Case 1:06-cv-00054-SJD-MRM Document 2-1 Filed 01/31/2006 Page 1 of 6 .,

IN THE COURT OF COMMON PLEAS CIVIL DIVISION
HAMILTON COUNTY, OHIO

SIMON L. LEIS, JR., SHERIFF OF HAMILTON COUNTY, OHIO I 000 Sycamore Street Cincinnati, Ohio 45202

Case NcA 06 Q0 6 5t

Plaintiff, vs.

COMPLAINT FOR DECLARATORY JUDGMENT

AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, INC., 4506 Chester Avenue Cleveland, Ohio 44103

SERVE ALSO:
c/o Alphonse A. Gerhardstein 617 Vine Street, Suite 1409 Cincinnati, Ohio 45202

JAN 2 8 2006
GAEGopy HABIMA.NN COMMON PLEAS COURTS

Defendant

PRELIMINARY STATEMENT
I. _On April II, 2002, following a period of general civil unrest in the City of
I
Cincinnati, Ohio, defendant, American Civil Liberties Union of Ohio Foundation, Inc., (ACLU) entered into an agreement with the City and others ostensibly to resolve disputes between the agreeing parties. These disputes arose in connection with litigation in the United States District Court for the Southern District of Ohio, Western Division, entitled: In Re: Cincinnati Policing, bearing case number: C-1-99-317. This settlement agreement is popularly known the "Collaborative Agreement." (Agreement attached as exhibit A). Neither the Sheriff of

Case 1:06-cv-00054-SJD-MRM Document 2-1 Filed 01/31/2006 Page 2 of 6
Hamilton County, Ohio, nor the county were parties to the Collaborative Agreement, and further, neither were parties in the underlying litigation giving rise to the agreement.
2. The Plaintiff Simon L. Leis, Jr., is the Sheriff of Hamilton County, Ohio, and is empowered by state law to perform law enforcement functions within the boundaries of the county including those areas within the Ci~ of Cincinnati. In October 2005, Sheriff Leis publicly stated that his department was exploring the possibility of conducting law enforcement patrols within the City of Cincinnati. Following this pronouncement, the ACLU sent a letter to the Sheriff indicating that all structured law enforcement programs conducted within the City of Cincinnati are subject to the provisions of the Collaborative Agreement. (Letter attached as exhibit B).
4. As a result of the controversy that has arisen, the Sheriff seeks a determination that he and the employees of the Hamilton County Sheriffs Department are not parties to the "Collaborative Agreement," between the City of Cincinnati and the ACLU. Sheriff Leis further seeks judgment declaring that he and his department are not subject to the requirements of the "Collaborative Agreement," nor otherwise bound by its terms and conditions.
PARTIES 5. Plaintiff Simon L. Leis, Jr., is the Sheriff of Hamilton County, Ohio. Under the laws of the State of Ohio, he is the chief law enforcement officer of the county. 6. Defendant American Civil Liberties Union of Ohio, Foundation, Inc. is an Ohio corporation, domiciled in the State of Ohio.
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Case 1:06-cv-00054-SJD-MRM Document 2-1 Filed 01/31/2006 Page 3 of 6
>/.
FACTS 7. Plaintiff, as Sheriff of Hamilton County, commands a department of over I000 deputy sheriffs. The jurisdiction of his department is countywide and includes those areas within municipal corporations in Hamilton County. Law enforcement functions performed by the Sheriff and his deputies are done under the authority of the Ohio Constitution, Revised Code (specifically Chapter 311), and common law. The Sheriffs power and jurisdiction to conduct Jaw enforcement functions within Hamilton County are separate and independent from any jurisdiction which may be exercised by the City of Cincinnati and its Police Department. 8. Historically the City of Cincinnati, the largest municipality in Hamilton County has employed it's own police force to enforce the criminal laws of Ohio within the city limits of Cincinnati. As a result, the Hamilton County Sheriffs Department has not generally patrolled within the city limits of Cincinnati. 9. In April of2002, the City of Cincinnati, the ACLU, and others entered into a agreement to settle various lawsuits pending against the City of Cincinnati in Federal District Court for the Southern District of Ohio. The agreement, popularly known as the "Collaborative Agreement," was negotiated solely by the parties to the agreement. The agreement directs the manner in which Cincinnati police officers are to perform their jobs and establishes additional policy and procedural requirements for the Police Department. , I 0. The parties to the Collaborative Agreement did not include the Sheriff, his department, Hamilton County, or the State of Ohio. None of the foregoing persons or entities were parties to the underlying litigation or the negotiations which resulted in the Collaborative Agreement.
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Case 1:06-cv-00054-SJD-MRM Document 2-1 Filed 01/31/2006 Page 4 of 6

II. The Collaborative Agreement contains no specific references to the Sheriff, his

deputies, the Sheriffs Department, or Hamilton County.

12. On numerous occasions, concerned residents and business owners have requested

that the Sheriffs Department institute patrols within the city limits of Cincinnati, specifically in

that area of downtown Cincinnati known as Over-the-Rhine. 13. The prospect of patrols by the Sheriff within the City of Cincinnati has generated

substantial public discussion and comment.

14. As a result of the publicity attending the prospect of the Sheriff instituting patrols

in Over-the Rhine, attorneys representing the ACLU notified the Sheriff by letter dated October

27, 2005, that the terms of the Collaborative Agreement apply to Sheriff and his deputies when

they perform law enforcement functions within the city limits of Cincinnati. Upon information

and belief, no other law enforcement agency conducting law enforcement functions within

Cincinnati has received such a letter. 15. On December 7, 2005, the Sheriff instituted patrols in the vicinity of county

buildings and areas in which commuting county employees park. The area in which these

campus patrols are conducted includes the area bounded by Walnut Street on the west, Fifteenth

Street on the north, and Ninth Street on the south. It includes the parking lots lying to the south

and

east

of

Central

Parkway/Reading

Road,

and

extends

to

the

intersection
'

of

Reading

Road

and

Liberty Street. On January 23, 2006, the Sheriff also conducted patrols in the area between

Central Parkway and Liberty Street bounded by Race and Vine Streets.

