the scope
of. the statute underlying the Complaint, 42 U.S.C. § 14141. That
statute imposes municipal liability for patterns or practices of
illegal or unconstitutional conduct by law enforcement officers.
As the relevant House Committee Report explains, its very purpose
was to address ssystemically police misconduct resulting from
inadequate supervision, training, internal investigations, and
other practices: "Pattern or practice authority is needed . . .
to address patterns or practices such as the lack of training
. . . or the absence of a monitoring and disciplinary system. "
H.R. Rep. No. 102-242, at 138 (1991) (Omnibus Crime Control Act
of 1991, Title XII, Police Accountability Act).-'
The proposed Consent Decree requires systemic reforms to the
Steubenville Police Department of precisely the type Congress
2 This committee report accompanied the enacted statute's predecessor bill. There is no separate legislative history for the bill that was enacted and codified at 42 U.S.C. § 14141, but the legislative history of the predecessor bill is relevant because the language of that bill was identical, in pertinent part, to that o£ Section 14141. Compare iiL. at 24 ("It shall be unlawful for any governmental authority . . . to engage in a pattern or practice of conduct by law enforcement officers that deprives persons of rights, privileges, or immunities, secured or protected by the Constitution or laws of the United States.") with 42 U.S.C. § 14141 (same language).
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intended when enacting Section 14141. The proposed Consent Decree requires reforms addressing: (1) training of police officers and supervisors (Consent Decree 11 12-20); (2) reporting and oversight of certain activities of police officers, including uses of force; stops, searches, and seizures, vehicular pursuits; certain types of arrests (Consent Decree 11 20-27) ; (3) internal affairs investigations and civilian complaints (Consent Decree 11 28-63) ; (4) management and supervision of police officers and supervisors, on the basis of specified sources of information, including the various activity reports required by the Decree, civilian complaints of misconduct, and civil and criminal findings by courts(Consent Decree 11 65-77); (5) discipline of officers on the basis of sustained findings of misconduct (Consent Decree 1 69); (6) performance evaluations of officers and supervisors (Consent Decree 11 78-79); (7) selection of the best available candidate for Chief of Police, when a vacancy occurs, by a comprehensive search process, rather than written examination of inside candidates only (Consent Decree 1 80).
These reforms are aimed at preventing incidents of police misconduct and thereby serve the public interest. During its investigation, the United States retained the services of a nationally recognized expert in police management, Professor James J. Fyfe. Professor Fyfe has reviewed the Complaint and the parties' proposed Consent Decree, using as his frame of reference the policies and practices of other police departments in jurisdictions the size of Steubenville. Professor Fyfe's declaration, attached, states that the requirements the proposed
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Consent Decree would impose are simply good policing, as practiced throughout the United States.
Moreover, the reforms are tailored to the United States' Complaint alleging that from 1990 to the present, the Steubenville Police Department has engaged in, and continues to engage in, a pattern or practice of subjecting individuals to excessive force; false arrests, charges, and reports; and improper stops, searches, and seizures. Litigation to resolve these allegations could involve examination of many incidents of misconduct and connected management practices and would be complex, expensive, and time-consuming for the parties and the Court. The parties entered into this settlement after considering the risks and benefits of litigation and determining that the settlement as proposed in the Consent Decree was more attractive to both parties.
As the primary law enforcement agency of the United States, the United Staters Department of Justice has considerable expertise in lav/ enforcement. Through this action the Department of Justice is acting to safeguard compliance with the Constitution, but with due regard for the needs of the subject law enforcement agency. The City, charged with the responsibility for providing law enforcement services to the people of Steubemville, has determined that the proposed Decree is entirely consistent with that responsibility. Nothing in the proposed Consent Decree in any way changes the authority of police officers under the Constitution and Ohio law to effect arrests, conduct searches or seizures, or otherwise fulfill their law enforcement obligations to the people of Steubenville.
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In such circumstances, the ordinary rule that "[p]ublic policy strongly favors settlements of disputes without litigation," Aro Corp. v. Allied Witan Co.. 531 F.2d 1368, 1372 (6th Cir.), cert. denied, 429 U.S. 862 (1976), is underscored:
Where a court is reviewing a consent decree to which the government is a party, the balancing of competing interests affected by a proposed consent decree 'must be left, in the first instance, to the discretion of the Attorney General.1 United States v. Bechtel Corp.r 648 F.2d 660, 666 (9th Cir.), cert, denied. 454 U.S. 1083 (1981) ; ££_£_ also Sam Fox Publishing Co. v. United States, 366 U.S. 683, 689 (1961) (the government has the discretion over accepting a consent decree unless there is bad faith or malfeasance); United States v. Associated Milk Producers, Inc., 534 F.2d 113, 117 (8th Cir.), cert, denied. 429 U.S. 940 (1976) (Attorney General must retain discretion in "controlling government litigation and in determining what is in the public interest"). Kelley v. Thomas Solvent Co.. 717 F.Supp. 507, 515 (W.D. Mich. 1989) . S_£e. ai£Q United States v. Miami, 614 F.2d at 1332. Finally, the "clear policy in favor of encouraging settlements" has particular weight in areas such as this one, "where voluntary compliance by the parties . . . will contribute significantly toward ultimate achievement of statutory goals." Patterson v. Newspaper & Mail Deliverers' Union of New York. 514 F.2d 767, 771 (2d Cir. 1975), cert, denied. 427 U.S. 911 (1976) (quoted in Kelley v. Thomas Solvent Co., 111 F.Supp. at 516).
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CONCLUSION For the foregoing reasons, the Court should enter the proposed Consent Decree. Respectfully submitted: FOR THE PLAINTIFF, THE UNITED STATES OF AMERICA:

SHARON J. ZEALEY United States Attorney Southern District of Ohio

ISABELLE KATZ PINZLER Acting Assistant Attorney
General Civil Rights Division

TAN (#0018632) Lvil Chief Office of the U.S. AttorneySouthern District of Ohio 280 North High St., 4th floor Columbus, OH 43215 (614) 469-5715

STEVEN H. ROSENBAUM Chief MELLIE H. NELSON Deputy Chief U.S. Department of Justice Civil Rights Division Special Litigation Section

MARGO SCHLANGER Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202) 616-8657
FOR THE DEFENDANTS, CITY OF STEUBENVILLE, KT
GARY REPELLA City of Steubenville
Law Director Attorney of Record 308 Market Street Steubenville, OH 43952 (614) 283-6031

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

UNITED STATES 0? AMERICA,
Plaintiff,
v.
CITY OF STEUBENVILLE, STEUBENVILLE POLICE DEPARTMENT, STEUBENVILLE CITY MANAGER, in his capacity as Director of Public Safety, and STEUBENVILLE CIVIL SERVICE COMMISSION,
Defendants.

DECLARATION OF JAMES J. FYFE, PH.D. CIVIL NO.

I, James J. Fyfe, Ph.D., declare: 1. I am a professor of criminal justice and senior public policy research fellow at Temple University in Philadelphia, Pennsylvania. I have also been employed as a professor in the School of Public Affairs at American University in Washington, D.C. I have been a senior fellow at the Police Foundation and have served as a commissioner of the Commission on Accreditation for Law Enforcement Agencies since 1989. Before becoming a professor, I was employed for sixteen (16) years as a police officer, sergeant, and lieutenant with the New York City Police Department. 2. I am intimately familiar with generally accepted police custom, practice, and policy throughout the United States. Because I have consulted on several cases involving Ohio police
1 U.S. v. City of Steubenville
m m ••• • • • • • •
PN-OH-002-006

agencies and because Ohio is one of the states in which the Commission on Accreditation for Law Enforcement Agencies, Inc., is most active, I am specifically familiar with police practice in Ohio.
3. I have testified as an expert in police administration, police supervision, and police accountability before both state and federal courts.
4. My curriculum vitae is attached, and I incorporate herein its contents.
5. I have reviewed police policies and practices, including citizen complaint procedures and other mechanisms for holding officers accountable for their behavior in, among other places, Albuquerque, Boston, Chicago, Cleveland, Dallas, Houston, Joliet, Los Angeles, Los Angeles County, Memphis, Milwaukee, New Orleans, New York, Philadelphia, San Jose, and West Virginia. Among police departments that serve communities smaller than or about the size of Steubenville, I have reviewed policies and practices in Alameda, Napa, San Rafael, San Bruno, and Tiburon, California; Bloomington, Indiana; Camden and Hamilton, New Jersey; Manlius, Mount Vernon, and Salamanca, New York; Elyria, Warren, and Xeriia, Ohio; Chester, Upper Merion, Lower Merion, and Reading, Pennsylvania, and many other places. Through my work as a Commissioner of the Commission on Accreditation for Law Enforcement Agencies, I have reviewed the policies and practices of many dozens of agencies, ranging in size down to fewer than ten personnel. Consequently, I am familiar with standards that

apply to police departments of all sizes, and 1 use as my frame of reference in this declaration the policies and practices of jurisdictions roughly equal in size to Steubenville.
6. I have published seven books and many articles and book chapters that deal in whole or in part with police administration . and police accountability.
7. I currently direct a study of police corruption and brutality in New York City. This study is funded by the United States Department of Justice, National Institute of Justice.
8. I am currently conducting a study to determine whether the internal disciplinary system of the New York City Police Department is operated in a race and/or gender discriminatory manner.
9. I was hired as a consultant to the United States. As part of my duties, I met with officials and citizens of the City of Steubenville, and have reviewed materials related to the administration of the Steubenville Police Department.
10. I have also reviewed the Complaint of the United States in this case, as well as the Consent Decree proposed by the parties, and have prepared this declaration at the request of the United States,,
11. It is my opinion that the proposed Consent Decree fairly addresses the allegations raised by the United States in its Complaint. I believe that the terms of the proposed Consent Decree, if properly implemented, will greatly enhance the

performance of the steubenville Police Department and will improve the quality of life and justice in Steubenville.
12. No police department can operate lawfully, effectively, responsively, and humanely unless all its personnel are trained according to clearly defined training policies and programs.
13. Such policies and programs should assure that all new 'officers are provided with specific training for their individual responsibilities; that in-service personnel receive regular refresher and update training throughout their careers; that all persons holding specialized, supervisory, or command positions be specifically trained for their job responsibilities; that persons
selected as trainers be qualified for their jobs by virtue of outstanding job performance and disciplinary histories and by completion of specialized instruction in training principles and techniques; and that officers' training histories be carefully and completely documented.
14. If properly implemented, the training policy and programs required by Paragraphs 12-20 in the proposed Consent Decree will enable the Steubenville Police Department and its personnel to serve its citizens and community in a lawful, effective, responsive, and humane manner. The training policies and programs required by the Consent Decree are consistent with sound and prevailing police practice throughout the United States, and with long-standing findings and recommendations of all the authoritative organizations that have investigated and written on this subject. These include the

American Bar Association Project on Standards for Criminal Justice (Standards Relating to the Urban Police Function. New York: American Bar Association, 1973); the Commission on Accreditation for Law Enforcement Agencies, Inc., (Standards for l^aw Enforcement Agencies. Fairfax VA: Commission on Accreditation for Law Enforcement Agencies, Inc., 1994); the National Advisory Commission on Criminal Justice Standards and Goals (Police. Washington DC: US Government Printing Office, 1976); and the President's Commission on Law Enforcement and Administration of Justice (TaBk Force Report: The Police. Washington DC: US Government Printing Office, 1967) .
15. Police departments must implement and enforce clear policies concerning several sensitive areas of operations. These include use of non-lethal and deadly force; drawing and display of weapons; use of roadblocks; vehicle pursuits; hostage and barricade situations; off-duty responsibilities; and off-duty gun use.
16. Absent such policies and related training, officers are compelled to make decisions concerning life and death on an ad hoc basis, while they are immediately involved in fast-breaking and emotional field situations. Two consequences result: first, in their haste to do something, and to do it quickly, officers often choose the wrong course of action; second, because no policies or rule govern their behavior in such situations, officers cannot fairly be held accountable for choosing the wrong course of action.

17. The policies, reporting requirements, and enforcement mechanisms related to use of non-lethal and deadly force; drawing and display of weapons; use of roadblocks; vehicle pursuits; hostage and barricade situations; off-duty responsibilities; and off-duty gun use required by paragraphs 21-23 of the proposed Consent Decree are in accord with sound and prevailing police practice throughout the United States. If properly implemented, they will assure that officers are given meaningful guidance in their most critical decisions. This will save lives; protect citizens' rights, dignity, and property; make it possible to hold officers properly accountable for their actions,- and enable the police department to constantly review the adequacy of its policies and training in these areas.
18. In virtually every relevant study, it has been found that perceived police discrimination in field interrogation practices has been a major cause of minority communities' dissatisfaction with police. It also has been long recognized by police that, properly conducted, police field interrogations (also variously called "stop, question, and frisk" or "Terry stops," for Terry v. Ohio. 392 U.S. 1, 1968) are a valuable police crime fighting tool. Often, crimes are solved when investigators learn that patrol officers have stopped and questioned a suspicious person near the scene of a crime that was discovered only later.
19. Unless Terry stops are thoroughly documented and reviewed by police officials, there is no way to determine

whether officers exercise this power in discriminatory or otherwise improper fashions. If properly implemented, the field interrogation policies and review procedures required by Paragraphs 24-25 of the proposed Consent Decree will make it possible to properly supervise this sensitive area of police operation. These policies and procedures will also make field interrogations in Steubenville a more valuable crime-fighting tool.
20. Reasonable police administrators and other public officials have come to recognize the existence of a category of so-called "contempt of cop" arrests which typically involve charges in which officers are the only complainants. Such charges include assaults on officers; resisting arreBt; and Buch public order offenses as disorderly conduct; public intoxication; and obstruction of justice. Review of such charges, including my own research, indicates that some small percentage of officers repeatedly are involved in such cases, while others rarely or never make such arrests. This research also shows that such charges often are filed because officers were offended by citizens' demeanor rather than to accomplish any legitimate law enforcement purpose.
21. Reasonable and competent police administrators also recognize that some officers abuse their powers co stop, search, and seize, with the consequence that they build lengthy records of arrests for possessory crimes not connected to other charges. For reasonable and competent administrators, such arrests raise a

critical question: it is one thing for a patrol officer who has arrested a person on another charge (e.g., a robbery or larceny) to find during a search pursuant to arrest that a suspect is carrying drugs or weapons in a pocket or vehicle trunk; but absent such authorization to be in peoples' pockets or car trunks, how does an officer make such a discovery without conducting' an unconstitutional search?
22. Recognizing the possibility that both contempt of cop arrests and arrests exclusively for possessory crimes may involve improper police behavior, reasonable and competent police administrators throughout the United States scrutinize both types of events carefully. It is my opinion that, if properly implemented, the reporting, investigative, and review procedures for these cases required by Paragraph 27 of the proposed Consent Decree will enable the Steubenville Police Department to assure that its officers are held properly accountable for fairly enforcing laws involving crimes against themselves and/or the public order, as well as those that define possessory offenses.
23. Prevailing police standards in the United States dictate that primary responsibility for internal affairs function be vested in one individual and/or unit, and that related procedures (e.g., acceptance, investigation, review and disposition of complaints) be clearly defined and made available to both members of the public and members of a police agency. These procedures should encourage citizens' commentary; both positive and negative, about police performance and should

establish no impediments to such reports. They should also define the investigative process, requiring investigators to document cases thoroughly by, for example, obtaining verbatim accounts from all parties, and presenting relevant photographic or taped evidence. These procedures should also require that all complaint investigations be carried through to final disposition, that officers' career histories be included among the factors considered in disposition, and that officers and complainants be promptly advised of findings and the reasons therefor.
24. Paragraphs 33-63 of the proposed Consent Decree are a statement of prevailing United States police standards for internal affairs and citizens' complaint procedures and how they apply to Steubenville. It is my opinion that, if properly implemented in Steubenville, the policies and procedures defined in paragraphs 33-63 will result in an improved quality of service; a higher degree of police morale; greater police accountability; and improved police-community relations.
25. Because police officers so often work in low visibility settings, out of the sight of their supervisors, commanders, and objective witnesses, meaningful police supervision is a difficult task. Recognizing this, reasonable and competent police administrators throughout the United States have adopted a variety of tools for assuring that officers conduct themselves appropriately. These techniques include review of criminal cases in which it has been ruled that officers' searches or

interrogations were unconstitutional; review of civilian complaints, civil suits, and criminal charges against officers; and review of officers' reports of misconduct by their colleagues. In addition, these techniques include such disciplinary action as remedial training, counseling, assignment to a field training officer, transfer, and reassignment. Adoption of such techniques by the steubenville Police Department, as required by Paragraphs 65-70 of the proposed Consent Decree, would bring the agency into accord with prevailing United States police standards for supervision of officers, and will enhance the quality of police service in Steubenville.
26. The most important and expensive resource in police work is personnel. Indeed, in all but the very smallest United States police agencies, direct personnel costs account for more than 90 percent: of all expenditures. Reasonable and competent United States police administrators understand that monitoring their personnel requires the regularized collection and analysis of a great deal of information concerning their performance. If properly implemented, the personnel data collection and analysis system required in Paragraphs 71-77 will bring the Steubenville Police Department into accord with relevant and prevailing United states standards for personnel management, and will enhance the quality of police service in Steubenville.
27. No police agency can effectively operate without a formal personnel evaluation system. Such a system requires an
10

analysis of all employees' jobs; establishment of objective criteria to measure job performance; training of supervisors so that they can evaluate employees on these criteria; careful and documented supervisory observation of employees' performance and analysis of documentation of employees' accomplishments and shortcomings; cind periodic face-to-face evaluation sessions in which supervisors discuss their written evaluations of employees' performance, giving concrete directions and suggestions for improvement. These evaluations and employees' responses to them (e.g., in terms of self-improvement efforts and/or changes in actual performance) should serve as a major part of a reward and incentive system. If properly implemented, adoption of a performance evaluation system as required in Paragraphs 78-79 of the proposed Consent Decree would bring the Steubenville Police Department into accord with relevant and prevailing United States police standards.
28. The provisions for evaluating the Steubenville Police Chief required by Paragraph 79 of the proposed Consent Decree are reasonable and in accord with prevailing United States police practice. It also is my opinion that, properly implemented, such a system will greatly enhance the accountability of the police department and its chief, and thus, will improve their performance.
29. The job of the police chief executive is one of the most difficult and sensitive in all of government. Police chiefs set enforcement policies and priorities and, in large measure,
11

shape decisions about gets arrested, ticketed, or even shot. Further, the skills required of police chiefs are quite different from those that may define success at lower levels in a police agency. The police chief must be qualified by character, training, ability, and reputation as a leader whose priority it ia to enhance the quality of hie or her community's life, safety, and order.- The position of police chief is so important and critical that it requires as large a talent pool of candidates as may be mustered. Any policy that limits eligibility for this position to people already employed in a police agency sets an artificial barrier to improved police performance.
30. The provisions for appointing and evaluating police chiefs in Steubenville required by Paragraph 80 of the proposed Consent Decree are reasonable and in accord with prevailing police practice throughout the United States. I know with specificity through my work as a Commissioner of the Commission on Accreditation of Law Enforcement Agencies that many of the most highly regarded police agencies in Ohio have long made it a practice to actively encourage external participants in police chief applicant pools and have eventually been led with great success by such external candidates.
31. It is widely recognized that police work is an extremely stressful occupation. Police officers work unorthodox hours that may estrange them from their families and friends. Police officers see the community's tragedies and worst people and events. They deal on a regular basis with emergencies,
12

death, abandonment, addiction, drunkenness, madness, abuse, violence, theft, and insoluble problems. Reasonable and competent police adtninistratore, officers, and labor representatives throughout the United States have come to recognize that this experience takes a toll on officers. Consequently, police employee assistance programs have become such a standard part of police life in the United States that the absence of such a program is a violation of prevailing police practice.
32. The employee assistance program required by Paragraph 81 of the proposed Consent Decree is in accord with prevailing United States police practice.
33. All of the requirements of the proposed Consent Decree, as well as the methods of achieving them, are reasonable and in accord with prevailing police practice in Ohio and throughout the United States.
34. None of the requirements of the proposed Consent Decree and none of the methods of achieving them present any impediments to effective policing or interfere in any way with the lives, safety, work, or rights of Steubenville officials, police officers, or the public. The Consent Decree simply requires good police practice as it is defined throughout the United States.
13

I declare under penalty of perjury that the foregoing is true and correct. Executed on August Z¥, 1997
James J. Fyf* jph.D.
lft

VITA JAMES J. FYFE

AUGUST 1997

Residence:

Available on request

Phone and FAX:

(609) 497-1061

Present Position:

Professor of Criminal Justice and Senior Public Policy Research Fellow
Temple University Department of Criminal Justice 512 Gladfelter Hall Philadelphia PA 19104 (215) 204-1670 FAX (215) 204-3872

Born:

February 16, 1942 Brooklyn, New York

Education:

B.S, , Criminal Justice, John Jay College of Criminal Justice, City University of New York, 1971
M.A. , Criminal Justice, State University of New York at Albany, 1972 (essay: "New York City Police Attitudes Toward Promotional Criteria," 148 pages, with Carl E. Pope)
Ph.D ., Criminal Justice, State University of New York at Albany, 1978 (dissertation: "Shots Fired: An Examination of New York City Police Firearms Discharges," 717 pages)

