UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

IN RE CINCINNATI POLICING

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Case No. C-1-99-3170

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Judge Dlott

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ELSIE CARPENTER,

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Case No. C-1-99-227

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Plaintiff

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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ANGELA LEISURE, et al.,

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Case No. C-1-01-286

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Plaintiffs

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Judge Spiegel

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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BOMANI A. TYEHIMBA,

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Case No. C-1-99-317

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Plaintiff

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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MARK A. WARD, et al,

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Case No. C-1-99-494

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Plaintiffs

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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ANTONIO JOHNSON, et al.,

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Case No. C-1-99-1063

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Plaintiffs

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Judge Dlott

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vs.

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DONALD LUCK, et al.

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Defendants

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MATTHEW SHAW,

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Case No. C-1-99-1064

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Plaintiff

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Judge Dlott

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vs.

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DONALD LUCK, et al.

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Defendants

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CHARLES A. WILEY,

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Case No. C-1-00-267

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Plaintiff

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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LISA YOUNGBLOOD-SMITH, Plaintiff
vs. CHARLES GARDNER, et al.
Defendants

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Case No. C-1-00-434

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Judge Dlott

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VINCENT CLARK, et al.,

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Case No. C-1-02-645

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Plaintiffs

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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JOHN HARRIS,

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Case No. C-1-02-761

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Plaintiff

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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PAUL KEITH, et al.,

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Case No. C-1-02-777

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Plaintiffs

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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ENRICO MARTIN,

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Case No. C-1-02-762

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Plaintiff

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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RODERICK GLENN,

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Case No. C-1-02-760

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Plaintiff

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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ARNOLD WHITE,

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Case No. C-1-02-759

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Plaintiff

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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ADELL STILLWELL,

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Case No. C-1-02-763

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Plaintiff

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Judge Dlott

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vs.

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CITY OF CINCINNATI, et al.

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Defendants

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SHEILA BARNES, Plaintiff
vs. CITY OF CINCINNATI, et al.
Defendants

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Case No. C-1-02-758

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Judge Dlott

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JOINT MOTION TO ESTABLISH QUALIFIED SETTLEMENT FUND AND ESTABLISH FUND ADMINISTRATOR
Elsie Carpenter, Angela Leisure, Tywon Deamontay Wilcox, Bomani Tyehimba, Mark Ward, Ronald Cuthbertson, Antonio Johnson, Antonio Hollifield, Dana Hollifield, Matthew Shaw, Charles Wiley, Lisa Youngblood-Smith, Vincent Clark, Terry Horton, John Harris, Stephanie Keith, Paul Keith, Enrico Martin, Roderick Glenn, Arnold White, Adell Stillwell, and Sheila Barnes, the Plaintiffs in the above-captioned individual damage actions listed in paragraph 115 of the Collaborative Agreement in In re Cincinnati Policing and Plaintiff in action C-1-01286 (collectively the “Listed Plaintiffs”); and Defendant City of Cincinnati and Defendant Police Officers named in these individual actions (collectively, “Movants”) by and through their attorneys of record, appear in this United States District Court and move for the formal entry of an Order by this Court (i) to establish a fund, which shall be called the In re Cincinnati Policing Damage Claims Qualified Settlement Fund (the “Fund”); (ii) to completely extinguish any liability of all plaintiffs and defendants named in the above captioned damage actions with respect to claims arising out of certain events, described in the above captioned damage actions, once the monies have been paid in the requisite amount into the Fund’s account, as specified below; and, iii) appoint an administrator for the Fund. The Court has consolidated Angela Leisure, et al. v. City of Cincinnati, et al. (C1-01-286) with above-captioned individual damage
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actions for purposes of settlement. In support of this Motion, Movants respectfully state: 1. The Listed Plaintiffs are individuals all of whom were allegedly subjected to some
use of force or excessive force by members of the Cincinnati Police Department (hereinafter collectively called “The Incidents”). The Incidents allegedly caused some personal physical injury and / or the wrongful death of all of the Listed Plaintiffs or Listed Plaintiffs’ decedents.
2. Defendants are alleged to be liable to the Listed Plaintiffs for personal and bodily injuries, and/or other claims arising out of the Incidents.
3. Said Defendants were either self insured or insured by various known and unknown insurers at the time of the Incidents, or potentially subject to receive contribution and/or indemnification from their employer.
4. It is anticipated that the Parties will fully settle these claims at a time when distribution and allocation is not yet finalized, and the Parties shall receive mutual releases. Hence the Court is ordering the establishment of The Fund to facilitate collection, allocation and disbursement of funds.
5. The City of Cincinnati shall pay into the Fund the sum of $4,500,000.00 within sixty days from the date of the Court’s Order granting both the motion and the Collaborative Agreement Global Damage Claims Settlement Agreement. Plaintiffs agree that said Fund as well as the $4,500,000.00 is fair and in their respective best interest. Each Plaintiff has been presented a value range based upon their claim profile and agrees that said range and profile is fair and reasonable. Furthermore, each plaintiff has agreed to accept the Administrator's final determination of settlement value within his or her respective range.
6. The Fund shall be a qualified settlement fund as described in Treas. Reg. 1.468B-1, established by order of this Court and the Fund shall remain subject to the continuing jurisdiction of this Court.
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7. The Fund shall fully settle claims arising from the Incidents with the approval of and upon the order of the Court by entering into subsequent Qualified Settlement Fund Agreements and Releases (the “Fund Agreements”) with Listed Plaintiffs asserting those claims.
8. The Fund shall be liable to make payments to those Listed Plaintiffs as the Fund Agreements specify.
9. The Fund may, with the consent of Listed Plaintiffs with whom it enters into Fund Agreements, purchase and assign any structured settlements created under any Fund Agreements. Any structured settlement shall be issued by a life insurance company that is rated A+ or better by A.M. Best Company.1
10. The claims made against Defendants as a result of the Incidents are made on account of some personal physical injury, and arise out of alleged liability in tort or violation of law. Listed Plaintiffs entering into Fund Agreements with the Fund shall agree in writing to a discharge of the Fund’s liabilities to make any structured settlement payments, also known as periodic payments, under the Fund Agreements by executing, along with the Fund any necessary documents required or related to the discharge of said liabilities.
11. Movants request that the Court approve the engagement of Matthew L. Garretson, Esq. and The Garretson Law Firm (TGLF) as the Fund Administrator. Matthew Garretson is an attorney in good standing in Ohio with extensive experience with 468B QSF administration. In addition to being an attorney, Mr. Garretson is a principal in Little, Meyer, Garretson & Associates, Ltd. (LMGA) located in Cincinnati, Ohio. LMGA is a licensed Structured Settlement brokerage and settlement trust (e.g. trusts to preserve government benefits) consulting /
1 Structured Settlement Payments are assigned to a qualified assignee by entering into qualified assignments of such structured settlement payments within the meaning of Section 130(c) of the Internal Revenue Code. The qualified assignee shall, respecting each person who is to receive periodic payments under a settlement agreement, purchase one or more qualified funding assets within the meaning of Section 130(d) of the Internal Revenue Code to fund any structured settlement payments assigned to the qualified assignee.
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p l a c e m e n t f i r m . M a t t h e w G a r r e t s o n ’ s 2a6d5d1r e s sObsiesrvataosry f oAlvl oewnuse: , Cincinnati, Ohio 45208.
12. The parties request that no bond shall be required, provided that all monies received by the Fund shall be deposited in an account comprised of government obligations (bonds) or FDIC-insured account.
13. The parties request that the Fund Administrator be authorized to incur costs necessary to administer the Fund and hire such professionals as is necessary to administer the Fund, including but not limited to accountants, counsel, and mediators or arbitrators as are necessary.
14. The Fund Administrator will submit to the Court a declaration that the claims of the Listed Plaintiffs of which the Fund Administrator has actual knowledge, including all claims identified in paragraph (A), (1), (2) and (3) of the Parties’ separate Global Damage Claims Settlement Agreement signed May 21, 2003, in accordance with the terms of that Global Damage Claims Settlement Agreement, have been fully settled and ask this Court to enter an Order acknowledging disbursement of the funds pursuant to the Fund Agreements. It is anticipated that some Listed Plaintiffs will determine more quickly than others that they are not interested in any form-of-settlement options (i.e. structured settlement and / or trusts to preserve government benefits) besides a lump sum award. Such Listed Plaintiffs may request lump distributions before those Listed Plaintiffs that require further counseling regarding “form-ofsettlement” options. The Fund Administrator shall be empowered to distribute said lump sum proceeds upon written consent of all Listed Plaintiff counsel and execution of the appropriate Fund Agreement. Upon distribution of a settlement, in lump or structured form, to any Listed Plaintiff, that Listed Plaintiff and the Defendants in the individual action shall execute mutual releases. The Fund Administrator shall be authorized to distribute all attorney fees to the Listed
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Plaintiffs’ counsel, upon written request signed by all counsel, consistent with existing contingency fee contracts, upon approval of this Court.
15. All expenses incurred in the settlement of claims shall be allocated among the Listed Plaintiffs on a pro rata basis including any escrow fees and the fees of the Fund Administrator and shall not be the responsibility of the City of Cincinnati or any other named defendant. The fee of the Fund Administrator shall be $200.00 per hour and shall be capped at $2,000.00 total. Any commission received by LMGA as a result of the brokering of annuities for structured settlements or placement of Trusts to preserve government benefits shall be credits against the Fund Administrator’s (TGLF) fees.
16. Upon completion of all Fund Agreements and final distribution of all monies to be paid into the Fund, the administrator shall submit an accounting to the Court along with his receipts. After notice has been given to all persons whom the Fund Administrator has actual knowledge to have rights against the Fund, the Court shall enter an Order closing the Fund Administration and discharging the Fund Administrator from any further responsibility with respect to the Fund.
17. The Administrator has obtained a federal Taxpayer Identification Number for the In re Cincinnati Policing Damage Claims Qualified Settlement Fund, such number being 753115602.
WHEREFORE, Movants respectfully request that the Court enter an Order: 1. Establishing said Fund as a qualified settlement fund within the meaning of
Treasury Regulation 1.468B-1;
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2. Appointing Matthew L. Garretson and The Garretson Law Firm as Fund Administrator and giving said Fund Administrator the authority to conduct any and all activities necessary to administer this Fund as described in this Motion.
3. Completely extinguishing any alleged civil liability or actual civil liability of any Defendant participating in the Fund with respect to any injury or death of any Listed Plaintiff arising out of the Incidents.
4. Authorizing the Fund to enter into Fund Agreements with persons claiming damages, injury or death as a result of the Incidents, including the use of settlements with periodic payments in a manner prescribed and approved by the court; and
5. Authorizing the Fund to effect qualified assignments of any resulting structured settlement liability within the meaning of Section 130(c) of the Internal Revenue Code to the qualified assignee.

DATED this 21st day of May, 2003.
Respectfully submitted, For the Listed Plaintiffs:

Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs 1 Liberty House P.O. Box 54400 Cincinnati, OH 45254-0400 (513) 943-4200

Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs 1409 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513) 621-9100

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Kenneth L. Lawson (0042468) Kenneth L. Lawson & Associates Trial Attorney for Plaintiffs 1014 Vine Street, Suite 1575 Cincinnati, Ohio 45202 (513) 345-5000

For Defendants:

J. Rita McNeil (0043535) City Solicitor City of Cincinnati City Hall, Room 214 801 Plum Street Cincinnati, OH 45202 Attorneys for City of Cincinnati and City Defendants

Don Hardin (0022095) Steve Lazarus (0041368) 915 Cincinnati Club Building 30 Garfield Place Cincinnati, OH 45202 Attorneys for Individual Officer Defendants in their Individual Capacities

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of May 2003, I caused to be mailed, first class, postage prepaid, a true and correct copy of the foregoing, JOINT MOTION TO ESTABLISH QUALIFIED SETTLEMENT FUNDAND APPOINT FUND ADMINISTRATOR
to: Jeffrey Mando Maryanne Stewart Adams, Stepner,
Woltermann &Dusing 40 West Pike Street Covington, Kentucky 41012 Attorney for CMHA Defendants
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

IN RE CINCINNATI POLICING,

Case No. 1:99-cv-3170

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District Judge Susan J. Dlott

Chief Magistrate Judge Michael R. Merz

DECISION AND RECOMMENDATION
This case is before the Court on Plaintiffs’ Motion for an Order Directing City and FOP1 to
Comply with Collaborative Agreement (Doc. No. 165) and the Monitor’s Special Master Report to
the Conciliator (Doc. No. 172). The City of Cincinnati filed responses to each (Doc. Nos. 168, 175)
and the matter was set for evidentiary hearing on January 24, 2005. Prior to the hearing, Plaintiffs
and the City entered into a Stipulation (Doc. No. 196)2 which the Monitor approved.
The factual portions of the Stipulation are as follows:
1. During the Fourth Quarter 2004, the City of Cincinnati denied full access to staff, documents and facilities after receiving reasonable requests from plaintiffs, DOJ and members of the Monitor Team. 2. The events alleged in the Plaintiffs’ Motion and Reply (Doc. 165, 184) and in the Monitor’s Special Master Report (Doc. 172) regarding access to staff, documents and facilities did in fact occur.
3. The Monitor, in his Special Master Report to Conciliator, stated: “The City’s non-compliance with the CA is a material breach of the Agreement…. Therefore, the Conciliator should forward his findings and conclusions to the Court, for a finding that the City has engaged
1Plaintiffs have since made it clear they seek no relief against the Fraternal Order of Police.
2Although not a signatory of the Stipulation, the FOP indicated at the hearing that it had no objections to the Stipulation and its interests suffered no harm thereby.
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in a material breach of the Agreement.” See Doc. 172, p.9.
(Stipulation, Doc. No. 196, at 2.) At the hearing, counsel for Plaintiffs and for the City limited their argument to the question
whether the Court should find the City had committed a material breach of the Collaborative Agreement. Thus although the Plaintiffs asserted many additional breaches of the Collaborative Agreement in their Motion, the parties agreed to limit the question before the Court to the same events on which the Monitor focused. In the spirit of collaboration, they have deferred the other issues raised in their Motion – which are particularized as Compliance Issues (a) through (h) in the Remedial Measures portion of the Stipulation – to a series of facilitated meetings at which the Conciliator will preside; the first of such meetings has already been set for February 4, 2005. The sole question currently before the Court is whether the stipulated events constitute a material breach of the Collaborative Agreement.
The events stipulated to by the parties are as follows: 1. The City has denied Plaintiffs and their counsel access to “ride-alongs” with Cincinnati Police Officers although such access is still being allowed to other City residents (Doc. No. 165 at 9). 2. The City has denied Plaintiffs and their counsel access to Police Academy classes. Id. 3. On December 1, 2004, Police Chief Thomas Streicher excluded Nancy McPherson and Joseph Brann, members of the Monitoring Team, from a meeting in which he was to address Police Department management (Monitor’s Special Master Report, Doc. No. 172, at 3). 4. On December 1, 2004, at a scheduled two-hour meeting intended to discuss Community ProblemOriented Policing (“CPOP”), Lt. Col. Janke characterized a question by Mr. Brann as the “stupidest question he had ever heard,” criticized the competence of the Monitoring Team, complained about the reporting requirements of the Collaborative Agreement, and eventually terminated the meeting
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after one hour. Id. at 3-4. 5. On December 3, 2004, Chief Streicher excluded monitor Rana Sampson from a pre-scheduled ride-along, asked her to leave police headquarters, and then declined to respond to Mr. Green’s email request for an explanation. Id. at 4-6.
The Collaborative Agreement, while designed to create extensive processes for reform of policing in Cincinnati, is at base a contract. All parties agree that it is to be analyzed, interpreted, and enforced in accordance with contract principles. Although the Collaborative Agreement has no choice of law provision, it was made in Ohio among Ohio parties and thus must be interpreted under Ohio law; no special body of federal law is applicable. 28 U.S.C. §1652; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 2d 1188 (1938). In applying state law, the Sixth Circuit follows the law of the State as announced by that State's supreme court. Ray Industries, Inc. v. Liberty Mut. Ins. Co., 974 F. 2d 754, 758 (6th Cir. 1992); Miles v. Kohli & Kaliher Assocs., 917 F. 2d 235, 241 (6th Cir. 1990). "Where the state supreme court has not spoken, our task is to discern, from all available sources, how that court would respond if confronted with the issue." Id.; In re Akron-Cleveland Auto Rental, Inc., 921 F. 2d 659, 662 (6th Cir. 1990); Bailey v. V & O Press Co., 770 F. 2d 601 (6th Cir. 1985); Angelotta v. American Broadcasting Corp., 820 F. 2d 806 (1987). The available data to be considered if the highest court has not spoken include relevant dicta from the state supreme court, decisional law of appellate courts, restatements of law, law review commentaries, and the "majority rule" among other States. Bailey, 770 F. 2d at 604.
During oral argument, the parties cited no purportedly controlling Ohio case law, but, implicitly following the choice of law analysis stated here, argued instead that the Restatement of Contracts supplied the appropriate rule of law and why, under that rule, the breaches were either material or not. That is consistent with the decision of this Court in Waste Management, Inc., v. Rice Danis Industries, 257 F. Supp. 2d 1076 (S. D. Ohio 2003), where then-Chief Judge Rice found
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§ 241of the Restatement of Contracts had been applied by Ohio courts. Id. at 1085, citing Russell v. Ohio Outdoor Advertising Corp., 122 Ohio App. 3d 154, 157-58, 701 N. E. 2d 417, 419 (1997), and cases cited therein.
There is essentially no contest over whether the events stipulated to constituted breaches of the Collaborative Agreement. Mr. Stackpole, counsel for the City, admitted as much during oral argument when he conceded they were “defects” in performance which he said the City was now prepared to correct.
The usual reason in law for distinguishing between a “material” breach and a lesser defect in performance is that a material breach by one party excuses the other party from any continuing obligation to perform its part of the agreement. See, e.g., Midwest Payment Systems, Inc., v. Citibank Federal Savings Bank, 801 F. Supp. 9 (S. D. Ohio 1992)(Spiegel, J., applying Ohio law); Livi Steel, Inc., v. Bank One, Youngstown, 65 Ohio App. 3d 581, 585-86, 584 N.E. 2d 1267, 1269 (1989), citing 5 Corbin, The Law of Contracts 920, 922 , § 977 (1951).
This case is different. Here the parties agreed that the remedy for material breach would not be that the other parties could walk away from the Collaborative Agreement. Rather, § 114 provides:
Pursuant to the dispute resolution process set out in this Agreement, in the event the Court finds that any Party has engaged in a material breach of the Agreement, the Parties hereby stipulate that the Court may enter the Agreement and any modifications pursuant to paragraph 124 as an order of the Court and to retain jurisdiction over the Agreement to resolve any and all disputes arising out of the Agreement.
In the final negotiations which resulted in the Collaborative Agreement, the Plaintiffs were particularly concerned that the Agreement be enforceable by the Court. The traditional method for achieving that result would have been to enter into a consent decree which would have been an order
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of the Court but also interpretable under contract principles. See United States v. ITT Continental Baking Co., 420 U.S. 223, 235-37 (1975), cited by the City at Doc. No. 175, p. 6. The Plaintiffs would have preferred a consent decree, but that was not acceptable to the City of Cincinnati at the time of the negotiations. The Parties compromised on the dispute resolution provisions set out in the Collaborative Agreement in Section VI, ¶¶’s 90-114. That process provides that if there is a material breach, the terms of the Collaborative Agreement can then be made binding on all the Parties by court order.
Under our American system of freedom of contract, parties to an agreement are at liberty to bargain about and agree on the remedies in the event of breach. In that sense, Restatement §241 is suppletive law,3 available for deciding the appropriate remedy if the parties themselves have not agreed on a remedy for breach. The term “material breach” as used in ¶ 114 must therefore be interpreted in the context of this Collaborative Agreement, and not with respect to an abstract standard of what might constitute a material breach in a different context or when the parties to a contract have not agreed in advance on a remedy for breach. Given the Parties’ understanding at the time of its negotiation, a material breach of the Collaborative Agreement would be a substantial failure to perform some obligation which is of the essence of the Agreement, a breach which requires a court-directed remedy to enforce the Agreement. Non-material breaches might be, for example, a short delay in filing a required report or failure to acquire necessary equipment by a deadline when vendors have delayed in their performance. These are the kind of “breaches” of a contract which, when the underlying relationship is intact, all parties expect and overlook.
The Monitor, in his Special Master Report, has recommended that the Court find a material breach and Plaintiffs argued orally that this recommendation was entitled to considerable deference.
3For a general discussion of the concept of suppletive law, see Hart & Sacks, The Legal Process (1994 edition by Eskridge & Frickey) at 31.
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Fed. R. Civ. P. 53(g) provides that the court must decide de novo all objections to findings of fact or conclusions of law made or recommended by a master. Thus whether a determination that the breaches is material is a question of fact, law, or application of law to fact, this Court must review de novo the City’s objection to the Monitor’s materiality conclusion and it has done so.
The Court concludes that, within the context of this Agreement, the stipulated events are clearly material breaches of the City of Cincinnati’s obligations. Excluding the Plaintiffs and their counsel from ride-alongs and Academy classes are inconsistent with the City’s obligations to collaborate with the other Parties in evaluating police practices.
Much more serious are the incidents between the command staff and the Monitor Team members in early December. At one point in its motion papers, the City characterized Lt. Col. Janke’s comment to Mr. Brann that he had just asked the stupidest question Col. Janke had ever heard as “candid expression of frustration.” The Court would, on the contrary, characterize it as rude and obstructive. Then on December 3, 2004, Chief Streicher revoked permission for a ridealong by Rana Sampson and literally ejected her from police headquarters.
The members of the monitoring team are all officers of this Court, appointed as special masters by Judge Dlott. Their treatment by the two top officers of the Police Department in the manner just described – which the City has agreed actually happened – cannot be taken lightly. Those incidents alone would make it clear the monitoring team needs the support of this Court which entering the Collaborative Agreement as a court order will give.
Since these incidents occurred, and particularly in preparation for the hearing on January 24th, the Parties have made good progress in getting the collaborative process back on track. In the Stipulation the City has agreed to “immediately restore full access” in accordance with the Collaborative Agreement for its duration. The Parties have agreed to a series of court-facilitated meetings over the next sixty days with an agreed agenda of Collaborative issues needing quick
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attention. They have also agreed to “maintain respectful, professional collaborative relations with the monitoring team” (Stipulation at 5), which should prevent a repeat of the events of December 1-3, 2004. The City’s concerns about clarification of the Agreement will be part of those meetings, so that the misunderstandings which have reportedly led to Police Department frustration can be addressed. Indeed, it appears that the Stipulation was negotiated in the same good faith and collaborative spirit which led to the Collaborative Agreement in 2002.
When the Collaborative Agreement was approved by the Court, Mayor Luken was asked his opinion of the document. He answered:
I think it is as previously described a wonderful document. And I believe it might be titled “hope” in the sense that it represents a great deal of hope for me, for our citizens, that we can get to a better day, get to a better level of respect, and accountability and trust in one another. So I think that's a wonderful document. I would only add that I think that the hard part is ahead of us. That is the implementation. Implementation is indeed the hard part, but it is not impossible if the Parties have in fact recommitted themselves to the collaborative process.
Conclusion
The events stipulated to by the Parties constituted a material breach of the Collaborative Agreement. The Court should adopt the remedy the parties agreed to in the event of a material breach. That is, the Collaborative Agreement should be entered as an order of this Court to prevent any further breaches.
The Court has not addressed any alleged violations of the MOA because the Collaborative Agreement specifies a different process for its enforcement by the Parties. See ¶ 113. This Order does not address the City’s Motion to Clarify (Doc. No. 177) because the Parties have agreed those
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concerns will be addressed in the court-facilitated meetings.

January 26, 2005.

s/ Michael R. Merz Chief United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within ten days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(e), this period is automatically extended to thirteen days (excluding intervening Saturdays, Sundays, and legal holidays) because this Report is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within ten days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir., 1981); Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).

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

IN RE CINCINNATI POLICING

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Case No. C-1-99-3170

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District Judge Susan J. Dlott

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ORDER ADOPTING REPORT

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AND RECOMMENDATION OF

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MAGISTRATE JUDGE MERZ

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This matter comes before the Court on Plaintiffs’ Motion for an Order Directing City and FOP to Comply with Collaborative Agreement (doc. #165) and the Monitor’s Special Master Report to the Conciliator (doc. #172). The matter was set for an evidentiary hearing before Magistrate Judge Michael R. Merz on January 24, 2005. Before the hearing, Plaintiffs and the City of Cincinnati (“the City”) entered into Stipulations (doc. #196), which Monitor Saul Green approved. Because the Plaintiffs and the City entered into Stipulations agreeing to the relevant facts regarding the City’s conduct, the only questions left for argument at the January 24, 2005 hearing were whether the City’s stipulated conduct amounted to a material breach of the Collaborative Agreement, and, if so, what remedy the Court should adopt. On January 26, 2005 Judge Merz issued a Decision and Recommendation (doc. #200). Judge Merz found that the City had materially breached the Collaborative Agreement and recommended that this Court adopt the Agreement as an order of the Court. The Court agrees with Judge Merz and therefore

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ADOPTS his Decision and Recommendation. I. BACKGROUND
To fully understand the background and context of this case and its current posture, the Court briefly recounts the prior proceedings that have taken place up until this point, also recounted in its earlier order of August 5, 2002. See In Re Cincinnati Policing, 209 F.R.D. 395, 397 (S.D. Ohio 2002). Plaintiff Bomani Tyehimba filed suit in this Court on April 30, 1999 against the City and two police officers, in both their individual and official capacities. On December 13, 2000, he moved the Court for leave to file an amended complaint. The Court granted him leave, but instead of filing an amended complaint, on March 14, 2001, the Plaintiff again moved to file an amended complaint. The amended complaint attached to that motion alleged racially discriminatory police practices by the Cincinnati Police Department in violation of the federal and state constitutions and other federal law. Also on March 14, 2001, the Plaintiff moved to certify a plaintiff class and for a preliminary injunction. The motion for class certification sought the appointment of the Cincinnati Black United Front (“CBUF”) and the American Civil Liberties Union of Ohio Foundation, Inc. (“ACLU”) as class representatives; the motion also sought the appointment of Kenneth L. Lawson, Scott T. Greenwood, and Alphonse A. Gerhardstein as class counsel.
Three parties expressed interest in a collaborative procedure to address the issues raised by the proposed amended complaint: the City, proposed counsel for the putative plaintiff class, and the Fraternal Order of Police (“FOP”), whose counsel was representing the two police officers sued in their individual capacity. The City agreed to the participation of the CBUF and the ACLU for purposes of such a collaborative procedure, and these three parties also agreed to
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the participation of the FOP. By order of May 3, 2001, the Court established the collaborative procedure contemplated by these parties. The Court also retained the services of Dr. Jay Rothman to manage the collaborative procedure as a special master. On March 25, 2002, the Court referred this action to Magistrate Judge Michael Merz as the special master to complete the negotiations referenced in the Order Establishing Collaborative Procedure and a scheduling order of February 8, 2002.
On April 3, 2002, counsel for the putative plaintiff class, the City, and the FOP reached an agreement to resolve the issues raised by the proposed amended complaint (the “Collaborative Agreement”). This Collaborative Agreement called for certification of a plaintiff class and settled the class claims for injunctive and declaratory relief in the amended complaint attached to the March 14, 2001 motion for leave. Subsequently, the CBUF, the City, the FOP, and the ACLU ratified the Collaborative Agreement.
On April 19, 2002, the Court provisionally certified the proposed class and preliminarily approved the reasonableness of the Collaborative Agreement. In so doing, the Court found that the Collaborative Agreement was not illegal or tainted with collusion and that the negotiations preceding it had been conducted at arms length. The Court also ordered the City to give notice of the proposed settlement to the class. The Court granted for settlement purposes only the motion for leave to amend complaint filed on March 14, 2001. See In Re Cincinnati Policing, 209 F.R.D. 397 (S.D. Ohio 2002).
On August 5, 2002, finding the Collaborative Agreement to be a fair, adequate, and reasonable settlement of the class claims for injunctive and declaratory relief in the amended
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complaint, the Court granted the joint motion of all parties1 for class certification2 and approval
of the Collaborative Agreement as settlement of the class claims asserted in the lawsuit. The
Court described in some detail the principal forms of relief embodied in the Collaborative
Agreement and the process by which the Agreement was achieved. The Court reincorporates the
following from its August 5, 2002 order:
“The Collaborative Agreement addresses policing in a comprehensive and nuanced
manner. It provides five principal forms of relief. First, it commits to the implementation of
community problem-oriented policing as the organizing philosophy of Cincinnati policing. This
philosophy treats crime and disorder as problems to be solved by government in cooperation
with citizens, rather than merely as matters of law enforcement. Among the ways the
Collaborative Agreement implements this philosophy are training, research into best policing
practices across the country, new commendations, a community relations office, and a protocol
for securing appropriate information technology systems. In addition, one paragraph describes
1The CBUF was originally appointed as a class representative but was subsequently permitted to withdraw from acting as a class representative. The Court determined that given the representations of the CBUF to the Court, the Court could not be assured that the CBUF would represent the class with sufficient zeal. The Court also found that having previously determined that the ACLU would adequately and fairly protect the interests of unnamed class members it could adequately serve by itself as the class representative. In Re Cincinnati Policing, 214 F.R.D. 221, 222 (S.D. Ohio 2003). The Court emphasized that although it allowed the CBUF to withdraw as class representative, such withdrawal did not mean that the CBUF was no longer subject to the Collaborative Agreement since the Collaborative Agreement binds equally all members of the plaintiff class, including the CBUF and its members. Id. at 224-25.
2The class certified consists of: All African-American or Black persons and people perceived as such who reside, work in and/or travel on public thoroughfares in the City of Cincinnati, Ohio either now or in the future and who are stopped, detained, or arrested by Cincinnati Police Officers or their agents, and citizens of any race who have been or will be subjected to a use of force by Cincinnati police officers and their agents.
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specifically the manner in which police officers shall conduct detentions of persons (whom they then release) in the course of investigations. . . .
“Second, the Collaborative Agreement requires the development of extensive data collection systems to enable the empirical measurement of crime, disorder, police officer activity, relationships between the police and the communities they serve, as well as perceptions of these. This data will permit long-term evaluation of the extent to which police practices are working with reference to multiple considerations and criteria. Third, the Collaborative Agreement incorporates by reference an April 12, 2002 Memorandum of Agreement between the City of Cincinnati and the United States Department of Justice. This Memorandum of Agreement sets forth many specific requirements about police use of force, chemical spray, canines, and beanbags, as well as police training and risk management systems. Fourth, the Collaborative Agreement requires the City to create an organization to receive, investigate, and process citizen complaints of police misconduct (the “Citizen Complaint Authority”). This organization will have a paid staff and substantial powers at its disposal to aid investigations.
“Finally, the Collaborative Agreement provides for a system to resolve disputes arising under it and ensure all parties’ compliance with its terms, a system terminating ultimately with this Court. . . .
“. . . The ultimate interest of the plaintiff class is truly the same as that of police officers: assuring efficient and effective policing for all citizens, regardless of race, in an atmosphere of mutual respect [footnote omitted]. A constitutional command prohibiting the use of race in routine policing is at best a very blunt tool with which to bludgeon the problems described in the amended complaint. The Collaborative Agreement, in contrast, is more like a surgical
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instrument, designed by persons who intimately know the specific circumstances of Cincinnati to remedy the particular problems confronting it by using the best available science in a spirit of collaborative construction.” In Re Cincinnati Policing, 209 F.R.D. at 401-03.
The Collaborative Agreement provides for the appointment of a Monitor with law enforcement experience to review, report on, and assist with the parties’ implementation of and compliance with the Collaborative Agreement. Monitor Saul Green is an officer of this Court by virtue of his appointment as special master in this case (doc. #104). The Collaborative also provides for the Monitor to employ additional people to help him perform his duties under the Collaborative Agreement. The members of the Monitor Team have been appointed special masters in this case and are therefore also officers of this Court. (Id.). The Collaborative Agreement requires the City and the Cincinnati Police Department (“CPD”) to provide the Monitor with full and unrestricted access to all CPD and City staff, facilities, and documents (except for privileged materials) necessary to carry out the duties assigned to him under the Agreement. (Collaborative Agreement, ¶ 100.)
On November 11, 2004, Plaintiffs filed a Motion for Order Directing City and FOP to Comply with Collaborative Agreement, alleging that, among other things, the City had denied them access to ride alongs and training sessions to which members of the public are routinely given access. Monitor Saul Green also filed a special master’s report to the Conciliator, Magistrate Judge Merz, in which he described a denial of access to the Monitor Team by the City and recommended that the City be found in material breach of the Collaborative Agreement. The matter was set for an evidentiary hearing on January 24, 2005. Before the hearing, Plaintiffs and the City entered into Stipulations (doc. #196), which the Monitor approved.
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The Plaintiffs and the City stipulated that, among other things, 1) During the Fourth Quarter 2004, the City of Cincinnati denied full access to staff, documents and facilities after receiving reasonable requests from plaintiffs, DOJ and members of the Monitor Team. 2) The events alleged in the Plaintiffs’ Motion and Reply (Doc. 165, 184) and in the Monitor’s Special Master Report (Doc. 172) regarding access to staff, documents and facilities did in fact occur. (Doc. #196). The Monitor’s Special Master Report recounts in detail the way that the City hampered the Monitor Team’s effort to fulfill its monitoring obligations. In December of 2003, Monitor Team members met with police officials to review Community Problem Oriented Policing (“CPOP”) activities by the Cincinnati Police Department (“CPD”). Chief Streicher requested that the Monitor Team not be present at management training for police supervisors. At a later meeting, Lt. Col. Janke was nonresponsive to the Monitor Team’s questions and then went on the offensive, calling a Monitor Team member’s question the stupidest question he had ever heard. He also complained about the monitoring itself by challenging the Team’s competence, their practices, and the reporting requirements imposed by the Collaborative Agreement. (Doc. #172 at 3-4.) After these episodes, Monitor Team member Rana Sampson returned to CPD for a previously scheduled ride along in connection with police department activities concerning drug markets. CPD had previously commended the Monitor Team for their on-site visits and encouraged such visits in order for the Team to see the progress being made. (Id. at 7.) As the City has admitted, however, when Sampson arrived for her pre-arranged ride along, Chief Streicher and Lt. Col. Janke proceeded to interrogate her and forbid her from attending the ride along or a meeting at police headquarters. (Id. at 5-6.) Streicher asked Sampson “what are you doing here?” numerous times, followed by heated questioning as to what she thought a drug
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market was and what she hoped to accomplish. (Id.) After this repeated badgering, Streicher stated that he did not understand what Sampson was doing in Cincinnati (id.) and instructed her that she could leave the building. When Monitor Saul Green questioned Streicher about this behavior through written correspondence and phone calls, Streicher failed to reply. These facts are admitted by the City through the Stipulations entered into by it and the Plaintiffs (doc. #196). The City has also agreed that it denied Plaintiffs and their counsel access to ride alongs with police officers and denied them access to police academy classes. (Doc. #165 at 9.)
As described above, the City and CPD are required under the Collaborative Agreement to provide the Monitor with full and unrestricted access to all CPD and City staff, facilities, and documents (except for privileged materials) necessary to carry out the duties assigned to them under the Agreement. (Collaborative Agreement, ¶ 100.) As stated previously, because the Plaintiffs and the City entered into Stipulations agreeing to the relevant facts regarding the City’s conduct, the only questions left for argument at the January 24, 2005 hearing were whether the City’s stipulated conduct amounted to a material breach of the Collaborative Agreement, and, if so, what the remedy for such a breach should be. II. ANALYSIS
On January 26, 2005 Magistrate Judge Merz issued a Decision and Recommendation (doc. #200).3 Judge Merz explained that the law of contract typically distinguishes a material breach from a lesser defect in performance because a material breach excuses a party from
3The City filed objections to Judge Merz’s Decision and Recommendation (doc. #206), and Plaintiffs responded to the City’s objections asking for a supplemental evidentiary hearing (doc. #215). The City opposes Plaintiffs’ request for submission of additional evidence (doc. #217). The Court agrees with the City that a further evidentiary hearing would not aid consideration of this matter and therefore denies Plaintiffs’ request for a hearing.
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continuing obligations to perform under an agreement. Judge Merz found that the term “material breach” must be interpreted in the context of the Collaborative Agreement since the parties had agreed that the remedy for a material breach would be that “the Court may enter the Agreement . . . as an order of the Court . . . .” (Collaborative Agreement, ¶ 114) rather than the discharge of contractual obligations. Judge Merz explained that given the parties’ understanding of the Collaborative Agreement at the time of its writing, a material breach of the Agreement would be a substantial failure to perform an obligation which is the essence of the Agreement. Judge Merz pointed out that a minor breach such as a delay in the filing of a required report or a failure to acquire required equipment by a particular deadline would not, without more, constitute a material breach of the Collaborative Agreement. Judge Merz found far more serious, however, the incidents between the command staff of CPD and the Monitor Team described above.
The Court finds Judge Merz’s reasoning to be thorough, cogent, and persuasive. The members of the Monitor Team are officers of the United States District Court, appointed by this Court’s order to serve as special masters in this case. (Doc. #104.) The improper conduct of top police officials toward these Court officers is a serious problem deserving careful attention. There may be a genuine difference of opinion as to the efficacy of the procedures in place under the Collaborative Agreement, and miscommunication occurs even between the most well meaning of people, but differences of opinion and miscommunications are very different from the obstructive behavior described above.
The monitoring process is not a minor or tangential part of the Collaborative Agreement. The Monitor and his team serve to review and report on the parties’ implementation of and compliance with the Collaborative Agreement and also to assist the parties in complying with the
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Collaborative Agreement. (Collaborative Agreement, ¶ 91.) The Monitor is responsible for regularly conducting compliance reviews to ensure that the parties are implementing and continuing to implement all measures required by the Collaborative Agreement. (Id. ¶ 103.) Conduct that impedes this process is not a minor defect in performance. In the context of the Collaborative Agreement and the duties of the parties and Monitor, denial of access to the Monitor Team of training and facilities by top police staff constitutes a material breach.
In its objections to Judge Merz’s Decision and Recommendation, the City urges the Court to find that the denial of access to the Monitor Team does not constitute a material breach because the City is in “substantial compliance” with the Collaborative Agreement. The City points to paragraph 126 of the Collaborative Agreement for this proposition, which states that “[n]oncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, shall not constitute failure to maintain substantial compliance.” This paragraph of the Collaborative Agreement and its definition of substantial compliance, however, are not related to the issue at hand. The earlier part of paragraph 126 makes clear that this definition of substantial compliance is “[f]or the purposes of this paragraph,” and paragraph 126 deals only with Court-approved early termination of the Collaborative Agreement. Courtapproved early termination of the Collaborative Agreement is not before the Court and is entirely irrelevant to the matter at hand.
Likewise, the City points to paragraph 112 of the Agreement, under which a party found by the Conciliator not to be in substantial compliance has sixty days to cure the defect. Again, this paragraph of the Collaborative Agreement and its reference to substantial compliance are not related to the issue at hand. No one moved the Court to find that any party was not in substantial
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compliance under paragraph 112. What the Plaintiffs moved for and the Monitor asserted was a material breach under paragraph 114. The latter paragraph does not provide for a period of cure if a breach is found.
The City also argues that Section 241 of the Second Restatement of Contracts should control in determining whether its breach is material. As Judge Merz noted in his Decision and Recommendation, however, the Collaborative Agreement is in essence a contract, and parties to an agreement are free to decide the terms of their agreement and the appropriate remedy in the event of a breach. Because the parties have, in fact, decided on the appropriate remedy should a material breach occur, the severity of the breach of the Collaborative Agreement should be judged with regard to the terms and remedies embodied in the Agreement. III. REMEDY
The parties to the Collaborative Agreement agreed that should the Court find that any party has engaged in a material breach of the Agreement, the Court may enter the Agreement as an order of the Court and retain jurisdiction to resolve any and all disputes arising out of the Agreement. (Collaborative Agreement, ¶ 114.) It is therefore within this Court’s discretion to determine whether the type of material breach of the Collaborative Agreement caused by the City’s denial of access to the Monitor Team should lead the Court to adopt the Agreement as an order of this Court.
The Court determines that the conduct described above does indeed warrant this Court’s adoption of the Collaborative Agreement as an order of the Court. Not all material breaches would require entering the Collaborative Agreement as an order. This is not the kind of material breach involving a failure to perform a required action that can be remedied by then performing
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that action. For instance, the parties have not failed to file a critical document, a violation that could be remedied by a subsequent filing of the required papers. As noted above, the monitoring process is essential to the continued implementation and success of the Collaborative Agreement. Because the kind of material breach that occurred as a result of the City’s actions has served to effectively short-circuit the process of monitoring necessary to maintain accountability and compliance, merely granting access again does not serve to fully remedy the breach. The damage to the monitoring process caused by the denial of access must be prevented from occurring again. The Court therefore ADOPTS Judge Merz’s Decision and Recommendation and ENTERS the Collaborative Agreement as an Order of the Court.4 IV. CONCLUSION
The parties have made tremendous strides in communication, progress, and understanding during the course of the Collaborative Agreement. Since the January 24, 2005 hearing, the City has agreed to restore full access in accordance with the Collaborative Agreement for its duration, and the parties have agreed to and begun a series of court-facilitated meetings5 over the course of sixty days. With the Collaborative Agreement in place as an Order of this Court and the monitoring process thereby secured, policing functions should be helped rather than impeded as the parties may move forward to accomplish the goals set forth in the Collaborative Agreement, assuring efficient and effective policing for all citizens in an
4As with the Decision and Recommendation, this order does not address any alleged violations of the Memorandum of Agreement because the Collaborative Agreement specifies a different process for its enforcement by the parties. (See Collaborative Agreement, ¶ 113.)
5As with the Decision and Recommendation, this order does not address the City’s Motion to Clarify (doc. #177) because the parties have agreed that those concerns will be addressed at the court-facilitated meetings.
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atmosphere of mutual respect. The requirements of the Collaborative Agreement as an Order should be no more demanding than they were in the Agreement’s prior form because the parties were always under the obligation to work together from the moment they signed the Agreement. The status of the Collaborative Agreement as an Order matters only if a party again violates the Agreement. Future violations and their consequences are entirely within the control of the parties. Needless to say, should any such violations occur, the Court will take all appropriate actions necessary to enforce the Collaborative Agreement. The Court therefore ADOPTS Magistrate Judge Michael Merz’s Decision and Recommendation and ENTERS the Collaborative Agreement as an Order of this Court.
IT IS SO ORDERED.
___s/Susan J. Dlott____________ Susan J. Dlott United States District Judge
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

In re Cincinnati Policing

:

Case No. C-1-99-3170

:

:

Judge Dlott

:

:

MOTION BY PLAINTIFFS FOR

:

ORDER DIRECTING CITY

:

AND FOP TO COMPLY WITH

:

COLLABORATIVE

AGREEMENT

(Expedited Proceedings Requested)

Pursuant to Fed. R. Civ. P. 53 and paragraphs 97 - 114 of the Collaborative

Agreement (CA), the Plaintiff class respectfully moves that this court order the City of

Cincinnati to comply with the Collaborative Agreement approved by this court as a class

action settlement on August 5, 2002. (Doc. 91).

Specifically, Plaintiffs seek an order directing the City to comply with the

Collaborative Agreement and the Memorandum of Agreement (MOA); end retaliation

against Plaintiffs; end manipulation of the CA to gain advantage in private litigation; and

permit Plaintiffs to attend police academy training classes as observers and permit

Plaintiffs and the public to resume opportunities to participate in ride alongs with on duty

Cincinnati police officers.

Plaintiffs respectfully request an expedited ruling on this matter by the

Conciliator.