-4-

Case 1:06-cv-00054-SJD-MRM Document 2-1 Filed 01/31/2006 Page 5 of 6

CAUSE OF ACTION

16. The Sheriff brings this action under Chapter 2721 of the Ohio Revised Code

specifically sections 2721.02 and 2721.03 seeking a declaration of his legal rights and status and

those of his department and employees under the Collaborative Agreement.

17. Both parties are "persons" as that term is defined in R.C. §2721.01.

18. The ACLU as a party to the Collaborative Agreement is "person interested" in

that agreement under R.C. § 2721.03. 19. The Sheriff, although not a party to the Collaborative Agreement, is a "person

interested" in the written agreement through the insistence by the ACLU that he and his deputies

are subject to its terms when conducting law enforcement functions within the City of

Cincinnati. 20.

A controversy has arisen between the parties with respect to the application of the

Collaborative Agreement to the exercise of law enforcement functions by the Sheriff and his

deputies within the City of Cincinnati. 21. A declaration of the applicability of the Collaborative Agreement to law

enforcement functions performed by the Sheriff and his deputies within the City of Cincinnati

will resolve the controversy that now exists.

I
PRAYER FOR RELIEF WHEREFORE, Plaintiff demands that this Court enter an Order declaring: A) Plaintiff Sheriff Simon L. Leis, Jr., is not subject to the Collaborative Agreement
entered into on April II, 2002 by the City of Cincinnati, the ACLU and others; and, further,

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Case 1:06-cv-00054-SJD-MRM Document 2-1 Filed 01/31/2006 Page 6 of 6
B) Plaintiff Sheriff Simon L. Leis, Jr., together with his deputy sheriffs and the members of the Hamilton County Sheriffs Department are not subject to any of the requirements, terms or conditions of the "Collaborative Agreement" while enforcing the criminal laws of the State of Ohio or while conducting law enforcement functions within the city limits of the City of Cincinnati; and,
C) For such other relief to which Plaintiff may be entitled.
Respectfully submitted, JOSEPH T. DETERS PROSECUTING ATTORNEY HAMILTON COUNTY, OHIO
/
David T. Stevenson, 0030014 Jerome A. Kunkel, 0039562 Assistant Prosecuting Attorneys 230 East Ninth Street, Suite 4000 Cincinnati, Ohio 45202 DDN: (513) 946-3120 (Stevenson) DDN: (513) 946-3103 (Kunkel) FAX: (513) 946-3018 e-mail: dave.stevenson@hcpros.org
jerrv .kunkel@ hcpros.org TRIAL ATTORNEYS FOR PLAINTIFF
I
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 Case: 1:06-cv-00054-SJD-MRM Doc #: 29 Filed: 08/08/06 Page: 1 of 6 PAGEID #: 154

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

SIMON L. LEIS, JR., Sheriff of Hamilton County, Ohio,

Plaintiff,

: Case No. 1:06-cv-054

- vs -
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OHIO, INC.,

District Judge Susan J. Dlott Chief Magistrate Judge Michael R. Merz

Defendant,

and

:

CITY OF CINCINNATI, OHIO,

Intervenor-Defendant.

DECISION AND ORDER

This case is before the Court on Defendant ACLU’s Emergency Motion for Declaratory Judgment Pending Final Resolution in this Case (Doc. No. 24). The Motion is not classified as “dispositive” by 28 U.S.C. §636(b)(1)(A) and is therefore a magistrate judge has authority to rule on it rather than recommending a disposition.
Plaintiff Simon L. Leis, Jr., the Sheriff of Hamilton County, Ohio, announced in October, 2005, the possibi lity that his departm ent would begin policing patrols in the Over-The-Rhine neighborhood of the City of Cincinnati. Defe ndant ACLU wel comed that additional police protection for the citizens, but insisted the Sheriff should operate under the Collaborative Agreement

1

Case: 1:06-cv-00054-SJD-MRM Doc #: 29 Filed: 08/08/06 Page: 2 of 6 PAGEID #: 155
to govern policing in the City, negotiated in 2002 among the City, the Fraternal Order of Police, the ACLU, and the Black Uni ted Front.1 The Sheriff dem urred and brought this action to obtain a declaration of the obligations, if any, im posed on him and his departm ent by the Collaborative Agreement.
The Sheriff originally sought relief in the Hamilton County Common Pleas Court, but the ACLU removed the case to this Court which had uspervised the negotiations and eventually entered the Collaborative Agreement as a court order. Sheriff Leis moved to remand, but has never filed objections to the recommended decision that this Court retain jurisdiction.2 Shortly after remand was denied, the City of Cincinnati intervened in the case, also asserting that the Sheriff should be bound by the Collaborative Agreement when performing policing activities in the City.
Once the remand motion was denied, the parties agreed on a schedule for resolution of this case and the Court adopted that schedule (Doc. Nos. 20, 22). Under the schedule, discovery is to be completed by August 15, 2006, and summary judgment motions would be filed by September 15, 2006, with a decision to f ollow as soon as possible thereaf ter. The Court em phasizes that this schedule was proposed by and agreed to by all parties, including the Sheriff.
However, rather than wait for the relief he himself requested, Sheriff Leis began the patrols
1The Collaborative Agreement incorporates the terms of the Memorandum of Understanding between the City of Cincinnati and the United States Department of Justice entered into at the same time as a result of the DOJ’s investigation of City policing practices.
2At the Sheriff’s request, the Motion to Remand was handled on an extremely expedited basis. The Motion to Remand became ripe for decision on March 8, 2006, and a recommended decision was filed March 13, 2006. However, rather than press his request for a prompt ruling, the Sheriff then stipulated that his time to object would be extended until the undersigned recommended a decision on the merits, thus permitting this Court to continue to exercise jurisdiction without objection.
2