Honors and Awards:

New York City Police Department Scholarship to S.U.N.Y., Albany, School of Criminal Justice, 1971-1972
Ford Foundation Criminal Justice Practitioner's Fellowship, 1972-1973
New York City Police Foundation Grant for Graduate Study at S.U.N.Y., Albany, School of Criminal Justice, 1972-1973
Distinction, Criminal Justice Administration Doctoral Comprehensive Examination, S.U.N.Y., Albany, 1972
Interagency Fellow, U.S. Civil Service Commission, Executive Seminar Center, Kings Point, N.Y., 1976
American Society for Public Administration Annual Award for Outstanding National Contribution to Criminal Justice Administration, 1979
The American University School of Justice Annual Award for Outstanding Research and Scholarly Contributions, 1981

The American University School of Justice Annual Award for Service to the University Community, 1983
The American University School of Justice Annual Award for Outstanding Teaching, 1985
State University of New York, School of Criminal Justice, Annual Award to Outstanding Alumnus, 1985
The American University School of Justice Student Council Award for Professor of the Year, 1987
University of Louisville, School of Justice, Alumni Association Annual Award for Professional Service, 1989
John Jay College of Criminal Justice, Annual Award to Outstanding Alumnus, 1990
Sam Houston State College, Center for Criminal Justice, Beto Distinguished Lecture, 1991.
New York City Police Department, Commendation, 1993. American Academy for Professional Law Enforcement, Person of
the Year, 1993. Concerned Alliance for Professional Policing, Annual Police
Management Award, 1995.
Employment History
New York City Police Department: June - October 1963: Police Academy Recruit October 1963 - January 1971: Patrolman in the 84th Precinct, Brooklyn Heights/Borough Hall area. Earned seven departmental citations. January 1971: Promoted to sergeant after having attained the second highest written examination grade among 18,067 candidates. February - July 1971: Patrol sergeant in the 18th Precinct, Times Square. July -August 1971: Patrol sergeant in the 114th Precinct, Queens. August 1971 - August 1972: Paid leave of absence to pursue graduate studies at S.U.N.Y., Albany. August 1972 - June 1973: Unpaid leave of absence to continue graduate studies. June - October 1973: Patrol sergeant in the 114th Precinct, Queens. October 1973 - January 1976: Chairman, Police Science Department, Police Academy; researched and developed a new entry training curriculum, subsequently evaluated by the New York State Board of Regents as the equivalent of 3 5 undergraduate semester hours; editor and principal writer of two editions of an original 750 page recruit guide; supervised and coordinated 22 instructors teaching a student body of 2,200; developed

examinations and standards of performance; classroom teaching of recruits, in-service personnel and civilian attorneys; curriculum evaluation. January 1975 - April 1978: Director, Police Academy Firearms Discharge/Assault Research Project; converted to computer mode all reported New York City police firearms discharges and assaults on officers, 1971-1975; data analysis, policy research and reports. January 1976 - November 1977: Executive Officer, Police Academy Management Training Unit; identified training needs of civilians and sworn supervisors at all department levels; curriculum development, liaison with public and private resource organizations; classroom teaching; developed and coordinated new pre-promotion to captain training program. November 1977: Promoted to lieutenant after having attained the third highest examination grade among 2,651 candidates. November 1977 - February 1978: Commanding Officer, Police Academy Management Training Unit; supervised and coordinated a staff of six instructors responsible for all training of supervisors and managers. February 1978 - August 1979: Coordinator, Police Academy Executive Development Program; developed and delivered funded seminar program for all captains and above; liaison with funders, organizations, institutions, and individuals participating in program.
American University: Associate Professor, School of Justice, 1979-1986 (tenured 1982) . Professor, School of Justice, 1986-1988. Professor, Department of Justice, Law and Society, 1988-1992 (department chair, 1988-1990).
Police Foundation: Senior Fellow, 1979-1987: program research and grant development.
Contracts and Grantmanship 1979: Police Foundation. $12,000 for study of police deadly force.
1979: Ford Foundation; wrote successful proposal for $250,000 for study of police beat organization and management. Project directed by a fulltime Police Foundation staff member.

1980: United States Department of Justice, Law Enforcement Assistance Administration. Primary consultant on development and implementation of LEAA funded grant ($382,000) to NAACP and Police Foundation to review statutes and policies on police use of deadly force, and to seek reform where appropriate; Director of $165,000 NAACP subcontract to Police Foundation.

1981: Ford Foundation, $80,000 for study of police use of deadly force. Drafted amici curiae brief in Tennessee v Garner and directed campaign to draw joiners.

1984: United States Department of Justice, National Institute of Justice: wrote successful proposal on behalf of Police Management Association for $70,000 police training program.

1985: United States Department of Justice, National Institute of Justice: primary author of successful proposal for $398,000 study of inner-city crime and crime prevention programs. Project directed by a fulltime Foundation staff member.

1985:

Dade County, Florida, and Ford Foundation;

$250,000 for Police-Citizen Violence Reduction Experiment.

1993:

Philadelphia Police Advisory Commission: $7,500

for training course.

1996:

United States Department of Justice, National

Institute of Justice, and Philadelphia Housing Authority:

(with Jack R. Greene and Susan Wheelan) $298,000 for

implement ait ion and evaluation of community policing program

in Philadelphia public housing.

1996:

United States Department of Justice, National

Institute of Justice: (with Jack R. Greene) $413,000 for

Empirical Study of Police Officers Separated from the New

York City Police Department for Brutality or Corruption,

1975-1996.

1996:

United States Department of Justice, Bureau of

Justice Assistance: (with John Goldkamp) $50,000 for

evaluation of police strategic homicide initiatives.

1997:

United States Department of Justice, Civil Rights

Division: $11,000 for evaluation of police customs,

policies, and practices in Steubenville, Ohio.

Other Professional Experience:
Research Assistant, S.U.N.Y., Albany, 1972. Teaching Assistant, S.U.N.Y., Albany, 1973. Adjunct Assistant Professor of Police Science, John Jay
College of Criminal Justice, 1974-1979. Expert witness and consultant in more than 300 police
related civil rights court actions. Editorial Consultant, Brooks-Cole Publishing Company,
1981-present. Deputy Editor, Justice Quarterly, 1983-1985. Contributing Editor, Criminal Law Bulletin, 1982-1988; 1996-
present. Member, International Association of Chiefs of Police Deadly
Force Advisory Committee, 1988-1990. Member, National Institute of Justice Toy Gun Marking Task
Force, 1989-1990. Commissioner, Commission on Accreditation for Law
Enforcement Agencies, Inc., 1989-present. Editor, Justice Quarterly, 1989-1992. Member, District of Columbia Select Committee on Fiscal and
Budget Priorities, 1989-1991; 1994-present. Member, Selection Committee, Council for International
Exchange of Scholars, 1990 United Kingdom Police Profeissional Fulbright Scholarships; Chair, 1991-1995. Grant Reviewer, National Institute of Justice, 1990-present. Member, National Committee for a Police Cadet Corps. Member, United Nations Association of the United States, Advisory Committee on Drug Policy. Associate Consultant, Journal of Criminal Law and Criminology, 1990-present. Vice Chair, Police Section, Academy of Criminal Justice Sciences, 1992-1994. Associate Editor, Journal of Criminal Justice Education, 1996-present. New York City Police Department: Hostage Situation Review Committee, 1993. Resistant Subjects Task Force, 1994. Officer-Officer Confrontation Committee, 1994. Occasional Reviewer: Journal of Criminal Justice Criminal Justice and Behavior Justice Quarterly Justice Professional Criminology Journal of Quantitative Criminology American Journal of Police American Journal of Criminal Justice Violence and Victims
Police Studies Public Administration Review Journal of Research in Crime and Delinquency

Social Problems Sociological Spectrum Social Science Quarterly Studies in Law. Politics and Society: An Annual Review National Science Foundation Bureau of Justice Assistance Harcourt-Brace Jovanovich McGraw-Hill Sage Publications Northeastern University Press
Consultant: Schenectady, New York, Police Department, 1973. Chicago Law Enforcement Study Group, 1978-1982. U.S. Civil Rights Commission, 1978. Center for Community Change, 1979-1980. U.S. Department of Justice, Community Relations Service, 1979-1985. U.S. Department of Justice, Civil Rights Division, 1979 1980. American Congress of Educators, 1980. National Institute of Mental Health, 1980 - 1983. NAACP Legal Defense Fund, 1980 - 1985; 1991 - present. U.S. Department of Justice, National Institute of Justice, 1982-1985. U.S. Department of Justice, Bureau of Justice Statistics, 1983. Advanced Research Resources Organization, 1981 - 1987. Arizona Attorney General, 1984-1986; 1990-1993. New Mexico Attorney General, 1984-1986; 1992-present. City of Miami, 1984-1990. City of Oakland CA, 1985-1990. City of Milwaukee, 1985. Delaware Attorney General, 1985. New York State Governor's Commission on Police Use of Deadly Force, 1985. U.S. Department of Justice, Federal Bureau of Investigation, 1986. City University of New York, Graduate Center, 1986. Dallas Police Department, 1987. City of Houston, 1987-1990. City of Alameda CA, 1988-1990. Pennsylvania State University, 1988. City of Bloomington IN, 1988. University of Wisconsin - Milwaukee, Office of Juvenile Justice and Delinquency Prevention Grant on Minorities in the Juvenile Justice System, 1988-1989. City of Albuquerque, 1989-present. City of San Jose, 1989-1994. City of San Francisco, 1989-1994. City of Hayward CA, 1990-1992. Chatham County GA, 1990-1991.

City of Los Gatos CA, 1992. City of Boston, 1992-1994. Nashville-Davidson County, 1992-present. City of New York, 1993-present. KPMG Peat, Marwick, Mitchell, 1994-95. City of Yonkers NY, 1996. City of Alexandria VA, 1996. Atlantic City NJ, 1996. U.S. Department of Justice, Civil Rights Division, 1996-
present. Crime and Justice Research Center, 1996-present.
Testified as expert on police policies and practices in federal and state courts in Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Virginia, Wisconsin, Wyoming, and Canada.
Invited Guest Speaker:
The American University, School of Justice Seminar for Police Executives, Washington DC, April 1975.
Pennsylvania House of Representatives Hearings on Police Violence, Harrisburg PA, July 1978; Hearings on Philadelphia Police Advisory Commission, July 1995.
National Conference of Human Rights Workers, Nashville TN, October 1978.
Police Foundation, Police Executive Institute Seminars on Police Misconduct, February 1979, Chicago; April 1980, Dallas; May 1980, Los Angeles.
Northwestern University Traffic Institute Seminars on Police Deadly Force, Evanston IL, May 1979; May 1980; April 1980; New Orleans, January 1980; Orlando FL, December 1980.
Interfaith Council National Conference on Criminal Justice, New York, October 1979.
U.S. Department of Justice/Urban League National Conference on Police Deadly Force, Silver Spring MD, December 1979.
Police Executive Research Forum, Annual Meeting, Denver, February 1980.
Long Island University, C.W. Post Center, Twenty-fifth Anniversary, "Law Enforcement Day," Brookville NY, March 1980.
University of Cincinnati Symposium on Litigation Against the Police, Cincinnati, April 1980.
Center for Community Change, National Seminar on Community Leadership, Berkeley Springs WV, May 1980.
National Criminal Justice Forum, Columbus OH, June 1980. National Association for the Advancement of Colored People,
Annual Convention, Miami Beach, June 1980.

United States House of Representatives Committee on the District of Columbia, Hearings on Urban Violence, June 1980.
Philadelphia City Council, Hearings on the Administration of the Philadelphia Police Department, October 1980; January 1993.
University of Nebraska - Omaha, National Symposium on Police Use of Force, Omaha NE, November 1980.
Delaware Police Chiefs' Council, Seminar on Police Use of Deadly Force, Dover DL, November 1980.
National Conference of Christians and Jews, Symposium on Police Use of Deadly Force, San Jose CA, December 1980.
American Academy for Professional Law Enforcement, Symposium on Police Use of Deadly Force, Philadelphia, November 1980.
National College of District Attorneys, Experienced Prosecutors Course, Hilton Head SC, January 1981.
Valencia Community College, Seminar on Police Use of Deadly Force, Orlando FL, January 1981.
National Bar Association, Half Year Legislative Conference, Washington DC, April 1981.
U.S. Department of Justice, Community Relations Service, Conference on Police and the Community, Washington DC, April 1981.
NAACP Legal Defense Fund, Inc., Lawyers' Training Institute, Warrenton VA, May 1981.
Colorado District Attorneys' Council, Annual Conference, Aspen CO, June 1981.
Massachusetts Criminal Justice Training Council, Seminar on Police Deadly Force, Boston MA, June 1981.
FBI National Academy, National Executive Institute, Quantico VA, June 1981.
FBI National Academy Associates, Annual Regional Meeting, Nashville TN, July 1981.
FBI National Academy, Law Enforcement Executive Development Seminar, Quantico VA, August 1981; February 1982; January 1983; July 1983; April 1989.
NAACP Southeast Region Leadership Meeting, Atlanta GA, August 1981.
Harvard University Law School Civil Rights-Civil Liberties Law Review Symposium on Criminal Justice Administration, Cambridge MA, October 1981.
Michigan Civil Rights Department Hearings on Police Brutality, Detroit MI, October 1981.
Washington Center for Learning Alternatives, Washington DC, October 1981.
NAACP Los Angeles Branch Annual Meeting, Long Beach CA, December 1981.
Broward Community College, Ft. Lauderdale FL, Seminar on Police Deadly Force, January 1982.
Old Dominion University, Symposium on Ethics in Criminal Justice, Norfolk VA, April 1982.
Rutgers University School of Law, Symposium on Racial Violence in America, Newark NJ, April 1982.

Chicago Police Department, Command Staff Lecture Series, October 1982.
University of California-Berkeley, School of Law, Center for Study of Law and Society, October 1982.
District of Columbia League of Republican Women, November 1982. FBI National Academy, Distinguished Lecturer Series, Quantico VA,
January 1983. Roosevelt Center for American Policy Studies, Washington DC,
April 1983. United States House of Representatives, Subcommittee on Criminal
Justice, Hearings on the Exclusionary Rule and Fourth Amendment Legislation, April 1983. U.S. Conference of Mayors, Annual Meeting, Denver CO, June 1983. United States House of Representatives, Committee on the Judiciary, Subcommittee on Criminal Justice, Hearings on Alleged Brutality in the New York City Police Department, Brooklyn NY, November 1983. University of Virginia, School of Law, Seminar on Criminal Law, Charlottesville VA, January 1984. Clergy and Citizens Against Police Abuse, Hearings on Police Accountability, Boston MA, June 1984. Roosevelt Center for American Policy Studies, "The American Debate," (syndicated radio and television show, debated US Attorney for District of Columbia on the exclusionary rule, Washington DC, July 1984). National Black Police Association, Annual Meeting, Oakland CA, August 1984. United States Conference of Mayors, Mayors Leadership Institute, Tampa FL, December 1984; Tucson AZ, April 1986. University of Wisconsin - Milwaukee, Symposium on Guns and Violence, April 1985. National Institute of Municipal Law Officers, Seminar on Section 1983 Litigation, Washington DC, April 1985. United States Conference of Mayors, Annual Meeting, Anchorage AK, June 1985. Police Misconduct Lawyers' Referral Service, Los Angeles CA, June 1985. Niagara University, Seminar of Police Use of Deadly Force, Buffalo NY, November 1985. Command Staff, Orlando (FL) Police Department, March 1986. Indiana University, Bloomington IN, April 1986. Central Florida Crime Commission, Orlando, April 1986. University of Louisville, Southern Police Institute, March 1987;
November 1987; April 1988; October 1988; April 1989; October 1989; April 1990. National Lawyers' Guild, Annual Meeting, Washington DC, May 1987. Southern Florida Community Council, Annual Meeting, Miami, June 1987. Florida Institute of Law Enforcement, Seminar on Police
Deadly Force, St. Petersburg FL, February 1988. United States House of Representatives, Subcommittee on Civil and
Constitutional Rights, Hearings on Affirmative Action and

Equal Employment Opportunity in the Federal Bureau of Investigation, March 1988; Hearings on Police Brutality, March 1991. Drug Policy Foundation, Annual Conference, Bethesda MD, October 1988. University of Alabama, Department of Criminal Justice, Annual Visiting Scholar Lecture, Tuscaloosa, March 1989. University of Louisville, School of Justice Administration Alumni Association Banquet, April 1989. Washington Journalism Center, May 1989. Jersey City State College, Symposium on Firearms and Violence, Keynote Speaker, October 1989 United States House of Representatives, Committee on the Judiciary, Subcommittee on Crime, Hearings on Proposed Police Corps, November 1989. Eastern Kentucky University, School of Police Studies, April 1990. Indiana University of Pennsylvania, Seminar on AIDS, April 1990. Florida Department of Law Enforcement, Executive Development Program, Tallahassee, June 1990; Fort Lauderdale, September 1990. District of Columbia, City Council, November 1990. United States House of Representatives, Committee on the Judiciary, Subcommittee on Civil Rights, Hearings on Police Brutality, March 1991. U.S. Conference; of Mayors, Police Violence, April 1991. Penn State University, Student Association, Police Violence, April 1991. National Association of Transit Police Chiefs, Police Violence, April 1991. Americans for Effective Law Enforcement, Police Accountability, May 1991. Reston Youth Summit, Keynote Speaker, June 1991. University of Louisville, Southern Police Institute, Alumni Association, Annual Meeting, Greensboro NC, June 1991; Miami FL, July 1992. Reston Philosophers' Club, Reston VA, August 1991. Montgomery County (MD) Grand Jury, August 1991, testimony re: police deadly force. Sam Houston State University, Criminal Justice Center, Huntsville TX, Beto Distinguished Visiting Lecture, November 1991. United States House of Representatives, General Accounting Office, January 1992. Sam Houston State University, Law Enforcement Management Institute, February 1992. Phi Beta Kappa of Washington DC, February 1992. University of Texas - Dallas, Southwestern Law Enforcement
Institute, March 1992. University of Maryland, School of Public Affairs, Crime and
Justice in Washington, March 1992.
10

Association of Trial Lawyers of America, Washington DC, July 1992.
C.W. Post College of Long Island University, December 1992. State University of New York at Stony Brook, January 1993. Investigative Reporters' Association, Los Angeles, February
1993. Northeast Association of Criminal Justice Sciences, Newport RI,
June 1993. Montgomery County, MD, State's Attorney, July 1993. Pennsylvania State University, September 1993. Indiana University of Pennsylvania, October 1993. American Bar Association, National Summit on Crime and Violence,
Keynote Speaker, Washington DC, January 1994. New Jersey Criminal Justice Educators' Association, May 1994. FBI Academy, International Programs, Lectures to Foreign Police
Officials, October 1994 (Hungary); January 1995 (Argentina); May 1995 (Jordan). Practising Law Institute, Program on Police Civil Liability, New York, October 1994; October 1995. Committee for an Effective Crime Policy, Washington DC, December 1994. Virginia Commonwealth Attorneys' Association, Richmond, April 1995. United States Civil Rights Commission, Hearings on Racism in Policing, Washington DC, October 1995. United States Senate, Committee on the Judiciary, Hearings on the Conduct of the FBI and the ATF at Waco, Washington DC, October 1995. Mercer County College, West Windsor NJ, November 1995. Harvard University Law School, Symposium on "Police, Lawyers, and the Truth," Cambridge MA, November 1995. American Society of Criminology, Plenary Session on Effects of O.J. Simpson Case, Boston, November 1995. Pennsylvania State University, Police Executive Development Program, Horsham PA, December 1995; December 1996. Philadelphia Bar Association, Moderator of Panel "Police Misconduct and the Role of Special Commissions," Philadelphia, March 1996. Rutgers University, School of Criminal Justice, "Race and the Police," Newark NJ, April 1996. Temple University Downtown Club, "Who Polices the Police?," Philadelphia, April 1996. New South Wales Police Association, Bi-Ennial Meeting, Wollongong, NSW, Australia, May 1996. Royal Commission to Investigate Police Corruption in the New South Wales Police Service, Sydney, Australia, May 1996. Rutgers University, School of Law, Camden NJ, September 1996. American Society for Public Administration, Northeastern Regional Meeting, Princeton NJ, October 1996. New Hampshire Police Accreditation Coalition, Lebanon NH,
February 1997. National Association of Travel Executives, New York, April 1997.
11