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MEMORANDUM
This is a class action challenging race discrimination and excessive force by the
City of Cincinnati Police Department. The matter was settled and approved by the Court
through a detailed Collaborative Agreement and Memorandum of Agreement on August
5, 2002. (Doc. 91). The City of Cincinnati has substantially inhibited compliance in this
case. The Court must act quickly to direct the City to comply with the agreement.
A. Noncompliance with Collaborative Agreement
1. Noncompliance with Community Problem Oriented Policing Requirements
a. The Duty Described
The City is violating its duty to implement community problem oriented policing
(CPOP) as set out in the CA. Problem solving is the cornerstone of CPOP and the
Collaborative Agreement: “The City of Cincinnati, the Plaintiffs and the FOP shall adopt
problem solving as the principal strategy for addressing crime and disorder problems.
Initiatives to address crime and disorder will be preceded by careful problem definition,
analysis and an examination of a broad range of solutions.”¶16. As detailed below, the
City has failed in its duty to implement problem solving and CPOP.
The CA provides a very clear explanation of these principles:
¶20. Community problem oriented policing is one form of police work that seeks resolution of troublesome circumstances in the community. These troublesome circumstances are framed as problems to solve. They usually reveal themselves as a form of repeat pattern of offending, victimization, or locations. First, problems need to be carefully defined. A useable problem definition requires a description of harmful behaviors and the environments where these behaviors occur.
¶21. The second principle guiding community problem oriented policing is that problems are carefully analyzed prior to developing a solution. Community problem oriented policing is an information intensive strategy that places a premium on data, intelligence, community input, and analysis. The analysis is
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designed to reveal critical aspects of the problem that can be altered to effect a reduction in the problem.
¶22. The third principle is that the police and their partners engage in a broad search for solutions based on the analysis of information. A law enforcement response is always a possibility, but may not be required. Rather, a range of options is explored, often drawing from the field of "situational crime prevention" that block opportunities to commit crimes and disorder. Effective solutions to problems may require the active participation of and partnership with other City agencies, community members, and the private sector. This implies that for a community problem oriented policing strategy to be effective there must be close police-community relations and the City must support this approach.
¶23. The fourth principle is that problem-solving efforts are evaluated to determine if the problem has been reduced. Here again, the use of information technology and analysis is critical to assure continuous improvement. If the problem has been successfully addressed, the police can move on to other problems. If it has not, then more work needs to be done, including a re-analysis of the problem or a search for alternative solutions.
The CA recites how important CPOP is to restructuring police community
relations:
¶26. Citizens of Cincinnati have expressed a strong and uniform desire to see greater positive interaction between the police and the public. During the ninemonth collaborative process in 2001, the public called for the City to "reinforce and expand community-oriented policing and practice." They have recommended that the City "establish and maintain greater understanding, positive interaction, and communications between the community and the police." They have asked the City to "promote a partnership of shared responsibility for community problem-solving." Citizens want to "develop more trust, respect and acceptance between the police and community." They want to "increase public's understanding of police policies, procedures, duties and roles." The public wants to "foster greater appreciation and support for police through professional and public recognition of outstanding service as well as awareness of the motivations of police officer and challenges they face." Citizens want to "improve communications and foster greater understanding, trust, respect and sensitivity between the community and the police." And the public wants to "increase community accountability and responsibility."
¶27. The Parties, and especially the CPD, understand that fully engaging the community is a fundamental key to effective law enforcement…
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¶29. It is abundantly clear that the citizens of Cincinnati and their police officials want a two way dialogue about effective and fair policing. Taking a proactive and preventative approach toward informing the public about police operations will go a long way toward improving police-citizen relations and preventing information vacuums that increase friction between the community and the police. The ultimate goal of this Agreement is to reduce that friction and foster a safer community where mutual trust and respect is enhanced among citizens and police. b. History of City Reluctance on CPOP The CA imposes duties on the City, the plaintiffs and the FOP to implement CPOP. The first duty was to implement the Community Partnering Program to engage the community in this new initiative. See Amended Plan, Doc. 108. Central to the plan was the establishment of a base, the Community Police Partnering Center, from which to lead the community in problem solving. The City refused to provide any funds to establish the Community Police Partnering Center. The plaintiffs, the FOP, the Greater Cincinnati Foundation, the Andrus Family Fund, and several citizens who had been active with Cincinnati CAN came together and formed the Center. Over five million dollars has been raised from private sources to establish the Center as a non-profit agency headquartered at the Urban League. The Center commenced operations this year and now has eleven outreach workers, an able executive director in former assistant chief Rick Biehl, an engaged and active Board of Directors. The plaintiffs and FOP have representation on the Partnering Center Board. They are actively helping guide the community engagement effort. It is critical, however, that problem solving efforts be pursued as described in the CA in order for the Center to achieve success. The City has failed to do so.
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c. Monitor Has Found City in Noncompliance The CA is monitored by a team selected by the parties and appointed pursuant to
Rule 53 by the Court. Saul Green is the Monitor. The Monitor has issued seven quarterly reports since the CA was approved by the court. The City has been under the duties described in this motion for more than two years. The City remains in noncompliance regarding CPOP on these material terms as set out in the Seventh Quarterly Report. (1) Noncompliance on terms that must be met to provide Problem Solving Capacity.
What follows are excerpts from the last monitor report demonstrating a number of areas in which the city is failing to build problem solving capacity. That is, while the community has created a true capacity for problem solving through the Center, the police department has failed to accomplish reorganization necessary to CPOP. There ahs been no restructuring of the staff, no adequate implementation of technology that supports problem solving and no redefinition of the duties when officers are deployed every day: they must
p. 66 - Requirement 29(n) The City shall periodically review staffing in light of CPOP. The CA
requires ongoing review of staffing rather than a review by a certain deadline. The Monitor will review the CPD’s submitted material and report back in the following quarter.
The City is not yet in compliance with this section of the CA. p. 68 - Requirement 29(p)
The City shall design and implement a system to easily retrieve and routinely search (consistent with Ohio law) information on repeat victims, repeat locations, and repeat offenders. The system shall also include information necessary to comply with nondiscrimination in policing and early warning requirements.
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Assessment The City is not yet in compliance with this CA provision.
p. 67 - Requirement 29(o) The City shall review, and where appropriate, revise police department
policies, procedures, organizational plans, job descriptions, and performance evaluation standards consistent with CPOP. We suggest that the Parties meet again to discuss these issues using the text of the CA as guidance although we realize the document does not explain every aspect of CPOP. If the Parties remain in disagreement it will be important for each to document their position in writing and submit it to the Monitor for review.
The Parties are not in compliance with this section of the CA. This noncompliance has dragged on for two years and seriously undermines CPOP implementation. The city is in breach of the agreement. The budget process now underway shows no movement in this area. The City, on information and belief, does not include in the police department budget any provision for substantially increasing the crime analysis capacity of the CPD. Community Problem Oriented Policing (CPOP) is by definition data driven. Problems need thorough analysis in order to be properly framed and properly analyzed under the SARA model that the parties have committed to use. The City has commenced a useful pilot program with the University of Cincinnati to improve its problem solving capacities but a pilot program does not address the obvious staffing deficiencies in the CPD in this area. See AAG Declaration, letter of August 26, 2004 re CPOP implementation and proposal re eliminating hotspots. The City must be ordered to comply in these areas.
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(2) Mislabeling Arbitrary Enforcement Efforts as CPOP The City has engaged in “drug sweeps” and mislabeled these mass enforcement
efforts as CPOP. These actions violate the agreement and have been highlighted as inappropriate by the monitor. See pp 59 – 64, 7th Monitor Report:
“…addressed the [city] views regarding whether the use of sweeps (or police crackdowns) should be the principal remedy to community-identified drug markets. The CPD states that police sweeps are problem-solving, rather than a traditional and oftentimes ineffective tool in closing drug markets, as the monitor suggests.”
The Monitor spends considerable effort reminding the City in the report of the basic principles underlying CPOP. The monitor report demonstrates that the City simply does not apply CPOP as defined in the agreement – even now – two years into the agreement!
The City supports CPOP when it uses the label to pursue strategies that result in offenders being arrested and incarcerated. Indeed, some problems are best resolved through arrests. But CPOP also challenges the parties to use community assets – including the citizens that may be viewed as causing some of the problems – as we seek short and long term solutions. Addressing drug sales at a corner without talking to the alleged sellers; addressing annoying youth behavior without talking to the youth; and promoting solutions that emphasize arrest over other solutions that address the causes and roots of problems is not consistent with the CA. 3. Noncompliance with Terms re Citizen Complaint Authority
The Monitor enforces Citizens Complaint Authority (CCA) terms through the MOA and the CA. A professional, competent CCA is central to community acceptance of the CA. At a minimum citizens need to know that the CCA determinations have appropriate weight on discipline. The City has failed to establish whether it has waited
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on discipline until the CCA has acted and whether the CCA determinations are given due wait. The City must report to the public on what it has done regarding each of the cases in which the CCA has rendered decisions recommending discipline.
The monitor has noted that even these simple and obvious requirements are not in place at the City. See Seventh Quarterly Monitor Report, p. 30, 78.
The problem with the CCA is deeper. All of the parties need to make it work, not make it fail. City and FOP officials have been publicly critical of the CCA as an organization. This is an organization that the City helped design. Just because it makes findings that occasionally disagree with the findings of the CPD, it should not be attacked as an institution. The CCA is a critical element of the CA and MOA that assures independent review of alleged police misconduct. The CCA must be bolstered by all of the parties and not attacked. To the extent several of the parties have, from time to time, concerns with the workings of this agency; plenty of opportunities exist to collaboratively address such concerns without undermining the reputation of the agency and its director. 4. Noncompliance with Terms re Bias Free Policing
The City has failed to properly evaluate the racial impact of pedestrian and traffic stops. See monitor report pp. 71-75. Some of these issues are addressed through the hiring of Rand. But the parties should be working now to address the problems rather than hide from them. The CA requires bias free policing. The first report on bias in policing was issued last year by independent researchers at the University of Cincinnati. Because it showed disparities of treatment between African American and White Citizens, the City attacked the report. No attempt was made to understand the issue and address it across racial lines with the CA parties. This cannot go on.
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B. Ride Alongs and Academy Classes
During the course of this agreement, Plaintiffs or their representatives have
participated in ride alongs and attended Police Academy classes as part of their
collaborative work. Moreover, members of the public unconnected with the Plaintiffs
have had similar access to ride alongs and Academy classes. There are no privileges that
apply to ride alongs and Academy classes. The Cincinnati City Manager has now
stopped providing access to Plaintiffs in retaliation for Plaintiffs’ counsel’s participating
in civil rights litigation against the City. As a result the plaintiff class has been excluded
from MHRT training recently provided to the force. The denial of access to these public
sources of information about CA compliance violates the First Amendment and the CA
itself. The City should be promptly ordered to resume providing access to members of
the Plaintiffs’ team.
1. Manipulation of the CA for Advantage in Other Litigation Is Prohibited
Last year the City attempted to prohibit Plaintiffs from referring to the CA in
other litigation. That manipulation of the CA to gain advantage in private litigation
against the City was prohibited by this court.
The City next suggests that class counsel must refrain from “referring” to the Collaborative Agreement, or to any part of the collaborative process, in other litigation matters. Class counsel are prominent civil rights attorneys in Cincinnati. As such, they represent clients whose rights have been violated by the police. Unfortunately, such violations continue to occur despite the existence of the Collaborative Agreement. Inevitably, they will continue in the future. The provisions of the Collaborative Agreement go to the heart of how the Cincinnati Police Division conducts law enforcement activities. Because of this, any civil rights actions brought to remedy future civil rights violations will almost certainly “refer” to the collaborative process in some way. Thus, it is ludicrous for the City to suggest that class counsel must forego any reference to the Collaborative Agreement in future litigation. In fact, the City’s suggestion is mean-spirited. On one hand, the City has fought vigorously to keep class counsel’s legal fees from being paid out of City funds. On the other, it now wants class counsel to
9

significantly curtail their legal practices. The Court will not order class counsel to do so. Class counsel have taken on the overwhelming, and not lucrative, task of implementing the Collaborative Agreement. For this, class counsel should be commended, not punished. Of course, if the City has a concern about a conflict of interest in a specific lawsuit, it may bring that concern before the Court at the proper time. Nevertheless, the Court is confident that class counsel’s high ethical standards will prevent them from becoming involved in any litigation that might present such a conflict. Order, 4/7/03, Doc. 120, p. 7 (emphasis added). By denying access to ride alongs and access to training courses, the City is attempting once again to get class counsel to curtail their legal practices. The City is saying, “We will not let you do your job as class counsel correctly unless you stop all litigation against the Cincinnati Police.” That is wrong. It is wrong to punish the class; it is wrong to punish the attorneys and it is wrong to punish the civil rights plaintiffs who have damage actions against the City. Moreover, the ploy involves matters to which the public has access, not some secret material that is only available to class counsel because of the CA. The City, therefore, is seeking to use the CA to gain advantage in other litigation. The City must be stopped. 2. Not Allowing Plaintiffs to Review Academy Training Courses is a Violation of Paragraph 29(l) of the Agreement. Paragraph 29(l) of the CA requires the parties to “review existing courses and recommend any new ones that may be appropriate for the Police Training Academy”. This requirement cannot be satisfied if Plaintiffs are not allowed to review CPD training courses. It has been the practice of the CPD to allow members of the Plaintiffs’ team to visit their academy training courses. George Ellis, an attorney working with the Plaintiffs’ team, has attended such training courses as averred in his declaration. CPD has altered this policy for the express purpose of inhibiting Plaintiffs’ ability to enforce the Collaborative Agreement on behalf of their clients. CPD’s change of policy with
10

respect to Plaintiffs’ review of training academy classes represents a direct violation of the City of Cincinnati’s commitment under Paragraph 29 of the Collaborative Agreement. This Court, therefore, should require the City of Cincinnati to allow Plaintiffs’, through their counsel, access to these training courses. 3. Not Allowing Plaintiffs and Their Clients to Go on Ride alongs is a Violation of the Collaborative Agreement
Clearly, it has been the long-standing policy of the CPD to allow citizens to ride along with officers. This policy is expressed in procedure 18.105 of the Procedure Manual of the Cincinnati Police Department. (Declaration of A.A. Gerhardstein, attached). Upon information and belief, a policy allowing civilians to ride along with officers was first implemented by the CPD at least 25 years ago. Paragraph 10 of the Collaborative Agreement states, in pertinent part, the purpose of the Collaborative Agreement as being, among other things, “to resolve social conflict, to improve community-police relationships”. Additionally, it states the purpose of the Agreement as being “to foster an atmosphere throughout the community of mutual respect and trust among community members including the police” with the ultimate goal being “to reduce that friction and foster a safer community where mutual trust and respect is enhanced among citizens and police.” The City of Cincinnati has violated this commitment by denying access to Plaintiffs’ counsel and their clients to go on ride alongs. It is the obligation of the Plaintiffs’ counsel to communicate with their clients re the progress made under this agreement and such reporting is comprehensively undermined to the extent Plaintiffs’ counsel and their clients are not allowed to review, first hand, the operations of the CPD.
11

Paragraph 28 admonishes the Parties to take a “proactive and preventative approach toward informing the public about police operations.” This requirement cannot be achieved under circumstances in which Plaintiffs’ attorneys and their clients are not allowed to ride with CPD officers. Additionally, Paragraph 6 of the Agreement requires the parties to “promote and foster” ongoing cooperation between the Parties and members of the community. This requirement too shall be significantly inhibited if Plaintiffs and their clients are prohibited from going on ride alongs with CPD officers. This is especially true given the fact that no written policy exists supporting the ban on ride alongs. Indeed, it is clear that the City will permit other civilians continued access to ride alongs and that only the Plaintiffs and their clients will be denied such access. Surely this uneven application of a new and unwritten policy will not serve to promote and foster any cooperation between members of the community and the CPD.
Finally, Paragraph 29(f) requires the Parties to “coordinate…and establish an ongoing community dialogue and interaction” between the CPD and members of the community. This requirement too shall be substantially inhibited in the absence of the ability of Plaintiffs and community members to go on ride alongs. 4. The Bans on Access to Ride Alongs and Academy Classes Violate the CA and the MOA
Clearly, these bans have been wantonly and hastily conceived by the CPD for the single purpose of frustrating efforts by the Plaintiffs to fulfill their mandate to their clients as memorialized in the CA and Memorandum of Agreement between the Department of Justice and City of Cincinnati (MOA). The Mayor’s recent letter to the Attorney General of the United States (AAG declaration, attached) and the exclusion hereof complained represent the manifest efforts of the City of Cincinnati to
12

systematically extricate itself from the obligations they have undertaken under both the Collaborative Agreement and the Memorandum of Agreement. This new policy of exclusion clearly represents a step backward in the collaborative process. Moreover, the refusal to allow citizens to ride along with police represents a hasty retreat from a policy of openness that has endured for at least 25 years. Both the new “policy” with respect to ride alongs and that prohibiting Plaintiffs from reviewing CPD training courses, represent specific violations of the aforementioned paragraphs of the Collaborative Agreement. However, they represent much more than just this. These new policies, motivated as they are by animus toward Plaintiffs’ counsel, completely violate the spirit of cooperation between the Parties, the Community, and CPD, articulated in the Agreement and so desperately needed in our City today.
It is important to note that no efforts have been made by the City of Cincinnati or the CPD to cooperate with Plaintiffs regarding any concerns they have that may have given rise to these new policies. The position of the City and the CPD has been that this issue should be handled by dispute resolution and they have, therefore, rebuffed Plaintiffs’ efforts to address this matter informally. This is unfortunate as it demonstrates the City’s growing unwillingness to abide by the terms of the Agreement.
C. The City Is in Noncompliance with the MOA and Improperly Seeks to Abandon the Agreement 1. The City Efforts to Abandon the MOA
On October 5, 2004, the Mayor of the City of Cincinnati wrote to John Ashcroft and requested that the United States Department of Justice release the City form its obligations under the MOA. See letter attached to AAG Declaration. In fact there are
13

numerous areas where the City is not in compliance with the MOA. These include but are not limited to the Risk Management System (paras 57-66) which has been promised since 1998 (See Gilligan Report) and has yet to be implemented; full implementation of the video camera use at traffic stops; full implementation of the foot pursuit policy; full implementation of use of force policy; Proper implementation of par 46 re IIS and CCA/CCRP jurisdiction; and Proper implementation of par 52 re CCA and 55 and 56 and 82 re CCA recommendations and discipline. The City should not abandon this agreement, it should be ordered to comply. 2. The City is Blocking the DOJ from Monitoring City Compliance with the MOA
For two years, pursuant to the MOA, the DOJ has had full access to those police staff members and records which the DOJ deems necessary for determining compliance with the MOA. The City is now denying that access in violation of both the MOA and the CA.
At the All Parties Meeting of November 18, 2004, representatives of the City informed the Parties that the DOJ would, similar to the Plaintiffs, be excluded from attending any training conducted by the CPD. Additionally, City representatives stated that members of the DOJ team would no longer receive copies of use of force reports that are routinely filed with the Monitoring team (see attached Declaration of George Ellis).
Plaintiffs view this latest posturing towards the DOJ team as yet additional evidence of the City’s growing unwillingness to abide by the terms of both the CA as well as the MOA. Moreover, the City’s rescission of its cooperation with the DOJ represents yet example retaliation against a party that has challenged its compliance with regard to various terms of these agreements. Through these actions against the Plaintiffs
14

and DOJ, the City seeks a hollow agreement that has no enforcement. This action by the City represents another material breach of the agreements. . D. The City Must Recommit to True Collaboration
The CA shall be nothing more than mere words unless the parties work collaboratively to bring these words, and the ideals contained therein, to life. In addition to the inappropriate letter to John Ashcroft seeking termination of the MOA, the City has failed to respond in the spirit of collaboration to other challenges under the agreement. For example:
These are tough issues. They require a City partner that is willing to lead the City in responsible dialogue, not attack those who would challenge the status quo. Such leadership is missing.
Not everything is gloomy. The Plaintiffs and the City agreed on the deployment of tasers in Cincinnati in the hope that this would reduce serious citizen and officer injuries when use of force is necessary. That is good. On the other hand, Plaintiffs want proof that deescalating dialogue is seriously pursued as the first option with citizen interaction and that police officers are not moving to a use of force too quickly. Dialogue between the CA parties related to this issue is also difficult to pursue given the City’s penchant for responding to such questions defensively. Such posturing does not assist with this important discussion.
The violations of the CA and MOA, the ban on ride alongs and academy class attendance, and the attempt to abandon the MOA are simply extreme manifestations of the City resistance to the CA and MOA. All of this must stop. Finding that the City is in material breach and ordering compliance is a necessary step.
15

CONCLUSION Plaintiffs seek the following order: The City is in material breach of the terms of the Collaborative Agreement and is ordered to abide by the terms of terms of the Collaborative Agreement; The City is in material breach of the terms of the Memorandum of Agreement and is ordered to abide by the terms of the Memorandum of Agreement; The City is ordered to permit Plaintiffs’ counsel and members of the Plaintiff class to engage in ride alongs and attend police academy courses;

Respectfully Submitted,
s/ Scott T. Greenwood ________________________ Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs 1 Liberty House P.O. Box 54400 Cincinnati, OH 45254 (513) 943-2400 (513) 943-4800 fax law@scottgreenwood.com

s/ Alphonse A. Gerhardstein _____________________________ Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs 1409 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513) 621-9100 (513) 345-5543 fax agerhardstein@laufgerhard.com

s/ Kenneth L. Lawson ____________________ Kenneth L. Lawson (0042468) Kenneth L. Lawson & Associates Trial Attorney for Plaintiffs 808 Elm Street Suite 100 Cincinnati, Ohio 45202 (513) 345-5000 (513) 345-5005 fax
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CERTIFICATE OF SERVICE I here by certify that on November 18, 2004, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I further certify that a copy of the foregoing pleading and the Notice of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically.
s/ Alphonse A. Gerhardstein _________________ Attorney for Plaintiff
17

 
 In re Cincinnati Policing, 214 F.R.D. 221 (2003)
214 F.R.D. 221 United States District Court,
S.D. Ohio, Western Division.
In re CINCINNATI POLICING.
No. C-1-99-3170. | April 7, 2003.
Attorneys and Law Firms
*221 Jennifer Lynn Branch, Alphonse Adam Gerhardstein, Laufman & Gerhardstein, Scott T. Greenwood, Greenwood & Associates, Kenneth L Lawson, Lawson & Associates, Cincinnati, OH, James Eichner, Shanetta Y. Brown Cutlar, Department of Justice, Civil Rights Division, Washington, DC, for plaintiffs.
Rita McNeil, Michael James Harmon, City of Cincinnati, Department of Law, Donald Edson Hardin, Stephen S. Lazarus, Hardin, Lefton, Lazarus & Marks LLC, Cincinnati, OH, William Robert Martin, Pat Woodward, Alan Freeeman, Washington, DC, for defendants.
Jay Rothman, Yellow Springs, OH, special master pro se.
Dr. Alan Kalmanoff, Berkeley, CA, special master.
Opinion
ORDER
DLOTT, District Judge.
This matter comes before the Court on the motion of Plaintiff Cincinnati Black United Front (“CBUF”) to withdraw as class representative in the above action. (Doc. # 112.) Class counsel filed the CBUF’s motion on March 19, 2003; they supplemented that motion with Plaintiffs’ Status Report on Class Representation (doc. # 114) on March 26, 2003. The Fraternal Order of Police and the *222 City of Cincinnati filed responses to the CBUF’s motion. (Docs. # 116, 117.) For the reasons set forth below, the CBUF’s motion is GRANTED.
By its motion, the CBUF has informed the Court that it wishes to withdraw as a class representative in order to devote all of its efforts as an organization to “advocacy on a broad range of social and economic issues much greater in scope than the Collaborative.” (Doc. # 112 at 1-2.) If the Court permits the CBUF to withdraw, the American Civil Liberties Union of Ohio Foundation, Inc. (“ACLU”)

will be the sole remaining class representative. The ACLU has informed the Court that if the CBUF is permitted to withdraw, it intends to establish “an advisory panel of persons well-grounded in the African-American community” to “[e]nsure continuity of advocacy in this case.” (Doc. # 114 at 1.) The City does not oppose the CBUF’s withdrawal as class representatives, but asks the Court to place a number of restrictions on the future activities of the ACLU and class counsel. The Court will address these below. The Fraternal Order of Police (“FOP”) opposes the CBUF’s motion, contending that the CBUF may not unilaterally “escape from their contractual accountability” as set forth in the Collaborative Agreement. (Doc. # 116 at 3.)
[1] The continuing, post-certification responsibilities of class representatives to the members of a plaintiff class are ill-defined. See Maywalt v. Parker & Parsley Petroleum Co., 155 F.R.D. 494, 495-96 (S.D.N.Y.1994). However, Federal Rule of Civil Procedure 23(a)(4) requires a court to determine prior to certifying a class action that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). After certifying the class, the court must continue to ensure the adequacy of class representation and may issue whatever orders may be necessary to fulfill that responsibility. See Fed.R.Civ.P. 23(d); Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1213 (6th Cir.1997) (overturning as plain error district court’s failure to modify scope of class once it became clear that named plaintiffs were not adequate representatives); 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1765 at 293 (2d ed.1986) (“[A] favorable decision under Rule 23(a)(4) is not immutable. If later events demonstrate that the representatives are not adequately protecting the absentees, the court may take whatever steps it thinks necessary under Rule 23(c) or Rule 23(d) at that time.”). Thus, before permitting the CBUF to withdraw, the Court must assure itself that the ACLU, as the remaining class representative, will represent the plaintiff class adequately.
[2] When the Court approved the Collaborative Agreement in August, 2002, it stated, “There is no reason to doubt that the ACLU will fairly and adequately protect the interests of unnamed class members.” (Doc. # 92 at 6.) This was true then, and it is equally true now. As pointed out in Plaintiffs’ status report, the ACLU has represented plaintiffs in class action policing cases nationwide. When those cases have resulted in a comprehensive settlement agreement, such as the Collaborative Agreement, the ACLU has been integral in the implementation of those agreements. The ACLU also plans to establish an advisory panel consisting of class members from a broad spectrum of the African-American community. The community members selected by the ACLU and class
1

In re Cincinnati Policing, 214 F.R.D. 221 (2003)

counsel no doubt will provide invaluable assistance to class counsel during the nuts-and-bolts work of implementing the Collaborative Agreement. Therefore, the Court concludes that the ACLU will continue to represent the class adequately.
Not only will the ACLU continue to represent the plaintiff class adequately, but in light of the instant motion, it would be improper to allow the CBUF to continue as a class representative. As a class representative, the CBUF was charged with protecting and vindicating the legal rights of the absent members of the plaintiff class. The plaintiff class in this suit is broadly defined and includes an unknowable number of citizens of Cincinnati and elsewhere.1 Protecting the *223 rights of this class is a vital and time-consuming responsibility. The CBUF has told the Court that it does not wish to devote any more of its limited energies to fulfilling that responsibility. The Court therefore cannot be assured that if it were forced to continue as a class representative, the CBUF would represent the class with sufficient zeal. An adequate class representative, the ACLU, is already in place. Therefore, it would be contrary to the dictates of Rule 23(a)(4) and unjust to the plaintiff class for the Court to force the CBUF to continue to act as a class representative.

1

The plaintiff class is defined as:

All African-American or Black persons and people

perceived as such who reside, work in and/or

travel on public thoroughfares in the City of

Cincinnati, Ohio either now or in the future and

who are stopped, detained, or arrested by

Cincinnati Police Officers or their agents, and

citizens of any race who have been or will be

subjected to a use of force by Cincinnati police

officers and their agents.

(Doc. # 92 at 3.)

The FOP’s concerns in opposing the CBUF’s motion are entirely distinct from those underlying Rule 23(a)(4), however. Instead of discussing whether the CBUF or the ACLU are adequate class representatives, the FOP asks the Court to deny the CBUF’s motion to ensure that “[the CBUF’s] accountability under the terms of the [Collaborative Agreement] remains enforceable.” (Doc. # 116 at 3.) The FOP need not worry. After its withdrawal, the CBUF will remain just as accountable under the Collaborative Agreement as it was as a class representative. However, without further explanation, the Court’s assurance is unlikely to allay the FOP’s concerns, because the FOP appears to believe that the CBUF entered into the Collaborative Agreement and assumed the responsibilities set forth therein only on its own behalf. This is incorrect.
The very first paragraph of the Collaborative Agreement makes clear that the Collaborative Agreement binds the

plaintiff class as a whole, not just the class representatives:

The Cincinnati Black United Front (“Front”), the American Civil Liberties Union of Ohio Foundation, Inc. (“ACLU”), on behalf of the class, as defined herein (“the Plaintiffs”), the City of Cincinnati (“City”), and the Fraternal Order of Police (“FOP”), hereinafter collectively referred to as the “Parties[,]” hereby enter into this Collaborative Agreement ....

(Collaborative Agreement ¶ 1 (emphasis added).) The FOP seems concerned specifically about the CBUF’s responsibilities under the “mutual accountability plan.” The Collaborative Agreement defines the plan as one “that ensures that the conduct of the City, the police administration, members of the Cincinnati Police Department and members of the general public are closely monitored so that the favorable and unfavorable conduct of all is fully documented and thereby available as a tool for improving police-community relations under this Agreement.” (Id. ¶ 30.) Thus, the “members of the general public,” not just the CBUF, are held accountable under the mutual accountability plan. Moreover, the responsibilities undertaken by the parties to the Collaborative Agreement are immense in scope. (See, e.g., id. ¶ 29(f).)2 The class representatives and class counsel could not hope to fulfill them all; the participation of the plaintiff class is necessary. For these reasons, the Collaborative Agreement binds not just the class representatives but the plaintiff class as a whole.

2

This paragraph states:

The Parties shall coordinate efforts undertaken

through the Community Partnering Program and

establish an ongoing community dialogue and

interaction including, but not limited[ ] to[,]

structured involvement between the [Cincinnati

Police Division] and youth as well as with

property owners, businesses, tenants, community

and faith-based organizations, motorists, low[-

]income residents and other city residents on

purposes and practices of [Community Problem-

Oriented Policing].

Additionally, because the entire plaintiff class took on the obligations in the Collaborative Agreement, the CBUF’s withdrawal as class representative does not free its members from those obligations. As such, the FOP’s threat that if the CBUF “is allowed to escape from [its] contractual accountability, then the entire [Collaborative Agreement] will be viewed as a sham by at least the FOP” (doc. # 117 at 3) is unjustified. By withdrawing as class
2

In re Cincinnati Policing, 214 F.R.D. 221 (2003)

representative, the CBUF is not “escaping” from accountability. The CBUF and its members were bound by *224 the Collaborative Agreement yesterday, and they will be bound equally tomorrow, whether they are a class representative or not. In fact, there will be only two practical results of the CBUF’s withdrawal: 1) the CBUF will no longer be required to fairly and adequately represent the best interests of the plaintiff class; and 2) the members of the CBUF will no longer wield any greater influence over the implementation of the Collaborative Agreement than any other class member. Therefore, instead of causing concern among those members of the FOP who fear that the CBUF will no longer be accountable, the CBUF’s withdrawal should engender celebration by those who believe that the CBUF’s participation hindered effective and prompt implementation of the Collaborative Agreement.
Finally, the City’s response raises two collateral issues that the Court finds it necessary to address. First, with respect to the advisory council proposed by the ACLU,

the City urges the Court to choose a

group that: has the capacity to

undertake

the

important

responsibilities assigned to the

community in the [Collaborative]

Agreement; is sufficiently broad-

based to represent the entire class

adequately; and that does not

possess, or take on, an

organizational purpose that poses a

direct conflict with the goal and

spirit of the [Collaborative]

Agreement.

(Doc. # 117 at 3.) The City’s suggestion assumes that the Court will be selecting the members of the ACLU advisory panel. This is incorrect. The role of the Court is to ensure that the plaintiff class will be adequately represented in the future. The Court has done so by approving the ACLU as class representative. It is now up to the ACLU and class counsel to determine how best to represent the class. This is not to say that the City does not suggest laudable qualities for the members of the advisory council. However, at this stage it is not appropriate for the Court, and it is never appropriate for the other parties, to determine how best to protect the rights of the plaintiff class. Only if the ACLU’s representation becomes deficient must the Court step in and attempt to remedy any problems.
Second, the City tries in its response to draw the Court’s attention to potential conflicts of interest of class counsel:

[I]n light of the [conflict between the objectives of the collaborative

and the goals of the CBUF], it likewise follows that the class counsel, who currently represent [the] CBUF, should be precluded from representing the CBUF [ ] against the City, now or in the future, in matters involving either the Collaborative Agreement, the Memorandum of Agreement between the United States Department of Justice and the City of Cincinnati, or any related matters. Moreover, consistent with their commitment to the collaborative, it is imperative that, in other litigation matters, class counsel refrain from referring to the Collaborative Agreement, or to any part of the collaborative process in which they have participated.
(Doc. # 117 at 3.) As an initial matter, the Court cannot determine if the City wishes the above statements to be interpreted as a suggestion or merely an attempt to impugn class counsel’s ethical standards. Though it would certainly comport with the City’s recent discourse to attacks the ethics of class counsel, the Court will grant the City the benefit of the doubt and assume that any implicit references to class counsel’s ethics are unintended. Instead, the Court will treat the City’s comments as suggestions intended to aid the Court in its management of this action. However, as suggestions the City’s statements are unhelpful, because they are nonsensical and, to the extent that they are even cogent, they raise issues that are not currently before the Court.
The City suggests first that because the goals of the CBUF may conflict with those of the Collaborative Agreement, class counsel should not be permitted to represent the CBUF against the City in any matters relating to the Collaborative Agreement or the Memorandum of Agreement. The members of the CBUF are members of the plaintiff class, however. It is the duty of class counsel to represent that class in enforcing and implementing the terms of the Collaborative Agreement. The City certainly does not suggest that class counsel must forego its *225 duty to the class in order to avoid some perceived conflict of interest. However, if the City does not intend for class counsel to forsake its responsibilities to the class, the Court cannot discern what the City means by its suggestion. Specifically, it is unclear what other matters “involving” the Collaborative Agreement or Memorandum of Agreement the City wants class counsel to avoid.
The City next suggests that class counsel must refrain
3

In re Cincinnati Policing, 214 F.R.D. 221 (2003)
from “referring” to the Collaborative Agreement, or to any part of the collaborative process, in other litigation matters. Class counsel are prominent civil rights attorneys in Cincinnati. As such, they represent clients whose rights have been violated by the police. Unfortunately, such violations continue to occur despite the existence of the Collaborative Agreement. Inevitably, they will continue in the future. The provisions of the Collaborative Agreement go to the heart of how the Cincinnati Police Division conducts law enforcement activities. Because of this, any civil rights actions brought to remedy future civil rights violations will almost certainly “refer” to the collaborative process in some way. Thus, it is ludicrous for the City to suggest that class counsel must forego any reference to the Collaborative Agreement in future litigation. In fact, the City’s suggestion is mean-spirited. On one hand, the City has fought vigorously to keep class counsel’s legal fees from being paid out of City funds. On the other, it now wants class counsel to significantly curtail their legal practices. The Court will not order class counsel to do so. Class counsel have taken on the overwhelming, and not lucrative, task of implementing the Collaborative Agreement. For this, class counsel should be commended, not punished. Of course, if the

City has a concern about a conflict of interest in a specific lawsuit, it may bring that concern before the Court at the proper time. Nevertheless, the Court is confident that class counsel’s high ethical standards will prevent them from becoming involved in any litigation that might present such a conflict.
In conclusion, the Court GRANTS the CBUF’s motion to withdraw as class representative. (Doc. # 112.) As the CBUF is unwilling to continue in that capacity, the Court finds that the it will no longer “fairly and adequately protect the interests of the class” as required by Rule 23(a)(4). The Court also finds that the plaintiff class will continue to be represented in an exemplary fashion by the ACLU. Finally, the Court reiterates that the CBUF’s withdrawal does not mean that the CBUF is no longer subject to the Collaborative Agreement. The Collaborative Agreement binds equally all members of the plaintiff class, including the CBUF and its members.
IT IS SO ORDERED.
	  

4

 
 Tyehimba v. City of Cincinnati, Not Reported in F.Supp.2d (2001)

2001 WL 1842470 Only the Westlaw citation is currently available. United States District Court, S.D. Ohio, Western
Division.
Bomani TYEHIMBA, Plaintiff v.
CITY OF CINCINNATI et al. Defendants
No. C–1–99–317. | May 3, 2001.
Attorneys and Law Firms
Kenneth L. Lawson, for Plaintiffs.
Scott Greenwood, for Plaintiffs.
Alphonse A. Gerhardstein, for Plaintiffs.
Fay D. Dupuis, City Solicitor, for Defendants’.
Michael Harmon, Richard Ganulin, Assistant City Solicitor, City of Cincinnati, for Defendants.
Donald Hardin, and the Fraternal Order of Police, for Individual Defendants.
Opinion
ORDER ESTABLISHING COLLABORATIVE PROCEDURE
DLOTT, J.
*1 The Plaintiff’s motions to amend the complaint, to certify a class, and for a preliminary injunction are all pending. The motion to amend the complaint seeks to join two proposed plaintiff organizations and alleges racially discriminatory police practices in the City of Cincinnati. The parties have expressed an interest in collaborating to investigate, analyze, and address the alleged social conflicts expressed by the proposed amended complaint.
This Order, agreed to by the parties and entered pursuant to Fed R. Civ. P. 16(c)(9), Local Civ. Rule 16.3, Fed.R.Evid. 408, and additional terms as set out below, establishes a special collaborative procedure to be utilized by the parties to address the social conflicts alleged in the pleadings before the Court.

The City of Cincinnati and the other Defendants have expressed their opposition to the motion to amend the complaint, their opposition to the Court’s jurisdiction over the amended complaint, their intent to move to dismiss the amended complaint if the motion for leave to amend is granted, and their opposition to the motion for class certification. The Court acknowledges the Defendants’ opposition and finds that the Defendants have not waived any of their objections to the motion to amend the complaint or any other motion pending before this Court. The Court finds, however, that the City has agreed to the participation of the two proposed plaintiff organizations solely for purposes of this Order and the collaborative procedure described below. If at any time during this proceeding the Plaintiff or proposed Plaintiffs move to be declared prevailing parties under 42 U.S.C. § 1988, the parties agree that the entry of this Order will be neutral on that issue. The parties do not waive any argument they may have concerning prevailing party status and claims for attorney fees based on other developments in this case.
The Court recognizes that the City enacted Ordinance No. 88–2001 on April 4, 2001, for the purpose of requiring the preparation of reports for stops and arrests in order to compile data for analyzing the City’s law enforcement practices, and the City now has pending before it a proposal for the Mayor’s Community/Public Safety Forum to address issues of public safety and community relations and a proposal for a vendor to perform a cultural audit of the Police Division and Fire Division in the Safety Department. On April 16, 2001, the Mayor of the City chartered a high-level commission to address the broader issues of racism and economic inclusion in the community.
1. The Court orders a pretrial collaborative of the social conflicts alleged in the proposed amended complaint.
2. The Court shall retain the services of Jay Rothman, and the ARIA Group, Inc., to manage the collaborative procedure.
3. The collaborative shall proceed as follows:
a. The proposed amended complaint alleges social conflicts of great public interest to the community. To the extent possible, the collaborative will include an opportunity to receive the viewpoints of all persons in the Cincinnati community regarding their goals for police-community relations. The participants will state their goals for police-community relations; why these goals are important; and how they would achieve these goals (What, Why, and How data). The collaborative
1

Tyehimba v. City of Cincinnati, Not Reported in F.Supp.2d (2001)

will include an opportunity for dialogue about these responses in structured group sessions. As described below, the collaborative will also include a process for expert analysis of the current practices of the Cincinnati Police Division (CPD) and practices in other communities.
*2 b. What, Why, and How data will be collected from all segments of the Cincinnati community. The data will be collected through various modalities. As set out below, the identity of the participants will remain confidential and will be possessed only by the ARIA Group. The remaining data will be available to the public and be the basis for structured dialogue among members of the Cincinnati community in group sessions. The following group sessions are anticipated but may be altered by the ARIA Group as it deems necessary: (1) minority groups; (2) city officials and police administration; (3) line officers and families; (4) business community; (5) religious, social services, and education; (6) print and electronic media; (7) community councils; and (8) youth. Each group will in public session produce a summary of its dialogue explaining its shared goals, values and proposals, which will be made public and considered by the parties. All group, and structured dialogue sessions will be open to the press. The ARIA Group will endeavor to work closely with the press before such sessions to fully inform it about the collaborative, the goals of the dialogue sessions, and the value of coverage consistent with those goals.
c. The parties, with the approval of the Court, will develop a protocol for the collaborative operation of an expert panel of police experts by May 25, 2001. Nothing herein shall preclude the use of experts that have been used by the Civil Rights Division of the United States Department of Justice. Under the management of the ARIA Group, the expert panel shall collaboratively review current practices of the Cincinnati Police Division and similar practices in other communities and make public recommendations for addressing police-community relations in Cincinnati. The expert panel shall make available to the parties and the public information about the best practices from any and all sources as deemed appropriate by the ARIA Group. The expert panel will be provided with (1) the ARIA Group summary of responses by those contributing data; (2) prearranged access to all personnel and physical work sites; Cincinnati Civilian Police Review Panel, OMI and Internal Investigation Section reports; public records, including nonconfidential discipline and personnel files; and policies and procedures related to the Cincinnati Police Division and other records that are

public records under the Ohio public records statute; (3) copies of all previous reports and studies of police-community relations from 1967 to the present; and any other public material they may deem important to the accomplishment of their task. The lawyers for the parties will not have any ex parte communications with the experts. The ARIA Group shall be free to pose questions and solicit responses from the expert panel as the need arises. If the expert panel requires access to nonpublic records, a protocol for accommodating that request that preserves the nonpublic status of those records will be developed by the parties and approved by the Court.
*3 d. Under the management of the ARIA group, the parties intend to negotiate a written agreement including a plan for action, ongoing collaboration, and reconciliation regarding the alleged social conflicts that are the subject of the collaborative. Further, any negotiated agreement must address the goals and values that are identified in the dialogue sessions.
e. If the parties are able to negotiate a proposed agreement regarding the alleged social conflicts that are the subject of the collaborative, the proposed agreement will be presented to the public, to City Council and to the Court, which will receive testimony, if appropriate, from the parties, participants in the dialogue sessions, court experts, and other national experts as to the fairness of the agreement. The staff of the ARIA Group shall not be asked to testify about matters that are protected as confidential. The ARIA staff may be asked to testify generally about the collaborative process. It is anticipated that the openness of this collaborative process and the combination of expert and broad based community input will provide an opportunity for the parties and the Court to create a national and international model for other communities. The parties reserve the right to take any action they deem necessary should the matter return to litigation.
f. Nothing in this order prohibits the ARIA group from concurrently assisting the commission announced by the Mayor of the City of Cincinnati on April 16, 2001.
4. The names and identifiers of all individuals (parties and nonparties) who provide What, Why, and How data to the ARIA Group shall be confidential and kept under seal. The disclosure of this identity data is prohibited by federal law and is not a public record under ORC § 149.43(A). The preservation of the confidentiality of this data is necessary both for the effective implementation of the collaborative in this case as well as to protect the safety and rights of the participants in the process. See generally Kallstrom v. City of Columbus, 136 F.3d 1055
2

Tyehimba v. City of Cincinnati, Not Reported in F.Supp.2d (2001)

(6th Cir.1998) (releasing personal information about law enforcement officers and their families can create security risk and violate their privacy); Smith v. City of Dayton, 68 F.Supp.2d 911, 917–19 (S.D.Ohio 1999) (acknowledging the validity of security as a reason to deny access to information). On motion to this Court and for good cause shown, the redacted identity data may be released only to counsel for the parties. These materials shall be produced to counsel FOR ATTORNEYS’ EYES ONLY. As used in this Order, “nonparties” includes all persons who are not named in the lawsuit or the proposed amended complaint and all those persons who participate in the collaborative as authorized by this Court. See Knoll v. AT & T, 176 F.3d 359 (6th Cir.1999).
5. Pursuant to orders of this Court, the Plaintiff and proposed Plaintiffs (hereinafter “Plaintiffs”) and the City shall pay the fees and expenses of the ARIA Group, the expert panel, and any other substantial expenses incurred in this collaborative. An escrow account shall be established at Firstar Bank with the approval of the court for that purpose. The Plaintiffs and the City have each reserved $100,000 to cover the initial cost of the collaborative. No costs in excess of $200,000 will be approved until further order of the Court. By May 11, 2001, the ARIA Group will submit a work plan to the Court for approval with service on the parties, including budget, schedule and work products. Neither the City nor the Plaintiffs will be required to pay more than their designated shares of $100,000 toward the cost of this collaborative unless the City and/or the Plaintiffs consent to pay additional amounts. The ARIA Group will submit a progress report to the Court and the parties on May 25, 2001, and then every thirty days thereafter.
*4 6. The parties agree that all of the statements whether oral or written that are made by participants in this collaborative or in the possession of the ARIA Group will not be used as evidence by any party and that the entire collaborative is subject to the provisions of Fed.R.Evid. 408 and further limited as described in this Order. The parties agree that data or other information collected by

ARIA or received by the parties, by whatever modality and in whatever form, summary or otherwise, is not relevant, competent, material or otherwise admissible for any purpose in any judicial proceeding including the case at bar.
7. All litigation matters in the case at bar and the following cases are tolled until further order of the Court:
Antonio Johnson v. City of Cincinnati, Case No. C–1–99–1063* Matthew Shaw v. City of Cincinnati, Case No. C–1–99–1064 * Mark A. Ward v. City of Cincinnati, Case No. C–1–99–494 Charles A. Wiley v. City of Cincinnati, Case No. C–1–00–267 Lisa Youngblood–Smith v. City of Cincinnati, Case No. C–1–00–434 Elsie Carpenter v. City of Cincinnati, Case No. C–1–99–227 Nathaniel Livingston v. Thomas Streicher, Case No. C–1–01–233 Lasha Simpson v. Thomas Streicher, (re force on 4/14/01)(to be refiled federal court)

*

Subject to agreement by Cincinnati Metropolitan

Housing Authority (“CMHA”) counsel. CMHA counsel

shall notify the Court in thirty days whether CMHA

will make a good faith effort to mediate this case.