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on August 1, 2006. During an emergency conference with the Court that day, the Sheriff, through counsel, refused without explanation a request to delay the patrols pending a court decision. The ACLU’s Motion followed the same day and the Sh eriff and City have briefed the m atter on an expedited basis.3
The ACLU seeks an em ergency declaration that, pending final decision of t his case, the Collaborative Agreement is binding on Sheriff Leis and his patrols inside the City are subject to it (Doc. No. 24 at 3-4). The City of Cincinnati has responded that it neither objects to the Sheriff’s patrols nor to the ACLU request that the Sherfif be subject to the Collaborative Agreement pending final decision (Doc. No. 25).
Sheriff Leis opposes the ACLU’s Motion on a number of grounds4. He asserts first of all that it is without evidentiary support, asking the Court to exclude the letters between the Sheriff a nd Chief Streicher attached to the Motion. Desp ite that objection, t he Sheriff himself makes unsupported factual assertions, such as these patrols are in response to “urgent public requests.”
Glaringly absent fromthe Sheriff’s Memorandum is any explanation of why, having invoked the Court’s jurisdiction, he has now proceeded w ithout awaiting the relief he sought. What has changed his mind? He does not say. Surely it cannot be delay by the Court, for we are proceeding
3The public may have expected a decision last week (See Cincinnati Enquirer story “Police await judge’s decision” which predicted a decision as early as August 3, 2006. Viewed at http://news.enquirer.com/apps/pbcs.dll/article?AID=/20060803/NEWS01/608030375/1056). The Magistrate Judge was, however, in Washington, D.C., on official business on August 2, 3, and 4, 2006.
4The Sheriff is correct that it would be inappropriate in this case for the Magistrate Judge to seek ex parte input from Saul Green, the Collaborative Monitor in In re Cincinnati Policing. Without foreclosing eventual input from Mr. Green in this case, the Court has not consulted him ex parte prior to this Decision.
3

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on the schedule he proposed and agreed to; if he believed a quicker answer was needed, he could always have moved to amend the schedule. He does not claim that the Cincinnati Police have become less effective since he filed the suit and the citizens cannot wait any longer. Nor does he suggest how his department’s effectiveness would be in any way impaired by complying with the Collaborative Agreement until this case is decided. In sum, the Sheriff makes no policy case for his position at all.
Instead of stating whatever objections he has tothe Collaborative, the Sherif asserts that the law does not recognize declarat ory relief pending trial, that the relief the ACLU seeks is in the nature of preliminary injunctive relief, and the ACLU has not made an adequate showing to be entitled to such relief. He asserts that, as an independently elected law enforcement officer, he has general authority to enforce the law inside th e City of Cinc innati without reference to the Collaborative Agreement, to which he is not a party.
To obtain a preliminary injunction a party must show: 1) A strong or substantial likelihood or probability of success on the merits; 2) Irreparable injury; 3) That issuance of a preliminary injunction would not cause substantial harm to others; and 4) That the public interest would be served by i ssuing a preliminary injunction.
Nightclubs, Inc. v. City of Paducah,202 F.3d 884, 888 (6th Cir. 2000); McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir.1997) (en banc); Washington v. Reno, 35 F.3d 1093, 1099 (6t h Cir. 1994); NAACP v. City of Mansfield , 866 F.2d 162, 166 (6th Cir. 1989); Frisch's Restaurant, Inc. v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985).
4

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The Sheriff asserts that the ACLU has not made out a case for preliminary injunctive relief, but that is far from clear. As the ACLU notes, ¶ 12 of the Collaborative Agreement provides that it is binding on all persons in active concert with any of the parties. It is at least arguably the case that this is what is happening under the protocol negotiated between the Sheriff and the Chief of Police. As noted above, the Sheriff has made no showing that it would impose any harm on him, much less substantial harm, to comply with the Collaborative Agreement until this case is decided. Certainly the public interest would be well servedby having the routine police patrols in Over-TheRhine subject to the same procedures which would be less confusing to the citizens.
However, the ACLU has not requested prelim inary injunctive relief .5 Instead, it has requested a form of relief – interim declaratory relief – which this Court does not have power to grant. 28 U.S.C. §2201 authorizes federal courts inappropriate circumstances to enter declaratory judgments which will have “the force and effect of a final judgm ent or decree and shall be reviewable as such.” That declaratory relie f be final and binding on the parties is probably necessary to avoid the constitutional prohibiti on on advisory opinions by f ederal courts, a prohibition which delayed for m any years adoption of the Declaratory Judgm ent Act. Compare Muskrat v. United States, 219 U.S. 346 (1911), andWilling v. Chicago Auditorium Assn., 277 U.S. 274 (1928), with Nashville, C & St. L. Ry. Co. v. Wallace, 288 U.S. 249 (1933). Put simply, interim declaratory relief would merely constitute a court’s expression of opinion about how it probably will decide the case. However useful such an opinoin might be in many instances, it is beyond the power scope of federal judicial authority.
5Indeed, as the Sheriff notes, the ACLU has not filed a counterclaim in this case to request the Court to declare the Collaborative Agreement is binding on the Sheriff. All it has asked is that the Complaint be dismissed with prejudice.
5

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The Emergency Motion for Declaratory Judgment Pending Final Resolution in this Case is therefore denied.6

August 8, 2006.

s/ Michael R. Merz Chief United States Magistrate Judge

6Plaintiff’s Motion to Strike (Doc. No. 28) is denied as moot. The Court has not relied on any of the materials attached to the Reply Memorandum in deciding the underlying Motion.
6

 
 Case: 1:06-cv-00054-SJD-MRM Doc #: 33 Filed: 08/11/06 Page: 1 of 4 PAGEID #: 180

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

SIMON L. LEIS, JR., Sheriff of Hamilton County, Ohio,

Plaintiff,

: Case No. 1:06-cv-054

- vs -
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OHIO, INC.,

District Judge Susan J. Dlott Chief Magistrate Judge Michael R. Merz

Defendant,

and

:

CITY OF CINCINNATI, OHIO,

Intervenor-Defendant.