United States Senate Committee on the Judiciary, Hearings on Drug Related Corruption of Law Enforcement at the United States Borders, Nay 1997.
Old Dominion University, Norfolk VA, May 1997. John Jay College of Criminal Justice, NYC, Keynote Speaker,
International Conference on Community Policing, June 1997. National Coalition on Police Accountability, Annual Meeting,
Philadelphia, August 1997.
Many national and local radio and television appearances and interviews (eg., CBS "Evening News"; "Sunday Morning," "Up to the Minute;" "Nightwatch;" "48 Hours;11 "Face the Nation." ABC "World News Tonight," "Nightline;" "Good Morning, America;" "This Week with David Brinkley;" NBC "Dateline;" NBC "National News;" NBC "First Camera;" NPR "All Things Considered," "Morning Edition;" "Talk of the Nation;" "Radio Times;" PBS, "McNeil-Lehrer News Hour;" CNN "Headline News;" "Larry King Live;" "Both Sides with Jesse Jackson;" Voice of America; BIZNET "Ask Washington."
Articles in Professional Journals and Periodicals:
1. "There Are Students and There Are Students," Spring 3100 Magazine, March-April 1978.
2. "The Big Picture," Spring 3100 Magazine, May- June 1978. 3. "Deadly Force," FBI Law Enforcement Bulletin. December 1979.
Reprinted in: Los Angeles Times, Sunday, January 13, 1980. John Kaplan and Jerome Skolnick, Criminal Justice: Cases and Materials, second, third, fourth editions, Mineola NY: Foundation Press, 1982, 1986, 1990. Leonard Territo, ed., Police Civil Liability, Columbia MD: Hanrow Press, 1984.
4. "Administrative Interventions upon Police Shooting Discretion: An Empirical Examination," Journal of Criminal Justice. Winter 1979. Reprinted in: Fyfe, ed., Readings on Police Use of Deadly Force. Steven G. Brandl and David E. Barlow, eds., Classics in Policing Cincinnati: Anderson Publishing, 1996.
5. "Geographic Correlates of Police Shooting A Microanalysis," Journal of Research in Crime and Delinquency. January 1980.
12

6. "Always Prepared: Police Off-Duty Guns," The Annals of the American Academy of Political and Social Science, November 1980. Reprinted in: Fyfe, ed., Readings on Police Use of Deadly Force. Daniel B. Kennedy and Robert J. Homant. eds., Police and Law Enforcement, volume 3, New York: AMS Press, 1984. Abraham S. Blumberg, ed., The Ambivalent Force, New York: Holt, Rinehart and Winston, 1985.
7. "The Cops and the Courts," American Bar Association Update. Winter 1981.
8. "Observations on Police Deadly Force, Crime and Delinquency. July 1981. Reprinted in: Fyfe, ed., Readings on Police Use of Deadly Force. Robert G. Culbertson, ed., Order Under Law, second edition, Prospect Heights IL: Waveland Press, 1984; third edition, 1988; fourth edition, 1992.
9. "Who Shoots? A Look at Officer Race and Police Use of Deadly Force," Journal of Police Science and Administration. December 1981.
10. "Blind Justice: Police Shootings in Memphis," Journal of Criminal Law and Criminology, Summer 1982. Reprinted in: Neil Alan Weiner, Margaret A. Zahn, and Rita J. Sagi, eds., Violence: Patterns. Causes. Public Policy New York: Harcourt Brace Jovanich, 1990.
11. "The New Quandary over Searches and Anonymous Tips," Law Enforcement News. July 11, 1983.
12. "When Police Seek to Reduce Their Authority," Law Enforcement News. January 21, 1985.
13. (With Steven L. Winter) "Tennessee v Garner: The Fleeing Felon Rule and the Fourth Amendment," Search and Seizure Law Reporter, September 1985.
14. (With Mark Blumberg) "A More Valid Test of the Justifiability of Police Actions," American Journal of Police. Fall 1985.
15. "Garner: The Issue Not Addressed," XIV:3 New York University Review of Law and Social Change, 1986.
13

16. "Police Use of Deadly Force: Research and Reform," Justice Quarterly (5:2, June 1988). Reprinted in: Chris Eskridge, ed., Criminal Justice: Issues and Problems, Prospect Height IL: Waveland Press, 1988. George Cole, ed., Criminal Justice: Law and Politics, 6th edition, Monterey CA: Brooks-Cole, 1992). Robert D. Crutchfield, George S. Bridges, and Joseph G. Weis, eds., Crime - Volume III -Criminal Justice, Newbury Park CA: Pineforge Press, 1995.
17. "The Police-Citizen Violence Reduction Project," FBI Law Enforcement Bulletin 5:18, May 1989.
18. "We Need More Educated Police Officers," Law Enforcement News, December 15, 1989.
19. (with Jeffery T. Walker) "Garner Plus Five Years: An Examination of Supreme Court Intervention into Police Discretion and Legislative Prerogatives, American Journal of Criminal Justice. Spring 1990.
20. "Gains on the Problem of Police Brutality," The Public Perspective, July/August 1991.
21. "Let's Send Cops to College," Focus. (Monthly Magazine of Joint Center for Political and Economic Studies), August 1992.
22. "Response to Mastrofski and Uchida," Journal of Research in Crime and Delinquency. August 1993.
23. "Put Police Back on the Street," American Bar Association Journal. May 1994.
24. "Police Observational Research: Demeanor and Substance," Journal of Research in Crime and Delinquency. August 1996.
26. (with Jeanne M. Flavin and David I. Klinger), "Differential Police Response to Male on Female Spousal Violence," Criminology. August 1997.
26. "In Defense of Law Enforcement Accreditation," American Journal of Police, forthcoming.
27. (with Richard Berk and Alec Campbell), "Deployment of Violence: Los Angeles Police Canine Units," under review by Journal of Quantitative Criminology following revise and resubmit recommendation.
28. "Good Judgment? A Police Department as Defendant," in preparation.
29. (with David I. Klinger and Edem Avakame), "Mobilizing the Law: The Police and Felony Assault," in preparation.
30. (with Richard Berk and Alec Campbell), "Hollywood Bites: A Descriptive Analysis of the Use of Police Dogs in Los Angeles," in preparation.
14

Articles in Criminal Law Bulletin Enforcement Workshop Series:
1. "In Search of the Bad Faith Search," Criminal Law Bulletin, May/June 19 82.
2. "Roadblocks and Roving Stops," Criminal Law Bulletin. July/August 1982.
3. "Ross: Making the Policeman's Lot a Happier One," Criminal Law Bulletin. September/October 1982.
4. "Controlling Police Deadly Force Through Local Law," Criminal Law Bulletin. November/December 1982.
5. "The Los Angeles Chokehold Controversy," Criminal Law Bulletin, January/February 19 83.
6. "Detective McFadden Goes Electronic," Criminal Law Bulletin. March/April 1983.
.7. "The NIJ Study of the Exclusionary Rule, Criminal Law Bulletin, May/June 1983. Reprinted in: Exclusionary Rules in Criminal Trials, Oversight Hearings before the Subcommittee on Criminal Justice, United States House of Representatives, Ninety-Eighth Congress, March 10 and April 20, 1983, Serial No. 157.
8. "What is 'Representation'? When Does It Matter?", Criminal Law Bulletin. July/August 1983.
9. "Arrests on Reasonable Suspicion," Criminal Law Bulletin, September/October 1983.
10. "Fleeing Felons and the Fourth Amendment," Criminal Law Bulletin, November/December 1983.
11. "Oregon v Bradshaw: What's Happening Here?", Criminal Law Bulletin. March/April 1984.
12. "Oliver v United States: Legitimate Police Illegality," Criminal Law Bulletin. September/October 1984.
13. "The Expert Witness in Suits Against Police (Part I ) , " Criminal Law Bulletin. May/June 1985. Reprinted in: Patrick Anderson and L. Thomas Winfree, eds., Expert Witnesses. Albany NY: State University of New York Press, 1987. Practising Law Institute, Section 1983 Civil Rights Litigation and Attorneys' Fees. 1994. Litigation Course Handbook H-511 (New York: Practising Law Institute, 1994).
14. "The Expert Witness in Suits Against Police (Part II)," Criminal Law Bulletin, November/December 1985. Reprinted in: Patrick Anderson and L. Thomas Winfree, eds., Expert Witnesses. Albany NY: State University of New York Press, 1987. Practising Law Institute, Section 1983 Civil Rights Litigation and Attorneys' Fees, 1994, Litigation Course Handbook H-511 (New York: Practising Law Institute, 1994) .
15

15. "The Supreme Court's New Rules for Police Deadly Force," Criminal Law Rniletin, January/February 1986.
Book Chapters:
1. "Reducing the Use of Deadly Force: The New York City Experience," in United States Department of Justice, Community Relations Service, Police Use of Deadly Force: What Police and Communities Can Do About It. Washington, DC: USGPO, 1979.
2. "Regulating Police Practices," in United States Civil Rights Commission, Police Practices and the Preservation of Civil Rights. Washington, DC: USGPO, 1979.
3. "Race and Extreme Police-Citizen Violence," in R. L. McNeely and Carl E. Pope, eds., Race. Crime, and Criminal Justice: An Anthology, Beverly Hills, CA: Sage Publications, 1981. Reprinted in Fyfe, ed., Readings on Police Use of Deadly Force.
4. "Foundations of American Police Authority," in Joseph Grau, ed., Criminal and Civil Investigation Handbook, New York, McGraw-Hill, 1981. Reprinted in second edition, 1993.
5. "Toward a Typology of Police Shootings," in James J. Fyfe, ed., Contemporary Issues in Law Enforcement, Beverly Hills, CA: Sage Publications, 1981.
6. "A Model State Law on Police Use of Deadly Force, With Commentary", in National Association for the Advancement of Colored People, Police Citizen Violence: An Organizing Guide for Community Leaders. New York: NAACP, 1983.
7. "A Model Local Ordinance on Police Use of Deadly Force, With Commentary," in National Association for the Advancement of Colored People, Police Citizen Violence: An Organizing Guide for Community Leaders, New York: NAACP, 1983.
8. "A Model Police Department Policy on Police Use of Deadly Force, With Commentary," in National Association for the Advancement of Colored People, Police Citizen Violence: An Organizing Guide for Community Leaders, New York: NAACP, 1983.
9. "Police Dilemmas in Processing Elderly Offenders," in Evelyn S. Newman, Donald J. Newman, and Mindy Gewirtz, eds., Elderly Criminals. New York: Oelgeschlager, Gunn & Hain, 1984.
10. "Reviewing Citizens' Complaints Against Police," in James J. Fyfe, ed., Police Management Today: Issues and Cases, Washington DC: International City Management Association, 1985.
11. "Integrity in Justice Institutions," in Robert Cleary, ed., The Role of Government in the United States, Lanham MD: University Press, 1985.
16

12. "The Split-Second Syndrome and Other Determinants of Police Violence," in Anne T. Campbell and John J.Gibbs, Violent Transactions. Oxford: Basil Blackwell, 1986. Reprinted in: Geoffrey Alpert and Roger Dunham, eds., Policing Urban America. Prospect Height IL: Waveland Press, first edition, 1989; second edition, 1993; third edition, 1997. James Inciardi, Introduction to Criminal Justice, third edition (New York: Harcourt, Brace, Jovanovich, 1993).
13. "Police Shooting Environment and License," in Travis Hirschi and Joseph Scott, eds., Controversial Issues in Criminal Justice, Beverly Hills, CA: Sage Publications, 1988.
14. "Deadly Force," in William C. Bailey, ed., Encyclopedia of Police Science, Houston TX: Garland Publishing Co., 1989.
15. "Controlling Police Vehicle Pursuits," in James J. Fyfe, ed., Police Practices in the 90s: Key Management Issues. Washington DC: International City Management Association, 1989.
16. "Good Policing," in Brian Forst, ed., The Socioeconomics of Crime and Justice (Armonk, New York: M.E. Sharpe, 1993) . Reprinted in: Stan Stojkovic, John Klofas, and David Kalinich, eds., The Administration and Management of Criminal Justice Organizations. 2nd ed. (Prospect Heights IL: Waveland Press, 1994). Geoffrey Alpert and Roger Dunham, eds., Policing Urban America, Prospect Height IL: Waveland Press, first edition, 1989; second edition, 1993; third edition, 1997.
17. "Cops and Robbers in Academe: Editing Justice Quarterly," in James J. Fyfe and Rita J. Simon, eds., Editors as Gatekeepers: Getting Published in the Social Sciences (Boston: Rowman and Littlefield, 1994).
18. "Training Police to Minimize Excessive Use of Force,"in Hans Toch and William Geller eds., And Justice for All (Washington DC: Police Executive Research Forum, 1995). Reprinted in Geller and Toch, Police Violence (New Haven: Yale University Press, 1996).
19. "Did the Police Do the Right Thing? Where to Find Out," in Practising Law Institute, Section 1983 Civil Rights Litigation and Attorneys' Fees. 1995, Litigation Course Handbook (New York: Practising Law Institute, 1995) .
20. "Structuring Police Discretion," in John Kleinig, ed., Handled with Discretion: Ethical Issues in Police Decision Making (Boston: Rowman and Littlefield, 1996).
21. (with Robert Kane), "Police Brutality," in Ronald Gottesman and Mauricio Mazon, eds., Encyclopedia of Violence in the United States (New York: Scribner and Sons, in progress).
17

22. (with Robert Kane), "Police Use of Force," in Ronald Gottesman and Mauricio Mazon, eds., Encyclopedia of Violence in the United States (New York: Scribner and Sons, in progress).

Books: 1. editor, Contemporary Issues in Law Enforcement, Beverly-
Hills, CA: Sage Publications, 1981. 2. editor, Readings on Police Use of Deadly Force. Washington,
DC: Police Foundation, 1982. 3. editor, Police Management Today: Issues and Case Studies.
International City Management Association, 1985. 4. editor, Police Practices in the 90s: Key Management Issues.
Washington DC: International City Management Association, 1989. 5. (with Jerome H. Skolnick), Above the Law: Police and the Excessive Use of Force (New York: Free Press, 1993; paperback edition, 1994).
Sections reprinted in: Los Angeles Times, April 1, 1993. Yale Kamisar, Wayne R. LaFave, and Jerold H. Israel, Modern Criminal Procedure, eighth edition (St. Paul MN: West Publishing, 1994). Paul A. Winters, ed., Policing the Police (San Diego: Greenhaven Press, 1995). Margaret Paris and Andrew Taslitz, Constitutional Criminal Procedure, Mineola NY: Foundation Press, 1997) .
6. editor, (with Rita J. Simon) Editors as Gatekeepers: Getting Published in the Social Sciences (Boston: Rowman and Littlefield, 1994).
7. (with Jack R. Greene, William F. Walsh, O.W. Wilson, and Roy McLaren) Police Administration, fifth edition (New York: McGraw-Hill, 1996).

Monographs:

1. (with Craig D. Uchida and Lawrence W. Sherman), Police

Shootings and the Prosecutor in Los Angeles County: An

Evaluation of Operation Rollout. Washington, DC: Police

Foundation, 1981.

2. Police Personnel Practices - 1982, Baseline Data Reports,

Vol. 15 No. 1, Washington, DC: International City

Management Association, January 1983.

3. Police Personnel Practices - 1986, Baseline Data Reports,

Vol. 18, No. 6, Washington DC: International

City

Management Association, November/December 1986.

Reprinted in:

Municipal Yearbook - 1986, Washington DC:

International City Management Association, 1987.

18

Book Reviews:
1. (with Patrick V. Murphy) Yale Kamisar, Police Interrogations and Confessions, Journal of Criminal Law and Criminology. Summer 1983.
2. "Testing the Limits of Law Enforcement", an essay review of Hans Zeisel, The Limits of Law Enforcement, University of Michigan Law Review. February 1984.
3. Michael T. Charles, Policing the Streets, Contemporary Psychology, July 1988.
4. William Walsh and Edwin Donovan. The Supervision of Police Personnel:: A Performance Based Approach, FBI Law Enforcement Bulletin, September 1991.
5. Eve S. Buzawa and Carl G. Buzawa, eds., Domestic Violence: The Changing Criminal Justice Response, and Lawrence W. Sherman, Policing Domestic Violence, Contemporary Sociology. March 1994.
6. Willie L. Williams, with Bruce B.Henderson, Taking Back Our Streets: Fighting Crime in America (New York: A Lisa Drew Book/Scribner, 1996), Philadelphia Inquirer, June 9, 1996.
Professional Presentations and Papers Read:
1. "Pretrial Publicity: A Consideration of the Issues," National Symposium on Crime and the Media, John Jay College of Criminal Justice, New York, NY, May 1973.
2. "The Impact of Direct Organizational Interventions Upon Police Shooting Discretion," Annual Meeting of the American Society of Criminology, Atlanta, GA, November 1977.
3. "Police Deadly Force in New York City: Some Implications for Police and Community Action," National Conference of Human Rights Workers, Nashville, TN, October 1978.
4. "Race and Extreme Police-Citizen Violence," Annual Meeting of the Academy of Criminal Justice Sciences, Cincinnati, OH, March 1979.
5. "Officer Race and Police Shooting," Annual Meeting of the American Society of Criminology, Philadelphia, PA, November 1979.
6. "Toward a Typology of Police Shootings," Annual Meeting of the Academy of Criminal Justice Sciences, Oklahoma City, OK, March 1980.
7. "Race and the Police: An Early Report on A Change Effort," Annual Meeting of the American Society of Criminology, San Francisco, CA, November 1980.
8. "Blind Justice: Police Shootings in Memphis," Annual Meeting of the Academy of Criminal Justice Sciences, Philadelphia, PA, March 1981.
9. "Police Homicides," Annual Meeting of the Western Society of Criminology, Newport Beach, CA, February 1982.
10. "Choosing to Kill: Ethics in Police Deadly Force," Old Dominion University Symposium on Ethics in Criminal Justice, Norfolk, VA, April 1982.
19

11. "Statement on the Exclusionary Rule," U.S. House of Representatives, Subcommittee on Criminal Justice, April 1983.
12. "Mayors and the State of American Policing," Annual Meeting of the U.S. Conference of Mayors, Denver, CO, June 1983.
13. "Police Shootings and Organizational License," Annual Meeting of the American Society of Criminology, Denver, CO, November 1983.
14. "Section 1983 Civil Rights Cases: What Has to be Demonstrated by the Expert for the Plaintiff to Recover Damages?," Annual Meeting of the American Society of Criminology, Denver, CO, November 1983.
15. "Police Educators as Police Trainers," Annual Meeting of the Academy of Criminal Justice Sciences, Chicago, IL, March 1984.
16. "Garner v Memphis: Police Shootings as Seizures," Annual Meeting of the American Society of Criminology, Cincinnati, OH, November 1984.
17. "Social Scientists as Expert Witnesses in Police Brutality Cases," Annual Meeting of the American Society of Criminology, Cincinnati, OH, November 1984.
18. (With Geoffrey Alpert) "Police Deadly Force: The Miami Experience," Annual Meeting of the Academy of Criminal Justice Science, Las Vegas NV, April 1985.
19. "Two Decades of Research on Police Deadly Force," Annual Meeting of the Academy of Criminal Justice Sciences, Orlando FL, March 1986.
20. "Reducing Police-Citizen Violence: The Metro-Dade Project," Annual Meeting of the American Society of Criminology, Atlanta GA, October 1986.
21. "The Metro-Dade Police/Citizen Violence Reduction Project: Summary and Recommendations," Annual Meeting of the American Society of Criminology, Montreal, November 1987.
22. "Statement on Affirmative Action and Equal Employment Opportunity in Law Enforcement," U.S. House of Representatives, Subcommittee on Civil and Constitutional Rights, Hearings on Affirmative Action and Equal Employment Opportunity in the Federal Bureau of Investigation, March 1988.
23. "Who Gets Tickets? Police Discretion in Routine Traffic Stops," Annual Meeting of the American Society of Criminology, Chicago, November 1988.
24. "Statement on Police Education and Proposed Police Corps," U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Crime, Hearings on Proposed Police Corps, November 2, 1989.
25. "Statement on Police Wiretapping," U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Courts, Hearings on Police Wiretapping, December 18, 1989.
20

26. (with Candace McCoy) "Who Sues the Sheriff?" Annual Meeting of the Academy of Criminal Justice Sciences, Denver, March 1990.
27. "AIDS and the Police," Annual Meeting of the American Society of Criminology, Baltimore, November 1990.
28. (with Jeanne M. Flavin) "Differential Police Processing of Assault Complaints," Annual Meeting of the Academy of Criminal Justice Sciences, Nashville, March 1991.
29. (with Jeanne Flavin) "Police Arrest Decisions and Domestic Violence," Law and Society Association, Amsterdam, June 1991.
30. "Police-Citizen Interaction at Routine Traffic Stops," Annual Meeting of the Law and Society Association, June 1991.
31. "Unnecessary Force and Outright Violence," Annual Meeting of the Law and Society Association, Philadelphia, June 1992.
32. "Good Policing," Annual Meeting of the Academy of Criminal Justice Sciences, Kansas City, March 1993.
33. "Training to Reduce Police-Citizen Violence," Annual Meeting of the Academy of Criminal Justice Sciences, Kansas City, March 1995.
34. "Structuring Police Discretion," John Jay College of Criminal Justice, National Symposium on Criminal Justice Ethics, May 1995.
35. "Statement, on the Philadelphia Police Advisory Commission," Pennsylvania House of Representatives, Philadelphia, July 1995.
36. "Statement on the Waco Incident," U.S. Senate Judiciary Committee, October 1995.
37. "Marvanski v. Philadelphia: A Report on Police Custom, Practice, and Policy," Annual Meeting of the Academy of Criminal Justice Sciences, Las Vegas, March 1996.
38. "Lawsuits against Police: Some Effects," Annual Meeting of the American Society of Criminology, Chicago, November 1996.
39. "When Cops are on Trial: Police Expert Consultants and Witnesses," Advanced Criminal Law seminar, National Association of Criminal Defense Lawyers, Aspen CO, February 1997.
40. "Statement on Narcotics Corruption on the Mexican Border," U.S. Senate Caucus on International Narcotics Control, May 1997.
Consultant Papers and Research Reports:
1. "Dispatching One Man Radio Patrol Units to 'Family Dispute Calls' Without Assistance," New York City Police Department, November, 1976.
2. "Race and Armed Confrontation Between Police Officers," New York City Police Department, March, 1977.
3. (With Robert Houlihan and Ralph Bledsoe) "A Proposal for a New York City Police Department Executive Development Program," New York City Police Department, February, 1978.
21