Concurrent with the collaborative procedure and subject to a protocol that will permit limited discovery necessary to the individual claims, the parties agree to make a good faith effort to confidentially mediate the disputes in these cases. All settlements achieved shall be available to the public. If a settlement is not achieved the parties may move to return the case to the litigation docket. Additional cases may be added to this list by further order of the Court.
IT IS SO ORDERED

3

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

BOMANI TYEHIMBA,

Case No. C-l-99-317

Plaintiff

Judge Dlott

vs. CITY OF CINCINNATI, et al.
Defendants

PLAINTIFFS PROPOSED JOINT LITIGATION PLAN AND REQUEST FOR STATUS CONFERENCE

Plaintiffs hereby propose the attached joint litigation plan for the above case. Plaintiffs respectfully request a status conference with the court to determine if this plan is acceptable to the parties and to the court. Respectfully Submitted,

Kenneth L. Lawson (0042468) Kenneth L. Lawson & Associates Trial Attorney for Plaintiffs 1014 Vine Street, Suite 1575 Cincinnati, Ohio 45202 (513)345-5000 (513) 345-5005 fax

Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs 1 Liberty House P.O. Box 54400 Cincinnati, OH 45254 (513)943-2400 (513) 943-4800 fax law@scottgreenwood.com

Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs 1409 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513)621-9100 (513) 345-5543 fax agerhardstein@laufgerhard.com

Tyehimba v. Cincinnati PP-OH-001-001

OF COUNSEL: Raymond Vasvari (0055538) Legal Director Jillian S. Davis (0067272) Staff Counsel ACLU of Ohio Foundation, Inc. 1266 West 6th Street Cleveland, Ohio 44113 Phone: (216)781-8639 Fax:(216)781-6438
CERTIFICATE OF SERVICE The foregoing Plaintiffs Proposed Litigation Plan and Request for Status Conference was served on the following counsel of record this day of March, 2001 by United States Mail: Michael Harmon Richard Ganulin City of Cincinnati City Hall Room 214 801 Plum Street Cincinnati, OH 45202 FAX 352-1515 Donald Hardin Hardin, Lefton, Lazarus & Marks, LLC 915 Cincinnati Club Building 30 Garfield Place Cincinnati, Ohio 45202
I I

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

BOMANI TYEHIMBA,

CaseNo.C-1-99-317

Plaintiff

Judge Dlott

vs. CITY OF CINCINNATI, et al.

LITIGATION PLAN

Defendants

The parties to the above action hereby propose a joint litigation plan and case schedule.
I. INTRODUCTION This individual action is currently pending on a motion to amend it to a class action lawsuit. The proposed class action complaint challenges alleged disparate treatment of African-American persons by the Cincinnati Police Division. This treatment includes alleged stops, detentions and searches based on race. This treatment also includes allegedly discriminatory enforcement of the traffic and other laws resulting in a disproportionate number of African-American people being charged with minor traffic violations and discretionary offenses such as jaywalking. Plaintiffs also allege discriminatory use of force against African-American persons and other practices that have the purpose and/or effect of discriminating against African-American persons because of their race. The parties enter into this joint litigation plan in order to coordinate their investigation and discovery so that facts may be expeditiously determined and the prospects for settlement readily assessed. By entering into this plan neither party agrees
Tyehimba v. Cincinnati

PP-OH-001-002

to waive their rights to fully litigate all aspects of this case. Rather, they simply agree to delay normal litigation efforts and instead pursue this alternative path of collaborative fact finding and negotiation for at least 120 days.
II. Litigation Plan and Schedule A. Motion to Amend and Service of Class Complaint. The defendants do not oppose the motion to amend and waive service of the class action complaint. The defendants reserve all rights to file motions to dismiss and to oppose certification of a class if the matter is not resolved through the process proposed in this plan. B. Collaborative Fact Finding and Negotiation. The parties agree to defer formal litigation efforts except as set out in this plan for a period of 45 days while they pursue collaborative fact finding and initial disclosures under the local rules. Specifically, this means that the City of Cincinnati will meet with the plaintiffs by March 23, 2001 and agree on a database(s) which shall be produced with the following information, mobile computer terminal transmissions (all), radio traffic transmissions (all); Citations issued 1997 -present; personnel information that is already entered in a database; and misconduct complaint and investigation information. The parties will also cooperate to collate all of the testimony presented at various public hearings and submitted to the City alleging racial discrimination in policing. Further, the City will provide to the plaintiffs during this time a complete report (including source documentation) on the status of all city action taken in response to the 1995 City Manager Police Review Panel; the 1998 Mediation Report, The Civilian Police Review Panel Reports, and The Citizen's Advisory Commission Reports and statements.

The parties will also agree to share in the cost of retaining Jay Rothman and the Aria Group, Inc. to conduct a structured conflict resolution process subject to the approval of the court. That process will include a broad based inquiry of persons with an interest in the problem of alleged racial discrimination by police; a collation and analysis of the responses and a dialogue and problem solving process to be co-chaired by Mr. Rothman and Mag. Judge Jack Sherman. The parties shall conclude this process and report to the court no later than June 15,2001. C. Goal of Collaborative Process: The conflict resolution process will be designed to develop a consent decree subject to the approval of the court and to develop a community consensus in support of the decree. Racial profiling and racial discrimination allegations are serious issues of constitutional significance and need prompt attention by the courts, the police administration, police officers, and the public. The parties recognize that any resolution must be achieved without compromising the safety and security of the public and the law enforcement officers. The parties recognize that a community consensus is needed in order to secure the support of all stakeholders in any decree approved by this court. The collaborative efforts described in this plan will assist the parties in developing police practices, supervising police action and channeling citizen complaints into processes and institutions that have been developed or revitalized through this collaborative process and then monitored as a decree through this independent, neutral court. D. Protective Order. The government records, databases, personnel files, and criminal record files produced during the collaborative law process shall be available to the parties in the litigation as necessary. A protective order shall be submitted and approved by the

court to limit access or require redacting as necessary in order to protect the safety and security of members of the public and law enforcement officers. E. Report to Court. The Parties agree to report to the Court every thirty days or as otherwise requested by the court. A status conference will be set for June 15, 2001 at which time the parties should be prepared to propose a schedule for notice and approval of a proposed consent decree or set the case on a schedule for litigation. F. Damage Actions and Consolidated Cases. The parties agree to report to the court on June 15, 2001 as to whether any resolution can be provided for damage claims that have been asserted in this action and in the consolidated actions or that will possibly be asserted in future actions by class members. If no resolution or process can be established, the parties will propose a litigation plan for each action. G. Waivers. No party is waiving any legal or factual argument, substantive or procedural (except service) by entering into this agreement H. Stay on Litigation. All pleadings and discovery in this case, except those filed pursuant to the litigation plan, shall be stayed until June 15, 2001. Signed: Plaintiffs' Counsel:
Kenneth L. Lawson Trial Attorney for Plaintiffs
Scott Greenwood Trial Attorney for Plaintiffs
Alphonse A. Gerhardstein Trial Attorney for Plaintiffs

Defendants' Counsel:
Michael Harmon Richard Ganulin Assistant City Solicitor City of Cincinnati Trial Attorney for Defendants
Donald Hardin Trial Attorney for Defendants
SO ORDERED:
Susan J. Dlott United States District Judge Date:

 
 Tyehimba v. Cincinnati

PP-OH-001-003

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

IN RE: RACE DISCRIMINATION IN CINCINNATI POLICING

Case No. C-l-99-317 Judge Dlott

PLAINTIFFS' MOTION TO PROVISIONALLY CERTIFY CLASS

MOTION
Pursuant to Fed. R. Civ. Proc. 23(a) and (b)(2), the plaintiffs move this court to
provisionally certify the following plaintiff class: All African-American or Black persons and people perceived as such who reside, work in and/or travel on public thoroughfares in the City of Cincinnati, Ohio either now or in the future and who are stopped, detained, and arrested by Cincinnati Police Officers or their agents.
Plaintiffs further move that this court appoint the Friends of Cincinnati Black United
Front ("The Front") and the American Civil Liberties Union of Ohio Foundation, Inc.
("ACLU") as class representatives and the undersigned counsel be appointed as class
counsel.

MEMORANDUM
I. Introduction This is a civil rights class action challenging disparate treatment of African-
American persons by the Cincinnati Police Division. This treatment includes stops, detentions and searches based on race. This treatment also includes discriminatory enforcement of the traffic and other laws resulting in a disproportionate number of African American people being charged with minor traffic violations and discretionary offenses such as jaywalking. This treatment also includes discriminatory uses of force against African-American persons and other practices that have the purpose and/or effect of discriminating against African-American persons because of their race. Plaintiffs seek declaratory and injunctive relief for the class under the First, Fourth, and Fourteenth Amendments to the United States Constitution, federal law, the Ohio Constitution, and state law.
This motion to certify a class is being filed at the same time as a motion for preliminary injunction and a motion to amend the complaint. Expedited scheduling on these motions is requested. II. Argument
A. Standard for Certification of Class Action The determination that an action will be maintained as a class action involves a two step process. First, the Court must find that the four prerequisites of Rule 23(a) numerosity, commonality, typicality, and adequacy of representation - have been

satisfied. The court must then decide whether the proposed class qualifies under one or more of the three alternative bases of certification set forth in Rule 23(b).
As set out in detail below, the class in this case is so numerous that joinder of all members is impracticable; there are questions of law and fact common to the class; the plaintiffs' claims are typical of the class; and plaintiffs will fairly and adequately protect the interest of the class. In addition, plaintiffs satisfy the requirements of Fed. R. Civ. Pro. 23(b)(2) because the primary relief sought by plaintiffs is injunctive and declaratory.
A "rigorous analysis" of compliance with Rule 23 is expected in class action determinations. In re American Medical Systems, Inc., 75 F. 3d 1069, 1078-1079 (6lh Cir. 1996) (citing Tel. Co. v. Falcon, 457 U.S. 147, 161. (1982)). As the proponents of certification, plaintiffs have the burden to prove that certification is appropriate. Id. at 1079 (citing Falcon, 457 U.S. at 161;Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976), cert denied, 429 U.S. 870 (1976)). The merits of the case are not to be tried on a class certification motion:
We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.... "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met."
Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 177-178 (1974) (quoting Miller v. Mackey
International, 452 F.2d424, 427 (CA5 1971).
The present task in this case, therefore, is not to determine the merits of plaintiffs'
claims of discrimination. Indeed, merits discovery has not commenced. Rather, this
court must determine whether plaintiffs have satisfied the requirements of the

Rule 23. Plaintiffs have proposed a class in this race discrimination case defined as
follows: The plaintiffs propose that the Court adopt the following class definition: All African-American or Black persons and people perceived as such who reside, work in and/or travel on public thoroughfares in the City of Cincinnati, Ohio either now or in the future and who are stopped, detained, and arrested by Cincinnati Police Officers or their agents.
Plaintiffs seek only injunctive relief on their class claims. Certification is requested under Rule 23(b)(2) which requires that plaintiffs show that the "party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." As the Supreme Court recently noted, "[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples [of Rule 23(b)(2) classes]." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997). That is precisely what plaintiffs are alleging in this case. Indeed, rooting out the racial disparity in the criminal justice system evident at all levels of the justice system is a major issue locally, state-wide and nationally. Class treatment is uniquely appropriate in such cases. B. The Requirements Of Rule 23(a) Are Satisfied.
1. The Class Is So Numerous That Joinder Of All Members Is Impracticable.
Rule 23(a)(l) requires that, for certification purposes, the class be so numerous that the joinder of all members is impracticable. Impracticability means only difficulty or inconvenience of joining all members of the class. Senter, 532 F.2d at 523; Bowling v.

Pfizer, Inc., 143 F.R.D. 141, 158 (S.D. Ohio 1992). The proposed class in this case consists of thousands of African American and Black persons and people perceived as such. Much smaller classes have met the numerosity requirement. Nash v. City of Oakwood, 94 F.R.D. 83, 89 (S.D. Ohio 1982) (33 members); Afro American Patrolmen's League v. Duck, 503 F.2d 294 (6th Cir. 1974) (35 members).
A racial profiling class was certified in Farm Labor Organizing Committee v. Ohio State Highway Patrol, 184 F.R.D. 583 (N.D. Ohio 1998). The class was defined as "all current and future Hispanic motorists and/or passengers traveling in Ohio, who are involved in traffic stops by officers, agents or employees of the Ohio State Highway Patrol, and are questioned about immigration matters, or suffer the seizure of their lawfully issued immigration documents." Id. at 586. The court held that the numerosity requirement was satisfied because the number of persons included was large and likely to continue to grow; members are geographically dispersed and many of the class members are low income and lack the financial resources and knowledge to bring individual actions. Id at 586-587. In the case at bar, the class members are in the thousands and they also will continue to grow, are geographically dispersed, and many lack resources and knowledge to file separate actions. The class is too numerous to permit joinder of all of the members of the class.
2. Questions Of Law Or Fact Are Common To The Class. The alleged nature of the defendants' conduct in this case together with the similar legal status of the class members requires the Court to find that questions of law or fact are indeed common to the class. All of the class members are present now or in

the future within the geographical boundary of the City of Cincinnati and are subject to interaction with the Cincinnati Police. The need for a consistent and uniform rule prohibiting the improper use of race in policing is obvious.
Common questions exist whenever the action arises from a nucleus of operative facts. Thompson v. Midwest Foundation Independent Physicians Association, 117 F.R.D. 108, 112 (S.D. Ohio 1987). See also, Sterling v. Velsicol Chemical Corporation, 855 F.2d 1188 (6lh Cir. 1988). The focus of the Court's consideration of class certification should be directed at, and fixed upon, the factual and legal nature of defendants' liability and course of conduct as it uniformly affects all plaintiffs. Thompson, 117 F.R.D. at 109. This prerequisite is satisfied "as long as the members of the class have allegedly been affected by a general policy of the defendant, and the general policy is the focus of the litigation." Sweet v. General Tire & Rubber Co., 74 F.R.D. 333, 335 (N.D. Ohio 1976) (emphasis in original). In Farm labor Organizing Committee, the court held that this requirement was satisfied in a racial profiling case: "Plaintiffs complaint has questions of both law and fact that are common to the class; The legal question involved -whether defendants' practices are illegal and unconstitutional -is common to all class members. Likewise, the factual question—the exact nature and extent of defendants' practices—is common to all members." 184 F.R.D. at 587.
That requirement of common questions of fact and law has certainly been met in this case. Plaintiffs have alleged discriminatory practices including but not limited to:
Stops of African-American persons without reasonable suspicion that a crime has been committed; Disproportionate application of the following practices to African American persons: Undue detention, unnecessary searches, improper use of handcuffs,

improperly locking of innocent citizens in cruisers, improperly forcing innocent persons to obey direction at gunpoint;
Disproportionate retaliation against African Americans who seek badge numbers and names from police officers; Disproportionate charging of discretionary offenses against African Americans as a pretext for race-based stops; Failure to monitor, supervise and discipline white officers who are targets of repeated complaints of misconduct; Rewarding officers for aggressive police practices and arrests rather rewarding those who implement the Community Oriented Policing Philosophy;
Establishing arrest expectations by neighborhood. Plaintiffs seek to remedy these policies and practices through an order requiring data collection that will permit the tracking of charges and stops by race and permit the tracking of misconduct by officer, increased diversity and conflict resolution training and improved field training; and reforms in the manner in which misconduct is investigated and discipline imposed. As in Farm Labor Organizing Committee, this requirement is satisfied.
3. The Claims Of The Plaintiffs Are Typical Of The Claims Of The Class.
One of the purposes of the typicality requirement is to ensure that the named representatives' claims are similar enough to those of the class to ensure that the named representatives will adequately represent the class. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157, n.13 (1982). To be typical, "a representative's claim need not always involve the same facts or law, provided there is a common element of fact or law." Senter v. General Motors Corporation, supra, at 525, n.31.
In this action, the proposed representative plaintiffs are civil rights organizations
whose mission includes advocacy in opposition to racial discrimination in policing.

Many of the class members are members of these organizations. The organizations
clearly have standing in their own right and on behalf of their members to pursue this
case which tracks so closely to their mission of opposing discrimination and advocating
for equal justice.
The standing question is controlled by Supreme Court precedent, including the
recent decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC),
Inc., 528 U.S. 167 (2000). In that case, the plaintiff environmental organization sued on
behalf of members who alleged that they were refraining from the use of a river which
was being polluted by discharges from the defendant company. The alleged injury from
the pollution was sufficient to find standing to sue. The Court explained that standing has
roots directly in Article III §2 of the Constitution which requires that in order for a
federal court to have jurisdiction there must be a "case or controversy."
[T]o satisfy Article Ill's standing requirements, a plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Id. at 180-181 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
The issue in Friends of the Earth was whether the plaintiff association members had
alleged sufficient injury in fact to bring the suit. The court held that there was injury in
fact:
[W]e see nothing "improbable" about the proposition that a company's continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms. The proposition is entirely reasonable, the District Court found it was true in this

case, and that is enough for injury in fact. Id. at 184-185.
The declarations from members of these groups demonstrate that the discrimination they experience makes them less likely to call on police and more fearful when they do interact with police. Similar allegations from members of environmental organizations who use an area allegedly being polluted by defendant "for whom the aesthetic and recreational value of the area will be lessened" by the challenged activity supported standing in Sierra Club v. Morton, 405 U.S. 727, 735 (1972). The Supreme Court relied on such allegations in Friends of the Earth. The declarations from members of the civil rights organizations submitted with the motion for preliminary injunction meet this test.
The holding in Friends of the Earth is consistent with prior rulings extending standing in cases challenging race discrimination and racial steering in housing in suits brought under Title VIII of the Civil Rights Act of 1968. Gladstone, Realtors, et al. v. Village ofBellwood, 441 U.S. 91 (1979); Havens Realty Corp v. Coleman, 455 U.S. 363 (1982). In Gladstone, a Village, its residents and non-resident prospective homebuyers had standing to challenge an alleged practice of racial steering in which AfricanAmericans were steered toward a 12 by 13 block area of the community and white customers were steered away from that area. The alleged injury deemed sufficient for standing was the deprivation of the "social and professional benefits of living in an integrated society." 441 U.S. at 91.
In Havens the Court extended the scope of standing to include "testers." These plaintiffs posed as applicants for housing and were not bona fide applicants. The Court

held that African-American testers who were falsely told that no apartments were available to rent were denied truthful information. That was sufficient injury to support standing by the testers. 455 U.S. at 373-374.
Similar interests have supported standing in Neighborhood Action Coalition v. Canton, Ohio, 882 F.2d 1012 (6th Cir. 1989). In that case the Sixth Circuit reversed the dismissal of a class action headed by a neighborhood organization. One of the claims in the suit was under equal protection, claiming that the neighborhood received less police protection because of the race of the residents. The Court held that the plaintiff association had alleged valid claims under both Title VI, 42 U.S.C. §2000d-l and under the Civil Rights Act, 42 U.S.C. §1983. Similar theories are pursued here. See also Stemler v.City of Florence, 126 F.3d 856 (6th Cir. 1997) (violation of equal protection to deny police protection based upon person's sexual orientation).
An examination of the complaint reveals that plaintiffs' claims are typical of the class members. Numerous examples of allegations from members of the plaintiffs' organizations are provided. Plaintiffs' claims focus upon the Defendant City's alleged wrongful conduct. Thus, their claims "are typical of the claims... of the class." Sweet v. General Tire & Rubber Co., Supra 74 F.R.D. at 335. In such circumstances, a class action may be the best suited vehicle to resolve such a controversy. Sterling v. Velsicol Chemical Corporation, 855 F.2d at 1197 (6th Cir. 1980). As long as the theories of liability transcend factual differences among the plaintiffs, this Court should find that plaintiffs have satisfied the typicality requirement. See id. at 1197. "While the focus is on the relatedness of the named plaintiffs' claims and those of the class members, the harm suffered by the named plaintiffs may differ in degree from that suffered by the other
10

members of the class so long as the harm suffered is of the same type." In re Asbestos School Litigation 1991 WL 137128 (E.D. PA).
4. The Representative Plaintiffs Will Fairly And Adequately Protect The Interest Of The Class Members.
Rule 23(a)(4) requires that the named plaintiffs "will fairly and adequately protect the interests of the class." The adequacy inquiry under Rule 23(a)(4) serves "to uncover conflicts of interest between named parties and the class they represent." Amchem Products, Inc., supra, at 31. The adequacy of representation requirement "tends to merge" with the commonality and typicality criteria of Rule 23(a) which "serve as guideposts for determining whether... maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Amchem Products, Inc. at 32 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157, n.13 (1982)).
In determining the adequacy of class representation, the Sixth Circuit has directed that the Court must examine two factors: 1) whether the named representatives have common interests with the unnamed class members; and 2) whether the named representatives will vigorously advance the interests of the class through qualified counsel. See Senter v. General Motors Corporation, supra, at 525; See also, Bowling v. Pfizer, Inc., 143 F.R.D. at 159 (S.D. Ohio 1992); In re American Medical Systems, Inc., 75 F. 3d at 1083.
Here, the named representatives' claims as class members are so interrelated to the other class members members' claims that the plaintiffs will be fair and adequate representatives. In the case at bar, there are no conflicts of interest between the proposed
11

class representatives and the members of the class since the claims of all parties arise from a consistent practice, are based upon identical theories of law, and the relief sought for the class is the same for all the class members.
The proposed class representatives are knowledgeable about the facts which are key to the issues presented in this case. The representatives understand the duty owed all plaintiffs in protecting their legal rights. Each representative has the ability and intention to fulfill the duty.
The second prong of the Sixth Circuit's adequacy of representation test, the qualifications of class counsel, is also satisfied. The named Plaintiffs are represented by counsel who are very experienced and thoroughly familiar with class action litigation and civil rights litigation, including race discrimination litigation. Counsel have also previously been deemed qualified to act as lead counsel and class counsel in other complex litigation. .C. The Present Action Is Appropriate For Class Certification Under Rule 23(b)(2).
The injunctive relief sought by the class in this case is the primary relief requested, and is directed towards conduct that affects each and every member of the class. Indeed, this relief sought by the class cannot be awarded on a class member by class member basis. Certainly declaratory and injunctive relief addressing policing cannot be awarded on anything less than a class-wide basis. Thus, plaintiffs satisfy the requirements contained in Rule 23 (b)(2).
Plaintiffs challenge an action which was directed towards the class as a whole and final class-wide declaratory injunctive relief would be appropriate. This is all that is required under sub-section 23(b)(2). Bower v. Bunker Hill Co., 114 F.R.D. 587, 596 (E.D. Wash. 1986).
12

Certification of a 23(b)(2) class is the only legally sound method available to properly
manage and adjudicate all issues and claims. A similar class was certified in Farm Labor
Organizing Committee, supra. The court reviewed all of the requirements of Rule 23 and
certified the class under 23(b)(2).
The plaintiffs respectfully request that this Court order this action be maintained
as a class action, that the named plaintiffs be appointed class representatives, and that the
undersigned counsel be appointed counsel for the class.
III. Conclusion
Plaintiffs respectfully request that the class as described be provisionally certified.
Respectfully Submitted,
Kenneth L. Lawson (0042468) Kenneth L. Lawson & Associates Trial Attorney for Plaintiffs 1014 Vine Street, Suite 1575 Cincinnati, Ohio 45202 (513)345-5000 (513) 345-5005 fax

Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs 1 Liberty House P.O. Box 54400 Cincinnati, OH 45254 (513)943-2400 (513) 943-4800 fax law@scottgreenwood.com

Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs 1409 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513)621-9100 (513) 345-5543 fax agerhardstein@laufgerhard.com

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OF COUNSEL: Raymond Vasvari (0055538) Legal Director Jillian S. Davis (0067272) Staff Counsel ACLU of Ohio Foundation, Inc. 1266 West 6th Street Cleveland, Ohio 44113 Phone: (216)781-8639 Fax:(216)781-6438
CERTIFICATE OF SERVICE The foregoing Motion to Provisionally Certify Class was served on the following counsel of record this day of March, 2001 by United States Mail: Michael Harmon Richard Ganulin City of Cincinnati City Hall Room 214 801 Plum Street Cincinnati, OH 45202 FAX 352-1515 Donald Hardin Hardin, Lefton, Lazarus & Marks, LLC 915 Cincinnati Club Building 30 Garfield Place Cincinnati, Ohio 45202
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

IN RE: RACE DISCRIMINATION IN CINCINNATI POLICING

Case No. C-l-99-317 Judge Dlott

MOTION BY PLAINTIFFS FOR PRELIMINARY INJUNCTION

Pursuant to Fed. R. Civ. Pro. 65, plaintiffs hereby move for a preliminary injunction restraining the defendant City of Cincinnati from continuing to engage in racially discriminatory police practices as further described below. Due to the public importance of this matter, plaintiffs request expedited discovery and an expedited hearing. Plaintiffs request that bond be set at $1.00.
MEMORANDUM OF LAW I. INTRODUCTION AND SUMMARY UNDER LOCAL RULE 7
This is a civil rights class action challenging disparate treatment of AfricanAmerican persons by the Cincinnati Police Division. This treatment includes stops, detentions and searches based on race. This treatment also includes discriminatory enforcement of the traffic and other laws resulting in a disproportionate number of African American people being charged with minor traffic violations and discretionary offenses such as jaywalking. This treatment also includes discriminatory uses of force against African-American persons and other practices that have the purpose and/or effect of discriminating against African-American persons because of their race. Plaintiffs seek declaratory and injunctive relief for the class under the First, Fourth, and Fourteenth
Tyehimba v. Cincinnati
PP-OH-001-004

Amendments to the United States Constitution, federal law, the Ohio Constitution, and state law.
This case addresses policing which is just one part of the criminal justice system. There is currently a great deal of attention paid locally, state-wide and nationally to the racially disparate impact of practices at all levels of the criminal justice system. Urgent action is needed to address these issues. For example, the Ohio Commission on Racial Fairness, convened at the request of Ohio Supreme Court Justice Thomas Moyer recently reported that in Ohio African Americans are arrested, convicted and sentenced to prison almost 10 times as frequently as whites. "One in 523 whites in the state will spend some time in prison, while for blacks the number grows to one in 53." Report at 37. The Commission noted that "Witnesses in nearly all of the sites told of being stopped by the police for no apparent reason, only because of their color." Id. at 7. The Commission found that while "racial discrimination does not account for all of the differences in treatment of white people and minorities, it concludes that afactual basis for this perception [of racial discrimination] clearly exists." Id. at 36 (emphasis added). Racial discrimination in the criminal justice system should be eradicated with all deliberate speed, starting now, here in Cincinnati, with this effort to reform discriminatory practices engaged in by the Cincinnati Police.

II. STATEMENT OF FACTS A. History of Racial Discrimination By Cincinnati Police Division
Racial discrimination in policing has a long history in Cincinnati. Opposition by African American citizens to Cincinnati Police Division (CPD) discriminatory practices triggered race riots in Cincinnati in 1967.
At the time of the riots, African American persons were protesting the improper use of the loitering law by Cincinnati police officers, contending that the law was used to harass Black people. In 1968, the Kerner Commission, which studied the riots in eight major cities, including Cincinnati, found that police used their discretion to charge disproportionate numbers of Blacks with loitering compared to white persons. Moreover, the Commission found that on the first day of the riot that for similar conduct the Cincinnati Police charged white people with disorderly conduct but charged African Americans with more serious violations of the "Riot Act," further fueling racial hostility toward the police.
A common complaint by African Americans to the Kerner Commission was their subjection to verbal harassment and the abusive and degrading police practice of "stopping of Negroes onfoot or in cars without obvious basis. " Harris, Kerner Report, p. 303 (1988 edition).
Police relations with the African American Community remained strained through the 1970's. Within an eighteen-month period in 1978 and 1979, white police officers killed four black civilians and black civilians killed four white police officers. In March, 1979, 600 angry police wives marched on City Hall. In May, 1979, hundreds of Cincinnati police officers participated in a protest that included surrounding City Hall

with 60 cruisers, turning on their emergency and head lights, locking their doors and marching to police headquarters, where they threw the cruiser keys into a pile. Meetings at City Hall to address tensions between African Americans and police were disrupted by fistfights in Council chambers and in the halls.
Police officer demands were appeased by the City in 1979 in part by the issuance of high powered .357 magnum weapons, expansion bullets, and bullet proof vests. These measures further heightened distrust and animosity toward the police among African American citizens.
The Mayor's Community Relations Panel including Chair Lawrence Hawkins, V.P. of the University of Cincinnati, and member Archbishop Joseph L Bernadin reported to City Council in 1979 that a problem existed in the CPD "beyond simply a few bad apples." The report further noted that citizens believed that
City Council, the City Administration, or the Police Administration neither really care nor are willing to do anything about reported incidents of misconduct. The existing complaint mechanisms have little credibility...The perceived lack of concern on the part of official Cincinnati for disciplining police misconduct has contributed to an atmosphere of fear and distrust. The public questions whether or not the Police Division can police itself, and more seriously, whether elected officials and appointed officials are willing to control the police.
Hawkins Report, III-2. The Hawkins report also noted that members of the African American community
perceived racism and class prejudice by the police. The major institutional problems the group discovered were lack of police accountability for misconduct; lack of adequate training in human relations and other areas; insufficient number of minority officers; lack of communication between minorities and police; and lack of racial equality in the delivery of policing services.

In 1981, The United States Commission on Civil Rights published another review of policing in Cincinnati. The findings of this group included misuse of force by the police, inadequate oversight of the police, and inequitable distribution of police services. One finding focused on the fact that police would frequently fail to explain or refuse to provide civilians with the reasons for their actions, creating resentment, fear and distrust in civilians. Another finding noted that the lack of African Americans and women on the force further hurt the credibility of the police force as a group available to protect all members of the community.
In 1981 the City finally entered into a consent decree that sought to address the discrimination against blacks and women in hiring and promotions in the CPD.
In 1981, the City finally made operational the Office of Municipal Investigation with limited responsibility and power to investigate citizen complaints against the police.
One study completed on the first five years of OMI's operation found that OMI made a finding of improper conduct against 94 officers but none of those officers received any discipline as a result of OMI's investigations and findings.
In 1983, a "Comprehensive Report" prepared by a group of City administrators that included attorney (and now Hamilton County Judge) Cheryl Grant, advised the City manager that 86% of the CPD personnel who were interviewed reported answered "YES" to the question, "Is there racial prejudice-racism in the Cincinnati Police Division?"
In 1987 a second consent decree was entered by the City to address racial and gender discrimination in the CPD at the rank of lieutenant and above.
In 1991 two African American citizens were killed by Cincinnati police officers. A team of City Administrators investigated the police action causing the two deaths. The

major recommendations involved increased training for officers dealing with minority and special needs populations.
In 1995, Pharon Crosby, an African American student, was subjected to excessive force by the Cincinnati Police in the central business district. Recommendations by a City panel to the City manager again called for increased training and again called for better measures to review police misconduct generally and track and supervise officers who use excessive force or engage in other inappropriate conduct.
In August, 1995, a panel headed by former Ohio Governor John J. Gilligan addressed allegations of racism lodged by the Sentinel Police Association against the City of Cincinnati. The panel reported to the city manager that a renewed commitment to community oriented policing was needed; that field training officers were critical to training and that their position should be upgraded; that more conflict training was needed and should be carried out on the job by matching veterans with new officers; that accountability be improved, and that CPD discipline needed to be carefully studied because African Americans made up 23% of the force but represented 44% of the discipline. There was a strong perception that for the same conduct white officers were counseled or tolerated and black officers were given formal discipline. The group also recommended civil service reforms.
On information and belief, between January, 1995 and December, 2000, Cincinnati police officers killed 13 persons while they were being apprehended. All thirteen individuals were African Americans.
In 1998, the City entered into an agreement with several community groups drawn largely from the African American community. The United States Department of

Justice mediated this agreement. In the agreement the City agreed to upgrade OMI and the system for holding police accountable; again agreed to upgrade training on cultural awareness and special needs; and again agreed to upgrade its system for tracking officers' performance.
In 1999, the Sentinel Police Association presented the City with a "Final Report for the New Millenium." The report included over 150 complaints from African American civilians who alleged racial targeting, racially discriminatory stops, excessive force, all echoing the types of complaints that had triggered commissions and studies for more than thirty years,
As set out in §B-E below, the Cincinnati Police Division continues to use racially discriminatory practices that have been identified and discussed for thirty years . B. Disparate Treatment of Class Members in Stops, Searches and Length of
Detention Where no Charges are Filed Defendant City has tolerated, acquiesced in, ratified and been deliberately indifferent to practices by members of the CPD, based on race, of stopping African American citizens without reasonable suspicion of criminal activity. This disparate treatment based on race has been perpetuated and implemented by various tactics including but not limited to the following: Racial stops. Defendant City stops a disproportionate number of African Americans in their vehicles and on foot for interrogation when there is no reasonable suspicion that a crime has been committed. For example, class member Klinton McGhee, an African-American male, was a Walnut Hills High School student in February, 2000. He was driving with two African American female passengers on Madison Road in the Hyde Park neighborhood of

Cincinnati. He did not violate any traffic laws. Nonetheless, he was stopped by a group of five police cruisers that night. He was ordered to produce his license and registration and numerous officers shined flashlights into the car looking at the contents of the car and the occupants very carefully. After awhile one officer returned and claimed that he was simply checking to see if they were wearing their seatbelts. McGhee and his passengers were all frightened by the experience.
Class member Larry Davant, an African-American male, reports on four instances within the year 2000 when he was stopped, often at gunpoint and detained and then released. One stop resulted in a misdemeanor charge of which he was later acquitted.
Class member Douglas McMillan was stopped in November, 1999 near Swifton Commons in Cincinnati. Two officers exited their cruisers yelling "get out of the car with your hands up." Mr. Mcmillan was in the car with his wife and child and frightened to have guns pointed at them all. Mr. McMillan exited the car and provided his identification. After reviewing the I.D., one officer said, "he's clean." In response to Mr. McMillan's questions one officer stated that he had been stopped because he was allegedly swerving. But no ticket was issued and Mr. McMillan was not swerving. The experience was frightening for Mr. McMillan and his family.
Class member Shepherd Allin Gaines, an African-American male, attempted to find a friend's apartment in English Woods. When he was not successful he left and started to drive away. The police stopped him and accused him of dealing drugs simply because he had been to English Woods and inquired of a person there as to the location of the apartment. Even though the police had no evidence that he was a drug user, they searched his car.

Class member Wendell Young, an African American male, former Cincinnati police officer and presently a Diversity manager for MSD, was singled out for a license plate check and detained while the officer threatened to file disorderly conduct charges against him when Mr. Young questioned him about his directives.
Class member George Webb is seventy-two years old. He is an AfricanAmerican. On November 7, 2000, he was handcuffed and walked across the Kroger parking lot in Hyde Park allegedly as a suspect in a shoplifting. But the suspect was in his thirties and wore entirely different clothing. Mr. Webb states that the officer simply arrested the first Black man he saw. The experience was embarrassing and humiliating.
Class member Mustafaathfatb.ee Alfred Ingram is an African American male who was stopped on March 11, 2001 on Vine Street downtown. He was asked about drugs, held at gunpoint and handcuffed and his car was searched. He had committed no crime.
Another class member, Roderick Glenn, was stopped by the police on March 1, 2001 as he was walking on Vine Street. Though he had committed no crime he was ordered to get up against the wall. He declined. He was eventually arrested and was subjected to excessive force. He was frightened and humiliated by his treatment by the police.
Class member Basil Warren Lewis was stopped on Ezzard Charles on February 20, 2001. He was ordered out of his car and handcuffed before he was permitted to produce proof of identification. After he did show his I.D., the officers released him without charges. He was humiliated and cannot understand why he was arrested and handcuffed without being offered a chance first to establish his identity.