DECISION AND ORDER DENYING MOTION TO RECUSE

This case is before the Court on Plaintiff’s Motion to Recuse made pursuant to 28 U.S.C. § 455 (Doc. No. 32).
Motions to recuse under §455 are to be decided in the first instance by the judicial officer sought to be disqualified. United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1988); In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988) reh’g denied, 869 F.2d 116; MacNeil v. Americold Corp., 735 F. Supp. 32, 36 (D. Mass. 1990)(specifcially applying rule to United States magistrate judges).
The standard applied in evaluating recusal motions is an objective one. "[W]hat matters is

1

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not the reality of bias or prejudice, but its appearance." Liteky v. United States, 510 U.S. 540, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994). A federal judicial officer must recuse himself or herself where "a re asonable person with knowledge of a ll the facts would conclude that the judge' s impartiality might reasonably be questioned. This standard is not based 'on the subjective view of a party,'" no matter how strongly that subjective view is held. United States v. Nelson, 922 F.2d 311 (6th Cir. 1990); Hughes v. United States , 899 F.2d 1495 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246 (6th Cir. 1989); Browning v. Foltz, 837 F.2d 276, 279 (6th Cir. 1988).
Plaintiff asserts an inconsistency between the roles assigned to me in this case and in In re Cincinnati Policing, Case No. 1:99-cv-3170. Plaintiff correctly characterizes the role in this case as purely judicial: interpreting the Collaborative Agreem ent and deciding the contested question whether a non-party is subject to it.
Plaintiff however characterizes my role underthe Collaborative Agreement very differently: “As the Conciliator, Judge Merz has been tasked with insuring the success of the Collaborative Agreement and compliance with its terms. . . . [H ]e must placate the parties to the Collaborative Agreement, advise them, and resolve disputes between them . . . .” (Doc. No. 32 at 1). This characterization misunderstands the role assigned by the Collaborative Agreement and this Court’s Order of Reference after the Collaborative Ag reement was signed. ¶ 97 provides that the undersigned will be appointed as Conciliator “pursuant to Fed. R. Civ. P. 53.” ¶¶ 110-113 provide that the Conciliator is to determ ine from the M onitor’s quarterly reports if the parties are in compliance with the Collaborative Agreem ent and, if not, to “issue an ordering directing such compliance pursuant to Fed. R. Civ. P. 53.” Id. at ¶ 113. Judge Dlott’s Order of Reference (Doc. No. 92) specifically says that it is made pursuant to Fed. R. Civ. P. 53.
2

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Of course, appointment as a special master under Rule 53 is a frequent role for United States Magistrate Judges and is in no way inconsistent with their position as independent judicial officers. Nothing in either the Col laborative Agreement, the Order of Reference, or Fed. R. Civ. P. 53 requires the undersigned to placate anyone, advise anyone, or resolve any disputes am ong them except when acting in a judicial capacity. For that reason, the undersigned has carefully refrained since appointment as Conciliator under Fed. R. Civ. P. 53 from any ex parte contacts with any of the parties, even w hen trying to m ediate disputes under the A greement. W hile the title “Conciliator,” which was chosen by the parties, may imply a different approach, in fact the role is purely as a special master.
For these reasons, the roles I have been assigned in both of these cases are com pletely compatible. In both I am responsible when called upon to interp ret and apply the Collaborative Agreement impartially and in a judicial capacity.
A judge is not disqualified because she or hehas participated in settlement negotiations. In Omega Engineering, Inc. v. Omega, S.A., 432 F.3d 437 (2nd Cir. 2005), the Second Circuit held that knowledge about a case a m agistrate judge gained from the discharge of his judicial func tion in managing the settlem ent negotiations was not grounds for disqualification under 28 U.S.C. § 455(b)(1).
If the Sherif f’s objection is that I am committed to the success of the Collaborative Agreement, it is my judicial role which requires that commitment. The Collaborative Agreement is an order of this Court. Surely a judge cannot bdeisqualified because he or she is, and is perceived to be, committed to carrying out the court’s orders.
3

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The motion to recuse is denied. August 10, 2006.

s/ Michael R. Merz Chief United States Magistrate Judge

4

 
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-- ---

- - --

SETTLEMENT AGREEMENT Leis v. ACLU, et ai, USDC SD OB Case No. 1:06CV054
This settlement agreement is entered into between Simon Leis, the Hamilton County Sheriff (HCSO), the American Civil Liberties Union of Ohio Foundation, Inc. (ACLU) and the City of Cincinnati (City). It is intended solely to resolve the disputes between the parties that are further described below and is not intended as an admission by any party on the merits of the litigation to which the agreement applies.
Whereas, the Sheriff of Hamilton County and the deputies that comprise the Hamilton County Sheriffs Office (HCSO) have independent legaljurisdiction under Ohio law to patrol within the City of Cincinnati and enforce the law;
Whereas, the HCSO has pursuant to this authority, commenced scheduled, structured patrols by deputy sheriffs in the Cincinnati neighborhood of Over the Rhine (OTR);
Whereas, the ACLU and the City are parties to a previous settlement agreement known as the Collaborative Agreement, a binding five year agreement effective August 5, 2002 with the goal of improving trust between citizens and the Cincinnati Police Department;
Whereas the Sheriff and the HCSO are not parties to the Collaborative Agreement nor were they parties to the lawsuit that resulted in the Collaborative Agreement, In re Cincinnati Policing, USDC, SD OH, Case No. C-1-99-317;
Whereas the Collaborative Agreement provides that, "The parties, their agents, successors and all persons in active concert or participation with any of them shall abide by the terms of this agreement;" and disputes have arisen as to whether this provision of the Collaborative Agreement applies to the structured law enforcement activities of HCSO conducted within OTR;
Whereas, the structured OTR patrols by the HCSO include joint roll call with the CPD, deputies carrying CPD radios while on patrol, and regular interaction between the HCSO and the Cincinnati Police Department (CPD) in an area of the City regularly patrolled by the CPD;
Whereas, Sheriff Leis has filed a lawsuit against the ACLU seeking a declaration that he and the HCSO are not subject to the Collaborative Agreement during the OTR patrols, Leis v. ACLU, et aI, USDC SD OH Case No.1 :06CV054 (removed action), HCCP Case no. A0600652 (original action);
Whereas it is not the intent of Sheriff Leis to interfere with the ongoing function of the Collaborative Agreement and the obligations of the parties thereto;
Whereas the City of Cincinnati has intervened as a defendant in Leis v. ACLU;