4. "Police Patrol Research: State of the Art," Police Foundation, August, 1979.
6. "Philadelphia Police Shootings 1975-1979: A System Model Analysis," presented to U.S. Department of Justice, Civil Rights Division, March, 1980.
7. "Police Killings in Memphis," presented to the NAACP Legal Defense Fund, June, 1980.
8. "The Metro-Dade Police/Citizen Violence Reduction Project," presented to the Metro-Dade Police Department, March 1988.
9. (with others) "Financing the Nation's Capital: Report of the District of Columbia Commission on Budget and Financial Priorities," November 1990.
10. (With Frank A. Bolz and Mario Selvaggi) "Report of the Hostage Situation Review Committee," New York City Police Department, May 1993.
11. (with others) "The State of the Police," Report of the American Society of Criminology Task Force on the Police, March 1995. Reprinted in The Criminologist, November 1995.
12. (with John Goldkamp and Michael White), "The Richmond, California, Police Strategic Homicide Initiative," U.S. Department of Justice, Bureau of Justice Assistance, July 1997.
13. (with others), "Report of the New York City Police Disciplinary Review Task Force," in progress.
Articles in Newspapers and Popular Periodicals:
1. "Don't Loosen Curbs on Cop Searches," Washington Post, Sunday, February 27, 1983. Reprinted in: Atlanta Journal-Constitution. Sunday, March 6, 1983. Deseret News. (Salt Lake City, UT), Saturday, March 5, 1983.
2. "For Police, Ignorance of the Law Is No Excuse," Washington Post, Saturday, April 30, 1983.
3. "Vigilante, Holster Your Gun," Washington Post, Sunday, January 6, 1985.
4. "Lesson of Philly: Plan, Don't Bomb," Miami Herald, Sunday, May 19, 1985.
5. "Should the Miranda Decision Be Overruled?," The American Forum, Gannett Syndicate, February 1986 (Pro-Con debate versus United States Attorney General Edwin Meese).
6. "Police! Don't Move!," Washington Post, Sunday, December 20, 1987.
7. "Police-citizen violence is not Metro's fault," Miami Herald, Friday, August 4, 1988.
8. "Lack of Skills Leads to Violence," Los Angeles Times. Tuesday, January 30, 1990.
9. (with Patrick V. Murphy), "D.C. Police: Trim the Fat," Washington Post, Tuesday, November 27, 1990.
22

10. (with Patrick V. Murphy), "D.C. Police: Trim the Fat (Cont'd.)," Washington Post, Monday, December 24, 1990.
11. "Use a Gun, Do Federal Time," New York Times, Friday, January 4, 19 91.
12. "Why Crime Won't Stop?" Washington Post (Outlook), March 14, 1991. Reprinted in Atlanta Constitution. Atlantic City Press, Dallas Times- Herald, Honolulu Star-Bulletin Houston Post, Miami Herald, Milwaukee Tribune. Montogomery Advertiser. San Antonio Star. Sacramento Bee. San Jose Mercury, Washington Post National Weekly, Wilmington Sunday News-Journal; Newsweek School Resources Unit, Winter 1992.
13. "LAPD: Confident in Brutality," Los Angeles Times. March 21, 1991. Reprinted in Houston Chronicle. Milwaukee Journal.
14. "Two and Five Don't Add Up," Washington Post (Close to Home), May 26, 1991.
15. "Punishing Cops for Misconduct, Atlanta Journal and Constitution, Sunday, May 3, 1992.
16. (with Jerome H. Skolnick) "Will They Do the Right Thing?", Los Angeles Times. March 3, 1993.
17. (with Jerome Skolnick) "A Case for Federal Prosecution," Los Angeles Times, April 18, 1993.
18. (with Jerome Skolnick) "Chokehold Defenders Crying Wolf," Los Angeles Times. May 6, 1993.
19. "Why Police Need Civilian Review Boards," Philadelphia Inquirer. May 10, 1993.
20. "A Police Test the Department Failed," Philadelphia Inguirer, September 7, 1995.
21. "When the Chief is a Chief in Name Only," Los Angeles Times, February 4, 1997.
Letters to the Editor:
1. "Not-So-Trigger-Happy New York City Police Officers," New York Times, December 26, 1979.
2. "Reaction to Jordan and Dominelli," Nation's Cities Weekly. January 26, 1981.
3. "Fyfe's 'Hunch' on Off-Duty Guns," New York Times, April 11, 1981.
4. "Correcting the Record," America. March 13, 1982. 5. "Response to 'The Politics of Crime'", Atlantic Monthly.
November, 1982. 6. "Fleeing Felon Law Challenged," Clay Today (Orange Park, FL),
September 13, 1983. 7. "Police Have Cut Back on Use of Guns," Newsday, August 11,
1985.
Training Programs:
1. (With others) "Police Students' Police Science Guide," New York City Police Department, 1973 (second edition, 1974).
23

2. "Avoiding Reflexive Response," Three hour multi-media training program presented to 22,000 New York City police officers, 1975.
3. "Supervision and Management," three-day program for Pennsylvania Chief Deputy Sheriffs, Allentown, March 1994.
4. "Reviewing Citizens' Complaints," three-day program for Philadelphia Police Advisory Commission, 1994.
5. "Reducing Police-Citizen Violence," two-day program for St. Petersburg Police Department, 1994.
Professional Memberships: Academy of Criminal Justice Sciences (member, Organizational Priorities Committee, 1982; Awards Committee, Program Committee, 1985; Executive Counsellor, Police Section, 1990-1992; Vice-Chair, Police Section, 1992-1994; Academic Program Review Committee, 1991-present. American Academy of Professional Law Enforcement American Society of Criminology (member, Student Awards Committee, 1983-1984; Program Committee, 1987, 1990; Public Policy Committee, 1994-present). International Association of Chiefs of Police John Jay College Alumni Association Police Executive Research Forum S.U.N.Y. at Albany Alumni Association
Courses Taught: Undergraduate: Introduction to Criminal Justice Introduction to Systems of Justice Introduction to Problems of Justice Policing in America Police Administration I Police Administration II Police Patrol Function Police Personnel Administration Contemporary Issues in Law Enforcement Civil Disorder Organized Crime History and Philosophy of Criminology
Graduate: Graduate Survey: Processes of Justice Graduate Survey: Theories of Justice The Police and the Community Seminar: Management and Policy Issues in Law Enforcement Seminar: Contemporary Literature in Law Enforcement Theoretical Bases of Law Enforcement The Police and the Political System Police Authority and Accountability
24

University Service: American University Chair, School of Justice Personnel Committee, 1979-80. School of Justice Curriculum Committee, member 1979-80, Chair, 1980-81, 1986-87 School of Justice Representative to College of Public and International Affairs Management Task Force, 1980-81 School of Justice Applications and Awards Committee, 1980-81, 1982-83, 1984-85 School of Justice Rank and Tenure Committee, 1981-82 Chair, School of Justice Dean Search Committee, 1981-82 Chair, School of Justice Applications and Awards Committee, 1981-82, 1986-87 University Conduct Council Review Board, 1981-82 Chair, School of Justice Rank and Tenure Committee, 1982-83, 1987-88 Chair, School of Justice Teaching Council, 1983-84 Chair, Subcommittee on the Future of the College of Public and International Affairs, 1987 College of Public and International Affairs, Committee on Detail, 1987 Chair, Department of Justice, Law and Society, 1987-89 University Senate Graduate Studies Committee, 198 9-90 School of Public Affairs, Rank and Tenure Committee, 1990-92 Departmental Curriculum Committee, 1990-92 Depairtmental Program Review Committee, 1991-92.
Temple University Department Graduate Studies Committee, (member 19921995; chair, 1995-present) Department Personnel Committee, 1992-present College of Arts and Sciences Tenure Committee (member 1993-1995; chair 1995-present) Department Search Committee, 1995-present.
References: Available on Request
25

 
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OF POLlpfe
JERRY MeCARTNEY

NEWS

October 27, 1959

In Lhc pttst. prior to the Con-nenv Decrte being ifi place,

officials made r-lairns agaitist officers HfLcr [reviewing several complaints.

The Jusiic-e Deprixtmciu never intervieweel the oFficcrw in question.

over 200 names of prorrjincnt cicizehs i ^ ^

to ihe J\jAiiee Department to bo interviewed in regards to chc claims

being brought forth by the Justice Dop&rchicnt. To rny Knowledge, these

people were never questioned or interviewed in regard's la) the- claims and

charges against my officers, However, I d^ know th«tj the; J u s t i c e

Department has interviewed individuals \Vho claim that their civil rights

•were violated. These claims were honored and finano'ial aeiUemenis were

given to these individuals.

I

I have ftpokn with Chief Jackson of the Columbus Policr.

Pcpariment in regards to the Consent Decree. We h4"<" also mei, in
I T

person, in my office, where v/e discussed the Consent Decree brought

forth upon the SieuberjvjUc Police Department, W6 chisel.seed several disappointed
issues at length. Chief Jackson *vas very concerned And a lot of the iiema that the Justice Department was f urcing upon us.

There arc some items that I agree with in the C ansfcnt Decree, such

as education and training. Also, we now have in place a [Computer

system, which I feel is working well and i» an asset to th£ Steubenville

Police Department

j

However, there are several things tfiai T do not agrfee with. One of

these is hiring a Chief from outaidc of thi Department U;son rny

retirement, Steubenville has been on uhq m&p for 200 y< ars and we have

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always had a Chief from within the ranks of Ihc Steubjenvjllc Police

Department.

;

1

I do noi: agree with Internal Affairs investigating! Line nymoiw

complaints where the citizen doci* noc hav^ t" idemifyjhirr.uelf orCM

forward and appear. Anything they have tb say can x>\$ gein

anonymously in the form of a letter or by public scrvidc. 1 feel that every

officer should be able to face his accuser vvhen allegations arise. Then it

ear* be determined through an iiivestifjsticjn whether <jr not the officer

was falsely accused. I feel that anonymous complain ti, wjhen they are

investigated, is strictly a violation of the Constitution nf which our

Country was founded.

I

The Justice Department, since the (£onsent Decree came into

effect, has not discussed any of the cases jwith me. They pave also failed

to show any type of abuse Drpattern of claims that ate brought against

the department.

I feel that the Justice Department was very intimidating in their

approach and tactics in regards to the Consent Decree. We were given

very little time, and in my opinion not enqugh time, to go through the

entire Consenc Decree and to negotiate different itcmi in the Decree. The

Justice Department gave us a dace by whjcb the Consent Decree was10

be signed and informed me that if an agreement not reached, that they would definitely file civil rights complaints against the City, which

includes the department as p.whole.

I had talked this over with my Law Director, M{, Gkry Repella and there was a meeting sec up with Council, W Repellajani myself in regards to discussing the Consent. Decrees, however, therp was very little

discussion in regards to signing this Consent Decree. I ft el that Mr.

Repella, as my Law Director and legal counsel should ha/c gone over the

Consent Decree at length.

\

I feel that when Mr. Repella, from the start, wajs in favor orthe Consent Decree. He showed very little, if any, ambition ^o even question

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several of ihc ivcms in the Cohaenc Decree, i believe itjwa »brought to

Council for their review and cjuring the'mohth of the reviefv,, Mr. Repclla's

opinion was to acctpl the Consent Decree.:sign it and abi^e by it.

I do iioi, feel that Mr. Repella had the Deparlmw, :>r the Ciry'fj

best interest ai heart when he failed to takjc the time t: review all the items in the Consent Decree ^ith Ciiy Council and myself prior to

recommending that the City accept the Dcfcrcc, 1feel (hat we should have had the opportunity to negotiate somje of the items o r the Consent

Decree, such as bringing in an outside Chjer and anoijiym IUS coniplairHs.

I have always disagreed that the CoiUcnt Decree was signed in its

present form. However, the Justice Department, the Ciiy Officials and

Mr. Rcpella, my Law liirector agreed upon;the Decree] W•*„aa (Police

Officers, are sworn in to uphold the lay arid maintain law and order,

Therefore, I along with all members of the iSteubenvilli; Pcfyice department will abide by all items in the Consent Decriee and ^ill ^Isoj abide by all

rulings in regards to the Consent Decree Handed dowp by a Court of

Law.

'

;

TOTRL P.04

U.S. v. City of Steubenville PN-OH-002-008

 
 Case: 2:97-cv-966 As of: 09/17/2016 03:02 PM EDT 1 of 5
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:97−cv−00966−EAS−NMK

CLOSED

USA v. Steubenville, et al Assigned to: Judge Edmund A Sargus Referred to: Magistrate Judge Norah McCann King Demand: $0 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 08/28/1997 Date Terminated: 09/03/1997 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

USA

represented by James Evan Rattan United States Attorney's Office − 2 303 Marconi Boulevard 2nd Floor Columbus, OH 43215 614−469−5717 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark nmi Masling U S Department of Justice Civil Rights Division Special Litigation Section Post Office Box 66400 Washington, DC 20035 202−514−6261 Fax: 202−514−6252 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City Of Steubenville
Defendant Steubenville Police Department
Defendant Steubenville City Manager in his capacity as Director of Public Safety Defendant Civil Service Commission

represented by Stephen Gary Repella City Law Director, City of Steubenville 308 Market Street Suite 212 P.O. Box 4176 Steubenville, OH 43952 740/283−6031 Fax: 740/283−6165 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Gary Repella (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen Gary Repella (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 2:97-cv-966 As of: 09/17/2016 03:02 PM EDT 2 of 5

Stephen Gary Repella (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Fraternal Order of Police Fort Steuben Lodge No 1

represented by William Emerson Reed , II RESIGNED WITH DISCIPLINARY ACTION PENDING − SEE 1:14−MC−061 PO Box 2547 Wintersville, OH 43953−0547 740−282−3019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/28/1997 08/28/1997 09/03/1997
10/20/1997 11/07/1997 11/13/1997 11/17/1997
12/02/1997 12/08/1997 12/08/1997
12/09/1997 12/10/1997 12/17/1997 01/14/1998
02/09/1998

# Docket Text
1 COMPLAINT (referred to Mag. Judge Norah M. King ) ( no. pgs: 7) (gk) (Entered: 08/28/1997)
2 MOTION by plaintiff, defendant for order for entry of consent decree ( no pgs: 48) (gk) (Entered: 08/28/1997)
3 CONSENT JUDGMENT by Judge George C. Smith granting motion for order for entry of consent decree [2−1] terminating case (cc: all counsel) (gk) (Entered: 09/04/1997)
4 MOTION by movant FOP Fort Steuben for leave to file a Motion to Intervene as a Third Party Plaintiff ( no pgs: 11 + exhibits) (mc) (Entered: 10/21/1997)
5 RESPONSE by plaintiff USA to motion for leave to file a Motion to Intervene as a Third Party Plaintiff [4−1] ( no pgs: 124) (gk) (Entered: 11/12/1997)
6 RESPONSE by defendant City of Steubenville to the agreement with the US's memo in oppos to intervention [5−1] ( no pgs: 2) (gk) (Entered: 11/14/1997)
7 ORDER by Mag. Judge Norah M. King; if any party has an objection to the motion for leave to intervene, their response is due within 11 days from the date of this order (cc: all counsel) ( no pgs: 1) (gk) (Entered: 11/17/1997)
8 REPLY by movant FOP Fort Steuben to response to motion for leave to file a Motion to Intervene as a Third Party Plaintiff [4−1] ( no pgs: 4) (mc) (Entered: 12/02/1997)
9 MOTION by plaintiff USA for leave to file a sur−reply in opposition to intervention by FOP, Fort Steuben Lodge No. 1 ( no pgs: 3) (gk) (Entered: 12/09/1997)
10 ORDER by Mag. Judge Norah M. King granting motion for leave to file a sur−reply in opposition to intervention by FOP, Fort Steuben Lodge No. 1 [9−1] (cc: all counsel) ( no pgs: 1) (gk) (Entered: 12/09/1997)
11 SUR−REPLY IN OPPOSITION by plaintiff USA to motion for leave to file a Motion to Intervene as a Third Party Plaintiff [4−1] ( no pgs: 4) (gk) (Entered: 12/09/1997)
12 STATUS REPORT by defendant City Of Steubenville ( no pgs: 5) (gk) (Entered: 12/11/1997)
13 Supplement by movant FOP Fort Steuben re motion for leave to file a Motion to Intervene as a Third Party Plaintiff [4−1] ( no pgs: 24) (gk) (Entered: 12/18/1997)
14 NOTICE OF SELECTION OF AUDITOR Charles D Reynolds by plaintiff USA, defendant City Of Steubenville, defendant Steubenville Police, defendant Steubenville Mgr, defendant Civil Svc Commission ( no pgs: 23) (gk) (Entered: 01/15/1998)
15 STATUS REPORT by defendant City Of Steubenville ( no pgs: 8) (gk) (Entered: 02/12/1998)

Case: 2:97-cv-966 As of: 09/17/2016 03:02 PM EDT 3 of 5

02/27/1998 03/05/1998 06/03/1998 06/08/1998 06/29/1998 07/23/1998
09/15/1998 12/14/1998 02/01/1999 05/03/1999 07/26/1999
07/30/1999 10/29/1999 02/03/2000 05/03/2000 07/06/2000 08/10/2000 11/03/2000 01/19/2001 02/05/2001 05/14/2001 06/15/2001
06/22/2001

16 STATUS REPORT by defendant City of Steubenville ( no pgs: 15) (gk) (Entered: 03/02/1998)
17 QUARTERLY STATUS REPORT by defendant City Of Steubenville ( no pgs: 64) (gk) (Entered: 03/06/1998)
18 STATUS REPORT by defendant City Of Steubenville ( no pgs: 2 + exh) (sem) (Entered: 06/04/1998)
19 Auditor's Second Quarterly Report June 1998 (gk) (Entered: 06/08/1998)
20 ATTORNEY APPEARANCE for plaintiff USA by Mark nmi Masling ( no pgs: 2) (sem) (Entered: 06/30/1998)
21 OPINION AND ORDER by Judge George C. Smith denying motion for leave to file a Motion to Intervene as a Third Party Plaintiff [4−1] (cc: all counsel) ( no pgs: 10) (gk) (Entered: 07/23/1998)
22 STATUS REPORT by defendant Steubenville Police ( no pgs: 67) (gk) (Entered: 09/17/1998)
23 STATUS REPORT by defendant City Of Steubenville ( no pgs: 6) (gk) (Entered: 12/14/1998)
24 AUDITOR'S QUARTERLY STATUS REPORT by defendants; Fourth Quarterly Report (First Annual) December 1998 ( no pgs: 87) (gk) (Entered: 02/03/1999)
25 AUDITOR'S QUARTERLY STATUS REPORT ( no pgs: 51) (sem) (Entered: 05/04/1999)
26 STATUS REPORT by defendant City Of Steubenville, defendant Steubenville Police, defendant Steubenville Mgr, defendant Civil Svc Commission ( no pgs: 6) (sem) (Entered: 07/27/1999)
27 AUDITOR'S QUARTERLY REPORT by defendant Steubenville Police ( no pgs: 62) (gk) (Entered: 07/30/1999)
28 AUDITOR'S QUARTERLY REPORT by defendant Steubenville Police July 1 thru Sep 30, 1999 ( no pgs: 66) (gk) (Entered: 10/29/1999)
29 Auditor's Quarterly REPORT by Steubenville, OH Poilce Dept (gk) (Entered: 02/07/2000)
30 STATUS REPORT by defendant City Of Steubenville ( no pgs: 43) (gk) (Entered: 05/04/2000)
31 STATUS REPORT by defendant City Of Steubenville, defendant Steubenville Police, defendant Steubenville Mgr ( no pgs: 5) (sem) (Entered: 07/07/2000)
32 AUDITOR'S QUARTERLY REPORT by defendant Steubenville Police ( no pgs: 67) (gk) (Entered: 08/10/2000)
33 AUDITOR'S QUARTERLY REPORT by defendant Steubenville Police for July 1 − Sept 30, 2000 (pl) (Entered: 11/08/2000)
34 STATUS REPORT by defendant City Of Steubenville ( no pgs: 5) (sh) (Entered: 01/23/2001)
35 STATUS REPORT (Quarterly Report) by Auditor (pl) (Entered: 02/07/2001)
36 STATUS REPORT: Auditor's Quarterly Report (sln) (Entered: 05/14/2001)
37 ORDER by Judge George C. Smith Case consolidated with C2−01−322 and reassigned to Judge Edmund A. Sargus Jr (cc: all counsel) ( no pgs: 1) (sln) (Entered: 06/15/2001)
38 ORDER by Judge Edmund A. Sargus Jr: the parties shall file cross−motions for sumjgm by 7/20/01; memo contra by 8/9/01 (cc: all counsel) ( no pgs: 1) (sh) (Entered: 06/22/2001)