Sometimes the disparate treatment of stopping African Americans and not Whites is evident in a single incident. For example, class member Shirelyn Beauman, an African-American female, was with approximately seven friends in the front of a residence on private property on September 26, 1999. They were talking in normal tones and not being boisterous. Across the street was a very loud college party involving a large number of white people who were screaming and drinking and being very disorderly. The police asked the white college students to quiet down and did not arrest or cite anyone. But then they came across the street and interrogated the African Americans about an alleged light that they thought had been directed toward them, cited one person for holding an open container on private property and cited Ms. Beauman for resisting arrest when she asked them for their names and badge numbers. The charges were eventually dismissed but the trauma of being viewed as a criminal while the white students were viewed with respect cannot be so easily dismissed.
Another class member, Otha Smiley, an African American male, was part of a group of three African American boys and two white girls walking in Corryville on July 11, 1999. Cincinnati police officer Patrick Caton ordered the African American boys to stop and he detained them. Officer Caton advised the white girls to leave the area and he did not detain them. This stop and eventual use of force on Mr. Smiley is the subject of a civil rights lawsuit, Smiley v. George, et al., USDC S.D.OH. No. C-l-00-765 which remains pending.
Discriminatory Action After Stops. Defendant City detains a disproportionate number of African Americans for investigation for lengthy periods of time and harasses them or treats them in an abusive manner after a suspicion has clearly been disproven.
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This practice includes but is not limited to drawing weapons on innocent African American civilians; placing innocent African American civilians in handcuffs and requiring them to lay down on the street or sit in the cruiser; and using abusive language in order to provoke a citizen into a reaction that can then be used to charge a crime.
For example, when the CPD officers stopped class member Charnell Warner, an African-American female, on January 19, 2001, they were looking for two males. She was driving in a car with her husband and two minor children. The incorrect identity of this class member was obviously and immediately apparent. The couple was eventually released without charges. Nonetheless, before their release Ms. Warner and her husband were ordered out of their vehicle at gunpoint with the children also in firing range of the weapons, each of the parents was handcuffed, each of them was locked in a cruiser for some period of time, all while the children were crying and frightened.
Class members Vinnie Clark and Terry Horton had a similar experience. Mr. Clark is a former pro football player for the Atlanta Falcons and the Green Bay Packers. On February 23, 2001, they were riding in a Yukon sport utility vehicle owned by Vinnie Clark. Several police cruisers surrounded them and officers quickly pointed shotguns and handguns at these men. The police were allegedly looking for a suspect by the name of Charles B. Identification was presented by the class members and none of their information matched the suspect. Nonetheless, these two men were forced to their knees, handcuffed, and locked in the rear of a police cruiser while the police searched the glove compartment, seats, interior and the trunk of the Yukon. The experience was frightening.
William D. Haybert IV is another African-American class member. On March 11, 1999, he was approached at gunpoint by a White police officer as he exited his
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vehicle in his own driveway. Mr. Haybert was arrested for traffic violations and obstructing justice, all charges that had no basis. The White officer failed to show for court two times. Mr. Haybert was arrested again on the same charge by the same officer. The officer again failed to show for court and the charges were again dismissed. The White officer was clearly harassing the class member.
Another class member, Stephanie Keith, an African-American female, was stopped on June 22, 2000. She was riding in a car with her husband. The police stopped the car based on an anonymous tip that two black males in a similar car were pointing a gun. As soon as they were stopped, it was obvious to the police that they had the wrong persons. The couple was eventually released without charges. Nonetheless before release, the couple was ordered out of their car, handcuffed, searched and placed in the back of a cruiser. Moreover, the police also conducted a search of their car, including the trunk, without their consent.
One class member, John Harris, was engaged in shooting dice in June, 2000. When he first saw the police he started to run. Soon he stopped and put up his hands. The police, however, punched, maced, kicked and severely beat him. Witnesses begged the police to stop since Mr. Harris was not resisting. Those witnesses testified at Mr. Harris' criminal trial and Mr. Harris was acquitted of all charges. The officers were not charged or disciplined for the excessive force.
Police officers escalated another situation on October 4, 2000 when class member Kevin Frierson was subjected to excessive force after he was approached while sitting in his car. A similar escalation occurred on January 1, 2001 when excessive force was used on class member Vincent Lee Ward II.
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In August, 1999 class member Alfred Olverson and his wife, both AfricanAmericans, were stopped at gunpoint by a Cincinnati officer who was looking for a stolen motorcycle. Since he was driving an automobile and not a car he should not have been stopped. Even after the error was evident they were detained unnecessarily and totally embarrassed in front of their business associates.
Retaliation. Defendant City permits officers to retaliate against African American persons who exercise their First Amendment right to request an officer's name, badge number and identity.
For example, on December 31, 2000, class member Timothy Black was one of a group of African Americans approached as they were leaving a pool hall that had just closed. In response to questioning by the police officer, Mr. Black asked for the officer's badge number. The officer cited that request as one of the reasons for charging him with disorderly conduct.
Class member Shirelyn Beauman, as described above, experienced retaliation when she started recording police names and badge numbers.
Searches. The City permits officers to search the person and autos of a disproportionate number of African American persons who are innocent of any criminal activity.
For example, class member Stephanie Keith, as described above, experienced a search of her auto even though it was clear that she was not the person the police were seeking.
Similarly, class member Gary Fields was stopped, ordered out of his car, frisked and searched. He was innocent of any criminal activity but nonetheless was subjected to a
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full search of his car without his consent. He was released without charges and is now more distrustful of the police.
Class member Summer Rose Bonner was waiting at her Aunt's door in July, 2000. Officers working for the landlord accused her of trespassing. They took her purse and searched it without consent and also patted her down. She complained to the district and was told only that the officer's "were doing their job." She is offended and upset that the officers searched her without consent.
Class member Shepherd Allin Gaines, as described above, also experienced a search without any reasonable basis to suspect drug activity. Although Mr. Gaines advised the officers that he had possessed a weapon which he kept in the car, the officers arrested him anyway. The charges were later dismissed
Photos. The defendant City permits officers to take Polaroid photos of innocent citizens at stops not followed by arrests and then keeping these photos in the cruisers for use in the ongoing monitoring of innocent African American persons.
C. Disparate Treatment of Class Members In Discretionary Charges Discretionary Charges.
Defendant City has cited or arrested African American persons in disproportionate numbers for crimes that are within the discretion of a police officer to charge. For example, on information and belief, for the period 3/99-12/00, African Americans were charged with: 81% of all citations issued by the CPD for driving without proof of insurance; 72% of all citations issued by the CPD for driving under suspension or without a license; 70% of all citations issued by the CPD for driving without a seat belt; and
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79% of all jaywalking citations issued by the CPD. The proof of insurance, driving under suspension and seat belt charges are
normally identified secondary to a stop for another reason. On information and belief African American drivers in Cincinnati have a dramatically higher incidence of being charged with secondary offenses than do white drivers.
African Americans make up 38% of the population of the city according to the 1990 census but receive 47% of all traffic citations, even though only 74% of African Americans of driving age hold licenses compared to 92% of white persons.
These statistics have support in the experience of individual class members. For example, one class member, Kareem Abdul Hadrick, was only cited with three discretionary minor traffic offenses after being detained for nearly an hour in November, 2000 while the police interrogated him about drugs and guns, searched his car without his consent and ordered him out of his vehicle. The three minor charges were later dismissed by the prosecutor.
Class member Israel Evans, an African-American male, was stopped by a Cincinnati officer who had no suspicion of a crime on December 5, 2001. After one hour of interrogation, gunpoint directives, and rude conduct, the officer released Mr. Evans with a citation for a faulty license plate light, a discretionary traffic offense and sped off. Mr. Evans called for a police supervisor who did come to the scene and witness that the light was operable. Mr. Evans was shocked and upset by the experience.
Class member Robbie Gary Fuqua, Jr. was cited on February 16, 2001 for a defective headlight and failure to wear a restraint. The charges, however, were pretext for an hour long search and interrogation of the class member and his three passengers.
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These individuals were forced to sit for at least thirty minutes in their car with their hands out front of them and the windows down. They were also required to exit the car and submit to pat searches. The police also used a dog to search the car interior, all without permission. The experience was humiliating and has made Mr. Fuqua fearful.
Drug laws. African Americans have been disproportionately targeted for stops, arrests and property forfeitures under the drug laws including the Cincinnati Exclusion Zone Ordinance and forfeiture laws and regulations.
D. Disparate Treatment of Class Members Who Reside in Metropolitan Housing and Who are Subject to Discriminatory Searches Cincinnati Police Officers are often hired on "special detail" through the CPD to
work as security guards for the Cincinnati Metropolitan Housing Authority (CMHA). On information and belief, these officers are routinely permitted to use the master keys to units owned by African American persons and conduct searches of their living units without consent, without a warrant and without any exigent circumstance or other justifiable reason.
E. Disparate Impact of Rewarding Officers Who Accomplish More Arrests On information and belief, Cincinnati Police Officers are expected to make more
arrests in predominately African-American neighborhoods than in predominately white neighborhoods. Officers are evaluated in part based on their achievement of these arrest goals or quotas.
On information and belief officers are commended for making arrests but not commended in similar fashion for accomplishments that prevent crime or promote good
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police-community relations. This continued pressure to make arrests causes officers to arrest more low income and minority persons who are least likely to fight the charges in court. This practice of rewarding for arrests rather than framing rewards consistent with the COP philosophy has a disparate impact on African Americans.
F. Deliberate Failure of City to Reform Discriminatory Practices The City has been deliberately indifferent to members of the plaintiff class by
failing to supervise its police officers in a manner that would expose and correct the practices that are the subject of this lawsuit.
The need for effective supervision and discipline has been evident for thirty years and the failure to establish an effective system for supervision and discipline has been a major reason that discriminatory practices have continued.
Upon information and belief, the City has lost each of the last ten cases of police discipline presented to arbitrators under the labor agreement with the Fraternal Order of Police. This dismal record of success in arbitration has had a chilling effect on all discipline, causing police supervision to fail to charge or to undercharge officers guilty of misconduct, including racially discriminatory policing.
The City deliberately hobbles the Office of Municipal Investigation and the Civilian Police Review Panel by failing to heed their recommendations, failing to adequately staff and provide resources necessary for their work, and by failing to cooperate with their investigations.
Every review of the CPD in the last thirty years has called for more cultural diversity training, including ways for police to rely on interpersonal de-escalation skills rather than force when interacting with citizens. The City has deliberately failed to
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provide such training in a meaningful and effective manner. Typically, a session may be devoted to discussion of such issues in the training academy but little is done after the formal classroom sessions to help officers effectively police when they are in an unfamiliar cultural environment. This cultural awareness training can only be accomplished through supervised field training. But with deliberate indifference to this critical task, the City will assign as field training officers, individuals with three or fewer years of experience. In a 1999 field training officer class, 80% of those selected as field training officers had three or fewer years of experience.
The City has a practice of tolerating, acquiescing in and failing to discipline those officers that engage in discourteous conduct toward citizens. The Kerner Commission in 1968 warned about the importance of professionalism and respect in all police-citizen relations. Numerous commissions and reports since that time have continued to recommend that the city insist on courtesy by its officers and punish those who fail to act consistent with professional guidelines. A disproportionate amount of discourteous and harassing actions by Cincinnati police officers is directed at African American persons. The City has deliberately failed to address this issue and routinely permits complaints of discourtesy to go unaddressed and undisciplined, thereby perpetuating this racially discriminatory practice.
As recently as 1998, the City Council approved an agreement mediated by the United States Justice Department between the City and various community groups that required the city to enhance its existing personnel database by requiring entry of performance related information about each officer, including civilian and other complaint histories and discipline. Now, three years later, that comprehensive database
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has not been established. As a result of its breach of this commitment the City is consciously failing to effectively supervise its officers.
In September 1999, the Sentinel Police Association renewed its call for the establishment of a comprehensive personnel tracking database. Even though the City has previously agreed that such a system would provide objective facts necessary to tracking racial discrimination, the City has deliberately failed to act on this request.
The need to determine if police action on the scene is consistent with written policies and professional standards is a basic element of any system of accountability. Police action that is described over radio transmissions and through use of the mobile computer terminals is traceable. In recent months, however, on information and belief, the City has allowed critical police action to be taken "off the record" by permitting private cell phone use by officers at the scene of civilian arrests and interrogations. This "off the record" communication further erodes the ability to hold the officers accountable. By permitting the practice the City is consciously failing to effectively supervise and control its officers.
Eighteen months ago, in September 1999, the City was requested by the Sentinel Police Association to collect data with respect to traffic stops that do not result in arrests. The Sentinel study of police misconduct had clearly indicated that a disproportionate number of African American citizens were subjected to stops due to their race and color without any reasonable suspicion of a crime. The Sentinels requested that such data be included in the performance database. The City has deliberately failed to establish a record keeping system for stops not accompanied by arrests.
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The Kerner Commission also warned in 1968 that aggressive policing which focuses on arrests and involves officers policing neighborhoods who are unfamiliar with the residents will have a disparate impact on African American citizens. The City has long been aware that community oriented policing (COP) improves police relationscommunity, prevents crime, and results in a more equitable enforcement of the law among citizens of all races. While initiating some programs, the City has nonetheless been deliberately indifferent to the disparate impact of continued rewards to those officers who engage in aggressive police practices. These practices include but are not limited to (1) rewarding officers for high volumes of arrests without scrutinizing the quality of those arrests and (2) disciplining officers who fail to achieve an "expected" number of arrests where such arrest expectations are higher in majority African American neighborhoods.
The Cincinnati Chief of Police, during the year 2000, publicly admitted that racial profiling takes place within the Cincinnati Police Division. An Assistant Chief of Police, also during the year 2000, admitted that racial profiling continues because of inadequate training.
The City has knowingly, intentionally, deliberately and consciously continued police practices that have a disparate impact on African American citizens.
III. ARGUMENT A. Standard for Granting Preliminary Relief
The standard for evaluating a request for preliminary injunctive relief under Rule 65 is well established in this Circuit. Though, there is no "rigid and comprehensive test for determining the appropriateness of preliminary injunctive relief, Tate v. Frey, 735
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F.2d 986, 990 (6 Cir. 1984) (citations omitted), the court should consider the following four factors:
1. Whether the party seeking the injunction has shown a substantial likelihood of success on the merits;
2. Whether the party seeking the injunction will suffer irreparable harm absent the injunction;
3. Whether the injunction will cause others to suffer substantial harm; 4. Whether the public interest would be served by the preliminary injunction. Memphis Planned Parenthood, Inc. v. Sunquist, 175 F.3d 456, 460 (6th Cir. 1999); Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 n.3 (6th Cir. 1991). See also Jane Doe v. Barron, 92 F.Supp.2d 694, 695 (S.D. Ohio 1999); Women 's Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051 (S.D. Ohio 1995), aff d, 130 F.3d 187 (6th Cir. 1997), cert, denied, 523 U.S. 1036 (1998). These factors are "to be balanced and [are] not prerequisites that must be satisfied . . . they are not meant to be rigid and unbending requirements." McPherson v. Michigan High School Athletic Association, 119 F.3d 453, 459 (6th Cir. 1997) (en bane). A finding of irreparable injury "is the single most important prerequisite that the Court must examine when ruling upon a motion for preliminary injunction." Metrobanc v. Federal Home Loan BankBd., 666 F. Supp. 981, 984 (E.D. Mich. 1987). "The probability of success that must be shown is inversely proportional to the degree of irreparable injury the plaintiffs will suffer absent an injunction." State of Ohio Ex Rel Celebrezze v. N.R.C., 812 F.2d 288, 290 (6lh Cir. 1987); accord Shell v. R. W. Sturge Ltd., 850 F. Supp. 620, 632 (S.D. Ohio 1993).
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Even if the Court is not certain that a plaintiff is likely to succeed on the merits, a preliminary injunction is still appropriate where the plaintiff shows '"serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant,'" DeLorean, 755 F.2d at 1229 (quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 619 F.2d 100, 105 (6th Cir. 1982)), or if "the merits present a sufficiently serious question to justify further investigation," DeLorean, 755 F.2d at 1230.
In this case, as thoroughly set out below and in the accompanying declarations, the plaintiffs meet the test for preliminary relief. Their likelihood of success on the merits, their irreparable harm, the balance of hardships and the public interest all strongly favor the issuance of an injunction. B. Plaintiffs Have A Likelhood of Success on the Merits of Showing that the
City Engages in Racial Discrimination in its Police Practices. The Fourteenth Amendment to the United States Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." When police stops, detention practices, handcuff use, force, and charging practices are based on race the Equal Protection Clause is violated. No compelling government interest could support such racial classifications. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)(even benign purpose of increasing minority contracts not satisfy strict scrutiny test); White v. Morris, 863 F.Supp 607 (S.D. Ohio 1994)(prohibit routine cell assignments in prison by race). The Sixth Circuit has held that residents in a community denied equal access to public services due to race discrimination have standing to sue to redress that discrimination. Neighborhood Action Coalition v. Canton, Ohio, 882 F. 2d 1012 (611 Cir.
22

1989). In that same decision, the Sixth Circuit held that a claim of racial discrimination in the provision of services (police protection) stated a claim by the plaintiffs under the Fourteenth Amendment equal protection clause which is actionable under 42 U.S.C. §1983. Wat 1017.
The discriminatory charging of discretionary offenses supports a claim of selective prosecution which is an equal protection violation under both the federal and state constitutions. See Stemler v. City of Florence, 126 F.3d 856 (6lh Cir. 1997) and Cleveland v. Trxebuckowlski, 85 Ohio St.3d 524 (1999). See also U.S. v. Armstrong, 517 U.S. 456(1996).
Also present in this case is a strong claim under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d. That statute states that, "No person in the United States shall on the ground of race, color, or national origin.. .be subjected to discrimination under any program or activity receiving federal financial assistance." The City of Cincinnati receives millions of dollars in federal law enforcement assistance. Facially neutral practices that have a disparate impact on African-Americans are prohibited under the Title VI regulations. See 28 C.F.R. §42.104(b); 42.104(6)(2). See Alexander v. Choate, 469 U.S. 287, 292-94 (1985). The practices of the City with respect to discretionary charges as well as other practices are particularly susceptible under this theory.
The disparate impact of criminal justice intervention on African-Americans is finally a current issue of national, state as well as local import. The Chief Justice of Ohio recently chaired the Commission on Racial Fairness cited above. The Commission included an appendix which contained recommendations on juvenile issues. One recommendation noted that "minority youth are overrepresented upon referral to juvenile
23

court.." The report continued that "it is clear that police enforcement practices and referral patterns have a lot to do with overrepresentation." It may well be that the pattern of charging African Americans with a disproportionate number of discretionary charges starts when they are very young. These are the type of practices that this case is designed to expose and stop. Title VI will be easily satisfied by the proof on these issues. C. Plaintiffs Are Experiencing Irreparable Harm
The Ohio Commission on Racial Fairness described the harm of racial discrimination in policing:
The Commission also heard repeated testimony of racial prejudice in arrests. Many witnesses alleged that the percentage of black males under 25 arrested is inappropriately disproportionate to their percentage of the population.... a black witness [said] "I'm judged before I even go to court. I'm judged before you even pull me over and frisk me. I'm judged because of what you see; not because of what I did." Racial Fairness Report, 7. No damage action or other remedy at law can return to a person his dignity and self-esteem. The systemic discrimination against a group of citizens because of race causes irreparable harm to individuals, organizations including the plaintiff organizations and to society at large.
D. The Balance of Hardships and the Public Interest Favor Issuance of an Injunction Race discrimination is pernicious. Especially when practiced by government.
Race Discrimination reflects our national legacy of slavery - our worst legacy as a nation. It undermines our democratic principles and reinforces stereotypes that we must overcome if we are to establish a free society with equal opportunity for all. No hardship could flow to the government from an order requiring the Police Division to eradicate discrimination. The record in this case will demonstrate that the executive and legislative
24

branches of the Cincinnati government have had more than thirty years to address discrimination in policing. They have made promises but have failed to honor those promises. The public interest will be served by issuance of an injunction.
IV. CONCLUSION This Court should issue a preliminary injunction restraining the Defendant City, its agents, employees and those acting in concert with them, from discriminating against the members of the class based on race, and include in such order a specific plan for gathering data to measure the racial impact of various police practices, gathering data on the performance of the officers consistent with the 1998 mediation report, regularly reporting to the court and the public on the data to be gathered, and additional measures to supervise, discipline and control officers with respect to standards of conduct adopted to end race discrimination. Respectfully Submitted,
Kenneth L. Lawson (0042468) Kenneth L. Lawson & Associates Trial Attorney for Plaintiffs 1014 Vine Street, Suite 1575 Cincinnati, Ohio 45202 (513)345-5000 (513) 345-5005 fax
25

Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs 1 Liberty House P.O. Box 54400 Cincinnati, OH 45254 (513)943-2400 (513) 943-4800 fax law@scottgreenwood.com

Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs 1409 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513)621-9100 (513) 345-5543 fax agerhardstein@laufgerhard.com

OF COUNSEL:
RAYMOND VASVARI (0055538) Legal Director JILLIAN S. DAVIS (0067272) Staff Counsel ACLU of Ohio Foundation, Inc. 1266 West 6th Street Cleveland, Ohio 44113 Phone: (216)781-8639 Fax:(216)781-6438

CERTIFICATE OF SERVICE
The foregoing Motion for Preliminary Injunction was served on the following counsel of record this day of March, 2001 by United States Mail:
Michael Harmon Richard Ganulin City of Cincinnati City Hall Room 214 801 Plum Street Cincinnati, OH 45202 FAX 352-1515
Donald Hardin Hardin, Lefton, Lazarus & Marks, LLC 915 Cincinnati Club Building 30 Garfield Place Cincinnati, Ohio 45202

26

court.." The report continued that "it is clear that police enforcement practices and referral patterns have a lot to do with overrepresentation." It may well be that the pattern of charging African Americans with a disproportionate number of discretionary charges starts when they are very young. These are the type of practices that this case is designed to expose and stop. Title VI will be easily satisfied by the proof on these issues. C. Plaintiffs Are Experiencing Irreparable Harm
The Ohio Commission on Racial Fairness described the harm of racial discrimination in policing:
The Commission also heard repeated testimony of racial prejudice in arrests. Many witnesses alleged that the percentage of black males under 25 arrested is inappropriately disproportionate to their percentage of the population.. ..a black witness [said] "I'm judged before I even go to court. I'm judged before you even pull me over and frisk me. I'm judged because of what you see; not because of what I did." Racial Fairness Report, 7. No damage action or other remedy at law can return to a person his dignity and self-esteem. The systemic discrimination against a group of citizens because of race causes irreparable harm to individuals, organizations including the plaintiff organizations and to society at large.
D. The Balance of Hardships and the Public Interest Favor Issuance of an Injunction Race discrimination is pernicious. Especially when practiced by government.
Race Discrimination reflects our national legacy of slavery - our worst legacy as a nation. It undermines our democratic principles and reinforces stereotypes that we must overcome if we are to establish a free society with equal opportunity for all. No hardship could flow to the government from an order requiring the Police Division to eradicate discrimination. The record in this case will demonstrate that the executive and legislative
24

branches of the Cincinnati government have had more than thirty years to address discrimination in policing. They have made promises but have failed to honor those promises. The public interest will be served by issuance of an injunction.
IV. CONCLUSION This Court should issue a preliminary injunction restraining the Defendant City, its agents, employees and those acting in concert with them, from discriminating against the members of the class based on race, and include in such order a specific plan for gathering data to measure the racial impact of various police practices, gathering data on the performance of the officers consistent with the 1998 mediation report, regularly reporting to the court and the public on the data to be gathered, and additional measures to supervise, discipline and control officers with respect to standards of conduct adopted to end race discrimination. Respectfully Submitted,
Kenneth L. Lawson (0042468) Kenneth L. Lawson & Associates Trial Attorney for Plaintiffs 1014 Vine Street, Suite 1575 Cincinnati, Ohio 45202 (513)345-5000 (513) 345-5005 fax
25

Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs 1 Liberty House P.O. Box 54400 Cincinnati, OH 45254 (513)943-2400 (513) 943-4800 fax law@scottgreenwood.com

Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs 1409 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513)621-9100 (513) 345-5543 fax agerhardstein@laufgerhard.com

OF COUNSEL:
RAYMOND VASVARI (0055538) Legal Director JILLIAN S. DAVIS (0067272) Staff Counsel ACLU of Ohio Foundation, Inc. 1266 West 6lh Street Cleveland, Ohio 44113 Phone: (216)781-8639 Fax:(216)781-6438

CERTIFICATE OF SERVICE
The foregoing Motion for Preliminary Injunction was served on the following counsel of record this day of March, 2001 by United States Mail:
Michael Harmon Richard Ganulin City of Cincinnati City Hall Room 214 801 Plum Street Cincinnati, OH 45202 FAX 352-1515
Donald Hardin Hardin, Lefton, Lazarus & Marks, LLC 915 Cincinnati Club Building 30 Garfield Place Cincinnati, Ohio 45202

26

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

IN RE: RACE DISCRIMINATION IN CINCINNATI POLICING

Case No. C-l-99-317 Judge Dlott

EXPERT REPORT OF CECIL L. THOMAS

I. INTRODUCTION My name is Cecil Thomas. I have been asked to provide to the Plaintiffs an
expert opinion on the history efforts to identify and address the disparate treatment of African American citizens by the Cincinnati Police Division (CPD).

II. QUALIFICATIONS
I am the Executive Director of the Cincinnati Human Relations Commission
(CHRC). I have served in. this capacity since February, 2000. The mission of the CHRC
is to
"[PJromote ways in which people in Greater Cincinnati communities learn to get along and safeguard equal opportunities for all. The activities of the CHRC help our communities overcome racial prejudice and all forms of discrimination, and to become harmonious, respectful and cohesive. As a catalyst for change the CHRC uses the tools of fact-finding, training, information sharing, community education, cultural literacy, mediation, hate crime responses, and conflict management.
The Commission was founded as the Mayor's Friendly Relations Committee in
1943 and has always attempted to assist the City and the Community improve police-
community relations through the use of investigation, mediation and cooperation.
I am a graduate of the CPD cadet and recruit academies. I have an associate
degree from the University of Cincinnati in Law Enforcement technology with a

Tyehimba v. Cincinnati

PP-OH-001-005

. I
concentration in Police-Community Relations. I have 27 years of experience as an officer in the Cincinnati Police Division (CPD). I have studied racial profiling, community oriented policing, hate crimes, team building and other subjects that relate to the topic of this report over the course of my career. My curriculum vita is attached to this report.
I am not receiving a fee for my work in this case. 1 am providing this testimony as an independent expert. While this work is consistent with my duties as CHRC director, As a witness in this case I am not speaking as a representative of the CHRC.
III. OPINION All of my opinions expressed in this report are held to a reasonable degree of
professional certainty. It is my opinion that the Cincinnati Police Division has been on notice for many
years of various practices that have a disparate impact on African American citizens. These include giving undue weight to the race and color of a person who is stopped; charging a disproportionate number of African Americans with discretionary offenses and stopping, searching, detaining and using force on African Americans without reasonable suspicion that a crime has been committed. The City has acquiesced and ratified these practices by failing to adequately supervise and discipline those officers responsible for these civil rights violations. This deliberate indifference to the rights of African American citizens, residents, and visitors has caused injury to these persons and will in the future continue to cause such injury if the practices are not corrected.
A. BASIS FOR OPINION
If"

I moved to Cincinnati in 1959. 1was present in the city during the race riots of 1967. My own observations of excessive force and racial discrimination by the police in the 1960's helped me decide to work for positive change by entering law enforcement as a career. I knew that the Cincinnati Police Division needed to become integrated; that the officers needed to be trained to deal with people of all races in an equitable manner and that officers guilty of police misconduct needed to be accountable and disciplined. I have spent my entire adult life working to improve police-community relations in Cincinnati.
This report will catalogue the most important events in the last 30 years with respect to the treatment of African Americans by the police in Cincinnati. As will be shown, the failure to eradicate discrimination against African Americans stems from the failure to heed calls for reform in police discipline, police training, and a failure to impose on front line supervision and officers the mandate that race discrimination will not be tolerated.
1. Riots and Kerner Commission Report
In 1967 at least eight major cities in America erupted in race riots. Cincinnati was one of those cities. On June 12, 1967 a riot started in the Avondale area of Cincinnati. Over 40 fires were started and more than 63 persons were injured, one person was killed and 404 persons were arrested. The riot was triggered in part by complaints about the enforcement of the loitering law in a disproportionate manner against African Americans1. The initial round of arrests during the riot found police charging whites with disorderly conduct which had a maximum sentence of 30 days in jail and a $100.00 fine.
1 The 1968 report of the National Advisory Commission on Civil Disorders, "The Kerner Report", 1988 edition with Preface by Fred Harris. The Kerner Commission noted that between January 1966 and June, 1967, African Americans represented 170 of 240 or 71% of the loitering arrests. Id at 47.

The African Americans, however, were charged with violation of the Riot Act which was
punishable by a year in jail and a $500.00 fine. This disparate treatment further fueled
claims of race discrimination. With the arrival of the Ohio National Guard, order was
restored to the streets but African American frustration remained high. Id at 50.
The Commission noted that African Americans in all of the cities experiencing
riots had an "intense ..resentment against the police," firmly believing that police
brutality and harassment occurred repeatedly in their neighborhoods. Id. at 302. A
common complaint was verbal harassment and "the stopping of Negroes onfoot or in
cars without obvious basis. " The Commission repeated the testimony of one witness on
the impact of such practices: "these strip the Negro of the one thing that he may have left
- his dignity, "the question of being a man." Id at 303 (emphasis added).
The Commission noted that many police agencies had adopted practices that
encouraged arrests and "aggressive" patrol tactics. Also, many officers had been
removed from beats and placed in cars:
The patrolman comes to see the city through a windshield and hear about it over a police radio. To him, the area increasingly comes to consist only of law breakers. To the ghetto resident, the policeman comes increasingly to be only an enforcer.
Loss of contact between the police officer and the community he serves adversely affects law enforcement. If an officer has never met, does not know, and cannot understand the language and habits of the people in the area he patrols, he cannot do an effective police job. His ability to detect truly suspicious behavior is impaired. He deprives himself of important sources of information. He fails to know those persons with an "equity" in the community - homeowners, small businessmen, professional men, persons who are anxious to support proper law enforcement - and thus sacrifices the contributions they can make to maintaining community order.
Id. at 305.

The Commission stated that police misconduct - "whether described as brutality, harassment, verbal abuse, or discourtesy - cannot be tolerated even if it is infrequent. It contributes directly to the risk of civil disorder. It is inconsistent with the basic responsibility and functioning of a police force in a democracy." The commission recommended that "Police departments must have rules prohibiting ..misconduct and enforce them vigorously. Police commanders must be aware of what takes place in the field, and take firm steps to correct abuses. " Id. at 305 (emphasis added).
The Commission noted that the lack of an effective mechanism to grieve police misconduct was a major source of "Negro hostility to police." The Commission recommended that making a complaint should be easy; that a specialized agency should field and investigate complaints, and that the complaining party should be able to participate in the investigation and hearing, with conciliation opportunities available. Id. at 312-313.
The Commission also recommended that community service officers be appointed to improve relations and communication with African American communities. Recognition should not be given only to officers for arrests. Rather "award systems should take equal cognizance of the work of officers who improve relations with alienated members of the community.." Id at 320.
2. Introduction to Racial Discrimination Within The Cincinnati Police Division
The City of Cincinnati has a history of intentional discrimination against African Americans within the CPD. In 1976, along with other members of the force, I filed a charge of race discrimination with the Equal Employment Opportunity Commission

(EEOC) against the City alleging discrimination in hiring and promotions within the CPD.
The EEOC investigated the claims and determined that there was probable cause to believe there was intentional racial discrimination in hiring and promotions.
The charge was eventually referred to the United States Department of Justice which filed suit against the City of Cincinnati in 1980 alleging race and sex discrimination. United States of America v. City of Cincinnati, U.S.D.C. Case No. C-l80-369.
A consent decree was negotiated with the City and the Fraternal Order of Police and that decree is still in force regulating hiring and promotions through the rank of sergeant in the CPD. A copy of the decree and the supporting stipulations are attached as Exl.
In 1987 a similar consent decree was negotiated with the City to resolve allegations of race and sex discrimination in the promoted ranks above the rank of sergeant. See Sentinel Police Association v. City of Cincinnati, Ct. C.P. Ham. Cty. Case No. A8704567. That decree also remains in place. A copy of that decree is attached as Ex 2.
3. History Of Previous Investigations Of Disparate Racial Treatment Within And By The Cincinnati Police Division
a. 1979 Justice Department Community Relations Service 1979 was a low point for police relations with the African American Community
in Cincinnati. In one four month period four black citizens and four white police officers were shot and killed. The United States Justice Department Community Relations

Service attempted mediation but even the police chief and the Fraternal Order of Police disagreed over how to respond to protests from the African American Community. A task force at the time recommended expansion bullets, shotguns on the dashboards of cruisers and .357 magnum pistols be issued to officers. That fueled further tension. Fistfights broke out at city council hearings on police-black relations. In May, police officers engaged in a "stress day" strike which included abandoning police cruisers on all sides of city hall.
The 1979 DOJ Community Relations Service Annual Report states that at the end of the year tensions were still high but changes in police recruiting, assigning a black officer to internal and opening a dialogue with the sentinel Police Association helped somewhat. b. 1979 Mayor's Community Relations Panel
The Mayor's Community Relations Panel including Chair Lawrence Hawkins, VP of the University of Cincinnati, and member Archbishop Joseph L. Bernadin reported to City Council in 1979 that a problem existed in the CPD "beyond simply a few bad apples." The report further noted that citizens believed that,
City Council, the City Administration, or the Police Administration neither really care nor are willing to do anything about reported incidents of misconduct. The existing complaint mechanisms have little credibility.. .The perceived lack of concern on the part of official Cincinnati for disciplining police misconduct has contributed to an atmosphere of fear and distrust. The public questions whether or not the Police Division can police itself, and more seriously, whether elected officials and appointed officials are willing to control the police.
Hawkins Report, I1I-2.
The Hawkins report also noted that members of the African American community perceived racism and class prejudice by the police. The major institutional problems the

group discovered were lack of police accountability for misconduct; lack of adequate
training in human relations and other areas; insufficient number of minority officers; lack
of communication between minorities and police; and lack of racial equality in the
delivery of policing services.
c. 1981 Report of the Ohio Advisory Committee to the United States Commission on Civil Rights, Policing in Cincinnati, Ohio: Official Policy and vs. Civilian Reality.
The Ohio Advisory Committee to the United States Commission on Civil Rights
conducted a lengthy investigation into the Cincinnati Police Division. They wrote a
comprehensive report. Their findings included:
Cincinnati police officers frequently fail or refuse to provide civilians with the reasons for their actions and incorrectly perceive requests and demands and reasons for resistance. This conduct creates great resentment, fear, and distrust in civilians and may ultimately create actual resistance.
The .. .shift from a.38 to a.357 caliber handgun and controlled expansion bullets .. .has been a source of considerable outrage and fear by Cincinnati civilians many of whom view the increased stopping power of the new equipment solely as a power game by the Police Division.
Many organizations and individuals have raised concerns about the adequacy of training in the area of response to crisis situations...
[Many are ]concerned with both racism and class prejudice because of what they view as demonstrable contempt and disrespect of police for both poor blacks and poor whites.
The investigative process of the Cincinnati Internal Investigation Section is one of the most controversial issues that face the community
Due to the fragmented approach and the absence of full support of the Police Division, from the chief to the officer on the street, community relations programs in the Police Division have failed to achieve their stated objectives.
Those findings generally identified actions in several areas that would reduce
racial tension within the Division and improve police-community relations including (1)
8

More visibility in and communication with the neighborhoods on crime prevention issues and improve officers' ability to communicate with diverse segments of the community (Rec. #1, 2, 14); (2) Public access to the Police Division Rules and Regulations (Rec. #3); (3) Modify Use of Force rules (Rec. #4); Upgrade ability to investigate citizen complaints, monitor record of each officer, communicate citizen complaint process to public (Rec. 5, 6, 9, 10); Improve services for officers under stress (Rec. # 7); Require officers to explain actions in routine encounters (Rec. #8); Promote racial diversity in the force, including in training staff (Rec. 11, 12, 15).
The Advisory Commission also recommended a civilian police review and a "mechanism for mediating or arbitrating civilian-police disputes which permits civilians to obtain, where appropriate, restitution for damages to self or property." Report, p. 72.
d. 1983 Report to City Manager Sylvester Murray On June 27, 1983, received a report prepared by the "City Manager's Review
Committee" (CMRC) including Cheryl Grant (now a judge). The "comprehensive Report" was nearly two years in preparation and was designed to "answer in definitive terms the question posed - IS THERE RACIAL PREJUDICE-RACISM IN THE CINCINNATI POLICE DIVISION?" The CMRC conducted a carefully designed study and concluded that: "[E]ighty-six percent (86%) of the representative sample states "yes," racism does exist in the attitudes and behaviors of the men and women within the division." P. 20. participants asserted their personal belief that racial prejudice-racism does currently exist among some members of the Police Division.."
In addition to the empirical study pursued by the CMRC, the committee also reviewed the management actions of the Police Division that had been taken in response

to a report from The Ohio Advisory Committee to the United States Commission on Civil Rights.
The Murray report noted that while racism was present in the CPD, it was not a consciously promoted by senior management which it viewed as opposed to racism. The Murray Report recommended that the recommendation of the Ohio Advisory Committee be implemented; that increased initiatives be taken in training; that African-Americans be increased in management; that integrated teams be assigned to cars when two people ride together; and that the CPD clearly state that racially inflammatory communications such as jokes, slurs etc will not be tolerated. Report, p, 47-48. The CMRC also encouraged action in an area that "was constantly discussed by the respondents, and where there can be major change, is in the area of opening the communication lines from senior management to the 'street cop.'" Report, p. 45
e. 1991 Walter Brown Report In 1991, two black men, Walter Brown and Ervin Fanning, died as a result of
actions taken during their arrests by Cincinnati Police Officers. A report on the case generated several recommendations that relate to improving race relations. The panel recommended increased training, including cultural diversity training. The panel also called for an improved system of selecting, training and compensating the field training officers.
10

f. Crosby Report In 1995, Pharon Crosby, an African American student, was subjected to excessive
force by Cincinnati Police officers in the central business district. The case was studied by a panel of top city administrators. Recommendations by the panel to the City manager again called for increased training and for better measures to review police misconduct, and track and supervise officers who use excessive force or engage in other inappropriate conduct. The City Manager decided to establish a Citizen's Advisory Commission on police matters after the Crosby incident.
g. 1995 City Manager Police Review Panel In January, 1995, at the request of City Council, City manager John Shirey
appointed a review panel to investigate racial discrimination in the Police Division. The panel, headed by former Ohio Governor John J. Gilligan, concluded that the CPD has a fine police force but noted that:
The panel heard extensive testimony dealing with discriminatory attitudes and actions involving both race and gender bias on the part of individuals within the Police Division. While these various practices and symptoms do not appear to be the result of deliberate design, their effect creates an atmosphere of suspicion, tension, and even animosity among many members of the force. This is damaging to morale and harmful to operational efficiency....Thefailure to eradicate these attitudes and activities in the Police Division appears to result, at least in part, from a reluctance to institute necessary organizational and procedural reforms and to implement such reforms in a determined and consistent manner."
(Report, p. l)(emphasis added). The Panel recommended that the consent decree goals be achieved; that a cadet program be reestablished; and that the civil service code be amended to expand those eligible for appointment as chief of police. The panel also encouraged more diversity and conflict resolution training and a renewed commitment to
11

community oriented policing "on every level of the Division." (Report, p. 5). A lack of fairness in police discipline was reported and the Panel called for a review of the "current structure of the Internal Investigations Section... Consideration should be given to the creation of a new and independent unit..." (Report, p. 9). The Panel was very specific about its concerns regarding police management: "one of the higher ranking Caucasian officers who appeared before the panel believed that a basic problem in the Police Division which applies specifically to the matter of race relations is that there was no "shared vision" of what the Police Division should be..." But the Panel stated that "The vision of Community Oriented Policing should guide all actions of police personnel from the officer on the beat to the Chief. The Safety Director, the City Manager and City Council should understand the full implications of COP and support it at every step." (Report, p. 9)(emphasis added). As late as 1995 the Panel was continuing to find that racially insensitive slurs and jokes "poison[ed] the atmosphere." Id. at 10. The Panel closed by encouraging the City to "review on an annual basis the efforts of the Division to carry out this program." Id. at 11. h. 1998 Mediation Report
In 1998, the City entered into an agreement with several community groups drawn largely from the African American community. The United States Department of Justice mediated this agreement. In the agreement, the City agreed to increase staffing for the Office of Municipal Investigation and create a civilian police review panel. The City again agreed to upgrade training on cultural awareness and special needs; and again agreed to upgrade its system for tracking officers' performance.
12

i. 1999 Sentinel Police Report In 1999, the Sentinel Police Association presented the City with a "Final Report
for the New Millenium." The report included over 150 complaints from African American civilians who alleged racial targeting, racially discriminatory stops, excessive force, all echoing the types of complaints that had triggered commissions and studies for more than thirty years. j. 2001 Chairman's Roundtable on Public Safety During the year 2000, Councilmember Charles Winburn convened a "Roundtable on Public Safety." Membership included police and community representatives. After meetings and discussions, the group issued a final report which stated:
There appears to be a lack of cultural understanding and respect between the majority of the Police Department and minority communities.. .there is a need for greater sensitivity on the part of all police officers in their interactions with citizens. Police have received inadequate training and development in order to effectively serve minority communities (i.e., inadequate exposure to effective diversity training programs). The consequence is that immature but armed police officers are placed in high stress situations. There is a lot of resentment over instances of apparent police brutality or excessive use of force in mostly minority communities. Citizens feel intimidated by police. Police administration is perceived as unable to effectively monitor and affect attitudes of police officers or enforce appropriate standards of behavior. Citizens want to be supportive of police but need factual, honest information.
13

B. PRESENT POLICE POLICIES AND PRACTICES THAT DISCRIMINATE AGAINST AFRICAN AMERICANS BASED ON RACE
Based upon my knowledge of the history set out above, my ongoing review and investigation of citizen complaints to the CHRC, Sentinel Police Association and to the City; my ongoing review and study of OMI, IIS and CPRP reports; and my experience of 27years as a member of the CPD the following practices are known to have a racially discriminatory impact but are nonetheless acquiesced in by the police division management:
Stops of African-American persons without reasonable suspicion that a crime has been committed; Disproportionate application of the following practices to African American persons: Undue detention, unnecessary searches, improper use of handcuffs, improperly locking innocent citizens in cruisers, improperly forcing innocent persons to obey direction at gunpoint. Disproportionate retaliation against African Americans who seek badge numbers and names from police officers Disproportionate charging of discretionary offenses against African Americans Discretionary Offenses as a Pretext for race-based stops Failure to monitor, supervise and discipline white officers who are targets of repeated complaints Rewarding officers for aggressive police practices and arrests rather rewarding those who implement the Community Oriented Policing Philosophy Establishing arrest expectations by neighborhood
C. MISCONDUCT INVESTIGATIONS If racially discriminatory practices develop in an organization it can only be eradicated if a process exists to investigate and hold accountable wrongdoers. The Office of Municipal investigation has been chronically understaffed for the job it is expected to perform. Its recommendations have historically been ignored. One study
14
i '•"••

completed on the first five years of OMI operation found that OM1 made a finding of improper conduct against 94 officers but none of those officers received any discipline as a result of OMI's investigations and findings.
The Citizen Police Review Panel has been understaffed and its recommendations to date largely ignored..
D. POLICE SUPERVISION AND DISCIPLINE Line commanders in the Cincinnati Police Division are not effectively implementing policies. The 1998 Mediation Agreement included a commitment by the city to upgrade the data it would keep on all officers in order to better track their performance and detect discriminatory or other improper conduct. Those portions of the Agreement have yet to be implemented. The city has a poor record in labor arbitrations, having lost each of the last ten cases. This causes police administrators to undercharge and settle for discipline that is too weak to fit the misconduct.
E. POLICE TRAINING Repeated city pledges to train officers in verbal de-escalation; conflict resolution, diversity, and cultural sensitivity have not materialized into a coherent diversity training program. Moreover, it has not prepared White officers to conduct themselves in a manner that is safe for the African American civilians or the officer who engages him in a high stress situation. The Roundtable report accurately summarized the current situation:
15

Police have received inadequate training and development in order to effectively serve minority communities (i.e., inadequate exposure to effective diversity training programs). The consequence is that immature but armed police officers are placed in high stress situations. One of the critical training deficiencies is the lack of experience by field training officers who are expected to provide on the job training to new officers. The Sentinel Police Association recommended a variety of training improvements in 1999 but they have not been adopted.. F. CONCLUSION The history of racial discrimination in policing in Cincinnati is filled with unkept promises by the City to correct known deficiencies in training, practices, supervision and discipline. Any remedy that the parties achieve in this case must be detailed, verifiable and enforceable.
CECIL THOMAS Date:
16

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

IN RE: RACE DISCRIMINATION IN CINCINNATI POLICING

Case No. C-l-99-317 Judge Dlott

AMENDED COMPLAINT (Class Action)

I. PRELIMINARY STATEMENT

1. This is a civil rights class action challenging disparate treatment of African-

American persons by the Cincinnati Police Division. This treatment includes stops,

detentions and searches based on race. This treatment also includes discriminatory

enforcement of the traffic and other laws resulting in a disproportionate number of

African American people being charged with minor traffic violations and discretionary

offenses such as jaywalking. This treatment also includes discriminatory uses of force

against African-American persons and other practices that have the purpose and/or

f t

effect of discriminating against African-American persons because of their race.

Plaintiffs seek declaratory and injunctive relief for the class under the First, Fourth, and

Fourteenth Amendments to the United States Constitution, federal law, the Ohio

Constitution, and state law. Plaintiff Bomani Tyehimba also seeks compensatory and

punitive damages for himself individually for injuries he received as a result of a

racially motivated stop and use of excessive force by Cincinnati police officers.

2. This amended complaint is filed with a motion for preliminary injunction and

a motion to certify the case as a class action. Because of the seriousness of these
Tyehimba v. Cincinnati
•iniiiiiiiii PP-OH-001-006

allegations and the effect of these practices on the community, Plaintiffs seek expedited discovery and an expedited hearing on their motions for preliminary injunction and for class certification.
II. JURISDICTION AND VENUE 3. Jurisdiction over the federal claims is conferred on this Court by 28 U.S.C. §1331 and §1343(3) and (4) and 42 U.S.C. §2000d-l. Supplemental jurisdiction under 28 U.S.C. §1367 authorizes this Court to hear the state claims. Venue is proper under 28 U.S.C. §1391, as the defendant city of Cincinnati is a resident or organized in this district and all of the contested actions take place in this district.
HI. PARTIES 4. Plaintiff Friends of Cincinnati Black United Front ("Front") is a civil rights organization with members in Cincinnati. The mission of the Front is to eradicate institutional racism in Hamilton County, Ohio, including in Cincinnati. The mission includes advocacy for the elimination of racial discrimination in policing. Individualf members of the Front regularly travel throughout Cincinnati on public highways and streets, including areas where a majority of the persons are of another race and at various times have been stopped and detained by Cincinnati police officers. Pursuant to this mission, the Front provides advice, counsel, referrals and financial assistance to its members who challenge racial discrimination in all forums, including in the courts. The Front brings this action on its own behalf and as organizational representative for its members and for the class of African-American persons being subjected to race-based discrimination by the Cincinnati Police. The Front participates as a plaintiff only for the purposes of securing declaratory and injunctive relief.
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5. The American Civil Liberties Union of Ohio Foundation, Inc. ("ACLU") is organized under the laws of the State of Ohio to aid in maintaining and extending to all persons constitutional and other fundamental rights. Included in this mission is a commitment to assist its members and others in the task of promoting equal treatment to people of all races by police agencies throughout the state, including Cincinnati. Individual African-American and Black members of the ACLU regularly travel throughout Cincinnati on public highways and streets, including areas where a majority of the persons are of another race and at various times have been stopped and detained by Cincinnati police officers. The ACLU participates as a plaintiff only for the purposes of securing declaratory and injunctive relief. The ACLU brings this action on its own behalf and as organizational representative for its members and for the class of AfricanAmerican persons being subjected to race-based discrimination by the Cincinnati Police.
6. Plaintiff Bomani A. Tyehimba is an African-American resident of Cincinnati, Ohio.
7. Defendant City of Cincinnati is a municipal corporation organized under the laws of the State of Ohio. It is a person subject to federal jurisdiction.
8. Defendant Stratmann, at all times relevant, has been a police officer employed by the City of Cincinnati. For the constitutional and common law claims, Defendant Stratmann is sued in his official capacity with respect to the declaratory and injunctive relief sought herein, and in his individual capacity with respect to the request for damages and attorney's fees in this action. For the federal statutory claims, Defendant Stratman is sued in his individual and official capacities.