Whereas, the parties to that lawsuit seek to resolve their differences in a manner that permits and encourages the HCSO OTR patrols to proceed and does not interfere with the obligations of the parties to the Collaborative Agreement;
THEREFORE, in consideration of the mutual obligations undertaken by each of the parties as set out below, the parties agree to resolve this dispute by focusing on the obligations of the parties going forward as follows:
1. The HCSO use of force policies and training shall be examined by Saul Green, monitor in In re Cincinnati Policing for the purpose of determining and certifying whether HCSO policies and training are substantially similar to the City of Cincinnati policies that have been deemed in compliance by the monitor. If that certification cannot be made, the monitor shall provide written notice to the parties specifying the dissimilarities. The ACLU and the Sheriff agree to meet and attempt to resolve any dissimilarities issue before returning to court, and may ignore the insubstantial dissimilarities by agreement.
2. The HCSO deputies assigned to the structured OTR patrol will request assistance from CPD mental health response teams when responding to a situation in which such assistance is appropriate. HCSO deputies will insure that they receive appropriate training regarding this resource.
3. Consistent with the initial instructions from Sheriff Leis, the HCSO will continue to instruct deputies involved in the structured OTR patrols to interact with citizens in a positive manner, making friends, building trust, and enforcing the law with an even hand.
4. The HCSO agrees that its deputies will participate in interviews by investigators from the Citizen's Complaint Authority (CCA) when the CCA is investigating use of force or complaints against Cincinnati Police Officers. In case of joint action by deputies and city police officers-,t-he investigator may need to ask questions about all of the actions of the various participants to determine what actions were taken by the CPD officers. The HCSO is not agreeing to be subject to the jurisdiction of the CCA regarding its own officers.
5. The HCSO will investigate any claims of misconduct by its own officers engaged in the OTR structured patrol and agrees to share with the CCA a complete copy of any internal investigation done by the HCSO based on any such complaint.
6. The HCSO agrees to continue making available all records of patrol and law enforcement activity generated during HCSO structured OTR patrols, including those records that reflect the race of the citizens interacting with the HCSO deputies.

7. The City and ACLU agree, as appropriate, to inform the HCSO ofCPOP efforts underway in OTR as part of the joint roll call for the officers.
8. The activities of HCSO covered by this agreement include only the structured patrol activity in OTR and do not include other ongoing operations of the Sheriff and HCSO, including but not limited to: warrant service, court services, prisoner transportation, corrections, campus patrols, participation in operational law enforcement task force activity other than the patrol activity mentioned in this agreement regardless whether or not CPD is also a participant, investigations by HCSO within the City of crimes occurring outside its borders, and unplanned law enforcement activity by deputies occasioned by observed criminal activity.
9. In the event that a party believes a breach of this agreement has occurred, it shall provide written notice specifying the alleged breach of the terms of this agreement to all parties. Following notice, the parties shall not file any court action for 14 days. During this period, the parties shall attempt to resolve the dispute without court intervention.
10. All obligations included in this settlement agreement shall terminate upon the earlier of: 1) the termination of the court supervision of the Collaborative Agreement as specified in that agreement, or 2) the cessation of the scheduled, structured patrol activities by HCSO in OTR.
11. The Sheriff shall cause this settlement agreement to be entered as a Special Order and shall distribute same to all deputy sheriffs who are participating in the structured patrols in OTR.
12. Upon the execution of this settlement agreement, the parties agree to stipulate the conditional dismissal of Leis v.ACLU Foundation, et aI, USDC SD OH Case No.1 :06CV054, under F.R.C.P. 41(a). Jurisdiction ofthe court shall be preserved for enforcement of these terms consistent with Kokkonen v. Guardian Life Insurance of America, 511 U.S. 375, 114 S.Ct. 1673 (1994) and Caudill v. North American Media Corp., 200 F.3d 914 (6thCir. 2000).
13. All notices required under this settlement agreement shall be sent to:
HSCO:
Sean D. Donovan Chief Deputy Hamilton County Sherriffs Office Room 110 Hamilton County Justice Center 1000 Sycamore Street Cincinnati, Ohio 45202
ACLU:

Alphonse A. Gerhardstein Gerhardstein, Branch, and Laufman 1409 Enquirer Building 617 Vine Street Cincinnati, Ohio 45202
City of Cincinnati:
Milton R. Dohoney, Jr. City Manager City of Cincinnati 801 Plum Street Cincinnati, OH 45202 AND
Thomas H. Streicher, Jr. Chief of Police 310 Ezzard Charles Drive Cincinnati, Ohio 45202 AND
J. Rita McNeil City Solicitor Room 214 City Hall 801 Plum Street Cincinnati, Ohio 45202
2006.
City of Cincinnati By: Thomas H. Streicher, Jr. Chief of Police

au

\

American Civil Liberties Union of Ohio Foundation, Inc. By: Alphonse A. Gerhardstein

 
 CM/ECF LIVE - U.S. District Court:OHSD - Docket Report

Page 1 of 7

CASREF, CLOSED
U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:06-cv-00054-SJD-MRM

Leis v. American Civil Liberties Union of Ohio Foundation, Date Filed: 01/31/2006

Inc

Jury Demand: None

Assigned to: Susan J. Dlott

Nature of Suit: 440 Civil Rights: Other

Referred to: Michael R Merz

Jurisdiction: Federal Question

Related Case: 1:99-cv-03170-SJD-MRM

Cause: 28:1441 Petition for Removal- Declaratory Judgemen

Plaintiff Sheriff Simon L Leis, Jr

represented by David Todd Stevenson Hamilton County Prosecutor Civil Unit 230 E Ninth Street Suite 4000 Cincinnati, OH 45202-2151 513-946-3120 Email: dave.stevenson@hcpros.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerome A Kunkel Hamilton County Prosecutor's Office 230 East 9th Street Suite 4000 Cincinnati, OH 45202 513-946-3103 Email: jerry.kunkel@hcpros.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
American Civil Liberties Union of Ohio Foundation, Inc

represented by Alphonse Adam Gerhardstein Gerhardstein Branch & Laufman Co. LPA 617 Vine Street # 1409 Cincinnati, OH 45202 513-621-9100 Email: agerhardstein@GBfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Cincinnati, City of