Case: 2:97-cv-966 As of: 09/17/2016 03:02 PM EDT 4 of 5

07/18/2001 07/20/2001 07/23/2001 07/26/2001 08/01/2001 08/09/2001 08/13/2001 09/07/2001
11/07/2001 02/01/2002 04/24/2002 08/02/2002 11/12/2002 12/04/2002 01/10/2003 01/29/2003 01/29/2003 04/25/2003 04/25/2003 07/03/2003 08/04/2003 01/20/2004 07/16/2004 11/05/2004
02/22/2005

39 MOTION by defendant City Of Steubenville for summary judgment ( no pgs: 3) (sh) (Entered: 07/19/2001)
40 MOTION by plaintiff USA for summary judgment w/ memo in support ( no pgs: 4 exhs) (sh) (Entered: 07/23/2001)
41 MOTION by plaintiff USA for summary judgment ( no pgs: 10) (sh) (Entered: 07/24/2001)
Auditor's Quarterly Report (sh) (Entered: 07/27/2001)
42 STATUS REPORT by defendant City Of Steubenville ( no pgs: 5) (sh) (Entered: 08/02/2001)
43 RESPONSE by plaintiff USA to motion for summary judgment [39−1] ( no pgs: 7) (pl) (Entered: 08/09/2001)
44 RESPONSE by plaintiff USA to motion for summary judgment [39−1] ( no pgs: 9) (sh) (Entered: 08/15/2001)
45 OPINION AND ORDER by Judge Edmund A. Sargus Jr granting motion for summary judgment [41−1] by plaintiff USA, granting motion for summary judgment w/ memo in support [40−1] by plaintiff USA, denying motion for summary judgment [39−1] by defendant Steubenville Police (cc: all counsel) ( no pgs: 13) (sh) (Entered: 09/10/2001)
46 Auditor's Quarterly REPORT (sh) (Entered: 11/07/2001)
47 AUDITOR'S QUARTERLY REPORT by defendant Steubenville Police () (sh) (Entered: 02/04/2002)
48 Auditor's Quarterly Report by defendant Steubenville Police ( no pgs: 73) (sh) (Entered: 04/26/2002)
49 Audit Report (sh) (Entered: 08/07/2002)
Auditor's Quarterly Report the period of July 1− September 30, 2002 (sh) (Entered: 11/13/2002)
50 STATUS REPORT by defendant City Of Steubenville ( no pgs: 4) (sh) (Entered: 12/05/2002)
51 STATUS REPORT by defendant City Of Steubenville ( no pgs: 5) (sh) (Entered: 01/14/2003)
52 AUDITOR'S QUARTERLY REPORT ( no pgs: 87) (sem) (Entered: 01/31/2003)
Auditor's Quarterly REPORT by defendant Steubenville Police () (sh) (Entered: 02/04/2003)
Auditor's Quarterly Report from 1/1−3/31/03 (sh) (Entered: 04/29/2003)
Auditor's quarterly report by defendant Steubenville Police () (sh) (Entered: 05/14/2003)
53 STATUS REPORT by defendant City Of Steubenville ( no pgs: 2) (sh) (Entered: 07/03/2003)
Auditor's Quarterly Report (sh) (Entered: 08/08/2003)
54 STATUS REPORT by Defendant City Of Steubenville. (sh, ) (Entered: 01/21/2004)
55 STATUS REPORT by Defendant City Of Steubenville. (wh, ) (Entered: 07/19/2004)
56 NOTICE of filing Auditor's Quarterly Report for July 1 − September 30, 2004 by Defendant Steubenville Police Department, The report is located with the file in the clerks office. (jm) (Entered: 11/08/2004)
57 NOTICE of filing Auditor's Quarterly Report for October 1 − December 31, 2004 by Defendant Steubenville Police Department. The report is located with the file in the clerks office.(er ) (Entered: 02/22/2005)

Case: 2:97-cv-966 As of: 09/17/2016 03:02 PM EDT 5 of 5

03/02/2005
03/04/2005 07/12/2006

58 JOINT MOTION for Termination of Consent Decree and dismissal of Case re 3 Consent Judgment, by Plaintiff USA, Defendants City Of Steubenville, et al. (Attachments: # 1 Proposed Order# 2 Exhibit 1 Declaration of Charles D. Reynolds# 3 Exhibit 2 Auditor's Quarterly Report, complete report is located in the clerk's office with the file)(jm) (Entered: 03/02/2005)
59 ORDER granting 58 Joint Motion for Termination of Consent Decree and Dismissal of Case . Signed by Judge Edmund A Sargus on 03/03/2005. (dh) (Entered: 03/04/2005)
File located in Chicago: Accession No. 021 06 0014; Location No. 300690−300819; Box 74 of 130. (kk1, ) (Entered: 07/12/2006)

 
 U.S. Department of Justice Civu J.<ights Division

Office of the Assistant Attorney General

Ubshington, D.C. 20035
June 12, 1997

Mr. Gary Repella City Law Director 308 Market Street Steubenville, OH 43952
Re: Investigation of Steubenville Police Department
Dear Mr. Repella:
As you are aware, the Civil Rights Division has been conducting a civil investigation of the Steubenville Police Department (the "SPD") to determine whether its officers are engaging in a pattern or practice of violating individuals' federal civil rights. As a result of our investigation, we have determined that the City of Steubenville, the SPD, and the City Manager, in his role as Director of Public Safety (collectively, the "City") have violated the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141. I have authorized filing a civil suit in United States District Court to remedy this violation. (The lawsuit would name as a defendant the Civil Service Commission,· in addition to the above parties, in order to allow the District Court to accord complete relief.) We would be willing to defer filing suit, however, if you are interested in negotiating a voluntary settlement in the form of a consent decree to be filed with a civil complaint.
During the course of our investigation, we reviewed: policies and procedures of the SPD; SPD internal files relating to civilian complaints of police misconduct and discipline of officers; complaints and other documents from recent civil lawsuits against the City relating to police misconduct; hundreds of arrest and incident reports; criminal judicial decisions excluding evidence or dismissing criminal charges on the basis of police misconduct; and internal City documents relating to allegations of misconduct. We also interviewed many individuals, and met with City representatives, including you and the City Manager, the Mayor, and the Chief of Police, and, with your consent, a number of SPD officers.
Our investigation has revealed that SPD officers engage in a pattern or practice of misconduct. Specifically, SPD officers engage in a pattern or practice of using excessive force, including when they are off-duty but acting under color of law,

-2-
and in a pattern or practice of making false and retaliatory arrests and charges. In addition, SPD officers tamper with evidence and/or witnesses, falsify official reports and filings, and conduct unlawful searches and seizures of Steubenville residents and their homes and property. The misconduct of individual officers is caused and condoned by City policies and practices - inadequate use-of-force policies; inappropriate offduty-conduct policies; a civilian complaint policy that both discourages and fails to investigate complaints; failure to monitor and supervise police conduct; failure to train; failure to discipline; and retaliation against civilians who complain.
1. Misconduct by SPD officers
We have uncovered substantial evidence of SPD officers' use of excessive force, especially when they are off-duty but acting under color of law, or prompted by minor resistance to police action. In addition, SPD officers frequently falsely arrest and charge individuals. Moreover, SPD officers tamper with evidence and/or witnesses, and falsify in official reports and filings. Finally, SPD officers conduct unlawful searches and seizures of residences and residents. This behavior amounts to a pattern or practice of conduct that deprives persons of their federal civil rights.
2. City policies and practices
Our inves~igation has uncovered a number of management-related deficiencies that operate both singly and in tandem to cause and condone police misconduct:
a. Lack of use-of-force policies.
The City has no policy and provides no training about what types of force are useful and acceptable in different types of situations. In addition, it fails to require use-of-force reports or otherwise investigate or review uses of force.
b. Off-duty policies.
SPD policy requires police officers to carry a firearm at all times and to "take action" whenever the need arises without respect for whether they are on or off duty. Misconduct and harm to civilians arises not from either policy alone, but from the combination of the policies and the absence of guidance about how SPD officers should deal with predictable but difficult situations. The result is two problems: First, police are able to abuse their authority to vindicate their side of a personal dispute. Second, off-duty police are encouraged to place themselves and civilians at risk when they respond to an emergency situation in the heat of the moment, unprepared and not readily identifiable as police officers.

-3-
c. Civilian complaint practice and failure to investigate complaints.
The City's practice is to discourage civilians from making complaints, and to fail to investigate adequately those that are made. Civilians who do make formal complaints are discouraged from seeking formal resolution. Instead, the Chief of Police encourages his shift commanders to resolve complaints "in-house" - ~. without documentation or disciplinary result. Where there is formal resolution of a civilian complaint, the documentation leading to such resolution, and apparently the investigation that would otherwise be documented, is practically nonexistent. Only seldom are statements taken from police officers, and even more rarely from other witnesses. Equally rarely is physical evidence collected or evaluated.
d. Failure to monitor and supervise.
The SPD has in place no mechanisms to monitor police officers for the possibility of a developing problem: as already stated, use of force is not reviewed or evaluated; no records are kept about injuries to persons arrested; documentation of disciplinary actions considered but rejected is not kept. Further, the SPD does not take advantage of a number of available sources of information about possible misconduct by officers; it does not initiate disciplinary investigations based on judicial findings of misconduct, informal complaints, known injury, or even receipt of a lawsuit. Especially in a system in which complaints are so underutilized by civilians, this failure leads to a police force in which oversight of civil rights is practically nonexistent.
e. Failure to train.
Once SPD officers are sworn in as Ohio peace officers, they have until recently received no reinforcement or refresher training on critical skills and knowledge, and no training about new developments in law or law enforcement techniques. No training is required or even offered to remedy emerging problems as found in criminal cases, lawsuits, or complaints. Nor is any training required or offered when officers are promoted to supervisory positions. Following our interview of him, Chief McCartney did contact the FBI to ask for training in a number of areas. Over the next several months, the FBI will be providing SPD officers with on-site training on four topics - search and seizure, defensive tactics, use of force, and hostage negotiation. This is a positive step, taken in response to our investigation, but it does not cover all the relevant areas, and there is no indication that the City intends to institutionalize necessary training of its officers.

'' '
-4-
f. Failure to discipline.
The SPD also fails to discipline adequately its officers' misconduct. When misconduct is disciplined, that discipline is inappropriately light. Driving accidents and cursing at superior officers are punished more heavily than misconduct against civilians.
g. Retaliation against complainants.
Many Steubenville residents reported to us that they were afraid to talk to us, because they feared retaliation from the police if an allegation of misconduct becomes public. And, indeed, we found numerous examples of police activity apparently calculated to intimidate police critics. For example, SPD officers sometimes file criminal charges against potential complainants, in order to gain leverage to obtain a waiver of the civilian's right to sue.
In sum, we have concluded that the City engages in a pattern or practice of police misconduct. We have reached no conclusion on two sets of allegations, relating to race and gender. Our investigation of alleged race discrimination, sexual coercion, and failure to enforce domestic violence laws (which may discriminate against women) continues.
We recognize that, since being notified of our investigation, the City has acted to improve training of police officers, by calling on the FBI to conduct training in several areas. In addition, numerous City officials have told us of their desire to work with us to accomplish positive reform. We would be willing to build on this expression of good will by attempting to settle this matter without litigation through the entry of a consent decree enforceable by the United States District Court. Margo Schlanger, of the Division's Special Litigation Section, wil; contact you shortly to discuss this matter.
Isabelle Katz Pinzler Acting Assistant Attorney General
Civil Rights Division

 
 Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

KeyCite Red Flag - Severe Negative Treatment Affirmed in Part, Reversed in Part and Remanded by Thorne v. Lelles, 6th Cir.(Ohio), September 25, 2007
463 F.Supp.2d 760 United States District Court,
S.D. Ohio, Eastern Division.
Daniel THORNE, Jr., et al., Plaintiff, v.
STEUBENVILLE POLICE OFFICER, John Lelles, et al., Defendants.
No. 2:05–cv–0001. | Nov. 28, 2006.
Synopsis Background: Arrestee filed § 1983 action against city and police officers alleging false arrest and excessive force. Defendants moved to strike exhibits and for summary judgment.
Holdings: The District Court, Marbley, J., held that:
[1] exigent circumstances did not justify officer’s warrantless entry into arrestee’s fenced backyard;
[2] fact issues remained as to whether officers had probable cause to believe arrestee had engaged in underage drinking; and
[3] city was not subject to liability under § 1983.
Motions granted in part and denied in part.
West Headnotes (31)
[1] Federal Civil Procedure Failure to respond;   sanctions
Plaintiffs in civil rights action had no substantial justification for failing to provide defendants with photographer’s affidavit and referenced photographs, and thus photographs were not admissible in support of their opposition to defendants’ motion for summary judgment, even though plaintiffs disclosed photographer as witness in response to interrogatory, where plaintiffs failed to serve exhibits on defendants.

Fed.Rules Civ.Proc.Rules 5(a), 26(a)(1)(B), 37(c)(1), 28 U.S.C.A.
Cases that cite this headnote
[2] Searches and Seizures Persons, Places and Things Protected
Searches and seizures inside home without warrant are presumptively unreasonable. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[3] Searches and Seizures Curtilage or open fields;   yards and
outbuildings Fenced backyard receives Fourth Amendment protection. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[4] Searches and Seizures Emergencies and Exigent Circumstances;
  Opportunity to Obtain Warrant Absent warrant, only exigent circumstances may justify governmental entry into private home. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[5] Searches and Seizures Presumptions and Burden of Proof
In order to justify governmental entry into private home without warrant, government bears burden of proving existence of exigent circumstances. U.S.C.A. Const.Amend. 4.
1

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

Cases that cite this headnote
[6] Searches and Seizures Emergencies and Exigent Circumstances;
  Opportunity to Obtain Warrant
When inquiring whether exigent circumstances necessary to justify warrantless entry into private home existed, court should consider: (1) whether government has demonstrated that need for immediate action would have been defeated if police had taken time to secure warrant; (2) whether government’s interest is sufficiently important to justify warrantless search; and (3) whether defendant’s conduct somehow diminished reasonable expectation of privacy he would normally enjoy. U.S.C.A. Const.Amend. 4.
1 Cases that cite this headnote
[7] Searches and Seizures Pursuit
Police officer’s pursuit of fleeing suspect did not constitute exigent circumstance sufficient to justify officer’s warrantless entry into suspect’s fenced backyard, where only crimes that officer believed suspect may have committed were misdemeanor offenses of underage drinking and fighting. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.
Cases that cite this headnote
[8] Searches and Seizures Emergencies and Exigent Circumstances;
  Opportunity to Obtain Warrant
Important factor to be considered when determining whether exigency exists sufficient to justify warrantless entry into private home is gravity of underlying offense. U.S.C.A. Const.Amend. 4.
1 Cases that cite this headnote

[9] Federal Civil Procedure Civil rights cases in general
Genuine issue of material fact as to whether police officers had reason to believe that suspect was armed or posed any immediate danger to them or to others precluded summary judgment in suspect’s § 1983 action alleging that officers’ warrantless entry into his fenced backyard violated his Fourth Amendment rights. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.
Cases that cite this headnote
[10] Arrest What constitutes such cause in general
For there to be probable cause for arrest, facts and circumstances within officer’s knowledge must be sufficient to warrant prudent person, or one of reasonable caution, in believing, in circumstances shown, that suspect has committed, is committing, or is about to commit offense. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[11] Arrest What constitutes such cause in general
Question of whether probability of criminal activity necessary to establish probable cause exists is assessed under reasonableness standard based on examination of all facts and circumstances within officer’s knowledge at time of arrest.
Cases that cite this headnote
[12] Arrest What constitutes such cause in general
Probable cause for arrest does not require same 2

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)
type of specific evidence of each element of offense as would be needed to support conviction.
Cases that cite this headnote

official allegedly did was objectively unreasonable in light of clearly established constitutional rights.
Cases that cite this headnote

[13] Federal Civil Procedure Civil rights cases in general
Genuine issue of material fact as to whether police officers had probable cause to believe suspect had been drinking precluded summary judgment in suspect’s § 1983 action alleging that officers falsely arrested him for underage drinking. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.
Cases that cite this headnote

[16] Federal Civil Procedure Civil rights cases in general
While issue of whether defendant in civil rights action is entitled to qualified immunity is usually purely legal question to be determined by court, summary judgment is inappropriate where legal question of immunity is completely dependent upon which view of facts is accepted by jury.
Cases that cite this headnote

[14] Civil Rights Good faith and reasonableness;   knowledge
and clarity of law;   motive and intent, in general
Qualified immunity is affirmative defense that shields public officials performing discretionary functions from civil damages if their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would have known.
Cases that cite this headnote
[15] Civil Rights Government Agencies and Officers
Civil Rights Good faith and reasonableness;   knowledge
and clarity of law;   motive and intent, in general
In ruling on qualified immunity defense in civil rights action, court must determine: (1) whether, based upon applicable law, facts viewed in light most favorable to plaintiffs show that constitutional violation has occurred; (2) whether violation involved clearly established constitutional right of which reasonable person would have known; and (3) whether plaintiff has offered sufficient evidence to indicate that what

[17] Federal Civil Procedure Civil rights cases in general
Genuine issue of material fact as to whether police officers had reason to believe that suspect was armed or posed any immediate danger to them or to others precluded summary judgment on qualified immunity grounds in suspect’s § 1983 action alleging that officers made illegal warrantless entry onto suspect’s property and arrested suspect without probable cause. 42 U.S.C.A. § 1983.
Cases that cite this headnote
[18] Arrest Use of force
Determining whether force used to effect particular seizure is reasonable under Fourth Amendment requires careful balancing of nature and quality of intrusion on individual’s Fourth Amendment interests against countervailing governmental interests at stake, and reviewing court should pay particular attention to severity of crime at issue, whether suspect poses immediate threat to safety of officers or others, and whether he is actively resisting arrest or
3

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006) attempting to evade arrest by flight. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote

Municipal entities can be held liable under § 1983 only where alleged constitutional violation is caused by entity’s official policy. 42 U.S.C.A. § 1983.

[19] Arrest Use of force
In evaluating Fourth Amendment excessive force claim, reasonableness of particular use of force must be judged from perspective of reasonable officer on scene, rather than with 20/20 vision of hindsight. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote
[20] Federal Civil Procedure Civil rights cases in general
Genuine issue of material fact as to whether police officer struck arrestee multiple times in face with his flashlight precluded summary judgment on arrestee’s Fourth Amendment excessive force claim against officer. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote

Cases that cite this headnote
[23] Civil Rights Governmental Ordinance, Policy, Practice, or
Custom
In determining whether municipality is subject to liability under § 1983, unless official policymaker is involved in underlying constitutional violation, existence of official policy or custom cannot be demonstrated by occurrence of alleged constitutional violation itself. 42 U.S.C.A. § 1983.
Cases that cite this headnote
[24] Civil Rights Criminal law enforcement;   prisons
City was not subject to liability under § 1983 for police officers’ allegedly false arrest of suspect, absent showing that city had policy of condoning false arrests of its citizens. 42 U.S.C.A. § 1983.