9. Defendant Ploehs, at all times relevant, has been a police officer employed by the City of Cincinnati. For the constitutional and common law claims, Defendant Ploehs is sued in his official capacity with respect to the declaratory and injunctive relief sought herein, and in his individual capacity with respect to the request for damages and attorney's fees in this action. For the federal statutory claims, Defendant Ploehs is sued in his individual and official capacities.
IV. CLASS ACTION ALLEGATIONS 10. This action is brought, and may be properly maintained, as a class action under the provisions of Rules 23(a) and 23 (b)(2) of the Federal Rules of Civil Procedure. Plaintiff organizations bring this class action on behalf of themselves, their members and all others similarly situated. The members of the class are as follows:
All African-American or Black persons and people perceived as such who reside, work in and/or travel on public thoroughfares in the City of Cincinnati, Ohio either now or in the future and who are stopped, detained, and arrested by Cincinnati Police Officers or their agents. 11. The number of class members is not known with precision but exceeds hundreds of thousands of individuals. The class is so numerous that joinder of all members is impracticable. 12. The claims of the members of the representative organizational plaintiffs are typical of the claims of the class because plaintiff members and all class members sustained and continue to suffer injury arising from defendants' wrongful conduct as alleged herein. 13. The representative plaintiffs will fairly and adequately protect the interests of the members of the class. Proposed class counsel is experienced in the prosecution of
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class actions, including cases arising from the deprivation of civil rights, cases regarding police misconduct, race discrimination and complex civil litigation.
14. Defendants have acted, or refused to act, on grounds generally applicable to the class, thereby making final injunctive and corresponding declaratory relief appropriate with respect to the class.
V. FACTS A. History of Racial Discrimination By Cincinnati Police Division
15. Racial discrimination in policing has a long history in Cincinnati. Opposition by African-American citizens to Cincinnati Police Division (CPD) discriminatory practices triggered race riots in Cincinnati in 1967.
16. At the time of the riots, African-American persons were protesting the improper use of the loitering law by Cincinnati police officers, contending that the law was used to harass Black people, hi 1968, the Kerner Commission, which studied the riots in eight major cities, including Cincinnati, found that police used their discretion to charge disproportionate numbers of Blacks with loitering compared to white persons. Moreover, the Commission found that on the first day of the riot that for similar conduct the Cincinnati Police charged White people with disorderly conduct but charged AfricanAmericans with more serious violations of the "Riot Act," further fueling racial hostility toward the police.
17. A common complaint by African-Americans to the Kerner Commission was their subjection to verbal harassment and the abusive and degrading police practice of "stopping of Negroes onfoot or in cars without obvious basis. " Harris, Kerner Report, p. 303 (1988 edition).

18. Police relations with the African-American community remained strained through the 1970s. Within an eighteen-month period in 1978 and 1979, White police officers killed four Black civilians and Black civilians killed four White police officers. In March, 1979, 600 angry police wives marched on City Hall, hi May, 1979, hundreds of Cincinnati police officers participated in a protest that included surrounding City Hall with 60 cruisers, turning on their emergency and head lights, locking their doors and marching to police headquarters, where they threw the cruiser keys into a pile. Meetings at City Hall to address tensions between African-Americans and police were disrupted by fistfights in Council chambers and in the halls.
19. Police officer demands were appeased by the City in 1979 in part by the issuance of high powered .357 magnum weapons, expansion bullets, and bullet proof vests. These measures further heightened distrust and animosity toward the police among African American citizens.
20. The Mayor's Community Relations Panel including Chair Lawrence Hawkins, V.P. of the University of Cincinnati, and member Archbishop Joseph L Bernadin reported to City Council in 1979 that a problem existed in the CPD "beyond simply a few bad apples." The report further noted that citizens believed that
City Council, the City Administration, or the Police Administration neither really care nor are willing to do anything about reported incidents of misconduct. The existing complaint mechanisms have little credibility.. .The perceived lack of concern on the part of official Cincinnati for disciplining police misconduct has contributed to an atmosphere of fear and distrust. The public questions whether or not the Police Division can police itself, and more seriously, whether elected officials and appointed officials are willing to control the police.
Hawkins Report, III-2.
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21. The Hawkins Report also noted that members of the African-American community perceived racism and class prejudice by the police. The major institutional problems the group discovered were lack of police accountability for misconduct; lack of adequate training in human relations and other areas; insufficient number of minority officers; lack of communication between minorities and police; and lack of racial equality in the delivery of policing services.
22. In 1981, The United States Commission on Civil Rights published another review of policing in Cincinnati. The findings of this group included misuse of force by the police, inadequate oversight of the police, and inequitable distribution of police services. One finding focused on the fact that police would frequently fail to explain or refuse to provide civilians with the reasons for their actions, creating resentment, fear and distrust in civilians. Another finding noted that the lack of African-Americans and women on the force further hurt the credibility of the police force as a group available to protect all members of the community.
23. In 1981 the City finally entered into a consent decree that sought to address the discrimination against Blacks and women in hiring and promotions in the CPD.
24. In 1981, the City finally made operational the Office of Municipal Investigation with limited responsibility and power to investigate citizen complaints against the police.
25. One study completed on the first five years of OMI's operation found that OMI made a finding of improper conduct against 94 officers but none of those officers received any discipline as a result of OMI's investigations and findings.
26. In 1983, a "Comprehensive Report" prepared by a group of City administrators that included attorney (and now Hamilton County Judge) Cheryl Grant, advised the City
7

Manager that 86% of the CPD personnel who were interviewed reported answered "YES" to the question, "Is there racial prejudice-racism inthe Cincinnati Police Division?"
27. In 1987 a second consent decree was entered by the City to address racial and gender discrimination in the CPD at the rank of lieutenant and above.
28. In 1991 two African-American citizens were killed by Cincinnati police officers. A team of City Administrators investigated the police action causing the two deaths. The major recommendations involved increased training for officers dealing with minority and special needs populations.
29. In 1995, Pharon Crosby, an African-American student, was subjected to excessive force by the Cincinnati Police in the central business district. Recommendations by a City panel to the City Manager again called for increased training and again called for better measures to review police misconduct generally and track and supervise officers who use excessive force or engage in other inappropriate conduct.
30. In August, 1995, a panel headed by former Ohio Governor John J. Gilligan addressed allegations of racism lodged by the Sentinel Police Association against the City of Cincinnati. The panel reported to the city manager that a renewed commitment to community oriented policing was needed; that field training officers were critical to training and that their position should be upgraded; that more conflict training was needed and should be carried out on the job by matching veterans with new officers; that accountability be improved, and that CPD discipline needed to be carefully studied because African Americans made up 23% of the force but represented 44% of the discipline. There was a strong perception that for the same conduct white officers were
8
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counseled or tolerated and black officers were given formal discipline. The group also recommended civil service reforms.
31. On information and belief, between January, 1995 and December, 2000, Cincinnati police officers killed 13 persons while they were being apprehended. All thirteen individuals were African-Americans.
32. In 1998, the City entered into an agreement with several community groups drawn largely from the African-American community. The United States Department of Justice mediated this agreement, hi the agreement the City agreed to upgrade OMI and the system for holding police accountable; again agreed to upgrade training on cultural awareness and special needs; and again agreed to upgrade its system for tracking officers' performance.
33. In 1999, the Sentinel Police Association presented the City with a "Final Report for the New Millenium." The report included over 150 complaints from African American civilians who alleged racial targeting, racially discriminatory stops, excessive force, all echoing the types of complaints that had triggered commissions and studies for more than thirty years.
34. As set out in §B-E below, the Cincinnati Police Division continues to use racially discriminatory practices that have been identified and discussed for thirty years. B. Disparate Treatment of Class Members in Stops, Searches and Length of Detention Where no Charges are Filed
35. Defendant City has tolerated, acquiesced in, ratified and been deliberately indifferent to practices by members of the CPD, based on race, of stopping AfricanAmerican citizens without reasonable suspicion of criminal activity. This disparate

treatment based on race has been perpetuated and implemented by various tactics including but not limited to the following:
36. Racial stops. Defendant City stops a disproportionate number of AfricanAmericans in their vehicles and on foot for interrogation when there is no reasonable suspicion that a crime has been committed.
37. For example, class member Klinton McGhee, an African-American male, was a Walnut Hills High School student in February, 2000. He was driving with two AfricanAmerican female passengers on Madison Road in the Hyde Park neighborhood of Cincinnati. He did not violate any traffic laws. Nonetheless, he was stopped by a group of five police cruisers that night. He was ordered to produce his license and registration and numerous officers shined flashlights into the car looking at the contents of the car and the occupants very carefully. After awhile one officer returned and claimed that he was simply checking to see if they were wearing their seatbelts. McGhee and his passengers were all frightened by the experience.
38. Class member Larry Davant, an African-American male, reports on four instances within the year 2000 when he was stopped, often at gunpoint and detained and then released. One stop resulted in a misdemeanor charge of which he was later acquitted.
39. Class member Shepherd Allin Gaines, an African-American male, attempted to find a friend's apartment in English Woods. When he was not successful he left and started to drive away. The police stopped him and accused him of dealing drugs simply because he had been to English Woods and inquired of a person there as to the location of
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the apartment. Even though the police had no evidence that he was a drug user, they searched his car.
40. Class member Wendell Young, an African-American male, former Cincinnati police officer and presently a Diversity manager for MSD, was singled out for a license plate check and detained while the officer threatened to file disorderly conduct charges against him when Mr. Young questioned him about his directives.
41. Sometimes the disparate treatment of stopping African-Americans and not Whites is evident in a single incident. For example, class member Shirelyn Beauman, an African-American female, was with approximately seven friends in the front of a residence on private property on September 26,1999. They were talking in normal tones and not being boisterous. Across the street was a very loud college party involving a large number of White people who were screaming and drinking and being very disorderly. The police asked the White college students to quiet down and did not arrest or cite anyone. But then they came across the street and interrogated the AfricanAmericans about an alleged light that they thought had been directed toward them, cited one person for holding an open container on private property and cited Ms. Beauman for resisting arrest when she asked them for their names and badge numbers. The charges were eventually dismissed but the trauma of being viewed as a criminal while the White students were viewed with respect cannot be so easily dismissed.
42. Another class member, Otha Smiley, an African-American male, was part of a group of three African-American boys and two white girls walking in Corryville on July 11,1999. Cincinnati police officer Patrick Caton ordered the African-American boys to stop and he detained them. Officer Caton advised the White girls to leave the area and he
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did not detain them. This stop and eventual use of force on Mr. Smiley is the subject of a civil rights lawsuit, Smiley v. George, et al., USDC S.D.OH. No. C-l-00-765 which remains pending.
43. Discriminatory Action After Stops. Defendant City detains a disproportionate number of African-Americans for investigation for lengthy periods of time and harasses them or treats them in an abusive manner after a suspicion has clearly been disproven. This practice includes but is not limited to drawing weapons on innocent African American civilians; placing innocent African-American civilians in handcuffs and requiring them to lay down on the street or sit in the cruiser; and using abusive language in order to provoke a citizen into a reaction that can then be used to charge a crime.
44. For example, when the CPD officers stopped class member Charnell Warner, an African-American female, on January 19,2001, they were looking for two males. She was driving in a car with her husband and two minor children. The incorrect identity of this class member was obviously and immediately apparent. The couple was eventually released without charges. Nonetheless, before their release Ms. Warner and her husband were ordered out of their vehicle at gunpoint with the children also in firing range of the weapons, each of the parents was handcuffed, each of them was locked in a cruiser for some period of time, all while the children were crying and frightened.
45. Another class member, Stephanie Keith, an African-American female, was stopped on June 22,2000. She was riding in a car with her husband. The police stopped the car based on an anonymous tip that two Black males in a similar car were pointing a gun. As soon as they were stopped, it was obvious to the police that they had the wrong persons. The couple was eventually released without charges. Nonetheless before
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release, the couple was ordered out of their car, handcuffed, searched and placed in the back of a cruiser. Moreover, the police also conducted a search of their car, including the trunk, without their consent.
46. Retaliation. Defendant City permits officers to retaliate against AfricanAmerican persons who exercise their First Amendment right to request an officer's name, badge number and identity.
47. For example, on December 31, 2000, class member Timothy Black was one of a group of African-Americans approached as they were leaving a pool hall that had just closed. In response to questioning by the police officer, Mr. Black asked for the officer's badge number. The officer cited that request as one of the reasons for charging him with disorderly conduct.
48. Class member Shirelyn Beauman, as described above, experienced retaliation when she started recording police names and badge numbers.
49. Searches. The City permits officers to search the person and autos of a disproportionate number of African-American persons who are innocent of any criminal activity.
50. For example, class member Stephanie Keith, as described above, experienced a search of her auto even though it was clear that she was not the person the police were seeking.
51. Class member Shepherd Allin Gaines, as described above, also experienced a search without any reasonable basis to suspect drug activity. Although Mr. Gaines advised the officers that he had possessed a weapon which he kept hi the car, the officers arrested him anyway. The charges were later dismissed.
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52. Photos. The defendant City permits officers to take Polaroid photos of innocent citizens at stops not followed by arrests and then keeping these photos in the cruisers for use in the ongoing monitoring of innocent African-American persons.
C. Disparate Treatment of Class Members In Discretionary Charges Discretionary Charges.
53. Defendant City has cited or arrested African-American persons in disproportionate numbers for crimes that are within the discretion of a police officer to charge. For example, on information and belief, for the period 3/99-12/00, African Americans were charged with:
81% of all citations issued by the CPD for driving without proof of insurance; 72% of all citations issued by the CPD for driving under suspension or without a license; 70% of all citations issued by the CPD for driving without a seat belt; and 79% of all jaywalking citations issued by the CPD. 54. The proof of insurance, driving under suspension and seat belt charges are normally identified secondary to a stop for another reason. On information and belief African-American drivers in Cincinnati have a dramatically higher incidence of being charged with secondary offenses than do White drivers. 55. African-Americans make up 38% of the population of the city according to the 1990 census but receive 47% of all traffic citations, even though only 74% of African Americans of driving age hold licenses compared to 92% of white persons. 56. These statistics have support in the experience of individual class members. For example, one class member, Kareem Abdul Hadrick, was only cited with three
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discretionary minor traffic offenses after being detained for nearly an hour in November, 2000 while the police interrogated him about drugs and guns, searched his car without his consent and ordered him out of his vehicle. The three minor charges were later dismissed by the prosecutor.
57. Drug laws. African-Americans have been disproportionately targeted for stops, arrests and property forfeitures under the drug laws including the Cincinnati Exclusion Zone Ordinance and forfeiture laws and regulations.
D. Disparate Treatment of Class Members Who Reside in Metropolitan Housing and Who are Subject to Discriminatory Searches
58. Cincinnati Police Officers are often hired on "special detail" through the CPD to work as security guards for the Cincinnati Metropolitan Housing Authority (CMHA). On information and belief, these officers are routinely permitted to use the master keys to units owned by African-American persons and conduct searches of their living units without consent, without a warrant and without any exigent circumstance or other justifiable reason.
E. Disparate Impact of Rewarding Officers Who Accomplish More Arrests 59. On information and belief, Cincinnati Police Officers are expected to make more
arrests in predominately African-American neighborhoods than in predominately White neighborhoods. Officers are evaluated in part based on their achievement of these arrest goals or quotas.
60. On information and belief officers are commended for making arrests but not commended in similar fashion for accomplishments that prevent crime or promote good
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police-community relations. This continued pressure to make arrests causes officers to arrest more low income and minority persons who are least likely to fight the charges in court. This practice of rewarding for arrests rather than framing rewards consistent with the COP philosophy has a disparate impact on African-Americans.

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F. Deliberate Failure of City to Reform Discriminatory Practices 61. The City has been deliberately indifferent to members of the plaintiff class by
failing to supervise its police officers in a manner that would expose and correct the practices that are the subject of this lawsuit.
62. The need for effective supervision and discipline has been evident for thirty years and the failure to establish an effective system for supervision and discipline has been a major reason that discriminatory practices have continued.
63. Upon information and belief, the City has lost each of the last ten cases of police discipline presented to arbitrators under the labor agreement with the Fraternal Order of Police. This dismal record of success in arbitration has had a chilling effect on all discipline, causing police supervision to fail to charge or to undercharge officers guilty of
misconduct, including racially discriminatory policing. 64. The City deliberately hobbles the Office of Municipal Investigation and the
Civilian Police Review Panel by failing to heed their recommendations, failing to adequately staff and provide resources necessary for their work, and by failing to cooperate with their investigations.
65. Every review of the CPD in the last thirty years has called for more cultural diversity training, including ways for police to rely on interpersonal de-escalation skills
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IRK

rather than force when interacting with citizens. The City has deliberately failed to

provide such training in a meaningful and effective manner. Typically, a session may be

devoted to discussion of such issues in the training academy but little is done after the

formal classroom sessions to help officers effectively police when they are in an

unfamiliar cultural environment. This cultural awareness training can only be

accomplished through supervised field training. But with deliberate indifference to this

critical task, the City will assign as field training officers, individuals with three or fewer

years of experience. In a 1999 field training officer class, 80% of those selected as field

training officers had three or fewer years of experience.

66. The City has a practice of tolerating, acquiescing in and failing to discipline

those officers that engage in discourteous conduct toward citizens. The Kerner

Commission in 1968 warned about the importance of professionalism and respect in all

police-citizen relations. Numerous commissions and reports since that time have

continued to recommend that the city insist on courtesy by its officers and punish those

who fail to act consistent with professional guidelines. A disproportionate amount of

"^*

discourteous and harassing actions by Cincinnati police officers is directed at African-

American persons. The City has deliberately failed to address this issue and routinely

permits complaints of discourtesy to go unaddressed and undisciplined, thereby

perpetuating this racially discriminatory practice.

67. As recently as 1998, the City Council approved an agreement mediated by the

United States Justice Department between the City and various community groups that

required the city to enhance its existing personnel database by requiring entry of

performance related information about each officer, including civilian and other 17

complaint histories and discipline. Now, three years later, that comprehensive database has not been established. As a result of its breach of this commitment, the City is consciously failing to effectively supervise its officers.
68. In September 1999, the Sentinel Police Association renewed its call for the establishment of a comprehensive personnel-tracking database. Even though the City has previously agreed that such a system would provide objective facts necessary to tracking racial discrimination, the City has deliberately failed to act on this request.
69. The need to determine if police action on the scene is consistent with written policies and professional standards is a basic element of any system of accountability. Police action that is described over radio transmissions and through use of the mobile computer terminals is traceable. In recent months, however, on information and belief, the City has allowed critical police action to be taken "off the record" by permitting private cell phone use by officers at the scene of civilian arrests and interrogations. This "off the record" communication further erodes the ability to hold the officers accountable. By permitting the practice, the City is consciously failing to effectively supervise and control its officers.
70. Eighteen months ago, in September 1999, the City was requested by the Sentinel Police Association to collect data with respect to traffic stops that do not result in arrests. The Sentinel study of police misconduct had clearly indicated that a disproportionate number of African-American citizens were subjected to stops due to their race and color without any reasonable suspicion of a crime. The Sentinels requested that such data be included in the performance database. The City has deliberately failed to establish a record keeping system for stops not accompanied by arrests.
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71. The Kerner Commission also warned in 1968 that aggressive policing which focuses on arrests and involves officers policing neighborhoods who are unfamiliar with the residents will have a disparate impact on African-American citizens. The City has long been aware that community oriented policing (COP) improves police relationscommunity, prevents crime, and results in a more equitable enforcement of the law among citizens of all races. While initiating some programs, the City has nonetheless been deliberately indifferent to the disparate impact of continued rewards to those officers who engage in aggressive police practices. These practices include but are not limited to (1) rewarding officers for high volumes of arrests without scrutinizing the quality of those arrests and (2) disciplining officers who fail to achieve an "expected" number of arrests where such arrest expectations are higher in majority AfricanAmerican neighborhoods.
72. The Cincinnati Chief of Police, during the year 2000, publicly admitted that racial profiling takes place within the Cincinnati Police Division. An Assistant Chief of Police, also during the year 2000, admitted that racial profiling continues because of inadequate training.
73. The City has knowingly, intentionally, deliberately and consciously continued police practices that have a disparate impact on African American citizens.
H. Federal Funding of Cincinnati Police Division 74. At all times relevant to this action, the City of Cincinnati has maintained or
constituted a program or activity that receives federal financial assistance for the United States Department of Justice. Thus, defendant City is subject to the requirements of 42
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U.S.C. §2000d etseq. and 28 CFR §42.101 et.seq. Plaintiffs are the intended beneficiaries of such program or activity.
I. Disparate Treatment of Plaintiff Tyehimba 75. On February 23,1999, plaintiff Bomani Tyehimba, an African-American male,
was stopped by defendants Ploehs and Stratmann without any reasonable suspicion that he had engaged in a crime.
76. Defendants, with guns drawn and aimed directly at Mr. Tyehimba, ordered him to exit his van. With the gun inches from his head, the officers removed the keys from Mr. Tyehimba, handcuffed him and searched his person. His feet were kicked apart, his pockets rifled, and he was questioned about the money on his person, his employment and other personal facts. He was then marched to the police cruiser and still handcuffed, locked inside for twenty minutes.
77. The officers used an alleged minor traffic violation as pretext for this racially discriminatory stop, search and detention.
78. The police action against Mr. Tyehimba occurred in full view of his Mr. Tyehimba's minor son.
79. Defendant officers acted consistently and pursuant to the racially discriminatory policies and practices of the Cincinnati Police Department as alleged in this complaint.
80. Defendant City failed to adequately train and supervise the officers and was thereby deliberately indifferent to the rights of the plaintiff and other members of the class.
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81. As a direct and proximate result of all of the defendants' actions, plaintiff Tyehimba suffered serious mental anguish, embarrassment, emotional distress and pain and suffering. J. Irreparable Harm to Plaintiffs Caused by Police Practices
82. As a direct and proximate result of defendant City's actions, the plaintiff organizations have lost resources, experienced harm to their missions, been diminished in theur effectiveness and otherwise been unable to accomplish their goal of ending racial discrimination in policing in Cincinnati.
83. As a direct and proximate result of defendants actions, members of the plaintiff class, both members of the plaintiff organizations and those similarly situated, have experienced mental anguish, embarrassment, emotional distress and pain and suffering.
84. Racially discriminatory policing destroys the trust that African-Americans must have in their police force, eroding the very values necessary for a safe, democratic community.
85. Fundamental constitutional rights including the right to equal protection under the law, the right to free expression and association, the right to due process of law, the right to travel and the right to be free from unreasonable searches and seizures are all abused by the practices alleged in this complaint.
K. Necessity For Injunctive Relief 86. There is no adequate remedy at law. The African-American civilians in this
community have waited for more than thirty years for the City of Cincinnati to deliver on its promises of equal justice for all regardless of race, police accountability, and police
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training. The time has come and the need is urgent for court action on this pressing problem. Only prompt action by this federal court ordering declaratory and injunctive relief will address the imbalance of equities in this matter and serve the public interest.
VL CLAIMS FOR RELIEF First Claim - 42 U.S.C. §1983 - - United States Constitution 87. Defendants, acting under color of law, have violated rights secured to the plaintiffs by the First, Fourth, and Fourteenth Amendments to the United States Constitution including the right to free expression, the right of association, the right to travel, the right to be free of unreasonable searches and seizures, the right to due process of law, and the right to equal protection under the law. Second Claim - Title VI, Federal Civil Rights Act and Regulations 88. The defendant City of Cincinnati has violated rights secured to the members of the plaintiff class by 42 U.S.C. §2000d etseg. and 28 CFR §42.101 et.seq.
Third Claim - State Constitution 89. The defendant City has violated rights secured to the members of the plaintiff class by the Ohio Constitution, including the right to be free from unreasonable searches and seizures under Art. I, Sec. 14 and the right to free expression, free association, due process and equal protection under the law.
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VH. PRAYER FOR RELIEF WHEREFORE, plaintiffs request that this court: . A. Certify this action as a class action pursuant to Fed. R.Civ. Proc. 23(a) and
B. Issue a declaratory judgment that the practices at issue in this case violate the constitutional and statutory rights of the class members;
C. Issue a preliminary and permanent injunction against the City and all those acting in concert prohibiting the practices at issue in this action;
D. Award to Plaintiff Tyehimba compensatory damages against all defendants; E. Award to Plaintiff Tyehimba punitive damages against the individual defendants; F. Award to plaintiffs reasonable costs, expenses and attorney fees; G. Award such other and further relief as this court shall deem just and reasonable.
JURY DEMAND Plaintiff Tyehimba seeks a trial by jury of all claims triable to a jury on his individual claim for damages.
Respectfully Submitted,
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Kenneth L. Lawson (0042468) Kenneth L. Lawson & Associates Trial Attorney for Plaintiffs 1014 Vine Street, Suite 1575 Cincinnati, Ohio 45202 (513)345-5000 (513) 345-5005 fax

Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs 1 Liberty House P.O. Box 54400 Cincinnati, OH 45254 (513)943-2400 (513) 943-4800 fax scottgreenwood@earthlink.net

Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs 1409 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513)621-9100 (513) 345-5543 fax agerhardstein@laufgerhard.com

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 ACLU Press Release: 03-14-01 - Citing ...s Group Sue Cincinnati Police Officials

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http://www.aclu.org/news/2001/n031401c.html
American Civil Liberties Union

Citing 30-Year Pattern of Racial Profiling, ACLU And Rights Group Sue Cincinnati Police Officials

FOR IMMEDIATE RELEASE Wednesday, March 14, 2001

CLEVELAND, OH--A coalition of civil rights groups sued the City of Cincinnati today in federal court, citing a 30-year pattern of racial profiling by police.

The lawsuit, brought by the American Civil Liberties Union of Ohio and the Cincinnati Black United Front, was brought in United States District Court in Cincinnati on behalf of the African American members of both groups. The lawsuit seeks both a court order requiring the police department to alter its practice of targeting minority citizens for harassment based on their race, and money damages for certain plaintiffs.

"What we are seeking is to correct a 30-year pattern of racial misconduct by the Cincinnati Police Department," said Scott Greenwood, who is General Counsel for the ACLU of Ohio, and who will act as lead counsel for the ACLU in the case.

Papers filed with the court today paint a frightening picture of police harassment based on race. On a daily basis, African American citizens are routinely singled out for minor traffic citations, jaywalking tickets and other minor offenses. African Americans are far more likely than whites to be searched by the police as well.

Even more serious are allegations that police tend to use excessive and deadly force against African American citizens far more readily than against whites. Between 1995 and 2000, for example, Cincinnati Police killed 13 suspects during the course of their arrest, all of them African Americans. Widespread abuse of minority citizens continues to this day, despite the fact that police having been repeatedly singled out for criticism in several government reports published as early as the 1970's.

"This is a city with a serious problem," said ACLU Executive Director Christine Link. "In Cincinnati, racial bias touches almost every aspect of law enforcement. All Americans deserve equal justice under law, and today we are demanding no more and no less for the people of Cincinnati."

Legal papers in the case are available in .pdf format at http://www.acluohio.org/news/recent_developments.htrn.

To learn more about racial profiling, see the national ACLU's "Arrest the Racism" feature online at www.aclu.org/profiling and visit www.aclu.org/issues/policepractices/hmpolice.html.

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Tyehimba v. Cincinnati PP-OH-001-007

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

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U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:99-cv-00317-SJD-MRM

CLOSED

Tyehimba v. City of Cincinnati, et al Assigned to: Judge Susan J Dlott Referred to: Michael R Merz Demand: $0 Lead case: 1:99-cv-03170-SJD-MRM (View Member Cases) Related Cases: 1:01-cv-00286-SAS
1:06-cv-00054-MHW Cause: 42:1983 Civil Rights Act

Date Filed: 04/30/1999 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Bomani A Tyehimba

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

Kenneth L. Lawson, II Lawson & Associates - 1 808 Elm Street Suite 100 Cincinnati, OH 45202 513-345-5000 Email: kenneth@kennethlawson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

V. Defendant

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CM/ECF LIVE - U.S. District Court:OHSD - Docket Report
City of Cincinnati
Defendant Officer Todd Ploehs In His Individual and Official Capacity
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represented by Frank Horace Prouty, Jr City Solicitors Office 214 City Hall 801 Plum Street Cincinnati, OH 45202 513-352-3618 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Harmon City Of Cincinnati Law Department 214 City Hall 801 Plum Street Cincinnati, OH 45202-5705 513-352-3333 Email: mike.harmon@cincinnati-oh.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donald Edson Hardin Hardin Lefton Lazarus & Marks LLC - 1 915 Cincinnati Club Building 30 Garfield Place Cincinnati, OH 45202-4322 513-721-7300 Email: donhardin@hllmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank Horace Prouty, Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Harmon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S Lazarus Hardin Lefton Lazarus & Marks LLC 915 Cincinnati Club Building 30 Garfield Place Cincinnati, OH 45202-4322 513/721-7300 Email: stevelazarus@hllmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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CM/ECF LIVE - U.S. District Court:OHSD - Docket Report

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Defendant
Officer Brett Stratmann In His Individual and Official Capacity

represented by Donald Edson Hardin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank Horace Prouty, Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Harmon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S Lazarus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/30/1999 04/30/1999 04/30/1999 05/04/1999
05/05/1999 05/13/1999 06/28/1999 07/08/1999 08/11/1999

#

Docket Text

1 COMPLAINT WITH JURY DEMAND ( no. pgs: 9) (tt) (Entered: 04/30/1999)
Filing Fee Paid: on 4/30/99 in the amount of $ 150.00, receipt # 403864. (tt) (Entered: 04/30/1999)
2 ORDER by Judge Sandra S. Beckwith Case referred to Mag. Judge Timothy S. Hogan (cc: all counsel) ( no pgs: 1) (tt) (Entered: 04/30/1999)
3 ORDER by Judge Sandra S. Beckwith recusing herself from this case Case reassigned to the Clerk for assignment to another District Judge (cc: all counsel) ( no pgs: 1) (tt) (Entered: 05/04/1999)
4 ORDER/NOTICE by Clk Case reassigned to Judge Susan J. Dlott (cc: all counsel) ( no pgs: 1) (ls) (Entered: 05/05/1999)
5 WAIVER OF SERVICE mailed to defendant City of Cincinnati on 4/30/99 Answer due on 6/29/99 ( no pgs: 1) (tt) (Entered: 05/17/1999)
6 ANSWER by defendants; jury demand ( no pgs: 7) (vp) (Entered: 06/29/1999)
7 NOTICE setting this action for Preliminary PTC 11:00 8/5/99 before J Dlott no pgs: 1 (cc: all counsel) (vp) (Entered: 07/08/1999)
8 ORDER by Judge Susan J. Dlott Prelim pretrial conf held 11:00 8/5/99 ; Discovery ddl 2/1/00 ; Mtn filing ddl 3/1/00 ; Final pretrial conf set 7/14/00 ; Jury trial set 8/7/00 dates to exchange witnesses and furnish expert reports list ddl set 11/1/99 for pltfs and 12/1/99 for defts ; Case management/JPFPTO ddl set 7/6/00 (cc: all counsel) ( no pgs: 4) (vp) (Entered: 08/11/1999)

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03/14/2000
05/10/2000 10/16/2000
06/28/2002 06/28/2002 07/08/2002 07/24/2002
10/10/2002 10/10/2002 10/16/2002
01/03/2003 01/09/2003 01/09/2003 01/09/2003
01/15/2003 05/08/2003 05/15/2003

9 AMENDED SCHEDULING ORDER by Judge Susan J. Dlott ; Discovery ddl reset 5/5/00 ; Mtn filing ddl reset 6/5/00 ; ; memopp ddl 7/5/00; reply ddl 8/15/00; Final pretrial conf reset 10/17/00 JPFPTO/ Case management ddl reset 10/11/00 (cc: all counsel) ( no pgs: 1) (vp) (Entered: 03/14/2000)
10 NOTICE by plaintiff Bomani A Tyehimba of taking depositions of Brett Stratmann and Todd Ploehs on 5/31/00 ( no pgs: 2) (vp) (Entered: 05/11/2000)
11 NOTICE of hearing ; Jury trial set for 9:30 1/22/01 Ctrm 836 before J Dlott; Final pretrial conf set for 1:30 12/15/00 Rm 829 before J Dlott (cc: all counsel) (km) (Entered: 10/16/2000)
84 NOTICE of hearing ; Status conference set for 5:00 7/9/02 Rm 829 before J Dlott (cc: all counsel) (km) (Entered: 06/28/2002)
85 NOTICE of hearing ; Status/Scheduling conference set for 3:00 7/10/02 Rm 829 before J Dlott (cc: all counsel) (km) (Entered: 06/28/2002)
86 NOTICE of hearing ; Status/Scheduling conference reset to 3:30 7/18/02 Rm 829 before J Dlott (cc: all counsel) (km) (Entered: 07/08/2002)
87 ORDER by Judge Susan J. Dlott ; Status/Scheduling conference held 3:30 7/18/02 ; Joint Proposed FPTO ddl set for 4/10/03; Final pretrial conf set for 10:00 4/18/03; Jury trial set for 9:30 5/19/03 (cc: all counsel) ( no pgs: 4) (km) (Entered: 07/24/2002)
88 MOTION by plaintiff for admission of attorney Ayanna E Love to appear pro hac vice ( no pgs: 4) (vp) (Entered: 10/11/2002)
Filing Fee Paid: on 10/10/02 in the amount of $ 50.00, receipt # 100416558. (vp) (Entered: 10/11/2002)
NOTATION ORDER by Judge Susan J. Dlott granting motion for admission of attorney Ayanna E Love to appear pro hac vice [88-1] (cc: all counsel) (vp) (Entered: 10/16/2002)
89 MOTION for order ( FILED UNDER SEAL) (vp) (Entered: 01/03/2003)
NOTATION ORDER by Judge Susan J. Dlott withdrawing motion for order [89-1]FILED UNDER SEAL (cc: all counsel) (vp) (Entered: 01/09/2003)
90 MOTION by Cincinnati Post for order to allow it acsess to the status Conf for 1/9/03 at 3:00 ( no pgs: 2+) (wam) (Entered: 01/09/2003)
91 ORDER by Judge Susan J. Dlott denying motion for order to allow it acsess to the status Conf for 1/9/03 at 3:00 [90-1] (cc: all counsel) ( no pgs: ) (vp) (Entered: 01/09/2003)
92 Designation of expert Witness list submitted by plaintiff ( no pgs: 4) (wam) (Entered: 01/16/2003)
93 NOTICE of hearing ; Final pretrial conf reset to 5:00 5/19/03 (cc: all counsel) (wam) (Entered: 05/08/2003)
94 NOTICE of hearing ; Final pretrial conf vacated 5:00 5/19/03 (cc: all counsel) (wam) (Entered: 05/15/2003)

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05/21/2003 05/21/2003

95 JOINT MOTION by parties for an order to establish qualified settlement fund & establish fund adminstrator ( no pgs: 12+) (wam) (Entered: 05/22/2003)
96 ORDER by Judge Susan J. Dlott granting motion for an order to establish qualified settlement fund & establish fund adminstrator [95-1]; the City of Cinti is to pay 4.5 million into the fund w/i 60 days of the date of this order; the Court Orders Matthew Garretson as the fund administrator dismissing case with prejudice ; the partis may upon good cause shown & not later that 8/21/03 reopen action if settlement is not consumated (cc: all counsel) ( no pgs: 13) (wam) (Entered: 05/22/2003)

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

IN RE CINCINNATI POLICING

:

Case No. C-1-99-317

:

:

Judge Dlott

:

:

COLLABORATIVE

:

AGREEMENT

:

1. The Cincinnati Black United Front (“Front”), the American Civil Liberties Union of Ohio Foundation, Inc. (“ACLU”), on behalf of the class, as defined herein (“the Plaintiffs”), the City of Cincinnati (“City”), and the Fraternal Order of Police (“FOP”), hereinafter collectively referred to as the “Parties” hereby enter into this Collaborative Settlement Agreement dated as of April 11, 2002 (the "Agreement" or "Collaborative Agreement") providing for full and complete settlement of the claims of all of the Parties as described in certain litigation commenced by Plaintiff Bomani Tyehimba against the City and others in United States District Court in case No. C-1-99-317 as later sought to be amended by Amended Complaint and subsequent pleadings filed by the Front and the ACLU on or after March 1, 2001, against the City and others, herein described as the Litigation, in consideration of the mutual promises of the Parties and pursuant to the terms and conditions set forth below, all subject to the approval of the Court.

TABLE OF CONTENTS

I. II. III. IV. V.
VI. VII. VIII.

VALUE STATEMENT INTRODUCTION CLASS CERTIFICATION PURPOSE OF SETTLEMENT AGREEMENT OPERATIVE PROVISIONS A. The Parties Shall Implement a Policing Strategy of Community Problem Oriented
Policing (CPOP) B. Parties’ Mutual Accountability and Responsibility for Evaluation Of The Implementation
of the Agreement C. Use Of Force And Status Of Terms Of The Department Of Justice Agreement D. The Parties Shall Collaborate to Ensure Fair, Equitable, and Courteous Treatment for All E. Civilian Review: The City Will Establish A Citizen Complaint Authority MONITORING AND DISPUTE RESOLUTION INDIVIDUAL ACTIONS, MEDIATION MISCELLANEOUS