Scott Greenwood 1 Liberty House PO Box 54400 Cincinnati, OH 45254-0400 513-943-4200 Fax: 513-943-4800 Email: law@scottgreenwood.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard Ganulin Assistant City Solicitor - 1 801 Plum Street Cincinnati, OH 45202 513-352-3334 Fax: 513/352-3334 Email: richard.ganulin@cincinnatioh.gov ATTORNEY TO BE NOTICED

Date Filed 01/31/2006 01/31/2006
01/31/2006
02/08/2006
02/22/2006 02/23/2006 03/03/2006

#

Docket Text

Filing fee: $ 250, receipt number 429486 (tt1, ) (Entered: 02/01/2006)

1 NOTICE OF REMOVAL by Defendant American Civil Liberties Union of Ohio Foundation, Inc, from Court of Common Pleas, Hamilton County, Ohio, case number A0600652. ( Filing fee $ 250) (tt, ) Additional attachment # 1 Filing Fee Receipt added on 2/1/2006 (tt, ). Modified on 2/1/2006 - To identify attachment (tt, ). (Entered: 02/01/2006)

2 COMPLAINT for Declaratory Judgment against American Civil Liberties Union of Ohio Foundation, Inc filed by Plaintiff Simon L Leis, Jr, ; No jury demand 48BE (Attachments: # 1 Exhibit A - Collaborative Agreement (Part I) # 2 Exhibit A - Collaborative Agreement (Part II) # 3 Exhibit B # 4 Civil Cover Sheets)(tt, ) (Entered: 02/01/2006)

3 MOTION to Remand Matter to the Common Pleas Court of Hamilton County, Ohio and Request for Expedited Scheduling Order by Plaintiff Simon L Leis, Jr. (Attachments: # 1 Exhibit Unreported case# 2 Exhibit Statutes)(Stevenson, David) (Entered: 02/08/2006)

4 ANSWER to Complaint by Defendant American Civil Liberties Union of Ohio Foundation, Inc.(Greenwood, Scott) (Entered: 02/22/2006)

5 NOTICE of Deadline: Rule 26(f) Report due by 3/30/2006. (ba, ) (Entered: 02/23/2006)

6 ORDER REASSIGNING CASE. Case reassigned to Judge Susan J. Dlott for all further proceedings. Judge Michael H. Watson no longer assigned

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03/03/2006 03/03/2006
03/03/2006 03/03/2006
03/07/2006 03/07/2006 03/08/2006
03/08/2006
03/09/2006 03/13/2006
03/28/2006

to case. (wam, ) (Entered: 03/03/2006)
7 ORDER REFERRING CASE to Magistrate Judge Michael R Merz. Signed by Judge Susan J. Dlott on 3/3/06. (wam, ) (Entered: 03/03/2006)
8 RESPONSE in Opposition re 3 MOTION to Remand Matter to the Common Pleas Court of Hamilton County, Ohio and Request for Expedited Scheduling Order filed by Defendant American Civil Liberties Union of Ohio Foundation, Inc. (Greenwood, Scott) (Entered: 03/03/2006)
9 MOTION to Consolidate Cases by Defendant American Civil Liberties Union of Ohio Foundation, Inc. (Greenwood, Scott) (Entered: 03/03/2006)
(Former doc. #10) ORDER REASSIGNING CASE. Case reassigned to Judge Susan J. Dlott for all further proceedings. Judge Susan J. Dlott no longer assigned to case. Signed by Judge Michael H. Watson on 3/3/2006. (ba1, ) Modified docket text on 3/7/2006 (scot, ). (Entered: 03/03/2006)
Notice of Correction: Former doc. 10 removed due to clerical error/duplicate entry to 6 Order reassigning case. (scot, ) (Entered: 03/07/2006)
10 RESPONSE in Opposition re 9 MOTION to Consolidate Cases filed by Plaintiff Simon L Leis, Jr. (Stevenson, David) (Entered: 03/07/2006)
11 Reply to Response to Motion re 3 MOTION to Remand Matter to the Common Pleas Court of Hamilton County, Ohio and Request for Expedited Scheduling Order filed by Plaintiff Simon L Leis, Jr. (Stevenson, David) Modified docket text on 3/9/2006 (scot, ). (Entered: 03/08/2006)
12 DECISION AND ORDER DENYING 9 MOTION TO CONSOLIDATE - The Motion to Consolidate is DENIED without prejudice to any motion which might make one or more of the parties in In re Cincinnati Policing parties to this action. It is ORDERED that counsel for Plaintiff provide copies of all documents heretofore filed in this case to each of the counsel of record in In re Cincinnati Policing and to Gregory Gonzalez, Saul Green and Richard Jerome. Signed by Judge Michael R Merz on 3/8/06. (dp1 ) (Entered: 03/08/2006)
13 CERTIFICATE OF SERVICE by Plaintiff Simon L Leis, Jr (Stevenson, David) (Entered: 03/09/2006)
14 REPORT AND RECOMMENDATIONS re 3 the MOTION to Remand Matter to the Common Pleas Court of Hamilton County, Ohio and Request for Expedited Scheduling Order filed by Simon L Leis, Jr be denied. Objections to R&R due by 3/27/2006. Signed by Judge Michael R Merz on 03/13/06. (gh1, ) (Entered: 03/13/2006)
15 MOTION for Extension of Time to File Response re 14 REPORT AND RECOMMENDATIONS by Plaintiff Simon L Leis, Jr. (Stevenson,

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03/29/2006
03/29/2006
04/20/2006 04/20/2006 04/20/2006 04/21/2006 04/21/2006 04/24/2006 04/24/2006