[21] Civil Rights Acts of officers and employees in general;
  vicarious liability and respondeat superior in general
In § 1983 case, government entities cannot be held liable under theory of respondeat superior. 42 U.S.C.A. § 1983.
Cases that cite this headnote
[22] Civil Rights Governmental Ordinance, Policy, Practice, or
Custom

Cases that cite this headnote
[25] Civil Rights Criminal law enforcement;   prisons
Evidence of more than dozen complaints of excessive force and improper police conduct in one year was insufficient to establish that city had policy of indifference to excessive use of force, as was necessary to subject city to liability under § 1983 for officer’s alleged use of excessive force against arrestee, absent evidence of circumstances surrounding those incidents, or of corresponding figures from other police departments. 42 U.S.C.A. § 1983.
4

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

Cases that cite this headnote
[26] Civil Rights Lack of Control, Training, or Supervision;
  Knowledge and Inaction
In evaluating § 1983 claim against city, municipal policy or custom is shown by ratification only where city’s failure to investigate and discipline alleged misconduct supports inference that city approves of or tolerates misconduct. 42 U.S.C.A. § 1983.
Cases that cite this headnote

[29] Civil Rights Criminal law enforcement;   prisons
In order to sustain § 1983 claim against city on theory of failure to train its police officers, plaintiff must establish that: (1) training program at issue is inadequate to tasks that officers must perform; and (2) inadequacy is result of city’s deliberate indifference; and (3) inadequacy actually caused plaintiff’s alleged injury. 42 U.S.C.A. § 1983.
Cases that cite this headnote

[27] Civil Rights Presumptions, Inferences, and Burdens of
Proof
In evaluating § 1983 claim against municipality, where municipality fully investigates allegations of misconduct and in good faith determines that no misconduct occurred or that no discipline was warranted, there can be no reasonable inference that municipality tolerates alleged misconduct. 42 U.S.C.A. § 1983.
Cases that cite this headnote
[28] Civil Rights Criminal law enforcement;   prisons
City was not subject to liability under § 1983 in connection with its police officers’ alleged warrantless entry, false arrest, and use of excessive force, despite arrestee’s contention that city failed to properly respond to his citizen complaint, where officer conducted thorough investigation, which included interviews of parties and relevant witnesses and polygraph of arresting officer, and police captain and chief found officer’s report to be accurate under circumstances. 42 U.S.C.A. § 1983.
Cases that cite this headnote

[30] Civil Rights Criminal law enforcement;   prisons
In order to prove that city was subject to liability under § 1983 due to its deliberate indifference to inadequacy of training program, plaintiffs must show that need for better training was so obvious that inadequacy was likely to result in constitutional violation. 42 U.S.C.A. § 1983.
Cases that cite this headnote
[31] Civil Rights Criminal law enforcement;   prisons
City was not subject to liability under § 1983 for police officers’ warrantless entry onto private property, warrantless arrest of suspect, or use of excessive force on ground that it failed to adequately train officers, where city required all prospective officers to complete in-service training program, officers were required to attend frequent review courses, and city had been found to be in substantial compliance with consent decree obligating it to following detailed procedures for training and investigating officers. 42 U.S.C.A. § 1983.
Cases that cite this headnote
5

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

Attorneys and Law Firms
*763 Richard A. Olivito, Boardman, OH, James Donald McNamara, Columbus, OH, William C. Hinnant, Jr., Anderson, SC, for Plaintiffs.
Michael S. Loughry, Mazanec Raskin & Ryder Co. LPA, Columbus, OH, Paul J. Cristallo, Robert Henry Stoffers, Mazanec Raskin & Ryder Co. LPA, Cleveland, OH, for Defendants.
Opinion
OPINION & ORDER
MARBLEY, District Judge.
I. INTRODUCTION
This matter comes before the Court on the following motions: (1) Motion for Summary Judgment by the City of Steubenville, Ohio (“Steubenville” or “City”), Officer John Lelles (“Officer Lelles”), Officer Edward Karovic (“Officer Karovic”), Mayor Domineck Mucci, (“Mayor Mucci”), City Manager Bruce Williams (“City Manager Williams”), and Police Chief William McCafferty (“Chief McCafferty”) (collectively, “Defendants”); and (2) Defendants’ Motion to Strike Exhibits Submitted in Support of Plaintiffs’ Responsive Brief in Opposition to Defendants’ Motion for Summary Judgment. For the reasons set forth herein, the Court GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment and GRANTS Defendants’ Motion to Strike.
II. STATEMENT OF FACTS
A. Background
In this 42 U.S.C. § 1983 action, Plaintiffs, Daniel “Danny” Thorne, Jr., and his *764 parents, Mr. Daniel Thorne, Sr. and Mrs. Sharon Thorne (collectively, “Plaintiffs”), allege that Officers Lelles and Karovic, Steubenville police officers, violated Danny’s Fourth Amendment rights when they seized him in his family’s backyard, allegedly beat him with a Maglite flashlight, and arrested him for underage drinking. The Plaintiffs’ Complaint alleges the following facts.

1. The Arrest
On June 6, 2004, between 2:00 and 3:00 a.m., Officers Karovic and Lelles responded to a reported fight occurring at a party in the 300 block of Buena Vista in Steubenville. Other officers were already on the scene, and Officer Pete Basil (“Officer Basil”) directed Officers Karovic and Lelles to search for four male suspects who had fled on foot. Officer Basil described one of the suspects as a white male wearing a red shirt.
After determining that the other officers did not need assistance at the scene of the party, Officers Karovic and Lelles began to search between the surrounding houses for the suspects. Officer Lelles observed evidence of footprints in the dew on the grass, and Officer Karovic heard voices coming from a nearby yard, which was blocked by an approximately six-foot-high wooden fence. Officer Karovic then looked over the fence where he observed a white male in a red t-shirt talking on a mobile phone.1 The white male was Plaintiff, Daniel “Danny” Thorne, Jr. (“Danny”), and he was standing in the backyard of his family’s home.
Officer Karovic claims that upon viewing Danny over the fence, he called for Danny to come over, and identified himself as a police officer. He asserts, however, that Danny responded by ducking behind the deck of the Thornes’ above-ground pool. Further, Officer Karovic testified that, though he repeatedly asked Danny to come out of hiding, Danny would not reveal himself and failed to respond to any of his repeated commands. Danny admits that he hid from Officer Karovic, but he denies that he heard either Officer Karovic or Officer Lelles identify themselves as police officers until after he hid under the deck.2 Further, Danny claims that he hid underneath the deck because he did not know the two men who were in his backyard, and he was scared.
At that point, Officer Karovic circled around the pool and observed Danny “crawling underneath” the deck to the other side, close to the rear of the fence. Officer Karovic then circled the pool a second time, and Danny started to crawl back toward the house. Officer Karovic testified that he tried to grab Danny to stop him, but Danny evaded him. Officer Karovic claimed his “danger cues were up” because he did not know who Danny was, and did not know why he was avoiding the officers.
Danny then called his father, Daniel Thorne, Sr. (“Thorne, Sr.”) on his mobile phone requesting help. Thorne, Sr. subsequently yelled out of the window of his house for Danny to get to the side door. Officer Karovic testified that at that time, he was able to grab Danny with a firm
6

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

grip and take him to the side door of the Thorne house. Officer Karovic testified that it was his intent to seize Danny in furtherance of the investigation of the nearby disturbance. Danny testified that Officer Karovic did not make contact with him until they both reached the side door of the house. Further, Danny testified *765 that when he was running from under the deck to the side door of the house, he observed for the first time that Officer Karovic was in uniform. He claims, however, that he does not recall either Officer Karovic or Officer Lelles saying anything to him while he was running toward the house.

dismissed.7
Plaintiffs claim that due to the alleged beating Danny suffered at the hands of Officer Karovic, Danny suffered a concussion, which was diagnosed on June 6, 2004. Danny also underwent six months of treatment for a scratched cornea in his right eye, an injury that he did not have before June 6, 2004. Further, Plaintiffs assert that Danny now requires medication to control his continuous and chronic headaches, suffers sever mood swings, and is unable to concentrate in school or at his job.

Danny asserts that while they waited for Thorne, Sr. to open the side door to the house, Officer Karovic hit Danny three times above his right eye with an approximately eighteen or twenty-inch Maglite flashlight.3 Officer Karovic denies hitting Danny and states that he had a firm grip on Danny’s arm. Thorne, Sr. did not witness Officer Karovic’s alleged striking of Danny, but he testified that before opening the door, he heard his son say “quit hitting me,” and that upon opening the door, he saw Officer Karovic’s Maglite near or laying on Danny’s face. On the other hand, Officer Lelles testified that he did not see Officer Karovic hit Danny, and noted that he never heard Danny say, “quit hitting me.” Further, the Thorne family’s neighbor, Penny Keeder testified that she witnessed the events that occurred between Danny and Officer Karovic and did not see Officer Karovic hit Danny.4
At that point, Thorne, Sr. let Danny into the house. Thorne, Sr. had a brief conversation with Officer Lelles, which led Thorne, Sr. to invite both Officer Lelles and Officer Karovic into the house through the front door. Once inside the Thornes’ house, Officer Lelles asked to see Danny, explaining to Thorne, Sr. that Danny had run from the police. Upon hearing this, Thorne, Sr. began yelling at Danny.

2. The Internal Investigation
Plaintiffs requested that the Steubenville Police Department perform an internal investigation into the events transpiring at the Thorne residence on the morning of June 6, 2004. Sergeant John C. Sullivan (“Sergeant Sullivan”), internal affairs officer for the Steubenville Police Department, investigated the incident as prompted by Plaintiffs’ complaints. Sergeant Sullivan interviewed a number of individuals including Plaintiffs, Officers Basil, Lelles and Karovic, and Penny Keeder. Further, Officer Karovic submitted to a polygraph examination, the results of which confirmed that the he was telling the truth.8 Danny did not submit to a polygraph examination.9 On September 20, 2004, after reviewing all the evidence, Sergeant Sullivan issued a report concluding that Plaintiffs’ complaints regarding Officer Karovic’s alleged *767 use of excessive force and alleged false arrest of Danny were “unfounded.” Captain Sloane and Chief McCafferty subsequently reviewed and approved Sergeant Sullivan’s findings on September 27, 2004 and October 4, 2004, respectively.

Officer Lelles testified that at that time, he noticed that Danny’s eyes were “dilated” and “bloodshot,” and that Danny smelled of alcohol. Officer Lelles testified that he asked Danny if he had been drinking, and Danny responded in the affirmative. Danny, however, does not remember this discussion and denies that it occurred. Moreover, Thorne, Sr. testified that when Officer Lelles asked Danny if he had been drinking, Danny did not respond.
Thorne, Sr. then stated that he and his wife had provided Danny wine with dinner when they had eaten together at around 7:00 p.m. that evening.5 Officer Lelles then announced his intent to arrest Danny *766 for underage consumption of alcohol, and subsequently arrested Danny for a violation of both Ohio law and Section 529.021 of Steubenville’s Codified Ordinances.6 The officers drove Danny to the county jail where he was booked. The charges against Danny, however, were ultimately

3. The Steubenville Consent Decree
At the time of the incident, Steubenville was operating under a Consent Decree, which it had entered into on September 4, 1997, pursuant to the settlement of a case brought against them by the United States Department of Justice (“DOJ”). According to the terms of the Consent Decree, Steubenville was required to develop and implement an extensive training policy for all of its police officers as well as an internal affairs policy. The internal affairs officer had no discretion to decide whether to investigate a citizen complaint; Internal Affairs is required to investigate all citizen complaints. Steubenville was also required to track all uses of force and all warrantless searches and seizures.
Moreover, the government and Steubenville jointly
7

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

selected an independent auditor, Charles D. Reynolds (“Reynolds”), to monitor Steubenville’s compliance with the terms of the Consent Decree. Reynolds was required to review and to evaluate all of the City’s internal affairs reports, use of force reports, and warrantless search and seizure reports, including all reports generated by the Thorne incident.
In January 2003, Reynolds determined that Steubenville was in substantial compliance with the terms of the Consent Decree. Moreover, after the Thorne incident occurred, Reynolds also found that Steubenville had maintained substantial compliance with the terms of the Consent Decree through the remainder of 2004.
The terms of the Consent Decree provided that the parties could terminate the Decree “at any time after both five years [had] elapsed [from] the date of entry of th[e] Decree, and substantial compliance [had] been maintained for no less than two years.” Defs.’ Motion at Ex. J ¶ 96 (emphasis in original). Accordingly, on March 3, 2005, finding that the terms had been met, the court ordered the termination of the Consent Decree.

(3) monetary damages in excess of $250,000 from Officers Karovic and Lelles for Danny’s alleged physical injuries; (4) monetary damages in excess of $25,000 from Steubenville for allegedly failing to supervise, train, and discipline its police officers; (5) extraordinary damages against Officer Karovic in excess of $1.5 million; and (6) an order enjoining the United States Department of Justice (“DOJ”) from vacating the consent decree in place in Steubenville.
On May 8, 2006, Defendants moved for summary judgment on all of Plaintiffs’ claims. On June 14, 2006, Plaintiffs moved to bifurcate the issues of officer and municipal liability, but the Court denied Plaintiffs’ motion on August 9, 2006. On July 23, 2006, after Defendants’ Motion for Summary Judgment had been fully briefed, Defendants moved to strike a number of the exhibits cited by Plaintiffs in their Opposition to Defendants’ Motion for Summary Judgment. The Court entered an order on October 19, 2006, granting in part Defendants’ Motion to Strike and reserved its judgment on Defendants’ Objection and Motion to Strike the Affidavit of Skip Mixon. On October 25, 2006, the parties appeared before the Court for oral argument on Defendants’ Motions.

B. Procedural History
On January 3, 2005, Plaintiffs filed the instant complaint (the “Complaint”), asserting the following 42 U.S.C. § 1983 claims against Defendants in their individual and official capacities.10 In count one, Plaintiffs allege that Defendants Officers Karovic and Lelles falsely arrested Danny when they improperly and unlawfully detained him at his own residence without probable cause. In count two, Plaintiffs assert that Steubenville ratifies a policy of “deliberate indifference towards its citizens,” allowing its police officers to conduct false arrests. In count three, Plaintiffs claim that Defendant Officer Karovic used excessive force against Danny in violation of Danny’s Fourth Amendment rights, causing him serious physical and psychological injury. In count four, Plaintiffs assert that Steubenville has maintained a policy of “utilizing excessive force against its citizens during seizures over the years.” In count five, Plaintiffs claim that Steubenville has a policy of failing to *768 review and to investigate properly its citizen complaints over the years. Finally, in count six, Plaintiffs assert that Steubenville has a policy and practice “of allowing or tacitly authorizing” its police officers to use inappropriate force in conducting searches and seizures.
Plaintiffs request the following relief: (1) monetary damages in excess of $25,000 against Defendants Officers Karovic and Lelles; (2) monetary damages in excess of $150,000 from Steubenville for allowing and maintaining a policy and practice which permits false arrests to occur;

III. STANDARD OF REVIEW
A. Motion to Strike
Defendants’ Motion to Strike raises an issue as to the legal sufficiency of an affidavit, which the Plaintiffs refer to in their Responsive Brief in Opposition to Defendants’ Motion for Summary Judgment.
Although a party must produce evidence in support of its opposition to a motion for summary judgment, not all types of evidence are permissible. See McQuain v. Ebner Furnaces, Inc., 55 F.Supp.2d 763, 769–70 (N.D.Ohio 1999). Under Federal Rule 56(e), affidavits supporting or opposing motions for summary judgment “shall set forth such facts as would be admissible in evidence.” FED.R.CIV.P. 56(e). For instance, “hearsay evidence cannot be considered on a motion for summary judgment.” See Wiley v. United States, 20 F.3d 222, 225–26 (6th Cir.1994). Moreover, in this Circuit, it is well settled that “ ‘only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.’ ” Id. at 226 (citing Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988)). Admissible evidence is defined as “evidence that is relevant and of such a character ... that the court should receive it.” See Steele v. Jennings, 2005 WL 2124152, at *3 (S.D.Ohio Aug.31, 2005) (citing
8

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

BLACK’S LAW DICTIONARY 235 (pocket ed.1996)).
B. Motion for Summary Judgment
Summary judgment is appropriate “[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” FED.R.CIV.P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be *769 accomplished by demonstrating that the non-moving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir.1993). In response, the non-moving party must then present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir.1993) (citations omitted).
In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The Court also must interpret all reasonable inferences in the non-movant’s favor. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (stating that the court must draw all reasonable inferences in favor of the non-moving party and must refrain from making credibility determinations or weighing the evidence). The existence of a mere scintilla of evidence in support of the non-moving party’s position will not be sufficient; there must be evidence from which the jury reasonably could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (finding summary judgment appropriate when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party”).
IV. ANALYSIS
A. Defendants’ Motion to Strike

Before this Court can proceed to the merits of Defendants’ Motion for Summary Judgment, it must rule on Defendants’ Motion to Strike Exhibits Submitted in Support of Plaintiffs’ Responsive Brief in Opposition to Defendants’ Motion for Summary Judgment. Plaintiffs were granted leave to file manually their exhibits in support of their Opposition.11 In addition to filing exhibits manually, Plaintiffs submitted a Table of Contents of their “Exhibits and Affidavits,” which include a number other exhibits that were not filed using the Court’s electronic filing system.
Defendants assert that Plaintiffs failed to serve Defendants with many of the exhibits listed in Plaintiffs’ “Table of Contents” including the Affidavit by Edward *770 “Skip” Mixon (“Mixon”).12 Accordingly, Defendants move to strike Mixon’s Affidavit, along with the attached photographs of Danny taken by Mixon on June 6, 2004 because Plaintiffs never served the affidavit and the accompanying pictures upon Defendants, and therefore, are inadmissible.13 The Court finds Defendants’ arguments well-taken.
Rule 5(a) of the Federal Rules of Civil Procedure requires that all documents filed with the Court be served on all parties. FED.R.CIV.P. 5(a). Because Plaintiffs failed to serve such exhibits on Defendants, they cannot rely on any information therein in support of their Opposition to Defendants’ Motion for Summary Judgment. In addition, Rule 26(a)(1)(B) requires a party to provide a copy of all documents that are in the possession of the party which the disclosing party may use to support its claims or defenses, unless solely for impeachment. FED.R.CIV.P. 26(a)(1)(B). Further, Rule 37(c)(1) provides, in relevant part: “A party that without substantial justification fails to disclose such information required by Rule 26(a) ... is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion, any witness or information not so disclosed.” FED.R.CIV.P. 37(c)(1). This preclusionary rule applies to motions for summary judgment. See, e.g., Ebewo v. Martinez, 309 F.Supp.2d 600, 607 n. 2 (S.D.N.Y.2004); Vance, by and through Hammons v. U.S., 1999 WL 455435, at *5 (6th Cir. June 25, 1999) (if no substantial justification for late disclosure, the court may, in its discretion, strike a witness’ affidavit from the record); Sessoms v. Ghertner & Co., 2006 WL 1102323, at *3–4 (M.D.Tenn. Apr. 25, 2006) (denying motion to strike because defendants brought the existence of the witnesses in question to plaintiffs’ attention during depositions). The purpose of this exclusionary rule is to prevent the practice of “sandbagging” an opposing party with new evidence. Ventra v. United States, 121 F.Supp.2d 326, 332 (S.D.N.Y.2000). Most courts recognize, however, that preclusion of evidence pursuant to Rule 37(c)(1) is a drastic remedy and should be exercised with caution; “[t]he Court’s responsibility, upon finding that the failure to comply with Rule 26 is neither justified nor harmless,
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is to impose a sanction that is proportionate to the infraction.” Caudell v. City of Loveland, 2006 WL 971051, at *3 (S.D.Ohio Apr.10, 2006) (citing Dickenson v. Cardiac and Thoracic Surgery of Eastern Tennessee, P.C., 388 F.3d 976, 983 (6th Cir.2004) (citing Musser v. Gentiva Health Servs., 356 F.3d 751, 756 (7th Cir.2004))) (granting motion to strike witness upon plaintiff’s failure to provide a substantial justification for its late disclosure of the witness’ affidavit).
In this case, Plaintiffs did not serve Defendants’ with the Mixon affidavit or the pictures Mixon sought to authenticate through his affidavit. Defendants admit that Mixon was disclosed as a witness in response to an interrogatory, but assert that the affidavit was never included in Plaintiffs’ filing of their Response in Opposition and the pictures were never disclosed *771 to Defendants pursuant to Rule 26(a)(1)(B).
[1] Based on the evidence before the Court, Plaintiffs have no “substantial justification” for failing to provide Defendants with Mixon’s affidavit and referenced photos. Accordingly, the Court GRANTS Defendants’ Motion to Strike the Mixon Affidavit, and the attached photographs, from the record.
B. Defendants’ Motion for Summary Judgment
1. Plaintiffs’ False Arrest Claim
In count one of the Complaint, Plaintiffs assert that Defendants Officers Karovic and Lelles falsely arrested and illegally seized Danny under color of state law.
a. Warrantless Entry
Defendants assert that they are entitled to summary judgment on count one because Officers Karovic and Lelles were entitled to make a warrantless entry into the Thorne family’s yard to seize Danny.
[2] [3] The Fourth Amendment states in pertinent part that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. CONST. amend. IV. Moreover, it is a fundamental tenet of Fourth Amendment jurisprudence that “searches and seizures inside a home without a warrant are presumptively unreasonable.” United States v. Rohrig, 98 F.3d 1506, 1513 (6th Cir.1996) (quoting Payton v. New York, 445 U.S. 573,