I. VALUE STATEMENT
2. The overall Collaborative Agreement described in this document contains a description of problem oriented policing which frames the overall philosophy and practices at its core. Central to a problem solving orientation is that problems are dilemmas to be engaged and learned from and that blame is an obstacle to progress. The overall collaborative effort suggests an alternative to blame: that different groups within the community with different experiences and perspectives share much more in common than not, and can work together on common goals and solve problems together.
II. INTRODUCTION
3. This Collaborative on Police Community Relations was proposed by the Parties, authorized by the City Council of the City of Cincinnati and established by United States District Judge Susan J. Dlott as an alternative dispute resolution effort to resolve social conflict, improve community relations, and avoid divisive litigation. The Collaborative has been pursued with Judge Dlott’s direction, encouragement and assistance as a joint project of the Parties. The Litigation alleges racially biased policing by the Cincinnati Police Department (CPD). The City and the FOP have denied the allegations but have agreed to pursue this unique partnership as a means of resolving the conflict. The Court has appointed as Special Master, Jay Rothman, Ph.D., who has been leading the resolution process.
4. The Collaborative includes outreach to the entire Cincinnati community through eight stakeholder groups: African-Americans, social service and religious organizations, businesses and philanthropic groups, police line officers and spouses, City officials, white citizens, other minorities and youth. The community outreach included responses to an online questionnaire as well as interviews with citizens for whom a computer was not easily accessed. Feedback sessions were used to collect and discuss the information that was gathered. Over 3500 persons participated in this process. The collaborative also included an expert research effort headed by John Eck, Ph.D., charged with identifying best practices and model programs. The results of this community dialogue and expert research were shared with the Parties for use in settlement negotiations.
5. The Parties have studied and received the results from community based work done through Study Circles by the Cincinnati Human Relations Commission; Neighbor to Neighbor, sponsored by numerous Cincinnati organizations; suggestions by the National Conference for Community and Justice (NCCJ) and Cincinnati Community Action Now (CCAN).
6. The Collaborative has engaged the entire community in a constructive dialogue that has resulted in an ongoing commitment to cooperation between the police and the community. The Parties, through this Agreement, make a commitment to promote and foster this ongoing cooperation.
III. CLASS CERTIFICATION AND FRIENDS OF THE COLLABORATIVE
7. The Parties agree that the goal of securing continuing, broad based community commitment to implementation of the terms of this Agreement shall be accomplished through certification of a plaintiff class action under Fed.R.Civ.P. 23(b)(2). The representative Plaintiffs shall be the Cincinnati Black United Front (“Front”) and the American Civil Liberties Union of Ohio
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Foundation, Inc. The Parties shall permit the Urban League of Cincinnati and NAACP, Cincinnati Branch to join as class representatives within thirty days of the signing of this Agreement if they agree. The Parties agree to the certification of a mandatory class for settlement purposes under Fed. Rule Civ. P. 23(b) (2). The class shall be defined as:
All African-American or Black persons and people perceived as such who reside, work in and/or travel on public thoroughfares in the City of Cincinnati, Ohio either now or in the future and who are stopped, detained, or arrested by Cincinnati Police Officers or their agents, and citizens of any race who have been or will be subjected to a use of force by Cincinnati police officers and their agents.
8. A community advisory committee of Cincinnati organizations, the Friends of the Collaborative, shall be established within 30 days of the approval of this Agreement by the Court. Such Committee will consult with and support the parties regarding the implementation of the Agreement.
9. The Parties agree that they are entering into this class action settlement agreement for settlement purposes only. Any acquiescence or agreement to the class certification in this case does not constitute an admission of liability or fault by the City of Cincinnati or any of its officials, agents, or employees and may not be used as evidence in any proceeding by any member of the class except proceedings under this Agreement.
IV. PURPOSE OF COLLABORATIVE SETTLEMENT AGREEMENT
10. The purposes of this Agreement are to resolve social conflict, to improve communitypolice relationships, to reduce crime and disorder, and to fully resolve all of the pending claims of all individuals and organizations named in the underlying litigation, to implement the consensus goals identified by the community through the collaborative process (listed below), and to foster an atmosphere throughout the community of mutual respect and trust among community members including the police. The Parties recognize that there has been friction between some members of both the community and the CPD. The ultimate goal of this Agreement is to reduce that friction and foster a safer community where mutual trust and respect is enhanced among citizens and police. This Agreement reflects the following goals adopted by the 3500 respondents through the feedback process developed by the Parties through the Collaborative:
First Goal: Police Officers and Community Members Will Become Proactive Partners in Community Problem Solving
Second Goal: Build Relationships of Respect, Cooperation and Trust Within and Between Police and Communities
Third Goal: Improve Education, Oversight, Monitoring, Hiring Practices and Accountability of CPD
Fourth Goal: Ensure Fair, Equitable, and Courteous Treatment for All
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Fifth Goal: Create Methods to Establish the Public's Understanding of Police Policies and Procedures and Recognition of Exceptional Service in an Effort to Foster Support for the Police
11. Further, this Agreement will resolve the issues raised by the amended complaint and motion for preliminary injunction. The Parties believe that this settlement can support and build upon the current mission statement of the Cincinnati Police Department:
"The mission of the Cincinnati Police Department is to work in partnership with the citizens of the community to provide a safe environment where the quality of life may be improved through delivery of fair and impartial police services."
12. 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.
13. This Collaborative Agreement is founded on three principles. First, the social conflict necessitating this Agreement arises out of a cultural context much broader than police community relationships. Second, many conflicts can be addressed through careful analysis based on detailed information and a willingness to explore a wide range of alternatives. This is called problem solving. Third, achieving mutually agreeable solutions to the above mentioned goals described by the citizens of Cincinnati is the criteria for success. Consequently, this Agreement is outcome oriented, putting great emphasis on objective measures of police-citizen relations and police effectiveness. Only through comprehensive measurement can we determine if progress is being made and whether the means for reaching mutually agreeable solutions to these goals are working. This is one form of accountability. Though problem solving is described first and outcome accountability is described last these two principles are woven into the entire plan.
14. It is understood and agreed that the terms and implementation of this Agreement are not intended to and shall not be construed to violate the terms of any collective bargaining agreement by and between the City and the FOP or any other entities representing employees of the City, and further will not include any terms and conditions of employment that must be negotiated by and between the FOP and the City.
15. The Plaintiffs and FOP shall cooperate with the City to develop and implement a plan of community engagement to prepare Cincinnati residents, business owners, non-profit agencies, community and religious organizations, and others as partners with the City in problem solving activities.
V. OPERATIVE PROVISIONS
A. The Parties Shall Implement a Policing Strategy of Community Problem Oriented Policing (CPOP)
16. The City of Cincinnati, the Plaintiffs and the FOP, shall adopt problem solving as the principal strategy for addressing crime and disorder problems. Initiatives to address crime and disorder will be preceded by careful problem definition, analysis and an examination of a broad range of
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solutions. The City of Cincinnati will routinely evaluate implemented solutions to crime and disorder problems, regardless of the agency leading the problem-solving effort. The City will develop and implement a plan to coordinate the City’s activities so that multi-agency problem solving with community members becomes a standard practice. Such an approach does not preclude law enforcement and prosecution.
Introduction to Community Problem Oriented Policing
17. The City of Cincinnati is committed to community problem oriented policing (CPOP) as a means to reduce crime and improve the quality of life for its citizens. The Plaintiffs and the FOP join in that commitment. The CPD recognizes CPOP as the next phase of effective community policing. Current research and case studies from around the world indicate that the problem-solving process known as SARA (Scanning, Analysis, Response, and Assessment) effectively addresses crime, disorder, and the fear of crime in communities. The Parties acknowledge that there are broad causes of crime and disorder. For a long period of time the police have been looked at as the only entity to address crime and disorder in our community. This Agreement is designed to encourage the Parties to commit to help the police and community work together to address crime, disorder, and quality of life issues in the Cincinnati metropolitan area.
18. The CPD has recently adopted a strategic plan that embraces community problem oriented policing. This Collaborative Agreement builds on that commitment. Implementing a widespread, in-depth community problem oriented policing strategy in Cincinnati can increase the police, City, and community effectiveness in preventing and solving crime, reducing disorder, improving quality of life, and restoring functional neighborhoods.
19. The CPD consulted Advisors Helping Agencies in the development of its strategic plan in order to gain an outside perspective of the Cincinnati Police Department. One of the goals identified through this process was the use of problem oriented policing, in partnership with the community, to implement effective solutions. This is the process the CPD adopted to help communities solve problems. Part of this goal is the implementation of a problem tracking and reporting system to document successes and failures. The CPD is still implementing this system and is working to improve it. The Collaborative Agreement will directly assist in this effort.
Explanation of Community Problem Oriented Policing
20. Community problem oriented policing is one form of police work that seeks resolution of troublesome circumstances in the community. These troublesome circumstances are framed as problems to solve. They usually reveal themselves as a form of repeat pattern of offending, victimization, or locations. First, problems need to be carefully defined. A useable problem definition requires a description of harmful behaviors and the environments where these behaviors occur.
21. The second principle guiding community problem oriented policing is that problems are carefully analyzed prior to developing a solution. Community problem oriented policing is an information intensive strategy that places a premium on data, intelligence, community input, and analysis. The analysis is designed to reveal critical aspects of the problem that can be altered to effect a reduction in the problem.
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22. The third principle is that the police and their partners engage in a broad search for solutions based on the analysis of information. A law enforcement response is always a possibility, but may not be required. Rather, a range of options is explored, often drawing from the field of "situational crime prevention" that block opportunities to commit crimes and disorder. Effective solutions to problems may require the active participation of and partnership with other City agencies, community members, and the private sector. This implies that for a community problem oriented policing strategy to be effective there must be close police-community relations and the City must support this approach.
23. The fourth principle is that problem-solving efforts are evaluated to determine if the problem has been reduced. Here again, the use of information technology and analysis is critical to assure continuous improvement. If the problem has been successfully addressed, the police can move on to other problems. If it has not, then more work needs to be done, including a re-analysis of the problem or a search for alternative solutions.
24. Beginning in the fall of 1993 through February 1994, all CPD personnel received eight hours of police problem solving training using the SARA model as the process for community problem solving. The CPD has also specifically trained all neighborhood officers in the SARA model. In 1998, Police Officers and Police Specialists received a one-hour overview of community oriented policing that examined successes of community oriented policing. The overview also helped educate beat officers on how neighborhood officers could assist them in finding solutions to problems on their beat. Also in 1998, the problem solving method was used during Critical Incident Training for all Sergeants and Lieutenants. All of this suggests a solid foundation for even more focused and comprehensive commitment to community problem oriented policing.
25. The CPD also uses crime analysis and mapping for problem solving. CPD analysts receive numerous requests for information during the analysis and assessment phases of problem solving. They have the ability to draw a picture of crime for those involved in the problem solving initiative. Several years ago, the CPD, Klotter Street Homeowners Association and the Cincinnati Public Works Department collaborated to develop a strategy for combating increasing incidents of theft and vandalism in the Klotter Street neighborhood.1 This is only one example of the use of technology and crime mapping for problem solving by the City and provides a further successful foundation for this Collaborative Agreement.
26. Citizens of Cincinnati have expressed a strong and uniform desire to see greater positive interaction between the police and the public. During the nine-month collaborative process in 2001, the public called for the City to "reinforce and expand community-oriented policing and practice." They have recommended that the City "establish and maintain greater understanding, positive interaction, and communications between the community and the police." They have asked the City to "promote a partnership of shared responsibility for community problem-solving." Citizens want to "develop more trust, respect and acceptance between the police and community." They want to "increase public's understanding of police policies, procedures, duties and roles." The public wants to "foster greater appreciation and support for police through professional and public recognition of outstanding service as
1 They used the SARA model for problem solving and the project and findings were published in Crime Mapping Case Studies: Successes in the Field, Volume 2, 2000, Police Executive Research Forum.
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well as awareness of the motivations of police officer and challenges they face." Citizens want to "improve communications and foster greater understanding, trust, respect and sensitivity between the community and the police." And the public wants to "increase community accountability and responsibility."
27. The Parties, and especially the CPD, understand that fully engaging the community is a fundamental key to effective law enforcement. The CPD will continue to implement policies and procedures that are guided by the principles of community problem oriented policing. In accordance with these principles, the CPD continues to work in partnership with the community to solve problems that impact the community. As part of that process the Department has expanded its successful Citizens on Patrol Program to include neighborhoods of Bond Hill, College Hill, Madisonville, Mt. Washington, Price Hill, Carthage, Hartwell, Westwood, Northside, Clifton/University Heights/Fairview (CUF), Kennedy Heights and Pleasant Ridge. This program started with only four communities in 1997. Its success was recognized by other neighborhoods that wanted to work in partnership with the police to take back their neighborhoods. Neighborhood officers have been encouraged to utilize the SARA model and explain the process to citizens.
28. It is abundantly clear that the citizens of Cincinnati and their police officials want a two way dialogue about effective and fair policing. Taking a proactive and preventative approach toward informing the public about police operations will go a long way toward improving police-citizen relations and preventing information vacuums that increase friction between the community and the police. The ultimate goal of this Agreement is to reduce that friction and foster a safer community where mutual trust and respect is enhanced among citizens and police.
Implementation of Community Problem Oriented Policing (CPOP)
29. The Parties shall be jointly accountable for the implementation of community problem solving policing. The Parties, through their attorneys, shall meet each of the development deadlines by drafting whatever policies, procedures or other documents that may be necessary to carry the commitments of this Agreement into operation. The Parties will work together to mutually insure that each of the following implementation steps is accomplished by the deadlines set for implementation.
a) The City, in consultation with the other Parties, shall develop and implement a plan to coordinate City departments with the CPOP focus of the CPD.
Plan Development Deadline: 60 days after fairness hearing. Plan Implementation Deadline: 90 days after fairness hearing.
b) The Parties shall develop and implement a system for regularly researching and making available to the public a comprehensive library of best practices in community problem oriented policing.
Plan Development Deadline: 60 days after fairness hearing Plan Implementation Deadline: 90 days after fairness hearing
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c) The City, in consultation with the Parties shall develop a “continuous learning” process through the CPD. Experiences with problem solving efforts in the field will be documented and disseminated throughout the police department and made available to the public. Problem solving will continue to be emphasized in (included but not limited to) academy training, in-service training, and field officer training.
Plan Development Deadline: 60 days after fairness hearing Plan Implementation Deadline: 90 days after fairness hearing
d) The Parties will seek out information on how problem solving is conducted in other police agencies. Research and best practices on successful and unsuccessful methods for tackling problems, and analogous processes used by other professions (e.g., conflict resolution, organization development, epidemiology, military, civil engineering, and business) will be disseminated.
Plan Development Deadline: 60 days after fairness hearing Plan Implementation Deadline: 90 days after fairness hearing
e) The Parties, consistent with the Community Partnering Program, attached as Exhibit A, shall conduct CPOP training for community groups, jointly promote CPOP, and implement said CPOP training.
Plan Development Deadline: 60 days Plan Implementation Deadline: 90 days
f) The Parties shall coordinate efforts undertaken through the Community Partnering Program and establish an ongoing community dialogue and interaction including, but not limited, to structured involvement between the CPD and youth as well as with property owners, businesses, tenants, community and faith-based organizations, motorists, low income residents and other city residents on purposes and practices of CPOP.
Development Deadline for training and informational materials: 60 days after fairness hearing Plan Implementation Deadline: Immediate. 90 days after fairness hearing
g) The Parties shall establish an annual CPOP award to recognize the efforts of citizens, police officials, and other public officials who have made substantial contributions to CPOP by addressing community problems in Cincinnati.
Deadline to Complete Award(s) Design: 120 days after fairness hearing Deadline for Implementation: 180 days after fairness hearing
h) The City, in consultation with the Parties and consistent with the Ohio Law, shall develop and implement a system for consistently informing the public about police policies and procedures. In accomplishing this item, The City, in consultation with the Parties, shall conduct a communications audit, and develop and implement a plan for the improvement of internal and external communications. This will be funded by NCCJ pursuant to the attached description in Exhibit B.
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System Development Deadline: 60 days after fairness hearing System Implementation Deadline: 120 days after fairness hearing
i) The CPD shall create and staff a Community Relations office that will coordinate within the CPD implementation of this Agreement.
Deadline for Creation of Community Relations Office: 60 days after fairness hearing
j) The Parties shall describe the current status of problem solving throughout the CPD and what is being done to improve it through an annual report. Each party shall provide information detailing what it has done relating to its role in CPOP.
Implementation Deadline: One year after fairness hearing
k) CPD District Commanders and Special Unit Commanders or officials at comparable levels shall prepare quarterly reports that detail problem solving activities within their Districts. To the extent practicable, these reports shall identify specific problems addressed and steps taken by the City and the community toward their resolution. The reports also shall identify obstacles faced and recommendations for future improvement. Consistent with individual privacy and relevant law, these reports shall be available to the public through the CPD’s Community Relations Office.
Deadline to Commence Quarterly Reports: 90 days after fairness hearing
l) The Parties shall review existing courses and recommend any new ones that may be appropriate for the Police Training Academy in order to effectively and accurately inform police recruits, officers and supervisors about the urban environment in which they are working.
Deadline to Complete Course Review and Design: 90 days after fairness hearing Deadline for Implementation: 120 days after fairness hearing
m) The Parties, in conjunction with the Monitor, shall develop and implement a problem tracking system that will have the goal of documenting problem-solving activities, including problem definition, analysis and response activities and information, evaluation results, and partnerships with police, government, and community organizations and individuals.
System Development Deadline: 180 days after the fairness hearing System Implementation Deadline: 240 days after the fairness hearing
n) The City shall periodically review its staffing plan in light of its commitments under CPOP and make revisions as necessary subject to funding provisions of this Agreement.
Deadline for Staffing Plan review: ongoing
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o) The City shall review and, where necessary and appropriate, revise, police department policies and procedures, organizational plans, job descriptions, and performance evaluation standards, consistent with its commitment to CPOP.
Deadline to Complete Review : 60 days after fairness hearing Deadline for Revision: 90 days after fairness hearing
p) Consistent with applicable federal and state law regarding protection of personal privacy and the Ohio Public Records Act, the City shall design a system that will permit the retrieval and linkage of certain information including that which is already collected by the CPD but may not be routinely searchable under the present system. Further, the system shall enable the tracking of repeat offenders, repeat victims, and/or repeat locations that are necessary to community problem oriented policing. Finally, the system established under this paragraph shall include, but not be limited to, that information necessary to comply with the terms in this Agreement regarding nondiscrimination in policing and early warning.
Deadline to Complete Request for Proposal: 180 days after fairness hearing Deadline for Implementation: to be determined by the Monitor
q) The City, in consultation with the Parties, shall study the options and then determine if and how to best secure appropriate information technology so that police officers, supervisors, managers, and executives, as well as other City agencies and community members, can get access to timely and useful information needed to detect, analyze, and respond to problems and evaluate their effectiveness subject to the provisions of this Agreement with respect to funding.
Deadline for Development of Procurement Plan: 180 days after fairness hearing Deadline for Securing Funding: 240 days after fairness hearing Deadline for Procurement: one year after fairness hearing Deadline for Implementation: immediately regarding those aspects that need no new purchases, otherwise two years after fairness hearing
B. Parties’ Mutual Accountability and Responsibility for Evaluation Of The Implementation of the Agreement
Introduction
30. The Parties, in consultation with appropriate experts and under the supervision of the Monitor, shall develop a system of evaluation to track the attainment of goals agreed to between the Parties in the Collaborative Agreement. This tracking enables the Agreement to serve as a mutual accountability plan. The term “mutual accountability plan” is defined as a plan that ensures that the conduct of the City, the police administration, members of the Cincinnati Police Department and members of the general public are closely monitored so that the favorable and unfavorable conduct of all is fully documented and thereby available as a tool for improving police-community relations under this Agreement. The Parties will regularly meet with the Monitor to study the results of the evaluation instruments and determine what changes, if any, in the Agreement or in their actions should be pursued
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in light of the evaluation results. That system shall also include a plan for determining what parts of this evaluation oversight may be transferred from the Monitor’s supervision to a successor agency before this Agreement expires in order that ongoing evaluation efforts of police-community relations continue.
Protocol Development
31. The Parties shall, with the advice of expert consultants, and under the supervision of the Monitor, develop a Protocol to accomplish this system of evaluation. This Protocol (hereafter, the “Evaluation Protocol”) shall be developed within 90 days of the Court approval of this Agreement, and implementation shall be commenced not more than 60 days thereafter.
32. The Evaluation Protocol shall set forth (i) a schedule for implementation of its terms, (ii) the cost of implementation, (iii) the individual or entity that will perform its requirements, (iv) data collection methods, forms, and procedures, (v) guidelines for analysis of collected data and reporting formats, (vi) levels of statistical confidence, and (vii) levels of statistical power.2
Cost
33. The cost to implement the provisions of this Section B, including the cost to implement the Evaluation Protocol, shall not exceed the limit set forth in paragraph 130.
Elements of Evaluation Protocol
34. This Evaluation Protocol shall include (i) periodic surveys, (ii) periodic observations of programs in which the police are involved, and (iii) annual statistical compilations of police interactions with the community and the community’s interactions with the police.
Periodic Surveys
35. Subject to final decision after development of the Evaluation Protocol, the Parties anticipate utilizing several types of surveys regarding events occurring after the signing of this Agreement. The Evaluation Protocol shall provide that for all probability sample surveys, the Parties will assure that the response rate of sampled respondents is not lower than 70 percent.
a) A probability sample3 of citizens will be surveyed, periodically citywide. This survey will provide a barometer of citizen attitudes toward and satisfaction with the police. The survey should be large enough that meaningful distinctions can be drawn among neighborhoods, race, gender and ages of respondents. Special consideration will be given to the use of a non-
2 Statistical confidence refers to the probability that a difference between two groups is real and not due to randomness. Statistical power refers to the ability to detect a given non-random difference between two groups.
3 A probability sample is a group of people selected in a way that allows researchers to calculate the proportion of the population they represent with known accuracy. Simple random samples are a type of probability sample, but there are many other types as well.
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probability sample of residents who have no fixed address and who are likely to be missed by probability sampling. The citywide survey of citizens will include measures of neighborhood conditions, fear of crime, community efficacy, awareness of policing efforts, participation in policing efforts, perception of policing effectiveness, police responsiveness, performance, officer civility and demeanor, and citizen conduct with the police. The surveys shall also include multiple items that are specifically designed to fairly measure identification and prioritization of problems; awareness of community problem oriented policing efforts, participation in such efforts, and program effectiveness in community relations.
b) A probability sample of citizens with police encounters will be surveyed periodically to determine the nature of the contacts, citizens’ perceptions of the police involved and the outcomes of the contacts. These citizens will be drawn from police records, including but not limited to, lists of citizens attending neighborhood meetings with the police, involved in police-community problem-solving efforts, stopped and questioned by the police, and arrested by the police. The periodic survey of citizens with police encounters will include: measures of police responsiveness, performance, demeanor, the perceived performance of other city agencies involved in the problem-solving process, the perceived effectiveness of the problem solving itself, and perceived community receptiveness to police involvement. The exact nature of the questions asked will depend on the nature of the encounter. Consequently, citizens involved in traffic stops and citizens involved in police-community problem-solving efforts will be asked similar questions about police demeanor, for example, but different questions about the outcomes of the encounter.
c) A probability sample of police officers, specialists, sergeants, lieutenants, and other members of the Cincinnati Police Department who have significant contact with the public and their immediate families will be surveyed periodically to determine their perceptions of their organizational work climate, citizen support, and methods for improving the CPD and policecommunity relations. The periodic survey of officers will include measures of officer perceptions of personal safety, perceptions of citizen conduct, their perceptions of support or lack thereof from the CPD, the City, and elected officials, and recommendations for improving the working conditions and effectiveness of police officers. Such surveys shall also include multiple items that are specifically designed to fairly measure identification and prioritization of problems, participation in community problem oriented policing efforts, program effectiveness in community relations. The reasonable surveys of members of the CPD and members of their families shall not be deemed an unfair labor practice and the results of the survey shall not be utilized by the City for any purpose other than those set forth in this Agreement.
d) Probability samples of officers and citizens involved in the citizen complaint processes will be taken to determine their levels of satisfaction with the fairness of the process. Also, a probability sample of officers involved in internal investigations and the disciplinary processes will be taken to determine their levels of satisfaction with the fairness of the process.
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Periodic Observations
36. The Evaluation Protocol shall include provisions for periodic observations of a representative sample of community-police meeting, problem-solving projects, and citizen complaint processes to examine how police and citizens interact in these settings. The periodic observations of problem-solving activities and community policing programs will focus on describing the activity, meeting, or process and the characteristics of effective and ineffective programs, procedures, processes, and personnel.
Privacy and Anonymity of Survey and Observation Respondents
37. The Evaluation Protocol shall provide protection for the privacy of the individual survey and observation respondents (citizens and members of the CPD and their immediate family members) who must feel confident in providing frank and meaningful information. The Evaluation Protocol shall assure that no data with individual respondent identifiers will be released to the public, news organizations, members of the CPD, the City, or other Parties to this Agreement. These survey data and observation data collected as part of this Agreement shall be retained by the Monitor and access to data with personal identifiers shall be restricted to the Monitor, the Monitor’s staff, and others the Monitor designates for the sole purpose of accomplishing the goals of this Agreement. This provision may be implemented with any appropriate protective order issued by the Court.
Statistical Compilations from Official Records
38. In addition to surveys, and subject to the final determination of the Parties, the Evaluation Protocol shall include a means for providing the following data to the Parties and the public by the City of Cincinnati on a periodic basis. Citizen and officer information shall not carry personal identifiers but shall include age (by subgroupings of 7-17, 18-25, 26-35, 36-45, 46-55, 56-65, and 65 and over), race, national origin, gender, geographical area (by neighborhood), years of service, rank, assignment and other characteristics as deemed appropriate.
39. Compilations shall include an analysis, by percentage attributable to each of the fifty-two (52) city neighborhoods:
• Arrests • Reported crimes and drug complaints • Citations of vehicles and pedestrians • Stops of vehicles and pedestrians without arrest or issuance of citation • Uses of force • Citizen reports of positive interaction with members of the CPD by assignment, location, and
nature of circumstance4
4 All favorable encounters between citizens and police officers shall be reported as soon as they are made known to the City and police administrations and any police supervisor. Citizens, City councilpersons and their staffs, all City departments, divisions and agencies and their staffs, City and
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• Reports by members of the CPD of unfavorable conduct by citizens in encounters with the police • Injuries to officers during police interventions • Injuries to citizens during arrests and while in police custody • Citizen complaints against members of the CPD
40. For each of the above items, the city shall provide to the Monitor incident-based data so that the nature, circumstances, and results of the events can be examined. These data will allow examination of trends in the use of force, their geographic patterns, their association with criminal activity, and differences among groups.
Evaluation of Problem Solving Processes
41. The Evaluation Protocol shall also include data recording processes for study of the problem-solving projects undertaken by members of the CPD and the community and the communitypolice meetings attended by members of the CPD. For these items, the Evaluation Protocol will allow an assessment of core strategic processes of the Cincinnati Police Department.
Evaluation Of Video And Audio Records
42. The Evaluation Protocol shall also include a procedure for representative sampling of police vehicle mounted video and audio recordings in all police districts, and for creating a database describing the sampled recordings. If possible, the Evaluation Protocol will seek to develop a method to study how citizens of various racial and ethnic backgrounds are treated by the police, and how these same people treat the police. Compliance with this term shall be coordinated with compliance with the City-DOJ Agreement attached as Exhibit C.
Evaluation of Staffing
43. The Evaluation Protocol shall also allow examination of the hiring, promotion and transfer processes within the CPD. Accordingly, the Evaluation Protocol shall require review of data from the CPD regarding staffing, including data on recruits, promotions, transfers, retirements, and overall organizational staffing by rank, assignment, race, gender, age, and years of experience with the CPD.
Evaluation Reports
44. Using the data from the above sources, and subject to the final determination of the Parties, the Evaluation Protocol will include provision for periodic reports that will address each of the following questions, taking into consideration breakdowns by age (by subgroupings of 7-17, 18-25, 26-
police administrations and their staffs, and all members of the CPD shall be encouraged to promptly report all favorable or positive actions taken by all members of the CPD to ensure that a complete record of all such favorable and positive actions are made a permanent part of any data base relating to the CPD’s dealings with the community.
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35, 36-45, 46-55, 56-65, and 65 and over), race, national origin, gender, geographical area (by neighborhood), years of service, rank, assignment and other characteristics as deemed appropriate:
• Is public safety improving throughout the City of Cincinnati? • Have the number of reports by police of unfavorable conduct by citizens during encounters with
the police increased or decreased in the neighborhoods of Cincinnati? • Is police use of force declining relative to the City’s population and serious crime rate? • Is police use of force equitably distributed across racial, gender, and age groups, once
involvement in crime, disorder, and other relevant factors is taken into account? • Do police officials feel their supervisors, City officials, and citizens support their actions? • Are the citizen complaint processes and discipline outcomes perceived to be fair by involved
citizens and officers? • Are police-community relations improving throughout Cincinnati? • What can be done to continue to reduce police use of force, make police activities more
equitable, address community problems, increase the fairness of the citizen complaint process, improve police-citizen relations, and improve community safety? • Has the use of police force declined/ or increased relative to the number of police/citizen contacts? • Were persons of any particular race or national origin, gender, or age in any of the fifty-two (52) community geographic areas subjected to a disproportionate share of use of force by the police? • Were members of the CPD in any of the fifty-two community geographic areas subjected to a disproportionate share of use of force by persons of any particular race or national origin, gender, or age? • Is there any correlation between the answers to the two previous questions? • Are community problems being successfully addressed? • Are police problems being successfully addressed? • Do police officers feel that their supervisors, City elected and appointed officials, and citizens have done anything positive or negative with respect to supporting their police-related actions? • Do citizens have any adequate means for positive engagement with police officers and police officials? • Do lower ranking members of the CPD have any adequate means for positive engagement with higher ranking police officials and elected and appointed officials of the city? • Do members of the CPD have any adequate means for positive engagement with the community? • Is the citizen complaint process perceived to be fair by the involved citizens? • Is the citizen complaint process perceived to be fair by the involved police officer? • Is anything further required to make the citizen complaint process more fair? • Is the police complaint process against citizens perceived to be fair by the police? • Is the police complaint process against citizens perceived to be fair by the involved citizen? • Is anything further required to make the police complaint process against citizens more fair? • Are police/community relations improving throughout the Cincinnati area? • What is required to improve police/community relations throughout the Cincinnati area? • What has been done to continue to reduce police and citizen use of force? • What has been done to help make police activities toward the citizens more equitable? • What has been done to help make citizen activities toward the police less confrontational? • What has been done to help the police respond to the citizens in a more respectful manner?
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• What has been done to help the citizens respond to the police in a more respectful manner? • What has been done to improve community safety? • What has been done to improve police safety? • What has been done to encourage citizens to report favorable or positive actions taken by
members of the CPD?
45. The Parties will publish an annual report answering these questions, along with summaries of supporting data. The City will distribute this report to City libraries and schools, community and social service organizations, religious organizations, neighborhood associations, business associations, police officer associations and organizations, higher educational institutions, and news organizations, and shall make the report available for pick-up in readily accessible points in the City. The report will also be available from the City’s website.
46. Measurement of the success of the mutual accountability process shall be based on the following criteria:
• Was an accountability system implemented in accordance with the terms of this Agreement? • Was the data gathered in a manner consistent with the terms of this Agreement? • Was the data analyzed in a full and fair manner? • Was the data published and distributed in a manner consistent with the terms of this Agreement? • Was the data fully and fairly used to assess progress toward attaining the goals set forth in this
Agreement? • Was the data used to adjust City, police and community strategies to address problems, reduce
police and citizen use of force and improve police/community interaction?
C. Use Of Force And Status Of Terms Of The City - Department Of Justice Agreement
47. The City shall abide by the terms of the City-Department of Justice (“DOJ”) Agreement attached as Exhibit C (hereafter referred to as the “City-DOJ Agreement”). This Paragraph shall be enforceable solely through the mechanism of Paragraph 113 hereof.
48. There are many persons in the community who contend that officers should report when they draw a firearm. The parties to the collaborative have been unable to agree on this issue. In the spirit of the collaborative and in an effort to settle the entire matter and considering the best interest of the entire community, the parties have agreed to the following protocol:
a) The parties hereby agree to this expedited citizen complaint process for addressing concerns based on pointed firearms.
b) Any person who believes that an officer has unnecessarily pointed a firearm at a person on or after March 31, 2000 may file a complaint with any of the Plaintiff organizations, the CPD, or other available civilian complaint processes. Any cases previously investigated and adjudicated since March 31, 2000, shall be sent directly to the Monitor.
c) That complaint shall be immediately investigated by a select team of CPD officers selected by the Chief after consultations with the Plaintiffs.
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d) The investigator(s) shall make a determination on each complaint within thirty days of the time it is filed, absent exceptional circumstances, and shall file said determination with the parties and the complainant and Monitor.
e) After six months, all of the complaints and investigator determinations shall be provided to the Monitor. The Monitor shall compile the data and forward it to the Conciliator.
f) The Conciliator shall review the information provided by the Monitor. If the Conciliator finds, by a preponderance of the evidence, that there exists a pattern of improper pointing of firearms at citizens, then the parties agree that the city shall henceforth require officers to report all instances where they point a firearm at or in the direction of a citizen. This provision is subject to the dispute resolution process set forth more fully at Paragraph 113 and appeal under Fed. R. Civ. P. 53.
49. Due to the fact that the Memorandum of Agreement between the City and the Department of Justice was negotiated without the involvement of the Fraternal Order of Police (FOP), and because the City-DOJ Agreement contains a substantial number of items that may create many additions, modifications, and deletions to the current Police Procedure Manual that have not yet been submitted to the FOP in compliance with the terms of Article XII, Section 5 of the Collective Bargaining Agreement by and between the City and the FOP, the FOP does not agree to, adopt, or afford any precedential effect to the terms of the City-DOJ Agreement, but will allow it to be appended to the Collaborative Agreement, so long as the FOP reserves the right to raise issues relating to the City-DOJ Agreement through the Monitoring, Reporting, and Dispute resolution provisions of the Collaborative Agreement. The decision of the FOP, acting as a Collaborative partner, not to file any unfair labor practice claims or grievances as a result of the above shall not be used as a precedent, estoppel, or waiver by the City in this matter or in any unfair labor practice claim involving the City and the FOP.
D. The Parties Shall Collaborate to Ensure Fair, Equitable, and Courteous Treatment for All
50. The City shall provide police services in a fair and impartial manner without any discrimination on the basis of race, color, or ethnicity. The City, in consultation with the Parties, shall take appropriate action to track compliance as set out in this section.
Implementation of Commitment to Bias-Free Policing
51. The City, pursuant to Ordinance 88-2001, has commenced an effort to measure whether any racial disparity is present in motor vehicle stops by the CPD. The analysis of this data will be reported pursuant to Paragraph 39.
52. The Parties shall cooperate in the ongoing training and dissemination of information regarding the Professional Traffic Stops Bias-Free Policing Training Program.
53. The Monitor, in consultation with the Parties, shall in all public reports, include detailed information including, but not limited to, the racial composition of those persons stopped (whether in a
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motor vehicle or not), detained, searched, arrested, or involved in a use of force with a member of the CPD, as well as the race of the officer stopping such persons.
54. In providing police services, the members of CPD shall conduct themselves in a professional, courteous manner, consistent with professional standards. Except in exigent circumstances, when a citizen is stopped or detained and then released as part of an investigation, the officer shall explain to the citizen why he or she was stopped or detained in a professional, courteous manner. An officer must always display his or her badge on request and must never retaliate or express disapproval if a citizen seeks to record an officer’s badge number. This paragraph shall be incorporated into the written CPD policies.
E. Civilian Review: The City Will Establish A Citizen Complaint Authority
55. The new Citizen Complaint Authority (CCA) will replace the Citizen Police Review Panel (CPRP) and the police investigations functions of OMI. The CCA's mission will be to investigate serious interventions by police officers, including but not limited to shots fired, deaths in custody and major uses of force, and to review and resolve all citizen complaints in a fair and efficient manner. It is essential that the CCA uniformly be perceived as fair and impartial, and not a vehicle for any individuals or groups to promote their own agendas. It is also essential that the CCA be encouraged to act independently consistent with its duties.
Staffing and Powers of CCA
56. The CCA will have three components: (1) a Board of seven Citizens appointed by the Mayor and approved by City Council, (2) a full-time Executive Director with appropriate support staff, and (3) a team of professional investigators.
The Board of Citizens
57. The Board will include a diverse array of seven individuals, from a cross-section of the Cincinnati community, who have the requisite education and experience to impartially review evidence and render judgments on alleged officer misconduct. The Mayor will accept nominations from the City’s fifty-two Community Councils, business, civic, social service and other agencies and organizations. The Mayor also will accept applications from individual City residents. The members will serve for a maximum of two terms of two years each, except that three of the initial appointees will be appointed for one year. Those three shall be limited to a single second term of two years in order to ensure that the Board has staggered terms. In the event of the resignation, removal, death, or incapacitation of a member of the panel, any replacement member shall serve the remainder of that term.
58. Applicants for a position on the Board shall execute a signed release authorizing a thorough background check, including a criminal check. No person may serve on the Board who has been convicted of a felony, assault on a police officer, or any crime of dishonesty. The results of the background check for any person appointed to the Board shall be a matter of public record and shall be retained for five years.
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59. The Board shall select a chairperson from among its members, who shall serve for a term of one year.
60. The Board and the Executive Director, in consultation with the City Manager, shall develop Standards of Professional Conduct and a comprehensive training program for Board appointees. Said standards shall be approved by the City Manager. Before assuming office and prior to beginning their duties, each member of the Board shall be required to complete a basic course of training, including courses at the Cincinnati Police Academy, instruction in constitutional and criminal protections, and ride-alongs with members of the CPD assigned to patrolling the City, in order to fully and adequately inform each Board member of the training and duties of Cincinnati police officers. Each appointee must promise to abide by the Standards and satisfactorily complete the training as a condition of appointment and prior to service on any cases. The Mayor, after consultation with the other Board members, may remove an individual from the Board for cause, including failure to strictly abide by (including action inconsistent with) the Standards or failure to properly discharge the duties of the office. The Mayor shall seek to act in a manner consistent with the recommendations of the other Board members.
61. The CCA will not commence operations until each member of the Board has satisfactorily completed the training program and promised to abide by the Standards. Until that time, OMI and the Citizens Police Review Panel shall continue in their current roles. Thereafter, new appointees to the Board shall be afforded up to a maximum of ninety (90) days to complete training and promise to abide by the Standards. The CCA shall assume jurisdiction over all of the police cases pending before OMI and the CPRP at the time of the transfer. There shall be no break in civilian review as a result of this transition.
62. The Board and Executive Director shall develop the specific procedures necessary for the CCA to carry out its mission, including the procedure to convene hearings on cases, procedures for investigations, procedures for coordination of work with CPD, and other operating procedures. Consistent with the City Charter, any procedures affecting the administrative service shall be approved by the City Manager.
63. Board members shall be compensated at the rate of $100 per meeting. The chairperson shall be compensated at the rate of $125 per meeting.
64. The City Solicitor shall provide legal counsel on a routine basis to the CCA. The City Solicitor shall designate an assistant city solicitor for the CCA who shall maintain independence from and not be involved with any other legal work involving the CPD or individual police officers. If the Board determines on an individual case that it requires outside counsel, it shall notify the City Solicitor. The Solicitor will respond to and cooperate fully with the Board to employ counsel whenever the Solicitor determines in the exercise of her professional discretion that there is the need for such outside counsel. If the City Solicitor determines that there is no need for outside counsel she shall explain her determination to the City Manager, who shall relay it to the Board.
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Executive Director
65. The City Manager shall appoint the CCA’s Executive Director, who shall be an unclassified employee of the City. The City Manager shall consult with the Board and seek the Board’s recommendations, provided, however, that the final selection of the Executive Director shall be made by the City Manager. The Executive Director shall serve as an unclassified employee and may be discharged by the City Manager after consultation with the Board. This provision shall not relieve the City Manager of the duty to respect the need of the Executive Director to act independently, consistent with the duties of the Executive Director. The Executive Director will be accountable for the efficient operations of the CCA, and for the achievement of the desired outcomes set forth above.
66. The Executive Director shall have professional experience in the investigation of allegations of police misconduct, and he/she should be perceived as fair and impartial. To this end, the City Manager and other City officials, including elected officials, shall be prohibited from interfering with individual investigations.
67. The Executive Director shall be responsible for day-to-day operations of the CCA, including (i) recommendations for hiring of professional and support staff, (ii) preparation, submission and adherence to a budget, (iii) conduct and timely completion of investigations, (iv) reporting to the City on the CCA’s work, and (v) maintaining an effective working relationship with the CPD and other branches of government. Within the resources allocated by City Council, the Executive Director shall ensure that the CCA’s human and other resources are sufficient to ensure timely completion of investigations and maintenance of complete and accurate records.
68. As a condition of employment, all police officers and city employees are required to provide truthful and accurate information to the CCA. In addition to the foregoing, when a key witness other than a City employee refuses to cooperate in an investigation, the Executive Director may recommend to the Board that a subpoena be issued to compel such testimony, and the Board shall have the authority to request such a subpoena from City Council. Subpoenas for the attendance of persons shall be secured only through City Council. The Board shall have the authority to issue subpoenas for documents, photographs, audio tapes, electronic files and tangible things, subject to approval by the Board’s legal counsel.
Investigators
69. The City’s Office of Municipal Investigations currently has four full-time investigators assigned to police cases. The CCA shall have a minimum of five professional investigators and one support person to achieve timely completion of all investigations. Each investigator shall have prior professional experience in investigations, and may be a former police or other law enforcement officer from outside the City.
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CCA Investigation Process
Intake and Assignment
70. Each citizen complaint, excluding matters involving criminal investigations, will be directed to the CCA regardless of where it initially is filed, and the Executive Director, in consultation with the Board, shall establish criteria to determine whether specific complaints are suitable for CCA investigation or referral to the CPD’s Citizen Complaint Resolution Process (CCRP). At a minimum, the CCA shall open its own investigation upon (i) receipt of a complaint of serious misconduct, or (ii) knowledge by the Executive Director of allegations of serious police intervention.5 The CCA will immediately provide the CPD with detailed information regarding the complaint, including the time and location of the underlying events and the name(s) of the officer(s) involved.
71. Where a complaint is to be investigated by the CCA, it will be assigned to an investigator within 48 business hours of receipt. The CPD shall notify the CCA Executive Director immediately upon the occurrence of a serious police intervention and the Executive Director shall immediately dispatch an investigator(s) to the scene. The CPD shall not interfere with the ability of the CCA investigator to monitor the work of the CPD at the scene and to monitor all interviews conducted by CPD. CCA investigators shall not physically enter the crime scene or delay or impede a criminal investigation.
72. The Chief of Police will retain the discretion to initiate a parallel CPD investigation of any complaint under investigation by the CCA. In addition, the CPD will investigate all complaints initiated within the Department (i.e., where the complainant is a police employee).
CPD and City Cooperation
73. Police officers and other City employees will be required to submit to administrative questions consistent with existing constitutional and statutory law. See, e.g., CMC §13(f); §20(f)(5). The Executive Director of CCA shall have reasonable access to city records, documents and employees, including employee personnel records and departmental investigation files and reports consistent with Ohio public record laws. CCA investigations shall be conducted consistent with professional standards.
74. The Chief of Police and the Executive Director will develop written procedures that will assure the timely exchange of information and the efficient coordination of CCA and CPD investigations.
CCA Investigations
75. The CCA will complete its investigations within 90 days of its receipt of the complaint from a complaining citizen, provided, however, that the Executive Director may extend an investigation
5 “Serious police intervention” shall include, but not be limited to, major use of force, shots fired or deaths in custody.
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upon consultation with the Board. The time required to complete investigations will be a performance accountability measure.
76. Upon completion of a CCA investigation, the Executive Director will forward the investigative report to the Board. That report shall include any positive information about the officer that may be relevant. Similarly, where a complaint is referred to the CCRP, the CPD will report the results of that process to the CCA, and the Executive Director will submit those reports to the Board. Each CCA report shall include proposed findings and recommendations. The Executive Director shall recommend each report either for a Board hearing or summary disposition. The complainant and respondent officer(s) also will be provided the investigative report, and each may challenge the report and/or appeal the Executive Director’s recommendation to the Board.
77. If the Board conducts a review hearing, its purpose shall be to confirm the completeness of the CCA investigation and approve or disapprove the Executive Director’s report (findings and recommendations). The Board’s review hearing will not be an adversarial proceeding and should not be used to reinvestigate the matter. The Board may receive witness testimony including that of the complainant and/or police officer(s). Interviews of city employees or other witnesses shall be conducted only in closed inquiry sessions unless the witness requests otherwise. Such sessions shall not be open to the public and shall include only CCA Board members, and any necessary staff or support personnel. A written record shall be kept of any statements, testimony, or other evidence obtained in such sessions. Any city employee directed to answer questions in an inquiry session shall be advised that the statements and answers given can be used only for administrative purposes relating to city employment and cannot be used in any criminal proceedings involving that employee. Such advice shall be consistent with the constitutional principles identified in Garrity v. New Jersey. The employee shall be further advised that a failure or refusal to answer truthfully and completely can subject the employee to disciplinary action including termination. Any employee directed to appear before the CCA for such an inquiry session may bring a legal representative or other support person of choice. Any police officer or complainant, who is directly involved in the circumstances under review, may also attend such sessions and may bring a legal representative or support person, who shall be strictly limited to consultation and such persons may not otherwise participate in the inquiry proceedings.
78. Following a hearing, the Board may either approve or disapprove the Executive Director’s findings and recommendations. Where the findings and recommendations are approved, they shall be submitted to the Police Chief and City Manager. If they are disapproved, the Board shall state its reasons and may direct that further investigation be pursued. The Board may issue its own findings and recommendations, and submit them along with the Executive Director’s original report to the Police Chief and City Manager. In all cases, the City Manager and Police Chief will refrain from making a final decision on discipline until after receipt of the CCA report. The City Manager shall agree, disagree or agree in part with any findings and recommendations of either the Board or the Executive Director, and she shall inform the Executive Director and the Board in writing of any reasons for agreeing in part or disagreeing with said findings and recommendations. It shall be the Executive Director’s responsibility to inform the officer(s)involved in the complaint and the complainant when a final decision has been reached on a complaint.
79. Reports prepared by the CCA, the CPD or the City Manager pursuant to this process shall be publicly available to the extent provided by Ohio law.
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Records
80. The CCA and CPD will create a shared electronic database that will track all citizen complaints, including the manner in which they were addressed (e.g., CCA investigation or CCRP) and their dispositions. Subject to restrictions which may exist in any applicable collective bargaining agreements, this database also will capture data sufficient for the CCA and the CPD to identify officers involved in repeat allegations, citizens making repeat allegations and circumstances giving rise to citizen complaints. This data will be integrated into, or regularly shared with, an electronic information management system to be developed by the CPD. Procedures will be adopted to secure information which is not subject to release under Ohio law.
81. In addition to the foregoing, the CCA shall maintain its files for each investigation for a period of five years or such shorter period as may be provided in any applicable collective bargaining agreement. Where feasible, those files shall include tape-recorded interviews of officers, complainants and witnesses. These data will be made available for the accountability system.
Prevention
82. There are two methods used for reducing citizen complaints: (i) thorough investigation of officers charged with misconduct, and (ii) examination of complaint patterns to identify at-risk officers, citizens and circumstances. The former represents the traditional method of complaint prevention. The latter method involves an examination both of circumstances that lead to complaints and opportunities to alter those circumstances. It is a problem-solving approach that may prove effective in Cincinnati.
83. The CCA will examine complaint patterns that might provide opportunities for the CPD and community to reduce complaints. At a minimum, the CCA will look for three types of patterns: (i) repeat officers, (ii) repeat citizen complainants, and (iii) repeat complaint circumstances. Following the identification of such patterns, the CCA and the CPD jointly will undertake a problem-solving project to determine the reason(s) for the pattern and whether there are opportunities to eliminate or reduce root causes. Where feasible, this project should involve both affected officers and the community.
Information Dissemination
84. The CCA will develop a clear and direct information brochure to inform citizens how they can access the CCA and how the CCA operates. The City will make this brochure available to all citizens, including at public libraries and other public facilities.
85. The Executive Director will be responsible for working with the CPD and community to develop and implement an information plan that ensures officers and citizens fully understand the investigation, mediation, restoration, and prevention processes outlined above, and that the CCA’s achievements are clearly articulated to the public and the CPD.
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86. The CCA shall issue annual reports summarizing its activities for the previous year including a review of significant cases and recommendations. Such reports shall be issued to City Council and the City Manager, and made available to the public.
Resources and Redundancy
87. The City Council will allocate resources sufficient for the CCA and CPD to accomplish the foregoing.
88. The CPRP and police investigation functions of OMI will be eliminated, and associated resources will be allocated to the CCA.
89. ACCOUNTABILITY MEASUREMENTS
• Was the CCA established on a timely basis? • Was the CCA fully staffed and resourced? • Was an effective Memorandum of Understanding developed establishing a co-operative working
relationship between the CPD and the CCA? • How many complaints were handled and what were the categories of those complaints? • What was the time to disposition of the complaints? • What were the outcomes of the complaints? • Was a mediation process established? • Was a restorative justice process established and evaluated? • Were basic goals/objectives/outcomes achieved?
VI. MONITORING AND DISPUTE RESOLUTION
90. The provisions of this Article VI shall be construed consistent with, and shall in no way modify or amend, the provisions of Paragraph 130.
Selection of the Monitor
91. Within 150 days of the execution of the City-DOJ Agreement, in accordance with the timetable set forth below, the Parties, together with the DOJ, will select a Monitor with law enforcement experience who will review and report on the Parties’ implementation of, and assist with the Parties’ compliance with, this Agreement.
a. Within 30 days of the execution of the City-DOJ Agreement, the Parties, together with the DOJ, jointly will issue a solicitation for bid proposals for appointment of the Monitor. In addition to a targeted national mailing, the solicitation shall be published in several national newspapers, and the websites of the Parties and the DOJ. The City shall bear the cost of publicizing the solicitation.
b. The deadline for the submission of such proposals will be 30 days after publication of the solicitation on City’s website.
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c. All proposals for providing the monitoring under this provision shall include, but not be limited to, plans for experts to be utilized, resumes and curriculum vitae of proposed experts, cost proposals, and any other information that the Parties and the DOJ deem necessary.
92. If the Parties and the DOJ are unable to agree on a Monitor within 150 days, each Party and the DOJ will submit two names of persons with law enforcement experience, along with resumes or curriculum vitae and cost proposals, to the Court, and the Court will appoint the Monitor from among the names of qualified persons submitted.
93. The Monitor, at any time, may request to be allowed to hire or employ such additional persons or entities as are reasonably necessary to perform the tasks assigned to him/her by this Agreement. The Monitor shall notify the Parties and the DOJ in writing if and when the Monitor wishes to select such additional persons or entities. The notice shall identify and describe the qualifications of the person or entity to be hired or employed and the monitoring task to be performed. If the Parties and the DOJ agree to the Monitor’s proposal, the Monitor shall be authorized to hire or employ such additional persons or entities. Any Party or DOJ has ten days to disagree with the proposal. If the Parties and the DOJ are unable to reach agreement within ten days of receiving notice of the disagreement, the Court shall resolve the dispute.
94. The City shall bear all reasonable fees and costs of the Monitor. In selecting the Monitor, the Parties and the DOJ recognize the importance of ensuring that the fees and costs borne by the City are reasonable, and accordingly, fees and costs shall be one factor considered in selecting the Monitor. In the event that any dispute arises regarding the payment of the Monitor’s fees and costs, the Parties, the DOJ, and the Monitor shall attempt to resolve such dispute cooperatively. If the Parties and the DOJ are unable to reach Agreement, the Court shall resolve the dispute.
95. In the interest of expediting the selection and contracting processes for the Monitor, the Parties and the DOJ shall be exempt from local contracting procurement regulations and all such regulations shall be considered waived for this purpose.
96. The Monitor shall not be subject to dismissal except upon good cause and the Agreement of all of the Parties and the DOJ or by the Court upon motion of one of the Parties or the DOJ and a showing of good cause.
Selection of the Conciliator
97. The Honorable Michael R. Merz, United States Magistrate Judge, will be appointed by the Court pursuant to Fed. R. Civ. P. 53 as the Conciliator for compliance with this Agreement.
Duties of the Monitor
98. The Monitor will only have the duties, responsibilities, and authority conferred by this Agreement. The Monitor shall not, and is not intended to, replace or take over the role and duties of any City or CPD employee. The Monitor may not modify, amend, diminish, or expand this Agreement.
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99. The Monitor shall offer the Parties technical assistance regarding compliance with this Agreement. Technical assistance will be provided to a party upon request by that party, and it will be offered consistent with the provisions of this Agreement.
100. The City and the CPD shall provide the Monitor with full and unrestricted access to all CPD and City staff, facilities, and documents (including databases) necessary to carry out the duties assigned to the City and the CPD by this Agreement, provided, however, that the Monitor shall not have access to any materials protected from disclosure by the attorney-client privilege and/or work product doctrine. Any materials or information claimed to be protected by the attorney-client or work product privilege shall be logged with information including author, date, nature of the material, reason for the claim of privilege, and persons to whom the material was disseminated. The Monitor shall cooperate with the City to access people and facilities in a reasonable manner that, consistent with the Monitor’s duties, minimizes interference with daily operations.
101. The Monitor shall retain any non-public information in a confidential manner and shall not disclose any non-public information to any person or entity absent written notice to the City and either written consent by the City or a court order authorizing disclosure. In monitoring the implementation of this Agreement, the Monitor shall maintain regular contact with the Parties.
102. The Monitor shall file with the Conciliator written public reports detailing the Parties’ compliance with and implementation of each substantive provision of this Agreement. The first such report shall be 180 days after Court approval of this Agreement, and quarterly thereafter. The Monitor may make recommendations to the Parties regarding measures necessary to ensure full and timely implementation of this Agreement.
Compliance Reviews
103. In order to monitor and report on the Parties’ implementation of this Agreement, the Monitor, shall, inter alia, regularly conduct compliance reviews to ensure that the Parties have implemented and continue to implement all measures required by this Agreement. The Monitor shall, where appropriate, when measuring compliance, employ appropriate sampling techniques.
104. Each Party shall designate a person or persons to serve as liaisons to the Monitor for compliance purposes. The City Solicitor shall serve as a liaison between the City and the Monitor, and shall assist with the City’s compliance with this Agreement.
Reports and Records
105. Between 90 and 120 days following Court approval of this Agreement , and every three months thereafter until this Agreement is terminated, the Parties shall file with the Monitor a status report, including any supporting documentation, delineating all steps taken during the reporting period to comply with this Agreement.
106. During the term of this Agreement, and subject to record retention requirements and procedures imposed by state or local law, any existing consent decree, or any relevant collective
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bargaining agreement, the Parties shall maintain all records documenting compliance with this Agreement and all documents required by or developed pursuant to this Agreement.
107. The Monitor shall issue quarterly public reports to the Parties and the Conciliator detailing the Parties’ compliance with and implementation of this Agreement, after filing the first such report 180 days after Court approval of this Agreement. These reports shall not include information specifically identifying any individual officer. Drafts of the status reports will be provided to each of the Parties at least 10 days prior to publication to afford the Parties an opportunity to identify factual errors.
108. The Monitor shall not issue statements or make findings with regard to any act or omission of any Party, or their agents or representatives, except as required by the terms of this Agreement. The Monitor may testify in any enforcement proceedings regarding provisions of this Agreement and the Parties’ compliance. The Monitor shall not testify in any other litigation or proceeding with regard to any act or omission of any Party, or any of their agents, representatives or employees, related to this Agreement or regarding any matter or subject that the Monitor may have received knowledge of as a result of his or her performance under this Agreement. Unless such conflict is waived by the Parties, neither the Monitor nor a member of his or her staff shall accept employment or provide consulting services that would present a conflict of interest with the Monitor's responsibilities under this Agreement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant's or claimant's attorney, in connection with a claim or suit against the City or its departments, officers, agents or employees. The Parties agree to request an appropriate protective order for non-public records in the possession of the Monitor. The Monitor shall not be liable for any claim, lawsuit, or demand arising out of the Monitor's performance pursuant to this Agreement. Provided, however, that this paragraph does not apply to any proceeding before a court related to performance of contracts or subcontracts for monitoring this Agreement.
109. The reporting requirements set forth in Paragraphs 102 to 107 herein do not limit the reporting requirements under the DOJ-City Agreement.
Duties of the Conciliator
110. The Conciliator will evaluate the Monitor’s reports, instruct the Parties on how to remedy areas of non-compliance and, if necessary, may issue an order pursuant to Fed. R. Civ. P. 53, on issues of compliance regarding particular provisions of this Agreement.
111. The Conciliator shall be responsible to review the quarterly reports of the Monitor and to determine whether each of the Parties is in compliance with the Agreement, pursuant to Fed. R. Civ. P. 53.
112. If the Conciliator determines that a Party is not in substantial compliance with a provision of this Agreement, he shall so inform the Party, and the Party shall have 60 days from receipt of such notice to cure the asserted failure. If the Party fails to cure the asserted failure within that period, then the Conciliator may without further notice, issue an order consistent with the Agreement. Any party may appeal said order pursuant to Rule 53.
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113. If the Monitor determines in a report made pursuant to the City-DOJ Agreement that the City is not in substantial compliance with a provision of the City-DOJ Agreement, the Monitor shall notify the Special Litigation Section of DOJ in writing. If the DOJ declines after 60 days to move the Court for specific performance to correct persistent substantial non-compliance, then the Monitor shall notify the Parties to this Agreement of that dispute, and the Parties may request, and the Conciliator shall, giving due deference to the action or determination of the DOJ, determine whether the City is in substantial compliance with a provision of the DOJ Agreement. If the Conciliator determines that the City is not in substantial compliance with a provision of the DOJ Agreement, and if the City fails to remedy that non-compliance within 60 days of the Conciliator’s determination, then the Conciliator shall issue an order directing such compliance pursuant to Fed. R. Civ. P. 53. In the event a Party disagrees with the Conciliator’s order, that Party may appeal to the Court pursuant to Rule 53. The Parties agree that the Department of Justice shall be permitted to intervene beginning at the Conciliator level regarding the terms of the City-DOJ Agreement with the Court in the event of such proceedings.
114. Pursuant to the dispute resolution process set out in this Agreement, in the event that the Court finds that any Party has engaged in a material breach of the Agreement, the Parties hereby stipulate that the Court may enter the Agreement and any modifications pursuant to paragraph 124 as an order of the Court and to retain jurisdiction over the Agreement to resolve any and all disputes arising out of the Agreement.
VII. INDIVIDUAL ACTIONS, MEDIATION
115. All litigation matters regarding the damage claims in the case at bar (Tyehimba v. City of Cincinnati) and the following cases, in which the statute of limitations have not expired, are tolled until July 1, 2002:
Antonio Johnson v. City of Cincinnati, Case No. C-1-99-1063 Matthew Shaw v. City of Cincinnati, Case No. C-1-00-1064 Mark A. Ward v. City of Cincinnati, Case No. C-1-99-494 Charles A. Wiley v. City of Cincinnati, Case No. C-1-00-267 Lisa Youngblood-Smith v. City of Cincinnati, Case No. C-1-00-434 Elsie Carpenter v. City of Cincinnati, Case No. C-1-99-227 Nathaniel Livingston v. Thomas Streicher, Case No. C-1-01-233 Lasha Simpson v. Thomas Streicher, (re force on 4/14/01)(to be refiled federal court) Claim of Vinnie Clarke and Terry Horton Claim of William Haysbert Claim of John E. Harris Claim of Ms. Stephanie Keith and Paul Keith Claim of Enrico Martin Claim of Roderick Glenn Claim of Arnold White Claim of Tony Stillwell Claim of Sheila Barnes Claim of Iweka Okaraocha Claim of Patricia Watkins
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Undersigned Plaintiffs’ counsel are counsel of record for the above and are authorized to so stipulate on their behalf.
116. The Parties agree to develop an expedited arbitration process for the above cases within thirty days of the approval of this Agreement. The process will include a provision for an exchange of lists by the City, the attorney for any individual defendants and the claimants of the cases and claims each party is willing to submit to arbitration. All statutes of limitation that have not expired are tolled until July 1, 2002 in the above matters. All settlements achieved shall be available to the public. For any case on the above list that is not settled by July 1, 2002, that case may be filed if not already filed or returned to the active litigation docket if already pending.
VIII. MISCELLANEOUS PROVISIONS
117. This Collaborative Settlement Agreement is the product of extensive arms-length negotiations by competent legal counsel for the Parties.
118. The Parties agree that they are entering into this class action settlement agreement for settlement purposes only. Any acquiescence or agreement to the class certification in this case does not constitute an admission of liability or fault by the City of Cincinnati and may not be used as evidence in any proceeding for damages by any member of the class.
119. No Party shall retaliate in any manner against any other Party or person for their participation in this case.
120. All Parties hereto agree to exercise their best efforts and to take all reasonable steps necessary to effectuate the Settlement set forth in this Agreement.
121. This Agreement constitutes the entire Agreement among the Parties with regard to the subject matter of this Agreement.
122. Any notice, request, instruction or other document to be given hereunder by any Party hereto to any other Party (other than class notification) shall be in writing and delivered personally or sent registered or certified mail, postage prepaid, to the Parties as follows:
To: City of Cincinnati
City Manager Valerie Lemmie with a copy to City Solicitor Fay D. Dupuis City Hall 801 Plum Street Cincinnati, OH 45202
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To: Class Counsel and Plaintiffs or class members:

Alphonse A. Gerhardstein Class Counsel 1409 Enquirer Building 617 Vine Street Cincinnati, OH 45202

Kenneth L. Lawson Class Counsel 1575 Kroger Building 1014 Vine Street Cincinnati, OH 45202

Scott T. Greenwood Class Counsel 1 Liberty House P.O. Box 54400 Cincinnati, Ohio 45254-0400

ACLU Foundation of Ohio, Inc. 4506 Chester Avenue Cleveland, OH 44103

To: Fraternal Order of Police

Don Hardin Steve Lazarus 915 Cincinnati Club Building 30 Garfield Place Cincinnati, OH 45202

123. This Agreement is a public document and shall be posted on the websites of the City or CPD and of the Plaintiffs.

124. This Agreement may only be modified in writing and on consent of the Parties.

125. The Parties agree to join in a motion to approve a class action settlement that will incorporate the terms of this Agreement and protect the City from other lawsuits seeking injunctive relief on the matters addressed herein. Further, the Parties agree that this is not a consent decree and stipulate to continuing jurisdiction and venue in the United States District Court for the Southern District of Ohio for enforcement in accordance with this Agreement’s provisions. Further, the Parties agree that this matter may be appropriate for administrative processing in the Court’s discretion after the fairness hearing.

126. This Agreement will terminate five years after the Court’s approval of this Agreement. The Agreement may terminate earlier if the City-DOJ Agreement between the City and DOJ has terminated, and if the Parties agree that the Plaintiffs, the FOP and the City have substantially complied with each of the provisions of this Agreement and maintained substantial compliance for at least two years. Such Agreement will not be unreasonably withheld. If the Parties do not agree, the issue of early termination shall be submitted to the Conciliator. The burden shall be on the party owing the duty to demonstrate that it has substantially complied with each of the relevant provisions of the Agreement and

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maintained substantial compliance for at least two years. For the purposes of this paragraph, "substantial compliance" means there has been performance of the material terms of this Agreement. Materiality shall be determined by reference to the overall objectives of this Agreement. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, shall not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of otherwise sustained noncompliance shall not constitute substantial compliance.
Long-Term Fiscal Impact Of Collaborative Agreement
127. The Plaintiffs agree to take lead responsibility for securing funding for the Community Partnering Program through grant applications to local and national philanthropic organizations. The other Parties agree to assist with the grant application process as needed. It is estimated that such cost will total at least $175,000 per year early in the Agreement but that cost could be reduced as CPOP takes root in the community.
128. The other costs associated with this Agreement shall be the responsibility of the City subject to the provisions of this section.
129. The Parties agree that for the purposes of budgeting, all technology purchases, one-half of the increased expenditures associated with civilian review of alleged police misconduct, one-half of the police staffing expenses and one-half of the monitoring costs necessary will be required to satisfy the terms of the City-DOJ Agreement, regardless of the relationship between the DOJ and the Collaborative Agreement. The Parties will cooperate in seeking federal and private assistance with those costs. The City will be ultimately responsible for those costs.
130. The Parties estimate that the overall cost attributable to the City of meeting the terms of this Agreement, other than the costs of the preceding paragraph attributable to the City-DOJ Agreement, is five million dollars. These costs include, e.g., the costs of implementing CPOP, implementing and evaluating the Parties’ mutual accountability, monitoring, and operating civilian review. If the overall cost to the City under this Agreement is in excess of an average of one million dollars per year over the life of the Agreement, or in excess of one million two hundred fifty thousand dollars in the first year, the Parties shall revisit the schedule for implementation of the terms of this Agreement to determine if that schedule should be modified in light of the cost.
131. Any procurement of services or goods under the terms of this Agreement shall be open to all persons, including African-Americans, regardless of race or gender and affirmatively available to all African-American vendors, consistent with City policy.
132. During the life of this Agreement, if any Party is unable to meet an interim or long-term goal due to finances, that Party shall notify the others and the Monitor of the problem, all efforts that have been taken to resolve the problem, and any plan to address the problem in the future. The Monitor shall investigate the relevant facts and make a recommendation on the issue to the Parties and the Conciliator.
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American Civil Liberties Union of 0 '0 Folmdation, Inc.

erie Lemmie, City Manager The City of Cincinnati
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The Fraternal Order of Police
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KennethL. Lawson
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Defendants'Counsel:
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 Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 1 of 24
U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:99−cv−03170−SJD−MRM

CLOSED

InRe: Cincy Policing, et al v. , et al Assigned to: Chief Judge Susan J. Dlott Referred to: Magistrate Judge Michael R Merz Demand: $0 related Case: 1:06−cv−00054−SJD−MRM Cause: 42:1983 Civil Rights Act Special Master Jay Rothman TERMINATED: 01/01/2005
Special Master Dr Alan Kalmanoff TERMINATED: 12/01/2002 Special Master Saul Green
Interested Party Dr Alan Kalmanoff TERMINATED: 08/05/2004
Plaintiff Cincinnati Black United Front

Date Filed: 04/30/1999 Date Terminated: 08/05/2002 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jay Rothman ARIA Group President 1050 President Street Yellow Springs, OH 45387 PRO SE
represented by Richard Jerome 3227 Rittenhouse Street NW Washington, DC 20015 202−296−0688 Fax: 202−296−0589 Email: rbjerome@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Saul Green Miller Canfield Paddock and Stone 150 West Jefferson Suite 2500 Detroit, MI 48226 313−496−7535 Fax: 313−496−8453 Email: sagreen@millercanfield.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dr Alan Kalmanoff Executive Director Institute for Law and Policy Planning 2613 Hillegass Avenue Berkeley, CA 94704 PRO SE
represented by Alphonse Adam Gerhardstein Gerhardstein &Branch Co. LPA 432 Walnut Street, Suite 400 Cincinnati, OH 45202 513−621−9100 Fax: 513−345−5543 Email: agerhardstein@gbfirm.com

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 2 of 24

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lynn Branch Gerhardstein &Branch Co. LPA 432 Walnut Street, Suite 400 Cincinnati, OH 45202 513−621−9100 x13 Fax: 513−345−5543 Email: jbranch@gbfirm.com TERMINATED: 09/07/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth L Lawson , II DISBARRED 1:07−mc−21 5/15/07 Lawson &Associates − 1 1008 Race Street Suite 2 Cincinnati, OH 45202 513−345−5000 Fax: 513/345−5005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Plaintiff
American Civil Liberties Union of Ohio Foundation, Inc

represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lynn Branch (See above for address) TERMINATED: 09/07/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth L Lawson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Department of Justice

represented by Gregory Gonzalez Department of Justice 601 D Street, NW Room 5920 Washington, DC 20004 202−305−2941 Fax: 202−514−6903

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 3 of 24
Email: gregory.gonzalez@usdoj.gov LEAD ATTORNEY
James Eichner US Department of Justice − 1 601 D Street., N.W. Washington, DC 20004 202−514−9811 Fax: 202−514−0212 Email: jim.eichner@usdoj.gov TERMINATED: 03/30/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shanetta Y Brown Cutlar Department of Justice − 1 Civil Rights Division 950 Pennsylvania Avenue NW Washington, DC 20530 LEAD ATTORNEY

V. Defendant City of Cincinnati

represented by Alan Freeman Blank Rome − 1 Watergate, Eleventh Floor 600 New Hampshire Avenue, NW Washington, DC 20037 202−944−3000 TERMINATED: 01/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia LaRita McNeil Assistant City Solicitor − 1 801 Plum Street Cincinnati, OH 45202 513−352−3334 Email: rita.mcneil@cincinnati−oh.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Harmon City Of Cincinnati Law Department 214 City Hall 801 Plum Street Cincinnati, OH 45202−5705 513−352−3333 Email: mike.harmon@cincinnati−oh.gov TERMINATED: 10/24/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pat Woodward Blank Rome − 1 Watergate, Eleventh Floor 600 New Hampshire Avenue, NW Washington, DC 20037 202−944−3000 TERMINATED: 01/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 4 of 24

Defendant Fraternal Order of Police
Amicus The Cincinnati Enquirer

William Robert Martin Martin &Gitner PLLC 2121 K Street, NW Suite 850 Washington, DC 20037 202−331−2121 Fax: 202−331−5086 Email: billy.martin@martingitnerlaw.com TERMINATED: 01/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter J Stackpole City of Cincinnati Office of City Solicitor Room 214 City Hall 801 Plum Street Cincinnati, OH 45202 513−352−3350 Fax: 513−352−1515 Email: peter.stackpole@cincinnati−oh.gov ATTORNEY TO BE NOTICED
represented by Donald Edson Hardin Hardin, Lazarus &Lewis, LLC 915 Cincinnati Club Building 30 Garfield Place Cincinnati, OH 45202−4322 513−721−7300 Fax: 513−721−7008 Email: donhardin@hllmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S Lazarus Hardin, Lazarus &Lewis, LLC 915 Cincinnati Club Building 30 Garfield Place Cincinnati, OH 45202−4322 513/721−7300 Fax: 5137217008 Email: stevelazarus@hllmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Charles Greiner Graydon Head &Ritchey − 1 Fifth Third Center 511 Walnut Street Suite 1900 Cincinnati, OH 45202 513−629−2734 Fax: 513−651−3836 Email: jgreiner@graydon.com TERMINATED: 01/01/2005

Date Filed

# Docket Text

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 5 of 24

12/13/2000 12/18/2000 01/05/2001 01/17/2001 01/19/2001
01/25/2001
01/26/2001
01/30/2001 02/07/2001 02/07/2001 02/09/2001
02/16/2001 02/23/2001
03/14/2001 03/14/2001 03/14/2001 03/14/2001 03/15/2001 03/22/2001
04/26/2001

12 MOTION by plaintiff Bomani A Tyehimba to file amended complaint ( no pgs: 3) (vp) (Entered: 12/13/2000)
NOTATION ORDER by Judge Susan J. Dlott granting motion to file amended complaint [12−1] (cc: all counsel) (km) (Entered: 12/18/2000)
13 MOTION by plaintiff to consolidate cases ( no pgs: 4) (km) (Entered: 01/08/2001)
14 MOTION by plaintiff to extend discovery until motion to consolidate has been decided ( no pgs: 3) (vp) (Entered: 01/18/2001)
NOTATION ORDER by Judge Susan J. Dlott granting motion to extend discovery until motion to consolidate has been decided [14−1] (cc: all counsel) (vp) (Entered: 01/19/2001)
15 MOTION by Cincinnati Metro Housing Authority to extend time to 2/7/01 in which to file memopp to pltfs motion to consolidate ( no pgs: 2) (km) (Entered: 01/25/2001)
NOTATION ORDER by Judge Susan J. Dlott granting motion by Cincinnati Metro Housing Authority to extend time to 2/7/01 in which to file memopp to pltfs motion to consolidate [15−1] (cc: all counsel) (km) (Entered: 01/26/2001)
16 MOTION by defendant City of Cincinnati to extend time until 2/7/01 in which to file response to motion to consolidate ( no pgs: 2) (km) (Entered: 01/31/2001)
18 MEMORANDUM by defendant City of Cincinnati in opposition to pltfs motion to consolidate [13−1] ( no pgs: 10) (vp) (Entered: 02/09/2001)
17 RESPONSE by Cincinnati Metro Housing Authority to motion to consolidate cases [13−1] ( no pgs: 19) (km) (Entered: 02/07/2001)
NOTATION ORDER by Judge Susan J. Dlott granting motion to extend time until 2/7/01 in which to file response to motion to consolidate [16−1] (cc: all counsel) (vp) (Entered: 02/09/2001)
19 MOTION by plaintiff Bomani A Tyehimba to extend time until March to file reply to defts memopp to motion to consolidate ( no pgs: 3) (vp) (Entered: 02/22/2001)
NOTATION ORDER by Judge Susan J. Dlott granting motion to extend time until March to file reply to defts memopp to motion to consolidate [19−1] (cc: all counsel) (vp) (Entered: 02/23/2001)
23 MOTION by plaintiff for preliminary injunction ( no pgs: 28) (vp) (Entered: 03/14/2001)
22 MOTION by plaintiff to certify class action ( no pgs: 14) (vp) (Entered: 03/14/2001)
20 MOTION by plaintiff to amend complaint ( no pgs: 24) (vp) (Entered: 03/14/2001)
21 NOTICE/Proposed joint litigation plant and reqeust for status conference by plaintiff ( no pgs: 2) (vp) (Entered: 03/14/2001)
24 NOTICE of hearing ; Status conference set for 10:00 3/21/01 before J Dlott (cc: all counsel) (vp) (Entered: 03/15/2001)
25 ORDER by Judge Susan J. Dlott that discovery and motion practice be stayed until further notice ; Status conference set 5:00 4/11/01 ; trial date of 7/1/01 for 99−227 is vacated (cc: all counsel) ( no pgs: 2) (vp) (Entered: 03/22/2001)
26 ORDER APPOINTING SPECIAL MASTER RE COLLABORATIVE PROCEDURE by Judge Susan J. Dlott; the court hereby provisionally appoints Jay Rothman, President, ARIA Group, Yellow Springs, OH as a Special Master; the powers of Special Master shall be limited only to those necessary to carry out the duties imposed on him as the mgr of the collaborative process as set out in paragraphs 1−7 of the proposed order establishing collaborative procedure; parties shall present the proposed order establishing collaborative procedure to the court for entry NLT 5/3/01 (cc: all counsel) ( no pgs: 1) (km) (Entered: 04/26/2001)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 6 of 24

05/03/2001
05/07/2001
06/12/2001 06/12/2001 06/22/2001 06/22/2001 07/06/2001 07/09/2001

27 ORDER ESTABLISHING COLLABORATIVE PROCEDURE by Judge Susan J. Dlott; (1) the court hereby orders a pretrial collaborative of the social conflicts alleged in pltfs proposed amended complaint; (2) the court shall retain the svcs of Jay Rothman and the ARIA Group Inc to manage the collaborative procedure; the collaborative shall proceed in accordance with guidelines set forth in this order; parties shall, with the approval of the court develop a protocol for the collaborative operation of an expert panel of police experts by 5/25/01; pursuant to orders of this court the pltf and proposed pltfs and the City shall pay the fees and expenses of the ARIA Group, the expert panel and any other substantial expenses incurred in the collaborative; an escrow acct shall be established at Firstar Bank w/approval of court for that purpose; no costs in excess of $200,000 will be approved until further order of court; the ARIA Group will submit a progress rpt to the court and parties on 5/25/01 and every 30 days thereafter; all litigation in this case and the following cases are tolled until further order of court: C−1−99−1063*; C−1−99−1064*; C−1−99−494; C−1−00−267; C−1−00−434; C−1−99−227; C−1−01−233; and Lash Simpson v Thomas Streicher (re force on 4/14/01; to be refiled federal court) (*C−1−99−1063 and C−1−99−1064 are tolled subject to agreement by CMHA counsel); concurrent with the collaborative procedure and subject to a protocol that will permit limited discovery necessary to the individual claims the parties agree to make a good faith efford to confidentially mediate the disputes in these cases; all settlements achieved shall be avail to the public; if settlement is not achieved the parties may move to return the case to the litigation docket (cc: all counsel) ( no pgs: 8) (km) (Entered: 05/03/2001)
28 ORDER by Judge Susan J. Dlott re Collaborative Escrow Fund: until further order of the court it is ordered that: (1) all monies rcvd fm the parties under the collaborative order in the above action shall be promptly deposited in the collaborative escrow fund; (2) pursuant to the terms of the collaborative order the pltfs shall deposit $100,000.00 and the City of Cinti shall deposit $100,000.00 NLT 5/25/01 into the collaborative escrow fund; all addtl monies that may be paid to cover fees and expenses shall be deposited first into the collaborative escrow fund and disbursed as directed by the court; (3) all monies rcvd by Firstar Bank as escrow agent shall as soon as possible be invested at current market rates in certificates of deposit money market funds or U S Treasury bills and Firstar Bank shall collect and reinvest interested; (4) aside fm the collection of its fees no funds shall be released fm the escrow acct except upon order of the court (cc: all counsel) ( no pgs: 3) (km) (Entered: 05/07/2001)
30 ORDER by Judge Susan J. Dlott approving budget for collaborative; Jay Rothman to report to Court by 6/22/01 the progress of fundraising efforts (cc: all counsel) ( no pgs: 2) (vp) (Entered: 06/12/2001)
29 ORDER by Judge Susan J. Dlott authorizing payment of Special Master from the escrow acct on 6/15/01 in the amount of $30,892.61 for expenses incurred plus an additional $27,500 to cover the rest of the projected expenses for the month of June; special master to file on 6/25/01 and serve to parties an acct disbursements of sums as measured against the budget approved for collaborative; (cc: all counsel) ( no pgs: 2) (vp) (Entered: 06/12/2001)
32 STATEMENT/REPORT by parties re fundraising for the collarborative at courts request ( no pgs: 2) (vp) (Entered: 06/25/2001)
31 ORDER by Judge Susan J. Dlott of police practices and model programs research group protocol(cc: all counsel) ( no pgs: 4+) (vp) (Entered: 06/22/2001)
33 ORDER AUTHORIZING PAYMENT OF SPECIAL MASTER by Judge Susan J. Dlott: the Special Master may draw $67,000 fm the Firstar escrow acct on 7/1/01 to cover project expenses for the month of July; on 7/25/01 the Special Master shall file with the court and serve on the parties an accounting of disbursements of these sums measured against the budget approved for the collaborative (cc: all counsel) ( no pgs: 2) (km) (Entered: 07/06/2001)
34 MOTION by Cinti Metropolitan Housing of intent not to mediate and for order to set aside orderr re collaborative procedure and to issue scheduling order pertaining to discovery and dispositive motion ddls in Shaw and Johnson cases ( no pgs: 3+) (vp) (Entered: 07/10/2001)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 7 of 24

07/11/2001 07/19/2001 07/26/2001 08/01/2001 08/16/2001 08/28/2001
10/01/2001 10/30/2001
11/28/2001 01/02/2002
02/05/2002 02/08/2002

35 STATEMENT/REPORT by parties on fundraising for collaborative 7/11/01 per court order ( no pgs: 2) (vp) (Entered: 07/12/2001)
36 NOTICE by plaintiff of change of address of ACLU ( no pgs: 2) (vp) (Entered: 07/20/2001)
37 ORDER by Judge Susan J. Dlott authorizing payment of special master (cc: all counsel) ( no pgs: 2) (vp) (Entered: 07/26/2001)
38 MOTION by defendant City of Cincinnati to enforce the 5/3/01 order establishing collaborative procedures ( no pgs: 8+) (vp) (Entered: 08/02/2001)
39 NOTICE by defendant City of Cincinnati of withdrawal of motion to enforce the 5/3/01 order establishing collaborative procedures [38−1] ( no pgs: 2) (vp) (Entered: 08/16/2001)
40 ORDER by Judge Susan J. Dlott authorizing payment of special master; special master permittted to w/draw $20,000 from escrow acct on 9/1/01 to cover expenses for month of September; on 9/25/01 the special master shall file with the court and serve on parties an accounting of disbursements of sums measured against the budget approved for the collaborative (cc: all counsel) ( no pgs: 3) (vp) (Entered: 08/28/2001)
41 ORDER by Judge Susan J. Dlott authorizing payment for Special Master to be paid through escrow acct (cc: all counsel) ( no pgs: 1) (vp) (Entered: 10/01/2001)
42 ORDER by Judge Susan J. Dlott authorizing payment of special master; special master may w/draw $73,000 from escrow acct on 10/29/01; special master to file with court and serve on parties an accounting of disbursements of sums as measured against the approved budget for collaborative (cc: all counsel) ( no pgs: 2) (vp) (Entered: 10/30/2001)
43 ORDER by Judge Susan J. Dlott authorizing payment of special master; special master shall file with court and serve on parties an acct of disbursements of sums measured against the budget approved for the collaborative (cc: all counsel) ( no pgs: 2) (vp) (Entered: 11/28/2001)
44 ORDER by Judge Susan J. Dlott authorizing payment of special master; special master may w/draw $30,000 from escrow acct on 1/1/02; on 1/25/02 special master shall file with court an acct disbursemtns of sums measured against approved budget for the collaborative (cc: all counsel) ( no pgs: 2) (vp) (Entered: 01/02/2002)
45 ORDER by Judge Susan J. Dlott authorizing payment of special master in the amount of $8500 from escrow acct; special master to file with court on 2/25/02 an accounting of disbursements of sums measured against the budget (cc: all counsel) ( no pgs: 2) (vp) (Entered: 02/05/2002)
46 SCHEDULING ORDER by Judge Susan J. Dlott re negotiations pursuant to Order Establishing Collaborative Procedure [27−1]; the following schedule is established to accommodate all of the interests of the parties while ensuring that the collaborative process will either be concluded in a timely fashion or terminated so that the parties can return to a litigation schedule: (1) by 2/19/02 parties will conclude initial negotiations on the First Collaborative Goal; the special master will report to the court at that time whether there is sufficient progress to proceed further; (2) by 2/27/02 the attys will conclude initial discussions on the structure of the agreement (Mutual Accountability Plan (MAP)); the special master will report to the court at that time whether there is sufficient progress to proceed further (3) comprehensive negotiations are set for 3/13 3/14 and 3/15/02; negotiations among the attys will conclude by 3/18/02 and if possible they will present a draft for approval to respective parties; if no draft is achieved by 3/18/02 the special master shall so report to the court and may recommend a return of the case to the litigation calendar; (4) by 4/5/02 the attys will secure approval or rejection of the agreement from the parties; if addtl time is needed the parties can apply to the court for extension of deadline; by 4/5/02 if the parties approve the agreement the parties shall file a joint motion for approval of resolution; thereafter the court shall set a schedule for court approval of the agreement (cc: all counsel) ( no pgs: 4) (km) Modified on 02/11/2002 (Entered: 02/11/2002)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 8 of 24

02/19/2002
02/22/2002 02/25/2002 02/28/2002 03/25/2002 04/03/2002
04/19/2002
04/19/2002 04/29/2002 05/20/2002 05/24/2002

47 PROTECTIVE ORDER by Judge Susan J. Dlott that this order shall govern the parties during negotiations under the order establishing collaborataive procedure (Doc. 27); all drafts of settlement including correspondence shall be deemed confidential; the term parties shall include Bomani Tyehimba and the leadership of CBUF; ACLU; City of Cincinnati and Police Dept and the FOP; any dispute re matters of Proto shall be resolved by USDC; the term counsel is to include attys of record; attys for parites who are actively engaged in conduct of litigation and shall include Jay Rothman and employees of Aria Group; order shall be efrective nunc pro tunch to 1/31/02 (cc: all counsel) ( no pgs: 3) (vp) (Entered: 02/19/2002)
48 ORDER by Judge Susan J. Dlott ; Status conference set for 2:00 2/25/02 re issue of settlement negotiations (cc: all counsel) ( no pgs: 2) (vp) (Entered: 02/22/2002)
49 ORDER/STATUS REPORT by Judge Susan J. Dlott ; Status conference held 2:00 2/25/02 ; parties are in agreement to continue settlement negotiatios and follow the scheduling order of 2/8/02 (cc: all counsel) ( no pgs: 4) (vp) (Entered: 02/26/2002)
50 ORDER by Judge Susan J. Dlott authorizing payment of special master in the amount of $20,000 from the escrow acct of 3/1/01; on 3/25/02 the Special Master shall file with the Court and serve on parties an acct of disbursements of sums measured against budget (cc: all counsel) ( no pgs: 2) (vp) (Entered: 02/28/2002)
51 ORDER by Judge Susan J. Dlott Case referred to Mag. Judge Michael Merz as special master for purposes of completing negotiations by orders 27 and 46 (cc: all counsel) ( no pgs: 1) (vp) Modified on 03/25/2002 (Entered: 03/25/2002)
52 ORDER by Judge Susan J. Dlott on joint oral motion of parties that the protective order of 2/19/02 (Doc. 47) shall not apply to final draft of Collaborative Agreement, the text of which has been agreed upon by the negotiators for the parties which may be made public at but not before 2:00 PM on 4/3/02; ddls for attys to secure approval or rejection of Collaborative Agreement from parties set by 2/8/02 order (Doc 46) is extended to and including 4/9/02 (cc: all counsel) ( no pgs: 1) (vp) (Entered: 04/03/2002)
54 ORDER by Judge Susan J. Dlott granting motion to provisionally certify settlement class; approve collaborative agreement and authorize class ntc [53−1] the City of Cincinnati is ordered to publish the class ntc in the Cincinnati Enquirer; the Cincinnati Post and the Cincinnati Herald for three consecutive weeks, once each week beginning 4/22/02; ntc is to include the folloowing schedule; objections to proposed settlement filed ddl 5/24/02; response to objections ddl 5/31/02 and In−court Fairness hearing set 10:00 6/6/02 ; any class may appear in person or be counsel to be heard in support of or in opposition to fairness of settlement provided that such class member has by 5/31/02 filed with the Clerk of Court a ntc of his or her intention to appear together with a stmt indicating the basis for position on the fairness of the settlement and served copies either in person or by mail of that stmt and any related documentation filed with the clerk upon all counsel in this case; the court grants motion to amend complaint filed 3/14/01; svc of amended complaint is waived by defts; matters filed in this action shall be captioned In Re Cincinnati Policing; Urban League of Cincinnati and the Cincinnati Chapter of the NAACP are permitted to join as class reps no later than 5/13/02; Scott Greenwood; Kenneth Lawson and Alphone Gerhardstein are appointed as class counsel (cc: all counsel) ( no pgs: 7) (vp) (Entered: 04/22/2002)
53 JOINT MOTION by parties to provisionally certify settlement class; approve collaborative agreement and authorize class ntc no pgs: 3+) (vp) (Entered: 04/22/2002)
55 ORDER by Judge Susan J. Dlott approving Special Master to w/draw $35,000.70 from the escrow acct on 4/22/02; no further disbursements are expected (cc: all counsel) ( no pgs: 2) (vp) (Entered: 04/29/2002)
56 NOTICE of hearing ; Status conference set for 2:00 5/28/02 before J Dlott (cc: all counsel) (vp) (Entered: 05/20/2002)
58 LETTER to court from Executive Board of United church of C hrist Assembly of Greater C incinnati Norhter KY supporting Collaborative Agreement ( no pgs: 1) (vp) (Entered: 05/28/2002)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 9 of 24

05/24/2002 05/28/2002 05/28/2002 05/29/2002 05/29/2002 05/29/2002 05/29/2002 05/30/2002 05/30/2002 05/30/2002 05/31/2002 05/31/2002 05/31/2002 05/31/2002 05/31/2002 05/31/2002 05/31/2002 05/31/2002 06/02/2002

57 LETTER to court from Executive Board of Salvation Army supporting Collaborative Agreement ( no pgs: 1) (vp) (Entered: 05/28/2002)
60 ORDER by Judge Susan J. Dlott authorizing ARIA Group Inc to w/draw all emaining funds in collaborative escrow acct (cc: all counsel) ( no pgs: 1) (vp) (Entered: 05/28/2002)
59 LETTER to court from Greater Cincinnati Board of Rabbis in support of Collaborative Agreement ( no pgs: 1) (vp) (Entered: 05/28/2002)
64 LETTER to court from The Rev C Roland Marcus Moderator of Miami Baptist Association in support of the Collaborative Agreement ( no pgs: 1) (vp) (Entered: 05/29/2002)
63 LETTER to court from Sister Marie C Tarpy; Sisters of Notre Dame de Namur supporting the Collaborative Agreement ( no pgs: 1) (vp) (Entered: 05/29/2002)
62 LETTER to court from Cincinnati Quakers concerned for peace and society supporting Collaborative Agreement ( no pgs: 1) (vp) (Entered: 05/29/2002)
61 LETTER to court from Vicki Mihiou President of Unitarian Universalist Council of Greater Cincinnati in support of the Collaborative Process ( no pgs: 1) (vp) (Entered: 05/29/2002)
67 LETTER to court from Rev Dr Taylor T Thompson Faith Community Alliance of Greater Cincinnati supporting the Collaborative Agreement ( no pgs: 1) (vp) (Entered: 05/30/2002)
66 LETTER to court from Alana Roush Moderator Presbytery of Cincinnati supporting the Collaborative Agreement ( no pgs: 1) (vp) (Entered: 05/30/2002)
65 LETTER to court from Rev Eugene Godhigh Vice President of Interdenominational Ministerial Alliance supporting the Collaborative Agreement ( no pgs: 1) (vp) (Entered: 05/30/2002)
76 NOTICE to Court by Nathaniel Livingston Jr of intent to appear at Fairness Hearing ( no pgs: 1) (vp) (Entered: 06/03/2002)
74 LETTER to court from Pastor Thomas E Barnes Moderator of Tri−State Disciples The Christian Church in support of Collaborative Agreement ( no pgs: 1) (vp) (Entered: 06/03/2002)
73 LETTER to court from Rev Gregory D Stover Superintendent of Cincinnati District West Ohio Conference of United Methodist Church in support of the Collaborative Agreement ( no pgs: 1) (vp) (Entered: 06/03/2002)
72 LETTER to court from Rt Rev Herbert Thompson Jr Bishop of Episcopal Diocese of Souther Ohio in support of the Collaborative Agreement ( no pgs: 1) (vp) (Entered: 06/03/2002)
71 LETTER to court from Dr Calvin Harper President of Baptist ministers Conf of Cincinnati and Vicinity in support of collaborative agreement ( no pgs: 1) (vp) (Entered: 06/03/2002)
70 LETTER to court from Sister Elizabeth Bowyer Province Administrator of Sisters of Notre Dame de Namur in support of Collaborative Agreement ( no pgs: 1) (vp) (Entered: 06/03/2002)
69 LETTER to courtfrom Sr Joan Krimm President of Metropolitan Area Religious Coalition of Cininnati in support of Collaborative Agreement ( no pgs: 2) (vp) (Entered: 06/03/2002)
68 LETTER to court from Rev Eugene Godhigh VP of Interdemonaational Ministerial Alliance in support of Collaborative Agreement ( no pgs: 1) (vp) (Entered: 06/03/2002)
75 NOTICE to Court from Monica R Wiliams; Coalition for Just Cincinnati; of intent to appear ( no pgs: 1) (vp) (Entered: 06/03/2002)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 10 of 24

06/03/2002 06/06/2002 06/06/2002 06/06/2002 06/06/2002 06/12/2002 06/14/2002 07/16/2002
07/16/2002 07/18/2002 07/24/2002
08/05/2002 08/23/2002 09/12/2002

77 LETTER to court from Ilyas Nashid Resident Imam of Cincinnati Islamic Center in support of Collabortive Agreemenet ( no pgs: 2) (vp) (Entered: 06/03/2002)
81 Fairness Hearing BRIEF of Coalition for Just Cincinnati re concerns and proposed modification for City−DOJ agreement and for Collaborative Agreement ( no pgs: 8) (vp) (Entered: 06/07/2002)
80 LETTER to court from Monica R Williams with the Coalition for a Just Cincinnati re Fairness Hearing on Collaborative Agreement ( no pgs: 6) (vp) (Entered: 06/07/2002)
79 CIVIL MINUTES: Proceeding before Judge Susan J. Dlott ; In−court hearing on class certification and fairness held 10:00 6/6/02 ; argument of counsel; testimony presented by parties; matter taken under submission; Julie Wolfer and Mary Ann Ranz Official Court Reporters and Barbara Moss State Court Reporter (counsel) ( no pgs: 1) (vp) (Entered: 06/07/2002)
78 TRANSCRIPT of Proceedings filed by Court Reporters Julie A Wolfer and Mary Ann Ranz Official Court Reporters and Barbara Moss on fairness hearing held before J Dlott on 6/6/02; 351 pages (vp) Modified on 06/07/2002 (Entered: 06/07/2002)
82 LETTER to court from Michael Fisher and Harry Whipple Presidend and Chairman of Greater Cincinnati Chamber of Commerce in support of Collaborative Agreement ( no pgs: 1) (vp) (Entered: 06/13/2002)
83 NOTICE of hearing ; In−court/Fairness hearing set for 1:00 7/18/02 before J Dlott in Room 842 (cc: all counsel) (vp) (Entered: 06/17/2002)
87 JOINT STATUS REPORT filed by parties re status of the issue of legal fees for class counsel; the parties understand that $375,000 in private funds and pledges will be deposited into an escrow acct that has been established for this purpose at U.S. Bank on or about 8/1/02; pltfs counsel will acknowledge constructive receipt of the $375,000 when that sum is deposited; as addtl monies become available they shall be directed to the escrow acct and shall be disbursed to pltfs counsel; the parties confirm that the fees and expenses sought by pltfs counsel is $600,000; the parties agree to report to the court by 2/3/02 as to the status of the fee issue ( no pgs: 3) (km) (Entered: 07/16/2002)
88 NOTICE of hearing ; In−court/fairness hearing set for 7/18/02 at 1:00 before J Dlott is vacated (cc: all counsel) (vp) (Entered: 07/16/2002)
89 ORDER by Judge Susan J. Dlott that the faiarness hrg that began on 6/6/02 is concluded; the court takes under submission the joint motion by parties for class certification and approval of their settlement of class claims [53−1] (cc: all counsel) ( no pgs: 1) (vp) (Entered: 07/18/2002)
90 ORDER by Judge Susan J. Dlott ; Status/Scheduling conference held 3:30 7/18/02 ; granting in part and denying in part motion to consolidate cases [13−1] Case consolidated lead case 1:99−cv−3170 with member cases 1:99−cv−317 for pretrial purposes only; denying motion for preliminary injunction [23−1] as moot, denying motion for order to set aside order re collaborative procedure and to issue scheduling order pertaining to discovery and dispositive motion ddls Shaw and Johnson cases [34−1] as moot (cc: all counsel) ( no pgs: 5) (km) (Entered: 07/24/2002)
91 ORDER by Judge Susan J. Dlott granting joint motion to certify class action [22−1] and approving the Collaborative Agreement as settlement of the class claims asserted in this lawsuit (cc: all counsel) ( no pgs: 16) (km) (Entered: 08/05/2002)
92 ORDER OF REFERENCE by Judge Susan J. Dlott: Case referred to Mag. Judge Michael Merz to serve as special master in this case with the title "Conciliator" as provided in the Collaborative Agreement (cc: all counsel) ( no pgs: 2) (km) (Entered: 08/23/2002)
93 ORDER by Judge Susan J. Dlott extending ddl for selecting Monitor until 9/27/02 (cc: all counsel) ( no pgs: 1) (vp) (Entered: 09/12/2002)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 11 of 24