David) Modified docket text on 3/29/2006 (scot, ). (Entered: 03/28/2006)
16 ORDER EXTENDING TIME TO OBJECT TO REPORT AND RECOMMENDATIONS - Plaintiff may file his objections to the Report and Recommendations 14, if any, at such time when objections are due to the Magistrate Judge's Report and Recommendations "on the merits of Plaintiff's complaint" or until such other date as may later be set by the Court. Signed by Judge Michael R Merz on 3/29/06. (dp1 ) (Entered: 03/29/2006)
17 NOTICE OF PRELIMINARY PRE-TRIAL CONFERENCE Preliminary Pretrial Conference set for May 19, 2006, at 10:00 a.m. by telephone before Magistrate Judge Michael R. Merz. Prior to this pretrial conference, counsel must comply with the MANDATORY DISCLOSURE RULES of Fed.R.Civ.P. 26(a)(1) and the MANDATORY conference between counsel required by Fed.R.Civ.P. 26(f). The report must be filed prior to the conference. Pretrial procedures and forms can be found at our website at www.ohsd.uscourts.gov. Should more attorneys be actively involved than those listed on the Court's docket, please notify judicial assistant, DeAnna Perry, at 937-512-1550, immediately, to include the additional attorneys in the Preliminary Pretrial Conference. If you wish or require that a different number other than the one listed on the court's docket be called, please advise the Court at least 24 hours preceding the conference.(dp1 ) (Entered: 03/29/2006)
18 ANSWER to Complaint by Defendant City of Cincinnati.(Ganulin, Richard) Modified docket text on 4/20/2006 (scot, ). (Entered: 04/20/2006)
19 MOTION to Intervene and Memorandum in Support. (Ganulin, Richard) (Entered: 04/20/2006)
Notation ORDER granting 19 Motion to Intervene . Signed by Judge Michael R Merz on 4/20/2006. (Merz, Michael) (Entered: 04/20/2006)
Set Deadlines/Hearings: Scheduling Conference set for 4/21/2006 02:00 PM by teleconference before Magistrate Judge Michael R Merz. (dp1 ) (Entered: 04/21/2006)
Notice of Correction - The Scheduling Conference is set for April 24, 2006 at 2:00 p.m. (not 4/21/06 as previously docketed). Counsel to participate include David Stevenson, Al Gerhardstein, Scott Greenwood and Richard Ganulin. (dp1 ) (Entered: 04/21/2006)
Minute Entry for proceedings held before Judge Michael R Merz : Scheduling Conference held on 4/24/2006 by telephone and attended by David Stevenson, Al Gerhardstein, Scott Greenwood and Richard Ganulin. A scheduling order shall issue. (Court Reporter MRM 060424134738.) (dp1 ) (Entered: 04/24/2006)
SCHEDULING ORDER: Rule 26 Meeting Report due by 5/12/2006. Preliminary Pretrial Conference RESCHEDULED TO 5/15/2006 AT 2:00 p.m. by telephone before Magistrate Judge Michael R. Merz. Prior

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05/12/2006 05/15/2006 05/15/2006
05/15/2006
05/15/2006 05/24/2006 06/01/2006

to this pretrial conference, counsel must comply with the MANDATORY DISCLOSURE RULES of Fed.R.Civ.P. 26(a)(1) and the MANDATORY conference between counsel required by Fed.R.Civ.P. 26(f). The report must be filed prior to the conference as noted above. Pretrial procedures and forms can be found at our website at www.ohsd.uscourts.gov. Should more attorneys be actively involved than those listed on the Court's docket, please notify judicial assistant, DeAnna Perry, at 937-512-1550, immediately, to include the additional attorneys in the Preliminary Pretrial Conference. If you wish or require that a different number other than the one listed on the court's docket be called, please advise the Court at least 24 hours preceding the conference. Signed by Judge Michael R Merz on 4/24/06. (dp1 ) (Entered: 04/24/2006)
20 NOTICE by Plaintiff Simon L Leis, Jr of Filing Joint Discovery Plan (Stevenson, David) (Entered: 05/12/2006)
21 Minute Entry for proceedings held before Judge Michael R Merz: Preliminary Pretrial Conference held on 5/15/2006 via telephone with Attorney Stevenson for the plaintiff and Attorneys Gerhardstein and Ganulin for the defendants. Status Conference is set for 6/9/06 @ 1:30 pm via telephone. A scheduling order will follow. (Tape #MRM060514131723.) (gh1, ) (Entered: 05/15/2006)
22 SCHEDULING ORDER: Motions directed to pleadings due by 5/22/2006. Amended Pleadings due by 5/22/2006. Lay Witness due by 6/1/2006. Plaintiff Primary Expert due by 6/15/2006. Plaintiff Rebuttal Expert due by 7/1/2006. Defendant Primary Expert due by 6/15/2006. Defendent Rebuttal Expert due by 7/1/2006. Requests for Admissions due 7/15/2006. Discovery deadline is 8/15/2006. Motions not directed to pleadings due by 9/15/2006. Status Conference set for 6/9/2006 at 01:30 PM by telephone before Judge Michael R Merz . Signed by Judge Michael R Merz on 5/15/06. (dp1 ) (Entered: 05/15/2006)
***STRICKEN*** (DOCKETED IN WRONG CASE) AMENDMENT TO ENTRY OF CONTINUANCE [329] - The discovery cut-off date and dispositive motion deadline date set forth in [329] is STRICKEN. No additional discovery may be taken and no additional summary judgment motion may be filed without prior permission of the Court . Signed by Judge Michael R Merz on 5/12/06. (dp1 ) Modified on 5/16/2006 to strike and note (dp1 ). (Entered: 05/15/2006)
*** STRICKEN *** (DOCKETED IN WRONG CASE) Terminated deadline for discovery per [330]. Signed by Judge Michael R Merz on 5/12/06. (dp1 ) Modified on 5/16/2006 to strike and note (dp1 ). (Entered: 05/15/2006)
Reset Hearing: Status Conference has been reset for 6/12/2006 01:30 PM by telephone before Michael R Merz (rescheduled from 6/8/2006). (dp1) (Entered: 05/24/2006)
23 Witness List by Plaintiff Simon L Leis, Jr. (Stevenson, David) (Entered: 06/01/2006)

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06/12/2006
07/10/2006 08/01/2006 08/02/2006 08/02/2006 08/02/2006 08/03/2006 08/03/2006 08/08/2006 08/08/2006 08/09/2006