586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (reversing defendant’s conviction because police officers’ warrantless entry into defendant’s home was unlawful)). It is undisputed that a fenced backyard receives Fourth Amendment protection. See United States v. Jenkins, 124 F.3d 768, 772–73 (6th Cir.1997).
[4] [5] [6] Absent a warrant, only “exigent circumstances” may justify governmental entry into a private home. Payton, 445 U.S. at 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir.1989); see also, Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir.2002). “Exigent circumstances are situations where real immediate and serious consequences will certainly occur if a police officer postpones action to obtain a warrant.” Spencer v. City of Bay City, 292 F.Supp.2d 932, 943 (E.D.Mich.2003) (citing United States v. Williams, 342 F.3d 430, 436 (6th Cir.2003); Thacker v. City of Columbus, 328 F.3d 244, 253 (6th Cir.2003)). The government bears the burden of proving the existence of exigent circumstances. United States v. Bates, 84 F.3d 790, 794 (6th Cir.1996). The Sixth Circuit has explained that the following situations may give rise to exigent circumstances: “(1) hot pursuit14 of a fleeing felon; (2) *772 imminent destruction of evidence; (3) the need to prevent a suspect’s escape; and (4) a risk of danger to the police or others.” United States v. Johnson, 22 F.3d 674, 680 (6th Cir.1994) (internal citations omitted); see also Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The Sixth Circuit has also set forth three factors that a court may use when inquiring whether “exigent circumstances” existed: (1) whether the government has demonstrated that the need for immediate action would have been defeated if the police had taken the time to secure a warrant; (2) whether the government’s interest is sufficiently important to justify a warrantless search; and (3) whether the defendant’s conduct somehow diminished the reasonable expectation of privacy he would normally enjoy. Rohrig, 98 F.3d at 1518.
In a civil action, the determination of whether exigent circumstances existed is properly resolved by the jury. Jones, 874 F.2d at 1130; Yancey v. Carroll County, 876 F.2d 1238, 1244 (6th Cir.1989); Reardon v. Wroan, 811 F.2d 1025 (7th Cir.1987). It is equally clear, however, that in a case where the underlying facts are essentially undisputed, and where the fact-finder could reach but one conclusion as to the existence of exigent circumstances, the issue may be decided by the trial court as a matter of law. See Hancock v. Dodson, 958 F.2d 1367, 1375 (6th Cir.1992) (citing Jones, 874 F.2d at 1130; Reardon, 811 F.2d at 1029–30).
[7] [8] Defendants assert that Officer Karovic had probable cause to enter the Thornes’ backyard because he was in “hot pursuit” of Danny, a “fleeing suspect.” Finding that the nature of Danny’s alleged offense does not rise to a
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level of seriousness that might justify a warrantless government intrusion, the Court disagrees. It is well-established that “an important factor to be considered when determining whether an exigency exists is the gravity of the underlying offense.” Welsh v. Wisconsin, 466 U.S. 740, 743, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); see also, Rohrig, 98 F.3d at 1516 (“the seriousness of the underlying offense affects the weight of the governmental interest being served by the intrusion,” and such interests are “at an ebb” when minor offenses are involved). In Welsh, police officers followed a suspected drunken driver into his home to arrest him for that offense and to obtain evidence of his blood alcohol content. See 466 U.S. at 740, 104 S.Ct. 2091. The police had neither an arrest nor a search warrant. See id. The state court upheld the action on the basis of exigent circumstances, consisting of the hot pursuit of a criminal suspect, the need to prevent physical harm to the suspect and the police, and the need to prevent the destruction of evidence. See id. The Supreme Court reversed, and held that “application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the kind at issue in this case, has been committed.” Id. at 753, 104 S.Ct. 2091.
*773 Other courts have applied the holding in Welsh to invalidate arrests and searches in the face of exigent circumstance claims based on the possible dissipation of evidence in petty, alcohol-related offense cases. See City of Jamestown v. Dardis, 618 N.W.2d 495, 499 (N.D.2000) (holding that “probable cause to believe minors were illegally consuming alcohol was a relatively minor infraction and did not create exigent circumstances to justify a warrantless entry into a home”); State v. Bessette, 105 Wash.App. 793, 21 P.3d 318, 321 (2001) (holding that exigent circumstances did not exist when police officer went into home to arrest a minor he saw holding a bottle of beer because a minor in possession is a minor offense and there was no evidence of a threat to the safety of other individuals); Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269, 271 (1994) (holding that warrantless, nighttime entry into residence by police investigating a report that there was underage drinking and marijuana use at a party was improper because there was no danger to police that would have necessitated immediate entry, and the possibility that beer cans seen by officers might have been removed before a warrant could be obtained would not support a warrantless entry to investigate summary offense of underage drinking). Further, Ohio courts have previously held that the exigent circumstances exception is not applicable to a misdemeanor offense. State v. Davis, 133 Ohio App.3d 114, 726 N.E.2d 1092 (1999); State v. Scott M., 135 Ohio App.3d 253, 733 N.E.2d 653 (1984); Cleveland v. Shields, 105 Ohio App.3d 118, 663 N.E.2d 726 (1995).
[9] In this case, the offense committed—if any at all—was

a minor offense. Officers Karovic and Lelles were on the scene in search of individuals who had allegedly been involved in, or fled from, a fight. Under Ohio law, “engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior” constitutes a minor misdemeanor in most cases. See OHIO REV.CODE § 2917.11(A)(1), (E)(1)-(2).15 Accordingly, Plaintiffs’ Fourth Amendment interest in the privacy of their fenced-in backyard outweighs the government’s interest in pursuing Danny without a warrant. Further, although Officers Karovic and Lelles assert that Danny’s decision to run from them gave them a reason to believe that they were in danger,16 given the fact that *774 there is a dispute as to whether the Officers had identified themselves to Danny before he ran to his house, and the indications that the Officers had no reason to believe that Danny was an armed and dangerous felon, the Court finds their claims insufficient to support a motion for summary judgment. Accordingly, the issue of whether Officers Karovic and Lelles were entitled to make a warrantless entry into the Thorne’s backyard is more appropriately reserved for a jury.
b. Probable Cause for Arrest
“It is well established that any arrest without probable cause violates the Fourth Amendment.” Thacker, 328 F.3d at 255 (citing Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir.2003)). Thus, in order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that the police lacked probable cause. See Feathers v. Aey, 319 F.3d 843, 851 (6th Cir.2003). Having found that Officers Karovic and Lelles were not entitled to make a warrantless entry into the Thornes’ backyard, the Court must next consider the validity of Defendants’ assertion that they are entitled to summary judgment as to Plaintiffs’ false arrest claim because Officers Karovic and Lelles had probable cause to arrest Danny for underage drinking.
[10] [11] [12] For probable cause to exist, the “facts and circumstances within the officer’s knowledge [must be] sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit and offense.” Crockett, 316 F.3d at 580 (citing Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); Hinchman v. Moore, 312 F.3d 198, 204 (6th Cir.2002)). Put simply, “a police officer has probable cause if there is a fair probability that the individual to be arrested has either committed or intends to commit a crime.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir.2002) (internal citations omitted). The question of whether a probability of criminal activity exists is assessed under a reasonableness standard based
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on “an examination of all facts and circumstances within an officer’s knowledge at the time of an arrest.” Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir.1999). “Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The existence of probable cause is a jury question, unless only one reasonable determination is possible. Crockett, 316 F.3d at 581; Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir.2000).
In this case, Plaintiffs and Defendants give two different versions of the facts concerning Danny’s arrest for underage drinking. Officer Lelles claims that when Thorne, Sr. let himself and Officer Karovic into the house, he observed that Danny’s eyes were bloodshot and dilated, and he smelled of alcohol.17 Lelles testified:
And we’re talking, I’m looking, [Danny’s] eyes are, like, real bloodshot, eyes are dilated. I could detect an odor of an alcoholic beverage emitting from [him]. Somewhere through there, I had asked [Danny] if he had been drinking. And he replied yes.18 And I believe I asked *775 him how old he was, and I believe he told me at the time he was 18. Thorne, Sr., then starts chastising [Danny] or yelling at him for drinking, like he didn’t have a clue, one, that the kid was drinking. Id.19 Defendants also assert that Danny’s alcohol consumption is further supported by Penny Keeder’s testimony that there was evidence of underage drinking at the nearby party from which Danny had allegedly fled.20 Plaintiffs, however, claim that Danny, rather than being intoxicated, was in a daze from being struck with the Maglite flashlight and frightened by Officer Lelles’ line of questioning. Moreover, both father and son assert that when Officer Lelles questioned him, Danny never admitted to drinking, and they claim any odor of alcohol was wholly attributable to wine that the Thorne family had consumed with dinner earlier in the evening.21
[13] Because the record presents two entirely different interpretations of the facts, both of which are plausible, and viewing the evidence in a light most favorable to Plaintiffs, a determination as to whether the Defendant officers had probable cause to arrest Danny for underage drinking is best reserved for resolution at trial.
c. Qualified Immunity
Defendants also assert that regardless of whether the Court finds that Officers Karovic and Lelles had probable cause to make a warrantless entry into the Thornes’ backyard or probable cause to arrest Danny, Officers

Karovic and Lelles are entitled to qualified immunity for Plaintiffs’ false arrest claim.
[14] [15] [16] Qualified immunity is an affirmative defense that shields public officials performing discretionary functions from civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A qualified immunity defense involves a three-step inquiry. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Court must determine: (1) whether, based upon the applicable law, the facts viewed in the light most favorable to the *776 plaintiffs show a that constitutional violation has occurred; (2) whether the violation involved a clearly established constitutional right of which a reasonable person would have known; and (3) whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Feathers v. Aey, 319 F.3d 843, 847 (6th Cir.2003) (quotations and citations omitted); see also Saucier, 533 U.S. at 200, 121 S.Ct. 2151. While the issue of whether a defendant is entitled to qualified immunity is usually a purely legal question to be determined by the court, summary judgment is inappropriate where “the legal question of immunity is completely dependent upon which view of the facts is accepted by the jury.” Adams v. Metiva, 31 F.3d 375, 387 (6th Cir.1994) (citing Brandenburg v. Cureton, 882 F.2d 211, 215–16 (6th Cir.1989)). In other words, if, under Plaintiffs’ version of the disputed facts Defendants are not entitled to qualified immunity, a genuine issue of material fact exists and the Court may not grant summary judgment for Defendants. The Court, therefore, bases its qualified immunity inquiry upon the facts taken in the light most favorable to Plaintiffs, drawing all inferences in their favor. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.2004).
The Court has already determined that Plaintiffs have presented sufficient evidence with respect to their Fourth Amendment claims to survive Defendants’ Motion for Summary Judgment. Thus, the question of whether Officers Karovic and Lelles are shielded from liability under the doctrine of qualified immunity turns on: (1) whether the rights were clearly established to the extent that Officers Karovic and Lelles would have reasonably known that they were violating Danny’s Fourth Amendment rights; and (2) whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. 194 at 202, 121 S.Ct. 2151, 150 L.Ed.2d 272.
Certain relevant legal principles were well-established at the time of the conduct at issue in this case. First, it is apparent from Payton v. New York and its progeny that
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warrantless entries into a private home or its surroundings (i.e., a fenced-in yard) are presumptively illegal, absent exigent circumstances. 445 U.S. at 586, 100 S.Ct. 1371; see Jenkins, 124 F.3d at 772–72. Second, Welsh v. Wisconsin had established that any exigent circumstances inquiry must consider the nature of the offense that an officer is investigating or for which an arrest is sought. 466 U.S. at 753, 104 S.Ct. 2091. More generally, Welsh v. Wisconsin held that the exigent circumstances exception to the warrant requirement should only rarely be invoked in cases involving a minor offense. Id. Third, it is clearly established that police officers must base arrests on probable cause. St. John v. Hickey, 411 F.3d 762, 770 (6th Cir.2005) (citing Radvansky v. City of Olmsted Falls, 395 F.3d 291, 310 (6th Cir.2005); Klein, 275 F.3d at 550 (6th Cir.2001); Donovan, 105 F.3d at 298 (6th Cir.1997)).
The question becomes, then, whether a reasonable officer in the position of Officers Karovic and Lelles should have known that the facts of this case did not present such a rare situation that a warrantless entry was justified. Stated differently, the Court must decide whether the circumstances confronting Defendant Officers outside Plaintiffs’ home could have led to the reasonable conclusion, even if mistaken, that an exigency existed that would excuse the lack of a warrant.
[17] The Court finds that the record viewed most favorably to Plaintiffs defeats qualified immunity. As discussed above, Defendant Officers’ pursuit of Danny in his *777 own backyard was in response to a complaint of suspects fleeing from a fight—a misdemeanor offense. Further, there is a dispute as to whether the Defendant officers were justified in feeling concerned for their own safety and/or the safety of the rest of the neighborhood when Danny hid from them. Moreover, once Officers Karovic and Lelles were inside the Thorne house, there is a dispute as to whether the evidence suggested that Danny was intoxicated. Accordingly, until the jury resolves the issue of whether a constitutional violation occurred, Defendants are not entitled to qualified immunity from liability for their warrantless entry onto Plaintiffs’ property or the arrest of Danny that followed.
The Court DENIES Defendants’ Motion for Summary Judgment as to count one.
2. Plaintiffs’ Excessive Force Claim Against Officer Karovic
In count three of the Complaint, Plaintiffs assert that Defendant Karovic used excessive force when he seized Danny, violating Danny’s Constitutional rights, and causing Danny physical and psychological injuries. Defendants assert that they are entitled to summary

judgment on Plaintiffs’ excessive force claim, pursuant to the “physical facts rule.”
[18] The Supreme Court has held that “all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (internal quotation omitted). A reviewing court “should pay particular attention to ‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir.2001) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).
[19] In evaluating an excessive force claim, “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Moreover, “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396–97, 109 S.Ct. 1865. While it is well-established in the Sixth Circuit that the gratuitous use of force on a suspect who has already been subdued is unconstitutional, McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir.1988), “not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citations omitted).
Plaintiffs assert that Officer Karovic hit Danny on the head multiple times with a Maglite flashlight, causing him permanent physical and psychological injuries. Plaintiffs have submitted testimony in support of Plaintiffs’ claims that after June 5, 2004, Danny suffered from a concussion, a scratched cornea, severe migraines, and many other physical ailments, both physical and psychological, that will cause him to be dependent on medication for life. *778 Officer Karovic denies hitting Danny, and Penny Keeder testified that she watched the interaction between Officer Karovic and Danny and did not see the officer strike Danny. Further, Defendants assert that the booking photos of Danny taken the morning of the incident do not show any injury, and due to Officer Karovic’s large size, it would be expected that
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if Danny had been hit, “redness, bruising, swelling or other signs of physical trauma would develop and be visually evident.” See Defs.’ Motion at 22. Accordingly, Defendants assert that the “physical facts” of the incident do not support Danny’s testimony.
Ordinarily, where testimony conflicts, the credibility of witnesses is a matter for the jury. In certain instances, however, testimony cannot be considered credible. Harris v. Gen. Motors. Corp., 201 F.3d 800, 803 (6th Cir.2000). Where a witness testifies that he looked and listened at a railroad crossing, but neither saw nor heard a train approaching, and the only reasonable conclusion upon the evidence is that there is no doubt that had he looked he must have seen the train, the witness’ testimony cannot be considered credible. Harris, 201 F.3d at 803 (citing Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St. 493, 151 N.E. 714 (1926)).
The ‘railroad crossing’ cases are a single example of the broad range of cases in which courts have recognized that eye-witness’ testimony, essential though it may be, is fundamentally ‘soft’ evidence, subject to human failings of perception, memory and rectitude. In law, as in other spheres of human affairs, simple facts may be far more persuasive than the most learned authorities. As in Dean Prosser’s homely example, ‘there is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog has passed by.
See id. (citing PROSSER ON TORTS 212 (4 Ed.)). The name generally given to this concept is the “physical facts rule.” Id.22 Under the physical facts rule, “where the palpable untruthfulness of plaintiff’s testimony is evident because the testimony is obviously inconsistent with, contradicted by, undisputed physical facts, summary judgment is warranted notwithstanding testimony offered by the plaintiff.” Id. (internal quotations and citations removed).23
[20] The primary difficulty with application of the physical facts rule to this case is that Defendants’ deposition testimony and affidavits do not establish undisputed physical facts fatal to Plaintiffs’ excessive force claim. Despite Defendants’ arguments to the contrary, at this stage of the litigation, Danny’s testimony that Officer Karovic struck him, when combined with Danny’s admissible medical records and Thorne, Sr.’s supporting testimony, is enough evidence that Danny was injured *779 during the incident to withstand Defendants’ Motion for Summary Judgment on the excessive force claim. The dispute between Plaintiffs and Defendants as to whether Officer Karovic beat Danny in an attempt to subdue him is a question of material fact sufficient to allow Plaintiffs’ excessive force claim to proceed to trial. Accordingly, the Court DENIES Defendants’ Motion for Summary Judgment as to count three.

3. Plaintiffs’ Monell Claims—Counts Two, Four, Five and Six
In counts two, four, five, and six of the Complaint, Plaintiffs assert that Defendants24 are liable for the alleged constitutional violations by its police officers because they: (1) tacitly authorize a policy of deliberate indifference as to its citizens; (2) condone a pattern of excessive force against its citizens; (3) fail to supervise and to respond properly to civilian complaints against police misconduct; and (4) fail to train and to supervise City police officers in the tactics of “making arrests and using appropriate force when searching and seizing individuals.” Defendants assert that they are entitled to summary judgment as to counts two, four, five, and six because Plaintiffs have set forth no evidence to support their claims, and because the City was adjudged to be in full compliance with the Consent Decree in April 2003.
[21] [22] [23] In a 42 U.S.C. § 1983 case, government entities cannot be held liable under a theory of respondeat superior. See Monell v. Dep’t. of Social Servs. of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipal entities can be held liable under 42 U.S.C. § 1983 only where the alleged constitutional violation is caused by the entity’s official policy. Id. at 694, 98 S.Ct. 2018. Further, in order to demonstrate liability, a plaintiff must show that the official policy in question is the “moving force” behind the constitutional violation. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). Unless an official policy-maker is involved in the underlying constitutional violation, the existence of an official policy or custom cannot be demonstrated by the occurrence of the alleged constitutional violation itself. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).
a. Count Two—Policy and Tacit Authorization of False Arrests
Plaintiffs allege that the “City of Steubenville, through its police and its supervisory officials [has] condoned, tacitly authorized and/or ratified a ‘policy’ of deliberate indifference toward its citizens” with regard to false arrests. In order to impose federal liability upon Steubenville under this claim, Plaintiffs must establish that the City was deliberately indifferent to such violations. City of Canton, 489 U.S. at 388, 109 S.Ct. 1197. This requires Plaintiffs to establish that the need for
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more or different training of the City’s police officers was so obvious and likely to result in the violation of constitutional rights that the policy makers of Steubenville can reasonably *780 said to have been deliberately indifferent in that regard. See id. at 390, 109 S.Ct. 1197.
[24] Plaintiffs have alleged that this “policy” is noted in Steubenville’s Consent Decree. The Consent Decree itself, however, denies the existence of such a “policy.”25 Apart from making vague assertions that the policies and procedures instituted by the City pursuant to the Consent Decree are merely “for show,” Plaintiffs have pointed to no concrete evidence that the City has a policy of condoning false arrests of its citizens. Plaintiffs devote approximately sixteen pages of their Opposition to nearly indecipherable musings about how “there are serious issues of making the theoretical and the written policies and practices which have been putatively updated, in fact, adopted and applied into the real world of day to day policing inside the [C]ity.” Without factual support, such baseless allegations that history has repeated itself cannot withstand a motion for summary judgment. Accordingly, Defendants’ Motion for Summary Judgment as to count two is GRANTED.
b. Count Four—Policy of Condoning a Pattern of Excessive Force
Plaintiffs also allege that over the years, Steubenville “has created a police [sic] of deliberate indifference towards its citizens.” The standards for this claim are the same as set forth above in regards to Plaintiffs’ claim that the City has a policy of authorizing false arrests of its citizens. See supra Part IV.B.3.a.; City of Canton, 489 U.S. at 390, 109 S.Ct. 1197 (requiring a plaintiff to establish that the need for more or different training of the city’s police officers was so obvious and likely to result in the violation of constitutional rights that the city’s policy makers can reasonably said to have been deliberately indifferent in that regard).
[25] Once again, Plaintiffs have failed to set forth evidence to support their claim. Plaintiffs’ only cited evidence is the existence of more than a dozen complaints of excessive force and improper police conduct filed with the City in 2004. See Pls.’ Opp. at 56. Other courts have held that such evidence does not support a Monell claim. See, e.g., Sarus v. Rotundo, 831 F.2d 397, 402 (2d Cir.1987) (finding a number of resisting arrest charges filed by police did not suggest policy of indifference to excessive use of force where plaintiff failed “to adduce evidence of the circumstances surrounding those arrests, or even to present corresponding figures from other police departments”); Singleton v. City of Newburgh, 1

F.Supp.2d 306, 311 (S.D.N.Y.1998) (granting summary judgment on Monell claim because three complaints of alleged excessive use of force do not demonstrate deliberate indifference to use of excessive force); Fincher v. County of Westchester, 979 F.Supp. 989, 1006 (S.D.N.Y.1997) (granting summary judgment on Monell claim although two prior complaints against the municipality were settled requiring additional officer community relations training and in the face of claims of failure to train, supervise and investigate); Mendoza v. City of Rome, 872 F.Supp. 1110, 1118–19 (N.D.N.Y.1994) *781 (“claims ... filed against the City, standing alone, do[ ] not establish a pattern, policy, or practice which [is] causally related to the ... use of excessive force upon the plaintiff ... and does not constitute evidence of violation of Constitutional rights”).
Because Plaintiffs’ conclusory allegations about Steubenville’s misconduct are not sufficient evidence of a municipal policy or custom of excessive force, Defendants’ Motion for Summary Judgment as to count four is GRANTED.
c. Count Five—Failure to Investigate and Respond to Civilian Complaints of Police Misconduct in a Proper
Manner
[26] [27] Plaintiffs seek to establish Steubenville’s municipal liability by asserting a claim that the City fails to respond properly to citizen complaints against the police. Generally, a subsequent failure to conduct a meaningful investigation is not legally the “moving force” behind an alleged constitutional violation. Daniels v. City of Columbus, 2002 WL 484622, *5 (S.D.Ohio Feb.20, 2002) (citing Tompkins v. Frost, 655 F.Supp. 468, 472 (E.D.Mich.1987) (“wrongful conduct after an injury cannot be the proximate cause of the same injury”)); see also, Fox v. VanOosterum, 987 F.Supp. 597, 604 (W.D.Mich.1997) (explaining that the argument that a decision not to investigate, made after alleged violation took place, somehow caused that violation, defies logic). “[I]n some cases, the municipality may be held liable when its failure to conduct an investigation or discipline the accused rises to the level of a policy of acquiescence that in itself was the ‘moving force.’ ” See Daniels, 2002 WL 484622, at *5. Even so, a “municipal policy or custom is shown by ratification only where the city’s failure to investigate and discipline the alleged misconduct supports an inference that the city approves of or tolerates the misconduct.” See Murphy v. City of Reynoldsburg, 1991 WL 150938 (Ohio Ct.App. Aug. 8, 1991). Where a municipality “fully investigates allegations of misconduct and in good faith determines that no misconduct occurred or that no discipline was warranted, there can be no reasonable inference that the
15

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

municipality tolerates the alleged misconduct.” Id. at *12; see also, Dorsey v. City of Detroit, 858 F.2d 338, 345 (6th Cir.1988).
[28] In this case, the Court finds that there can be no serious contention that Steubenville ratified the alleged misconduct of Officers Karovic and Lelles by failing to investigate or discipline the Thornes’ complaint. After the Thornes filed an official complaint in early June 2004, Officer Sullivan conducted a thorough investigation, which included interviews of the parties and relevant witnesses, even going so far as to conduct a polygraph on Officer Karovic. Sullivan’s investigation followed the policies outlined in the Consent Decree, and culminated in a detailed fifty-five page report, which was finalized on September 20, 2004. According to that report, Sullivan determined that the Thornes’ allegations were “unfounded.”26 Further, and also in accordance *782 with the protocol set forth in the Consent Decree, both Captain Sloane and Chief McCafferty found Sullivan’s report to be accurate under the circumstances. Hence, the most Plaintiff could establish is that Reynolds, Sloane, and McCafferty reached the wrong conclusion. As a matter of law, however, such a conclusory argument fails to rise to the level of deliberate indifference necessary to show an unlawful policy or custom for purposes of § 1983. Defendants’ Motion for Summary Judgment as to count five is, therefore, GRANTED.
d. Count Six—Failure to Train
[29] [30] Plaintiffs also claim that the City “failed to supervise and train its police officers,” thereby leading to constitutional violations. In order to sustain a claim against Steubenville on a theory of “failure to train,” Plaintiff must establish that: (1) the training program at issue is inadequate to the tasks that officers must perform; and (2) the inadequacy is the result of the City’s deliberate indifference; and (3) the inadequacy actually caused the Plaintiff’s alleged injury. See Shepherd v. City of Columbus, 2006 WL 840386, *8–9 (S.D.Ohio, Mar.30, 2006) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 390–97, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)); see also, Bd. of County Commissioners of Bryan County. v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (finding that to make out a claim for failure to supervise, plaintiff must identify a deficiency in the training program and show that the specific deficiency actually caused a constitutional violation). In order to

prove “deliberate indifference,” Plaintiffs must show the need for better training was so obvious that the inadequacy was likely to result in a constitutional violation. Barber v. City of Salem, 953 F.2d 232 (6th Cir.1992).
[31] In this case, Plaintiffs have failed to set forth evidence that Steubenville failed to supervise or train its police officers. Before serving on the force, the City requires that all prospective police officers complete a sixteen week “Field Training Officer” (“FTO”)27 in-service training program with the Steubenville Police Department. Further, the officers go through frequent review courses in which they discuss topics such as “use of force,” “subject control,” and other related issues. Moreover, after the DOJ and the City finalized the Consent Decree, in the late 1990s, the City was obligated to follow a number of detailed procedures regarding topics such as “use of force,” and “stops, searches, and seizures,” even instituting and implementing an Internal Affairs department to investigate any alleged problems. Defs. Motion at Ex. J ¶¶ 21–23 (“use of force”); ¶¶ 24–25 (“stops, searches, and seizures”); ¶¶ 28–63 (“internal affairs”). The City was found to be in substantial compliance with the Consent Decree as early as April 2003. Hence, other than making conclusory allegations that Steubenville failed to supervise or train its officers, Plaintiffs have indicated no evidence that the City was “deliberately indifferent” to the need for relevant training. Further, there is no evidence that the City’s alleged failure to train its police officers resulted in a deprivation of Plaintiffs’ constitutional rights in this case. Thus, Defendants’ Motion for Summary Judgment as to count six is GRANTED.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Strike is GRANTED and Defendants’ *783 Motion for Summary Judgment is GRANTED in part and DENIED in part. The Court GRANTS Defendants’ Motion for Summary Judgment as to counts two, four, five and six, and DENIES Defendants’ Motion as to counts one and three.
IT IS SO ORDERED.
	  

Footnotes

1

Officer Karovic testified that he cannot recall whether he had to “mount the fence,” i.e. step on a rung, in order to see over into the

Thornes’ backyard.

16

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

2

Danny also testified that he was accompanied by another young man named Vince Villone. Officers Karovic and Lelles testified

that they did not see anyone else with Danny.

3

There is a dispute over whether Officer Karovic had a Maglite flashlight in his possession that evening. Officer Karovic testified

that at the time of the incident, he had no Maglite flashlight, but only his own personal flashlight, a “small Streamlight Stinger

flashlight, approximately six inches in length.” See Karovic Dep. at 32:1–33–23. Plaintiffs, however, dispute Officer Karovic’s

testimony and find it questionable that the police department’s “sign in/out sheets” for Maglite flashlights, are “missing and/or

destroyed.” See Pls.’ Opp. at 16. Plaintiffs argue that, “[s]uch a problem/lack of records, should be a basis for a reasonable

inference that such records support the position that Karovic, despite his denials, had a Maglite on him/his person in the evening in

question as the plaintiff asserts.” Id. at 17.

4

Penny Keeder lives next door to the Thorne family, and states that she could “clearly see [Danny] at the side door” of the Thornes’

home when the incident occurred. Keeder Dep. at 24:21–23.

5

Thorne, Sr. testified:

Q. Well, how was it that you ate supper with your son and gave him wine while he was working at the pizza shop?

A. My son used to deliver pizzas, and every night, when he’d deliver, he would come home on his break, or when he wasn’t

delivering, and he would stop in. We’d all sit down at the table, and me and him would eat, or me, him and his mother would

eat. And my son, being a Catholic, he would take a little bit of wine. No not big—a little shot glass of wine with his dinner.

See Thorne, Sr. Dep. at 148:9–21.

6

Ohio law prohibits underage consumption of alcohol in any public place. See OHIO REV.CODE § 4301.69(E)(1). Further, Section

529.021 of the Codified Ordinances of the City of Steubenville provides that the purchase of alcohol by a minor constitutes a minor

misdemeanor. See City of Steubenville General Offenses Code § 529.021 (2006).

7

The court order dismissing the charges of underage drinking against Danny in the case of City of Steubenville, State of Ohio v.

Daniel Joseph Thorne, Jr., Case No. 04CRB839 (Municipal Court of Steubenville, Oct. 19, 2004), provides:

On the 20th day of September 2004, came the Plaintiff by counsel, Frank Noble, Esq. Steubenville Police City Prosecutor, and

came the Defendant in person and by counsel, William E. Galloway, Esq., before the Honorable Daniel G. Spahn, Judge.

Whereupon this matter came to be heard in regard to the Defendant’s Motion to Dismiss. At this time, counsel for the Plaintiff

conceded that the Plaintiff has no evidence this under age Defendant was drinking alcohol other than what was supplied by

the Defendant’s father at the Defendant’s home, which is not a violation of the law.

After due consideration of all the foregoing, the Court did Adjudge, Order, and Decree that the Defendant’s Motion to

Dismiss is granted and the charges against the Defendant herein are dismissed.

8

Officer Karovic had to answer the following questions for the polygraph: (1) Did you hit Daniel Thorne, Jr. in the face with a

flashlight?; (2) Did you hit Daniel Thorne, Jr. in the face with a flashlight on June 6, 2004?; and (3) Did you personally cause the

injuries to Dan Thorne, Jr. by striking him in the face with a flashlight? See Sullivan Dep. at 83:2–12. Officer Karovic answered all

three questions in the negative. According to Sullivan’s report, the polygraph administered to Officer Karovic was returned with a

letter stating, “Please be advised that Edward K. Karovic’s polygraph was evaluated as no deception indicated, and parenthesis,

‘truthful.’ ” See Sullivan Dep. at 81:2–7.

9

Plaintiffs assert that Danny did not submit to a polygraph examination because his head injuries would have an effect on the

accuracy of the results.

10

The Court notes that although Plaintiffs assert claims against Defendants Mucci, Williams, and McCafferty in both their official

and personal capacities, Plaintiffs have made no allegations regarding any individual conduct of these Defendants which could give

rise to personal capacity claims. Rather, Plaintiffs refer to the aforementioned Defendants only in their supervisory and

policy-making functions. The Court has, therefore, analyzed Plaintiffs’ claims against Defendants Mucci, Williams, and

McCafferty as “official capacity” claims only.

11

The Court’s docket reflects that Plaintiffs manually filed the following exhibits: (1) Deposition of Penny Keeder taken by Chief

McCafferty, Officer Lelles, Officer Karovic, the City of Steubenville, and City Manager Williams [Doc. No. 52]; (2) Deposition of

Daniel Thorne, Jr. taken by Chief McCafferty, Officer Lelles, Officer Karovic, the City of Steubenville, and City Manager

Williams [Doc. No. 53]; (3) Deposition of Vince Villon taken by Chief McCafferty, Officer Lelles, Officer Karovic, the City of

Steubenville, and City Manager Williams [Doc. No. 54]; (3) Deposition of Officer Karovic taken by Plaintiffs [Doc. No. 55]; (4)

Deposition of Officer Lelles taken by Plaintiffs [Doc. No. 56]; (5) Deposition of Sharon Thorne taken by Chief McCafferty,

Officer Lelles, Officer Karovic, the City of Steubenville, and City Manager Williams [Doc. No. 57]; (6) Affidavit of Jamie Kaine

by Plaintiffs [Doc. No. 58]; (7) Deposition of Chief McCafferty taken by Plaintiffs [Doc. No. 59]; (8) Deposition of Pete Basil

taken by Plaintiffs [Doc. No. 60]; (9) Deposition of Captain James Sloane taken by Plaintiffs [Doc. No. 61]; Deposition of Daniel

Thorne, Sr. taken by Chief McCafferty, Officer Lelles, Officer Karovic, the City of Steubenville, and City Manager Williams

[Doc. No. 62].

12

The Court entered an order on October 19, 2006, granting Defendants’ Motion to Strike with respect to the other exhibits listed in

17

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

Plaintiffs’ “Table of Contents,” reserving its judgment on Defendants’ Objection and Motion to Strike the Affidavit of Skip Mixon.

13

According to the Mixon Affidavit, Mixon was contacted by Thorne, Sr. on June 6, 2004 and asked to come to the Thorne residence

to examine Danny and photograph him. Mixon testified that he was “very familiar with photography and [has] operated a family

business with photography for the past twenty years in the Ohio Valley area.” See Mixon Aff. ¶ 4. The photographs are images of

Danny’s alleged injuries.

14

In United States v. Rohrig, the Sixth Circuit engaged in a detailed discussion of each of prongs of the “exigent circumstances”

analysis. See 98 F.3d at 1515–18. In discussing the “hot pursuit” prong, the Rohrig court wrote:

The “hot pursuit” justification for warrantless entry into a house derives primarily from the Supreme Court cases of Warden,

Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and United States v. Santana, 427

U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). In Hayden, upon being informed by witnesses that an armed robber had

entered a home minutes earlier, the police pursued the suspect into the home without first attempting to secure a warrant. 387

U.S. at 297, 87 S.Ct. 1642. Because “[s]peed here was essential” in order “to find a suspected felon, armed, within the house

into which he had run only minutes before the police arrived,” the Court concluded that the warrantless entry was reasonable.

Id. at 299, 87 S.Ct. 1642. The Court reasoned that “[t]he Fourth Amendment does not require police officers to delay in the

course of an investigation if to do so would gravely endanger their lives or the lives of others.” Id. at 298–99, 87 S.Ct. 1642.

Similarly, in Santana, the Court upheld a warrantless entry into a home where the defendant, a suspect in an ongoing drug

transaction, had been standing in the doorway with a brown paper bag in her hand, but had retreated into the vestibule as

police officers pulled up to her house and shouted “police” while exiting their vehicle. 427 U.S. at 40, 43, 96 S.Ct. 2406. The

Court found that the officers’ entry through the open door of the defendant’s house constituted “hot pursuit,” and thus was

permitted both under Hayden and in light of the officers’ “realistic expectation that any delay would result in destruction of

evidence.” Id. at 42–43, 96 S.Ct. 2406.

See 98 F.3d at 1515. The Court notes that the facts at issue in this case do not rise to the level of those set forth in the cases cited

above.

15

Disorderly conduct is considered a misdemeanor of the fourth degree, rather than a minor misdemeanor, in the following

situations:

(a) the offender persists in disorderly conduct after reasonable warning or request to desist.

(b) The offense is committed in the vicinity of a school or in a school safety zone.

(c) The offense is committed in the presence of any law enforcement officer, firefighter, rescuer, medical person, emergency

medical services person, or other authorized person who is engaged in the person’s duties at the scene of a fire, accident,

disaster, riot, or emergency of any kind.

(d) The offense is committed in the presence of any emergency facility person who is engaged in the person’s duties in an

emergency facility.

See OHIO REV.CODE § 2917.11(E)(3).

16

Lelles testified,

We had—based on the hour of the evening, the type of call, not knowing whose residence this was, for the safety of the

residence, the safety of the officers and other neighbors, we had every right, a warrantless entry into that yard, barring what

you talked about earlier, exigent circumstances or anything else, to engage that individual, identify him. It could have been a

juvenile, there were juveniles in that vehicle. Could have been an array of things. It could have been a perpetrator, the

perpetrator involved in the assault that I spoke about earlier, the attempted assault where [Officer] Sloane was interviewing

the white male at the scene. So there is an array of things.

Lelles Dep. at 88:13–89:5.

17

Officer Lelles was the senior officer, and Officer Karovic testified that he took over the initial conversation once Thorne, Sr. let

them into the home.

18

Although the Officers testified that Danny admitted to being drunk, Danny claims that he does not remember the conversation

occurring. Thorne, Sr. also testified that Danny never told the officers he had been drinking. Thorne, Sr. stated:

The only question was, “You was at the party next door drinking; wasn’t you? You was at the party next door drinking.” My

son was looking at [Officer Lelles]. My son was, what I would say, traumatized, in a daze, just looking at him and wouldn’t

respond no way. And that’s when I responded and says, “Daniel, tell him the truth. I gave you the alcohol. And at that point in

time, when I remember seeing [Sergeant] Gotschall saying, “You committed a crime then.” Patrolman Lelles said same thing.

“Well, you can go to jail, too.” Telling me I can go to jail in my own house for giving my son alcohol.

See Thorne, Sr. Dep. at 142:14–143:18.

19

Though Officer Karovic was present during Officer Lelles’ questioning of Danny, he does not recall whether he could smell

alcohol on Danny. Karovic Dep. at 91:9.

20

According to Ms. Keeder, after the party was over she saw numerous “beer bottles and beer cans,” though she did not know who

had been drinking. Keeder Dep. at 44:24–45:1, 14.

18

Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760 (2006)

21

Although Plaintiffs also claim that the fact that the City dropped all charges against Danny on October 19, 2004 is further evidence

that there was no probable cause to arrest him on June 5, 2006, their assertions run counter to the law. See DeFillippo, 443 U.S. at

37, 99 S.Ct. 2627 (noting that the fact that charges are later dismissed is irrelevant to the determination of whether there was

probable cause for that arrest); see also, Baker v. McCollan, 443 U.S. 137, 145–45, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (“The

Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every

defendant acquitted-indeed, for every suspect released.”).

22

The “physical facts rule” has been stated in a number of different ways. For instance, “The testimony of a witness which is

opposed to the laws of nature, or which is clearly in conflict with principles established by the laws of science, is of no probative

value, and a jury is not permitted to rest its verdict thereon.” Harris, 201 F.3d at 803. Also, “The testimony of a witness which is

positively contradicted by the physical facts cannot be given probative value by the court.” Id. (citing Lovas v. Gen. Motors Corp.,

212 F.2d 805, 808 (6th Cir.1954)).

23

The Harris court noted,

the physical facts rule is entirely consistent with the standard set forth in F.R.C.P. 56(c)—that summary judgment is warranted

where there is no ‘genuine issue as to any material fact.’ Obviously, where the only evidence submitted by a non-movant is

contradicted by indisputable physical facts, there can by no genuine issue of material fact for trial.

See 201 F.3d at 803 n. 1.

24

Plaintiffs assert counts two, four, five and six against the Defendants in their official capacities. An action against a person in his

official capacity is the same as an action against the government entity for whom the person works. See Kentucky v. Graham, 473

U.S. 159, 165–66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir.1998).

Thus, the immunities available to a defendant in an official-capacity action are those that the government entity possesses.

Graham, 473 U.S. at 167, 105 S.Ct. 3099.

25

The Consent Decree reads:

The City denies the allegations advanced by the United States. The City acknowledges that allegations have been advanced

against the City relating to the its [sic] management systems for police training, misconduct investigations, supervision and

discipline. The City denies such allegations. However, the parties agree that the manner and means of avoiding such claims is

to achieve and maintain good practices and procedures for police management. The parties enter into this Decree jointly and

for the further purpose of avoiding the risks and burdens of litigation.

Defs.’ Motion at Ex. J ¶ 3.

26

According to the Consent Decree, at the end of the investigation, the Internal Affairs (“IA”) officer

Shall give the investigative file to the Chief of Police, and shall make one of the following dispositions:

“Sustained,” where a preponderance of the evidence shows that misconduct or inappropriate behavior occurred.

“Unfounded” where a preponderance of the evidence shows that misconduct or inappropriate behavior did not occur.

“Not resolved,” where there is insufficient evidence to decide what happened.

“Exonerated,” where the conduct described by the complainant or other referral source occurred, but did not violate SPD

policy.

Defs.’ Motion at Ex. J ¶ 51 (emphasis added).

27

According to the Consent Decree, “ ‘Field Training Officer’ or ‘FTO’ means an experienced police officer whose responsibilities

include providing on-the-job training and supervision of probationary police officers, and continual training of all police officers.”

Defs.’ Motion at Ex. J ¶ 11.d.

	  

19

 
 Thorne v. Lelles, 243 Fed.Appx. 157 (2007)

243 Fed.Appx. 157 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or
after Jan. 1, 2007. See also Sixth Circuit Rule 28. (Find CTA6 Rule 28)
United States Court of Appeals, Sixth Circuit.
Daniel THORNE, Jr.; Daniel Thorne, Sr.; and Sharon Thorne, Plaintiffs-Appellees, v.
John LELLES and Edward Korovic, Steubenville Police Officers; City of Steubenville, Defendants-Appellants.
No. 06-4635. | Sept. 25, 2007.

On Appeal from the United States District Court for the Southern District of Ohio. BEFORE: SUTTON and McKEAGUE, Circuit Judges; and FORESTER, Senior District Judge.*

*

The Honorable Karl S. Forester, Senior United States

District Judge for the Eastern District of Kentucky,

sitting by designation.

Opinion MEMORANDUM OPINION
PER CURIAM.

In this 42 U.S.C. § 1983 action, plaintiffs allege that Steubenville Police Officers John Lelles and Edward Korovic violated their Fourth-Amendment rights when they seized Daniel Thorne, Jr. in his family’s backyard, allegedly beat him with a Maglite flashlight, and arrested him for underage drinking. The defendants moved for summary judgment, asserting that they were protected from liability under the qualified-immunity doctrine. The district court denied the motion in part, holding that there were genuine issues of material fact on the plaintiffs’ warrantless-entry, excessive-force, and false-arrest claims. The defendants filed this interlocutory appeal on the warrantless-entry and false-arrest claims.
We affirm in part and reverse in part. Having had the benefit of oral argument and having carefully considered the record on appeal, we are not persuaded that a lengthy opinion is necessary. As to the plaintiffs’ warrantless-entry claim against Officer Korovic, we AFFIRM for the reasons set forth by the district court. Thorne v. Steubenville Police Officer, 463 F.Supp.2d 760, 771-74, 775-77 (S.D.Ohio 2006). On the plaintiffs’ false-arrest claim against Officer Lelles, we likewise AFFIRM for the reasons set forth by the district court. Id. at 774-77. As both parties acknowledged during oral argument, however, there is no evidence in the *158 record that Officer Lelles had any involvement in the warrantless entry of the plaintiffs’ backyard, nor is there any evidence that Officer Korovic participated in the arrest of Daniel Thorne, Jr. Accordingly, we REVERSE the judgment of the district court on those two latter claims and REMAND the case for further proceedings.
Parallel Citations
2007 WL 2781151 (C.A.6 (Ohio))
	  

1