Minute Entry for proceedings held before Judge Michael R Merz : Status Conference held on 6/12/2006 and attended via telephone by David Stevenson, Al Gerhardstein and Richard Ganulin. Next Status Conference set for 7/10/2006 01:30 PM by telephone before Judge Michael R Merz. (Court Reporter MRM 060612-131548.) (dp1 ) (Entered: 06/12/2006)
Minute Entry for proceedings held before Judge Michael R Merz : Scheduling Conference held on 7/10/2006 and attended via telephone by David Stevenson, Al Gerhardstein and Richard Ganulin. (Court Reporter MRM 060710-132306.) (dp1 ) (Entered: 07/10/2006)
24 MOTION for Declaratory Judgment emergency motion pending final resolution of this case by Defendant American Civil Liberties Union of Ohio Foundation, Inc. Responses due by 8/25/2006 (Attachments: # 1 Letters to and from Sheriff Leis)(Gerhardstein, Alphonse) (Entered: 08/01/2006)
Minute Entry for proceedings held before Judge Michael R Merz : Emergency Relief hearing held on 8/2/2006 and attended via telephone by David Stevenson, Al Gerhardstein, Scott Greenwood and Richard Ganulin. (Court Reporter MRM 060801-145910.) (dp1 ) (Entered: 08/02/2006)
25 RESPONSE to Motion re 24 MOTION for Declaratory Judgment emergency motion pending final resolution of this case filed by Defendant Cincinnati, City of. (Ganulin, Richard) (Entered: 08/02/2006)
26 RESPONSE in Opposition re 24 MOTION for Declaratory Judgment emergency motion pending final resolution of this case filed by Plaintiff Simon L Leis, Jr. (Stevenson, David) (Entered: 08/02/2006)
27 REPLY to Response to Motion re 24 MOTION for Declaratory Judgment emergency motion pending final resolution of this case filed by Defendant American Civil Liberties Union of Ohio Foundation, Inc. (Attachments: # 1 Analyst Report - part 1# 2 Analyst Report part 2# 3 Rand Corp. study)(Gerhardstein, Alphonse) (Entered: 08/03/2006)
28 MOTION to Strike 27 Reply to Response to Motion, Evidentiary Attachements and References Thereto by Plaintiff Simon L Leis, Jr. (Stevenson, David) (Entered: 08/03/2006)
29 DECISION AND ORDER finding as moot 28 Motion to Strike, denying 24 Motion for Declaratory Judgment . Signed by Judge Michael R Merz on 8/8/06. (dp1 ) (Entered: 08/08/2006)
30 MOTION for Preliminary Injunction by Defendant American Civil Liberties Union of Ohio Foundation, Inc. (Attachments: # 1 Analyst Report #1# 2 Analyst report #2# 3 Rand Corp study)(Gerhardstein, Alphonse) (Entered: 08/08/2006)
31 NOTICE (DELETED 8/10/2006) by Plaintiff Simon L Leis, Jr of Deposition of Lt.Col. Richard Janke (Stevenson, David) Modified on

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08/09/2006 08/11/2006 08/11/2006 08/11/2006 08/11/2006 08/24/2006
08/24/2006

8/10/2006 - discovery (sc1, ). (Entered: 08/09/2006)
32 MOTION to Reassign Case to a Different Magistrate Judge by Plaintiff Simon L Leis, Jr. (Stevenson, David) (Entered: 08/09/2006)
33 DECISION AND ORDER DENYING 32 MOTION TO RECUSE . Signed by Judge Michael R Merz on 8/10/06. (dp1 ) (Entered: 08/11/2006)
Minute Entry for proceedings held before Judge Michael R Merz : Scheduling Conference held on 8/11/2006 and attended via telephone by Dave Stevenson, Gary Kunkel, Al Gerhardstein, Scott Greenwood and Richard Ganulin. A Scheduling Order shall issue. (Court Reporter MRM 060811-145421.) (dp1 ) (Entered: 08/11/2006)
34 SCHEDULING ORDER: Preliminary Injunction hearing is set for 8/28/2006 at 09:30 AM before Michael R Merz in Judge Susan J. Dlott's courtroom in the Potter Stewart Courthouse, Cincinnati. Plaintiff shall file his Memorandum in Opposition not later than 8/25/2006. Signed by Judge Michael R Merz on 8/11/06. (dp1 ) (Entered: 08/11/2006)
NOTICE (DELETED 8/14/06) by Defendant American Civil Liberties Union of Ohio Foundation, Inc of deposition of plaintiff Simon Leis (Gerhardstein, Alphonse) Modified on 8/14/2006 to delete - discovery attorney notified (kopf1, ). (Entered: 08/11/2006)
35 CONDITIONAL ORDER OF DISMISSAL - This matter, having been settled, shall be immediately conditionally dismissed and shall be finally dismissed with prejudice 120 days after the entry of this order unless, for good cause shown, the case should be reopened for enforcement of terms of settlement agreement. Signed by Judge Michael R Merz on 8/24/2006. (Attachments: # 1 Settlement Agreement)(dp1 ) (Entered: 08/24/2006)
NOTATION ORDER VACATING PRELIMINARY INJUNCTION HEARING SET FOR 8/28/2006 - The hearing set for 8/28/2006 is hereby VACATED in lieu of the conditional dismissal with settlement agreement 35 previously filed in this case. Signed by Judge Michael R Merz on 8/24/06. (dp1 ) (Entered: 08/24/2006)

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 08.24.06 PARTIES ANNOUNCE WIN-WIN ON OTR SHERIFF PATROLS
The ACLU of Ohio and Sheriff Simon Leis have resolved their dispute regarding the Sheriff patrols in Over the Rhine. Under today’s agreement:
• Monitor Saul Green will review the Sheriff’s use of force policies and training and the parties will have an opportunity to address any ways in which the Sheriff policies are substantially different than the city policies deemed in compliance by the Monitor
• The Sheriff agrees to utilize the CPD mental health response teams as appropriate
• The Sheriff agrees to cooperate with the Citizen’s Complaint Authority when it is investigating Cincinnati police officers
• The City will continue to investigate crimes in OTR and record its arrests and traffic stops
• The ACLU and City will keep the Sheriff advised about CPOP activities in OTR
The parties had debated whether the Sheriff was covered by the Collaborative. They were able to resolve the dispute by discussing what they each would do if the matter were settled rather than focusing on labels. This is a win-win result since the Sheriff’s patrols will continue without interfering with the duties of the parties to the collaborative.