09/27/2002 10/04/2002
10/04/2002 10/09/2002 10/23/2002 10/25/2002
11/13/2002 12/17/2002 12/17/2002 12/17/2002 12/27/2002
01/08/2003 01/09/2003 01/09/2003 01/21/2003 01/21/2003

94 ORDER by Judge Susan J. Dlott: extending the deadline for parties to select a Monitor pursuant to the terms of the Collaborative Agreement until 10/11/02 (cc: all counsel) ( no pgs: 1) (km) (Entered: 09/27/2002)
95 AGREED ORDER INTERPRETING COLLABORATIVE AGREEMENT by Judge Susan J. Dlott: the parties agree that the date for "court approval" and date of "fairness hearing" shall be 8/5/02, which is the date that the court approved the Collaborative Agreement (doc. 91); all deadlines in the Collaborative Agreement that are based on the date of the "court approval" or the date of the "fairness hearing" shall run from the date of 8/5/02 (cc: all counsel) ( no pgs: 2) (km) (Entered: 10/04/2002)
96 NOTICE of hearing ; Status conference set for 10:00 10/10/02 beforfe J Dlott in Room 829 (cc: all counsel) (vp) (Entered: 10/07/2002)
97 NOTICE of hearing ; In−Court Press Conference set for 10:30 10/10/02 Room 917 before J Dlott ; Cameras and recording devices will be permitted (cc: all counsel) (km) (Entered: 10/09/2002)
98 ATTORNEY APPEARANCE for class plaintiffs by Jennifer Lynn Branch ( no pgs: 2) (km) (Entered: 10/24/2002)
99 ORDER by Judge Susan J. Dlott (ENTERED NUNC PRO TUNC AS OF 10/10/02): the Court hereby orders that Alan Kalmanoff Ph D of the Institute of Law and Policy Planning be appointed the Monitor of the Collaborative Agreement and the Memorandum of Agreement (cc: all counsel) ( no pgs: 2) (km) (Entered: 10/25/2002)
100 ORDER by Judge Susan J. Dlott to furnish Magistrate Judge with copies; each party filing a document with the clerk shall send a copy to MJ Merz; Clerk shall promplty furnish the MJ with a copy of each order filed in case (cc: all counsel) ( no pgs: 1) (vp) (Entered: 11/13/2002)
101 AGREED ORDER by Judge Susan J. Dlott appointing Saul Green as monitor for the collaborative agreement;the monitor is to comply with the guidelines set forth 6/10/02 (cc: all counsel) ( no pgs: 4) (wam) (Entered: 12/18/2002)
102 PROTECTIVE ORDER by Judge Susan J. Dlott that the parties are to comply with conditions set forth in the collaborative agreement regarding confidentiality of agreement : (cc: all counsel) ( no pgs: 1) (wam) (Entered: 12/18/2002)
103 Stipulation and ORDER by Judge Susan J. Dlott in re: collaborative escrow fund : (cc: all counsel) ( no pgs: 3) (wam) (Entered: 12/18/2002)
104 ORDER REGARDING MASTERS by Judge Susan J. Dlott: pursuant to this Court's Order Appointing Monitor entered 12/17/02 and FRCP 53 the following individuals are appointed as Special Masters for the purpose of assisting the Court and the parties in this action: Saul Green; Richard Jerome; Joseph Brann; Robert Wassermann; Rana Sampson; Nancy McPherson; Tim Boyle; Michael Berkow; David McDonald; John Williams; Kristina Maritczek (cc: all counsel) ( no pgs: 1) (km) (Entered: 12/27/2002)
105 NOTICE by defendants city of cincinnati's counsel of change of contact info for counsel; law firm of Dyer Ellis &Joseph has merged with the law firm of Blank Rome ( no pgs: 2) (wam) (Entered: 01/09/2003)
106 MOTION by Cincinnati Post for order to attend status conf set for 1/9/03 at 3:00 ( no pgs: 2) (vp) (Entered: 01/09/2003)
107 ORDER by Judge Susan J. Dlott denying motion for order to attend status conf set for 1/9/03 at 3:00 [106−1] (cc: all counsel) ( no pgs: 2) (vp) (Entered: 01/09/2003)
Mail Returned [104−1] addressed to attorney for plaintiff (vp) (Entered: 01/23/2003)
Mail Returned [104−1] addressed to James Eichner for plaintiff DOJ (vp) (Entered: 01/23/2003)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 12 of 24

01/31/2003 02/04/2003 02/05/2003 02/10/2003 02/10/2003 03/19/2003 03/24/2003 03/26/2003 03/31/2003 04/01/2003 04/02/2003 04/03/2003 04/04/2003 04/07/2003
04/09/2003 05/09/2003 05/21/2003
05/21/2003

108 JOINT MOTION to amend collaborative community partnering plan ( no pgs: 1+) (wam) (Entered: 02/03/2003)
109 JOINT STATUS REPORT ON FEES ( no pgs: 2) (wam) (Entered: 03/14/2003)
110 ORDER by Judge Susan J. Dlott authorizing pymt of monitor in the amount of $204,400.00 from the escrow account (cc: all counsel) ( no pgs: 1) (wam) Modified on 03/14/2003 (Entered: 02/05/2003)
111 NOTICE of hearing ; Status conference set 4:00 2/28/03 Rm 829 before J Dlott (cc: all counsel) (wam) Modified on 03/14/2003 (Entered: 02/10/2003)
NOTATION ORDER by Judge Susan J. Dlott granting motion to amend collaborative community partnering plan [108−1] (cc: all counsel) (wam) (Entered: 02/10/2003)
112 MOTION by Cincinnati Black for order granting permission to w/draw as class rep ( no pgs: 4) (vp) (Entered: 03/20/2003)
113 ORDER by Judge Susan J. Dlott expediting response of any party to pltf CBUF motion to withdraw as class representative (doc.#112) be filed on or before 4/1/03 (cc: all counsel) ( no pgs: 1) (wam) (Entered: 03/24/2003)
114 STATUS REPORT by plaintiff on class representation ( no pgs: 6) (wam) (Entered: 03/26/2003)
115 ORDER by Judge Susan J. Dlott extending the ddl until 4/4/03 for the parties to file a response to pltf CBUF Motion to Withdraw as class representative (cc: all counsel) ( no pgs: 1) (wam) (Entered: 04/01/2003)
116 MEMORANDUM by defendant Fraternal Order Pol in opposition to CBUF's motion to withdraw as class representative [112−1] ( no pgs: 4) (wam) (Entered: 04/02/2003)
117 RESPONSE by defendant City of Cincinnati to motion for order granting permission for CBUF to w/draw as class rep [112−1] ( no pgs: 4) (wam) (Entered: 04/02/2003)
118 REPLY by plaintiff Cincinnati Black to responses to motion for order granting permission to w/draw as class rep [112−1] ( no pgs: 10) (wam) (Entered: 04/04/2003)
119 ORDER by Judge Susan J. Dlott that the City pay $91,597.38 of Dr. Kalmanoff's final invoice (cc: all counsel) ( no pgs: 6) (wam) (Entered: 04/07/2003)
120 ORDER by Judge Susan J. Dlott granting motion for order granting permission to w/draw as class rep [112−1]; Court finds that pltf class will continue to be represented in an exemplary fashion by ACLU; the Court reiterates that the CBUF's w/drawal does not mean that the CBUF is no longer subject to the Collaborative Agreement; Collaborative Agreement binds equally all members of the pltf class including the CBUF and its members (cc: all counsel) ( no pgs: 9) (vp) (Entered: 04/07/2003)
121 ORDER by Judge Susan J. Dlott authorizing payment in the amount of $204,400.00 to the monitor (cc: all counsel) ( no pgs: 1) (wam) (Entered: 04/09/2003)
122 MOTION by defendant Fraternal Order of Police for an order to withdraw from this matter ( no pgs: 4) (wam) (Entered: 05/09/2003)
123 MOTION by Carpenter, Leisure, Wilcox, Tyehimba, Ward, Cuthbertson, Johnson, Hollifields, Shaw, Wiley, Youngblood−Smith, Clark, Horton, Harris, Keiths, Martin, Glenn, White, Stillwell, Barnes, City Cinti, &Police Officers named in these individual actions as "movants" for an order to establish qualified settlement fund &establish fund administrator ( no pgs: 12+) (wam) (Entered: 05/22/2003)
124 ORDER by Judge Susan J. Dlott granting motion for an order to establish qualified settlement fund &establish fund administrator [123−1]; the City of Cinti shall pay 4.5 million into the fund w/i 60 days of the date of this order; the Court Orders Matthew L. Garretson as the fund administrator dismissing case with prejudice

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 13 of 24

05/22/2003 06/18/2003 06/20/2003 07/08/2003 08/12/2003 08/20/2003 08/22/2003 08/25/2003 09/05/2003 09/07/2003 10/01/2003 10/06/2003 10/14/2003 10/16/2003 10/16/2003 10/16/2003 10/17/2003
10/20/2003

provided that any of the parties upon good cause shown and not later than 8/21/03 may reopen the action if settlement is not consumated (cc: all counsel) ( no pgs: 13) (wam) (Entered: 05/22/2003)
125 JOINT MOTION Vincent Clark, Terry Horton &the City of Cinti to amend the judgment entered 5/21/03 ; decleration of Scott Greenwood attached ( no pgs: 3+) (wam) (Entered: 05/23/2003)
126 ORDER by Judge Susan J. Dlott that the Monitor shall deposit into the Registry $759.00. The Clerk shall then pay said sum to the Hilton Cincinnati Netherland Plaza (cc: all counsel) ( no pgs: 1) (ss) (Entered: 06/18/2003)
127 STIPULATED PROTECTIVE ORDER by Judge Susan J. Dlott regarding implementation of collaborative agreement : (cc: all counsel) ( no pgs: 2+) (wam) (Entered: 06/20/2003)
128 ORDER by Judge Susan J. Dlott authorizing the monitor to withdraw from the escrow account $204,400.00 (cc: all counsel) ( no pgs: 1) (seal) (Entered: 07/08/2003)
129 SCHEDULING ORDER by Mag. Judge Michael Merz regarding firearms question (cc: all counsel) ( no pgs: 3+) (wam) (Entered: 08/12/2003)
130 MOTION by defendant Fraternal Order Police to extend time until to file a memoranda regarding firearms question ( no pgs: 2) (wam) (Entered: 08/21/2003)
131 ORDER by Mag. Judge Michael Merz granting motion to extend time until 9/28/03 to file a memoranda to the scheduling order regarding firearms question [130−1] (cc: all counsel) ( no pgs: 1) (wam) (Entered: 08/22/2003)
132 BRIEF FILED by defendant City of Cincinnati regarding pointing of firearms in re order [129−1] ( no pgs: 3+) (wam) (Entered: 08/26/2003)
133 Supplemental Memorandum Opposing by Defendant Fraternal Order of Police. (Attachments: # 1 Supplement Memorandum)(Hardin, Donald) (Entered: 09/05/2003)
134 NOTICE by Plaintiffs American Civil Liberties Union of Ohio Foundation, Inc, Cincinnati Black United Front of Withdrawl of Jennifer Branch as Co−Counsel (Branch, Jennifer) (Entered: 09/07/2003)
135 ORDER denying 122 Motion of Fraternal Order of Police to withdraw. Signed by Judge Michael R Merz on 09/30/2003. (veda, ) (Entered: 10/01/2003)
136 DECISION AND ORDER ON EVALUATION PROTOCOL. Signed by Judge Michael R Merz on 10/06/03. (gh1, ) (Entered: 10/06/2003)
137 BRIEFING ORDER ON PUBLIC RECORDS DEMAND OF THE CINCINNATI ENQUIRER; Memoranda due NTL 10/16/03. Signed by Judge Michael R Merz on 10/14/03. (gh1, ) (Entered: 10/14/2003)
138 Amicus Curiae APPEARANCE entered. (Attachments: # 1 Exhibit Exhibit A# 2 Affidavit Affidavit of John C. Greiner# 3 Affidavit Affidavit of Gregory Korte)(Greiner, John) (Entered: 10/16/2003)
139 Objection to Magistrate Judge Order (doc.#136) by Defendant City of Cincinnati. (Attachments: # 1 Exhibit)(Harmon, Michael) Modified on 10/17/2003 (wam, ). (Entered: 10/16/2003)
140 Response re 137 Order, Set Deadlines by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Greenwood, Scott) (Entered: 10/16/2003)
141 ORDER OF DISTRIBUTION of Funds: The Monitor shall pay $1,562.47 to the registry of this Court. The Clerk shall then pay said sum to the Hilton Cincinnati Netherland Plaza. Signed by Judge Susan J. Dlott on 10/17/03. (ss, ) (Entered: 10/17/2003)
142 DECISION AND ORDER ON PUBLIC RECORDS DEMAND OF THE CINCINNATI ENQUIRER − The demand of the Cincinnati Enquirer that the

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 14 of 24

10/20/2003
10/23/2003 10/23/2003 10/24/2003 10/24/2003 11/03/2003 11/12/2003 11/14/2003 12/24/2003 01/12/2004 01/26/2004 03/16/2004 03/17/2004 04/19/2004 05/24/2004 06/17/2004 07/01/2004

Decision and Order on Evaluation Protocol (doc # 136) be vacated is DENIED. Signed by Judge Michael R Merz on 10/18/03. (gh1, ) (Entered: 10/20/2003)
143 ORDER that any appeal from or objection to either or both of these orders re 142 order of reference 136 decision &order on public records demand of the Cinti Enquirer, be filed and served no later than 10/27/03. Any other party may file a response to any appeal or objection no later than 11/3/03. The Cincinnati Enquirer is invited to participate as amicus curiae by filing either an appeal or objection or a response to any appeal or objection if it wishes to do so. Signed by Judge Susan J. Dlott on 10/20/03. (wam, ) (Entered: 10/20/2003)
144 MOTION to Expedite Decision by Amicus The Cincinnati Enquirer. (Greiner, John) (Entered: 10/23/2003)
145 MOTION to Vacate 142 Order by Magistrate Merz &136 Order by Magistrate Merz filed by The Cincinnati Enquirer. (Attachments: # 1 Exhibit cases cited)(wam, ) (Entered: 10/27/2003)
146 ORDER OF DISTRIBUTION of Funds authorizing the Monitor to withdraw and USBank to pay $204,000 from the escrow account. Signed by Judge Susan J. Dlott on 10/24/03. (ss, ) (Entered: 10/24/2003)
147 ORDER denying 144 Motion to Expedite. The Court's scheduling order 143 will stand. Signed by Judge Susan J. Dlott on 10/24/03. (ss, ) (Entered: 10/24/2003)
148 RESPONSE in support of Motion re 145 MOTION to Vacate 142 Order, 136 Order filed by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Greenwood, Scott) Modified on 11/4/2003 (wam, ). (Entered: 11/03/2003)
149 ORDER denying 139 Objection to Magistrate Judge Order, denying 145 Motion to Vacate . Signed by Judge Susan J. Dlott on 11/12/03. (ss, ) (Entered: 11/12/2003)
150 DECISION AND ORDER REGARDING FIREARMS POINTING ISSUE. Signed by Judge Michael R Merz on 11/14/03. (gh1, ) (Entered: 11/14/2003)
151 MOTION Relief pursuant to F.R.C.P. 60(b) re 119 Order by Special Master Dr Alan Kalmanoff. (Attachments: # 1 Exhibit A to G)(ss, ) (Entered: 12/29/2003)
152 ORDER authorizing monnitor to withdraw and USBank to pay $205,540.00 from the escrow account. Signed by Judge Susan J. Dlott on 1/12/04. (ss, ) (Entered: 01/12/2004)
153 ORDER OF DISTRIBUTION of funds by Judge Susan J. Dlott: the Monitor shall pay $618.80 to the registry of this court. The Clerk shall then pay said sum to Hilton Netherland. (wam, ) (Entered: 01/26/2004)
154 ORDER directing the Monitor to deposit $1,784.95 into the registry of the Court; further ordering the Clerk to pay said sum to Hilton Cincinnati Netherland Plaza. Signed by Judge Susan J. Dlott on 3/16/04. (ss, ) (Entered: 03/16/2004)
155 ORDER directing Monitor to deposit $442.00 into registry of the Court. The Clerk shall pay said sum to Hilton Cincinnati Netherland Plaza. Signed by Judge Susan J. Dlott on 3/17/04. (ss, ) (Entered: 03/17/2004)
156 ORDER authorizing the Monitor to withdraw, and USBank to pay, $205,540 from the escrow account. Signed by Judge Susan J. Dlott on 4/19/04. (ss, ) (Entered: 04/19/2004)
157 ORDER directing monitor to pay $176.80 to registry of the Court. The Clerk shall pay said sum to Hilton Cincinnati Netherland Plaza. Signed by Judge Susan J. Dlott on 5/24/04. (ss, ) (Entered: 05/24/2004)
158 ORDER directing monitor to pay $695.20 to registry of the Court. The Clerk shall pay said sum to Hilton Cincinnati Netherland Plaza.. Signed by Judge Susan J. Dlott on 6/17/04. (ss, ) (Entered: 06/17/2004)
159 MOTION for an Order on its unopposed motion for relief 151 by Interested Party Dr Alan Kalmanoff. (Attachments: # 1 Affidavit of Alan Kalmanoff# 2 Affidavit of Alice Lin)(wam, ) (Entered: 07/01/2004)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 15 of 24

07/08/2004 07/20/2004 08/05/2004 10/04/2004 11/12/2004 11/18/2004
11/24/2004 11/30/2004 12/06/2004 12/06/2004 12/10/2004
12/22/2004 12/27/2004 12/28/2004
12/29/2004 01/05/2005

160 ORDER by Judge Dlott authorizing Monitor to withdraw, and USBank to pay, $205,540 from the escrow account. (wam, ) (Entered: 07/08/2004)
161 ORDER requiring monitor to deposit into the registry of this Court and for the Clerk to pay such amount to the Hilton Cincinnati Netherland Plaza. Signed by Judge Susan J. Dlott on 7/20/04. (ss1, ) (Entered: 07/20/2004)
162 ORDER denying 151 Motion for relief pursuant to FRCP 60(b), finding as moot 159 Motion for Order on motion for relief. Signed by Judge Susan J. Dlott on 8/5/04. (ss, ) (Entered: 08/05/2004)
163 ORDER authorizing the Monitor to withdraw, and US Bank to pay $205,540 from the escrow account.. Signed by Judge Susan J. Dlott on 10/4/04. (wam, ) (Entered: 10/04/2004)
164 PROTECTIVE ORDER. Signed by Judge Susan J. Dlott on 11/12/04. (ss, ) (Entered: 11/12/2004)
165 MOTION for Order Directing City and FOP to Comply with Collaborative Agreement by Plaintiffs American Civil Liberties Union of Ohio Foundation, Inc, Cincinnati Black United Front. (Attachments: # 1 Exhibit Declaration of Alphonse A. Gerhardstein# 2 Exhibit Declaration of George Ellis)(Gerhardstein, Alphonse) (Entered: 11/18/2004)
166 SCHEDULING ORDER: Any Memorandum in Opposition due not later than 12/6/2004.. Signed by Judge Michael R Merz on 11/23/04. (gh1, ) (Entered: 11/24/2004)
167 ORDER directing monitor to pay $567.70 into registry of this court. Clerk of this Court shall pay said sum to Hilton Cincinnati Netherland Plaza. Signed by Judge Susan J. Dlott on 11/30/04. (ss, ) Modified on 11/30/2004 (ss, ). (Entered: 11/30/2004)
168 RESPONSE in Opposition re 165 MOTION for Order Directing City and FOP to Comply with Collaborative Agreement filed by Defendant City of Cincinnati. (McNeil, Julia) (Entered: 12/06/2004)
169 RESPONSE to Motion re 165 MOTION for Order Directing City and FOP to Comply with Collaborative Agreement filed by Defendant Fraternal Order of Police. (Hardin, Donald) (Entered: 12/06/2004)
170 REPLY to Response to Motion re 165 MOTION for Order Directing City and FOP to Comply with Collaborative Agreement filed by Plaintiffs Cincinnati Black United Front, American Civil Liberties Union of Ohio Foundation, Inc, Department of Justice. (Attachments: # 1)(Gerhardstein, Alphonse) (Entered: 12/10/2004)
171 NOTICE OF SCHEDULING CONFERENCE − The case is set for an in−person pertrial conference at the Potter Stewart Courthouse at 1:30 P.M. on January 6, 2005. (gh1, ) (Entered: 12/22/2004)
172 REPORT TO THE CONCILIATOR by the SPECIAL MASTER/INDEPENDENT MONITOR.(ss, ) (Entered: 12/27/2004)
173 ORDER SETTING RESPONSE DATE ON MONITOR'S SPECIAL MASTER REPORT 172 : pursuant to FRCP(G)(2), it is ordered that any objections or motions to adopt or modify the Report be filed and served not later than 5:00 pm on Wednesday 1/5/2005. Signed by Judge Michael R Merz on 12/28/04. (mkb, ) (Entered: 12/28/2004)
174 ORDER that Monitor deposit $1,607.47 into registry of Court. Clerk to pay said sum to Hilton Cincinnati Netherland Plaza. Signed by Judge Susan J. Dlott on 12/29/04. (ss, ) (Entered: 12/29/2004)
175 Response re 172 Order /Report to the Conciliator by the Special Master/Independent Monitor by Defendant City of Cincinnati. (Attachments: # 1 Affidavit of Thomas H. Streicher, Jr.# 2 Affidavit of Richard L. Janke)(McNeil, Julia) (Entered: 01/05/2005)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 16 of 24

01/06/2005 01/06/2005 01/06/2005
01/06/2005
01/07/2005 01/07/2005 01/12/2005 01/12/2005 01/13/2005 01/13/2005 01/18/2005 01/18/2005 01/20/2005
01/21/2005 01/21/2005 01/21/2005

176 ORDER authorizing the Monitor to withdraw and USBank to pay $177,351.50 from the escrow account. Signed by Judge Susan J. Dlott on 1/5/05. (ss, ) (Entered: 01/06/2005)
177 Supplemental MOTION to Clarify, Supplemental MOTION Modification of Collaborative Agreement by Defendant City of Cincinnati. (McNeil, Julia) (Entered: 01/06/2005)
178 Minute Entry for proceedings held before Judge Michael R Merz : Scheduling Conference held on 1/6/2005 in open court to set an evidentiary hearing on Plaintiff's Motion for Order Directing Compliance and the Special Master Report of the Monitor. A schedule order will be filed by separate entry. (gh1, ) (Entered: 01/06/2005)
179 SCHEDULING ORDER: Evidentiary Haring on Plaintiff's Motion for Order Directing Compliance and the Special Master Report of the Monitor is set for Monday, January 24, 2005 @ 9:30 a.m. at the Potter Stewart Courthouse, Cincinnati, Ohio. Plaintiff will serve a request for admissions and a request for production of documents on the City of Cincinnati not later than the close of business 01/07/05. The City shall respond to those requests not later than 01/14/05. All pre−hearing discovery documents shall be electronically filed and served. Plaintiffs and the FOP shall respond to the City of Cincinnati's Supplemental Motion for Clarification and/or Modification of the Collaborative Agreement not later than 01/13/2005.. Signed by Judge Michael R Merz on 01/06/05. (gh1, ) (Entered: 01/06/2005)
180 NOTICE by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc re 179 Scheduling Order,,,, Set Hearings,,, Filing Interrogatories and Requests to Produce by Plaintiffs to City (Greenwood, Scott) (Entered: 01/07/2005)
181 NOTICE by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc re 179 Scheduling Order,,,, Set Hearings,,, Filing Requests for Admission by Plaintiffs to City (Greenwood, Scott) (Entered: 01/07/2005)
182 NOTICE of Appearance by Peter J Stackpole Defendant City of Cincinnati (Stackpole, Peter) (Entered: 01/12/2005)
183 MOTION for Extension of Time to responsd to pltf's interrogatories &request for admissions. New date requested 1/18/2005. by Defendant City of Cincinnati. (Stackpole, Peter) Modified on 1/13/2005 (wam, ). (Entered: 01/12/2005)
Notation ORDER granting 183 Motion for Extension of Time . Signed by Judge Michael R Merz on 1/13/2005. (Merz, Michael) (Entered: 01/13/2005)
184 RESPONSE in Opposition re 177 Supplemental MOTION to ClarifySupplemental MOTION Modification of Collaborative Agreement filed by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Greenwood, Scott) (Entered: 01/13/2005)
185 Response re 181 Notice (Other) Responses to Request for Admissions by Defendant City of Cincinnati. (Stackpole, Peter) (Entered: 01/18/2005)
186 Response re 180 Notice (Other) Responses to Plaintiffs' Request for Production by Defendant City of Cincinnati. (Stackpole, Peter) (Entered: 01/18/2005)
187 NOTICE by Special Master Saul Green that he is available only until 1:00 p.m. on 1/24/05 for the purpose of giving testimony at the evidentiary hearing on pltf's motion for order directing Conmpliance re 165 MOTION for Order Directing City and FOP to Comply with Collaborative Agreement &172 (wam, ) (Entered: 01/20/2005)
188 FIRST QUARTERLY REPORT of Independent Monitor (4/1/03).(ss, ) (Entered: 01/21/2005)
189 SECOND QUARTERLY REPORT of Independent Monitor (7/1/03). (ss, ) (Entered: 01/21/2005)
190 THIRD QUARTERLY REPORT of Independent Monitor (10/1/03). (ss, ) (Entered: 01/21/2005)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 17 of 24

01/21/2005 01/21/2005 01/21/2005 01/21/2005 01/21/2005 01/24/2005
01/24/2005 01/24/2005 01/24/2005
01/24/2005
01/26/2005
01/26/2005 01/31/2005 01/31/2005 02/01/2005 02/02/2005 02/03/2005

191 FOURTH QUARTERLY REPORT of Independent Monitor (1/15/04). (ss, ) (Entered: 01/21/2005)
192 FIFTH QUARTERLY REPORT of Independent Monitor (4/1/04). (ss, ) (Entered: 01/21/2005)
193 SIXTH QUARTERLY REPORT of Independent Monitor (7/1/04). (ss, ) (Entered: 01/21/2005)
194 SEVENTH QUARTERLY REPORT of Independent Monitor (10/1/04). (ss, ) (Entered: 01/21/2005)
195 EIGHTH QUARTERLY REPORT of Independent Monitor (1/14/05). (ss, ) (Entered: 01/21/2005)
196 STIPULATION on Breach and Remedial Plan (Joint) by Plaintiffs Department of Justice, Cincinnati Black United Front, American Civil Liberties Union of Ohio Foundation, Inc, Special Master Saul Green, Defendants City of Cincinnati, Fraternal Order of Police. (Gerhardstein, Alphonse) (Entered: 01/24/2005)
197 TRIAL BRIEF on Material Breach by Plaintiffs Cincinnati Black United Front, American Civil Liberties Union of Ohio Foundation, Inc. (Gerhardstein, Alphonse) (Entered: 01/24/2005)
198 NOTICE by Defendant City of Cincinnati of Intent to Cure (McNeil, Julia) (Entered: 01/24/2005)
Minute Entry for proceedings held before Judge Michael R Merz : Evidentiary Hearing held on 1/24/2005 for the purpose of taking testimony regarding Plaintiff's Motion for Order Directing Compliance. Parties filed a Stipulation on Breach and Remedial Plan with the Court. Stipulation read into the record by Attorney Al Gerhardstein. Argument heard regarding Breach of the Collaborative agreement. Court takes matter under advisement. A decision will enter not later than 1/27/05. (Court Reporter Debra Futrell.) (gh1, ) (Entered: 01/24/2005)
199 REPLY to RESPONSE to MOTION re 177 Supplemental MOTION to ClarifySupplemental MOTION Modification of Collaborative Agreement filed by Defendant City of Cincinnati. (Stackpole, Peter) Modified on 1/25/2005 (wam, ). (Entered: 01/24/2005)
200 DECISION AND RECOMMENDATION re 165 MOTION for Order Directing City and FOP to Comply with Collaborative Agreement filed by American Civil Liberties Union of Ohio Foundation, Inc,, Cincinnati Black United Front, that the Court should adopt the remedy the parties agreed to in the event of a material breach, that is, the Collaborative Agreement should be entered as an order of this Court to prevent any further breaches. Objections to RRdue by 2/14/2005. Signed by Judge Michael R Merz on 1/26/05. (gh1, ) (Entered: 01/26/2005)
201 NOTICE of manual filing exhibits in support of 199 REPLY to Response to Motion (wam, ) (Entered: 01/26/2005)
Minute Entry for proceedings held before Judge Michael R Merz : Scheduling Conference held on 1/31/2005. (Court Reporter None Present.) (gh1, ) (Entered: 01/31/2005)
Minute Entry for proceedings held before Judge Michael R Merz : telephone Conference w/ McNeil &Gerhardstein re agenda for 2/4/05 held on 1/31/2005. (Court Reporter None Present.) (gh1, ) (Entered: 01/31/2005)
204 ORDER by Judge Dlott Withdrawing and Striking Docs.# 202 and # 203 from the record. (wam1, ) (Entered: 02/02/2005)
Notice of Correction re: 204 Order. Former doc.#204 has been deleted and refiled with Judge Dlott's s/signature. (wam, ) (Entered: 02/02/2005)
205 ORDER FOR ELECTRONIC NOTIFICATION − All counsel appearing in this case are required to become registered electronic users of the Court's CM/ECF system not later than 2/10/05.. Signed by Judge Michael R Merz on 02/03/05. (gh1, ) (Entered: 02/03/2005)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 18 of 24

02/03/2005 02/07/2005 02/07/2005 02/10/2005
02/11/2005 02/17/2005
02/17/2005 02/22/2005 02/22/2005 02/24/2005 02/28/2005 03/04/2005 03/04/2005 03/07/2005 03/24/2005

Minute Entry for proceedings held before Judge Michael R Merz : Status Conference held on 2/3/2005 between Judge Susan Dlott, Richard Jerome and Michael Merz. (Court Reporter None Present.) (gh1, ) (Entered: 02/07/2005)
206 OBJECTION to 200 Report and Recommendations by Defendant City of Cincinnati. (wam, ) (Entered: 02/08/2005)
207 Notice of Correction re: 206 Objection to Report and Recommendations. The document was originally filed as "appeal of Magistrate Judge Decision to District Court." This document was deleted and refiled using the correct event, "Objection to Report and Recommendations." (wam, ) (Entered: 02/08/2005)
208 MOTION for Extension of Time to File Response/Reply New date requested 3/4/2005. Motion for an extension of time to file a Memorandum in Opposition to City's Objections to Decision and Recommendations of Magistrate Michael R. Merz by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Gerhardstein, Alphonse) (Entered: 02/10/2005)
209 DECISION AND ORDER denying 208 Motion for Extension of Time to File Response/Reply for failure to comply with Rule 7.3 without prejudice to its renewal.. Signed by Judge Michael R Merz on 02/11/05. (gh1, ) (Entered: 02/11/2005)
210 NOTICE OF FACILITATED MEETING SCHEDULE − As agreed at the conclusion of the meeting of 2/04/05, the next facilitated meeting will be held Friday, February 25, 2005 from 9:00 a.m. to 12:00 p.m. in the ADR suite attached to Judge Dlott's new courtroom in the Potter Stewart Courthouse. (gh1, ) (Entered: 02/17/2005)
211 TRANSCRIPT of Proceedings held on 1/24/05 at the Potter Stewart Courthouse in Cincinnati, Ohio before Judge Michael R. Merz. Court Reporter: Debra Futrell. (rp, ) (Entered: 02/17/2005)
212 MOTION for Extension of Time to File Response/Reply as to 206 Objection to Report and Recommendations New date requested 3/4/2005. by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Gerhardstein, Alphonse) (Entered: 02/22/2005)
ORDER granting 212 Motion for Extension of Time to File Response/Reply Responses due by 3/4/2005. Signed by Judge Michael R Merz on 2/22/2005. (Merz, Michael) (Entered: 02/22/2005)
213 ORDER by Judge Dlott directing monitor to pay $192.28 into the registry of this Court. Clerk of this Court shall pay said sum to Hilton Cincinnati Netherland Plaza. (wam, ) (Entered: 02/24/2005)
214 NOTICE OF FACILITATED MEETING SCHEDULE − Meeting will be held 3/10/05 from 9:00 a.m. to 12:00 p.m. in the ADR suite attached to Judge Dlott's new courtroom in the Potter Stewart Courthouse. (gh1, ) (Entered: 02/28/2005)
215 Response re 206 Objection to Report and Recommendations, 207 Notice of Correction, of Magistrate Judge by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Gerhardstein, Alphonse) (Entered: 03/04/2005)
216 AFFIDAVIT re 215 Response (non motion) to defendants' objections to decision and recommendations of Magistrate Judge by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Gerhardstein, Alphonse) (Entered: 03/04/2005)
217 Reply in Support of objections 206 to the Report &Recommendation 200 by Defendant City of Cincinnati. (Attachments: # 1 Exhibit A)(Stackpole, Peter) Modified on 3/8/2005 (wam, ). (Entered: 03/07/2005)
218 NOTICE OF FACILITATED MEETING SCHEDULE − The next facilitated meeting will be held from 9:00 a.m. to 12:00 p.m. on 4/15/2005 in Room 210 (the ADR suite where previous meetings have been held). The agenda has been agreed upon among counsel and furnished to the Monitor and the Court at least three days in advance of the meeting. (gh1, ) (Entered: 03/24/2005)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 19 of 24

03/24/2005 03/28/2005 03/31/2005 03/31/2005 04/15/2005 04/15/2005 05/06/2005 05/09/2005
05/25/2005 06/29/2005
06/30/2005 07/06/2005 07/08/2005 07/18/2005 09/07/2005 09/08/2005
09/16/2005

219 ORDER by Judge Dlott directing Monitor to pay $483.74 into the registry of this Court. Clerk of this Court shall pay said sum to Hilton Cincinnati Netherland Plaza. (wam, ) (Entered: 03/24/2005)
220 ORDER ADOPTING REPORT AND RECOMMENDATIONS and ENTERS the Collaborative Agreement as an Order of this Court. Signed by Judge Susan J. Dlott on 3/28/05. (ss, ) (Entered: 03/28/2005)
221 ORDER clarifying Doc 220 that the collaborative agreement is now an order of this court. Signed by Judge Susan J. Dlott on 3/31/05. (ss, ) (Entered: 03/31/2005)
Minute Entry for proceedings held before Judge Susan J. Dlott : Conference held on 3/31/2005. (ss, ) (Entered: 04/01/2005)
222 NINTH QUARTERLY REPORT of Independent Monitor (4/1/05). (ss, ) (Entered: 04/15/2005)
223 ORDER authorizing Monitor to withdraw and USBank to pay $177,351.50 from the escrow account. Signed by Judge Susan J. Dlott on 4/15/05. (ss, ) (Entered: 04/15/2005)
Minute Entry for proceedings held before Judge Michael R Merz : Scheduling Conference held on 5/6/2005 for planning of facilitated meeting set for 5/16/05 via telephone. (gh1, ) (Entered: 05/09/2005)
224 NOTICE OF FACILITATED MEETING SCHEDULE − The next facilitated meeting will be held from 9:00 a.m. to 12:00 p.m. on Monday, May 16, 2005 in Room 210 in the Potter Stewart Courthouse (the ADR suite where previous meetings have been held.) (gh1, ) (Entered: 05/09/2005)
225 ORDER the Monitor shall submit $1,228.49 into the registry of this Court. The Clerk shall pay said sum to Hilton Cincinnati Netherland Plaza. Signed by Judge Susan J. Dlott on 5/25/05. (ss, ) (Entered: 05/25/2005)
226 NOTICE OF FACILITATED MEETING SCHEDULE The next facilitated meeting will be held from 9:00 a.m. to 12:00 p.m. on 7/9/2005 in Room 210 in the Potter Stewart Courthouse(the ADR suite where previous meetings have been held). Agenda is as follows....... (gh1, ) (Entered: 06/29/2005)
Minute Entry for proceedings held via telephone before Judge Michael R Merz : Scheduling Conference held on 6/30/2005. (gh1, ) (Entered: 06/30/2005)
Minute Entry for proceedings held before Judge Michael R Merz : Facilitated meeting held on 7/6/2005. (gh1, ) (Entered: 08/01/2005)
227 ORDER authorizing the Monitor to withdraw, and USBank to pay, $177,351.50 from the excrow account. Signed by Judge Susan J. Dlott on 7/8/05. (ss, ) (Entered: 07/08/2005)
228 ORDER that the monitor shall deposit with this Court $675.49. The Clerk shall pay said sum to Hilton Cincinnati Netherland Plaza. Signed by Judge Susan J. Dlott on 7/18/05. (ss, ) (Entered: 07/18/2005)
Minute Entry for proceedings held before Judge Michael R Merz : Scheduling Conference held on 9/7/2005 by telephone regarding 9/15/05 meeting. (dp1) (Entered: 09/07/2005)
229 NOTICE OF FACILITATED MEETING SCHEDULE − The next facilitated meeting will be held 9/15/2005 from 9:00 a.m. to 12:00 p.m. in Room 210 at Potter Stewart Courthouse. To make certain the meeting serves its intended purpose, the Court will, at the upcoming meeting, set deadlines for completion of any outstanding items. Signed by Judge Michael R Merz on 9/7/2005. (dp1) (Entered: 09/08/2005)
Notation ORDER finding as moot 177 Motion to Clairfy, finding as moot 177 Motion for miscellaneous relief, based on facilitated meeting of 9/15/2005. If counsel disagree, motion may be re−filed. Signed by Judge Michael R Merz on 9/16/2005. (Merz, Michael) (Entered: 09/16/2005)

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 20 of 24

09/19/2005 09/29/2005 10/12/2005 11/08/2005 12/14/2005
12/14/2005
01/03/2006 01/11/2006 02/09/2006 03/09/2006 03/15/2006 03/24/2006 04/06/2006 05/26/2006 06/06/2006 07/24/2006 08/09/2006

Minute Entry for proceedings held before Judge Michael R Merz : Facilitated meeting on 9/19/2005. (dp1) (Entered: 09/19/2005)
230 ORDER that the monitor shall deposit with this Court $96.41. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza.. Signed by Judge Susan J. Dlott on 9/29/05. (wam, ) (Entered: 09/29/2005)
231 ORDER authorizing the Monitor to withdraw, and USBank to pay, $177,351.50 from the excrow account. Signed by Judge Susan J. Dlott on 10/12/05. (wam, ) (Entered: 10/12/2005)
232 ORDER that the monitor shall deposit with this Court $1,996.82. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza. Signed by Judge S Arthur Spiegel on 11/8/05. (wam, ) (Entered: 11/08/2005)
233 NOTICE OF TELEPHONE CONFERENCE − A telephone conference is set in this matter for 1/3/2006 at 2:00 p.m. The Court will advise all parties of the call−in number for the conference at a later date. Parties must call this number shortly before 2:00 p.m. to be included in the conference call. (Attachments: # 1 Letter)(dp1 ) (Entered: 12/14/2005)
NOTICE: The following parties shall call 1−800−473−7793 (a conferencing service number) prior to 2:00 p.m. on 1/3/2006 to participate in a telephone conference call with Judge Michael R. Merz: Scott Greenwood, Don Hardin, Rita McNeil, Dave Stevenson, Greg Gonzalez (with Tammy Greg), Al Gerhardstein, Saul Green and Richard Jerome. (dp1) (Entered: 12/14/2005)
Minute Entry for proceedings held before Judge Michael R Merz : Docket Call held on 1/3/2006. re: Sheriff in Over−The−Rhine (dp1) (Entered: 01/03/2006)
234 ORDER authorizing the Monitor to withdraw, and US Bank to pay $146,712.75 from the escrow account. Signed by Judge Susan J. Dlott on 1/10/06 (wam, ) (Entered: 01/11/2006)
235 ORDER by Judge Susan J. Dlott that the monitor shall deposit with this court $344.76. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza. (wam, ) (Entered: 02/09/2006)
236 ORDER by Judge Susan J. Dlott that the monitor shall deposit with this court $503.34. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza. (wam1, ) (Entered: 03/09/2006)
237 ORDER by Judge Susan J. Dlott that the Monitor shall deposit with this Court $1,040.56. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza. (wam1, ) (Entered: 03/15/2006)
Check number 1089 was created 03/24/06 in the amount of $1040.56 payable to Hilton Cincinnati Netherland Plaza Addressed to Jeff Ferriera. (mvl, ) (Entered: 03/24/2006)
238 ORDER by Judge Susan J. Dlott authorizing the Monitor to withdraw, and US Bank to pay $146,627.75 from the escrow account. (scot, ) (Entered: 04/06/2006)
239 ORDER by Judge Susan J. Dlott that the monitor shall deposit with this Court $388.96. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza (wam1, ) (Entered: 05/26/2006)
240 ORDER by Judge Susan J. Dlott that the monitor shall deposit with this Court $388.96. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza. (wam1, ) (Entered: 06/06/2006)
241 ORDER by Judge Susan J Dlott authorizing the Monitor to withdraw, and US Bank to pay $146,627.25 from the escrow account. (scot, ) (Entered: 07/24/2006)
242 ORDER by Judge Susan J. Dlott that the monitor shall deposit with this court $303.16. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza. (wam1, ) (Entered: 08/09/2006)

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10/05/2006 11/13/2006 12/21/2006 01/09/2007 01/10/2007 01/22/2007 01/24/2007 02/01/2007 02/02/2007 02/09/2007 02/12/2007 03/13/2007 03/14/2007
03/15/2007 03/15/2007 03/21/2007 04/09/2007 04/26/2007
05/01/2007

243 ORDER by Judge Susan J. Dlott that the monitor shall deposit with this court $1,759.20. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza. (wam, ) (Entered: 10/05/2006)
244 ORDER by Judge Susan J. Dlott authorizing the monitor to withdraw, and US Bank to pay $146,627.25 from the escrow account. (wam1, ) (Entered: 11/13/2006)
245 ORDER by Judge Susan J. Dlott that the monitor shall deposit with this court $3,023.32. The Clerk shall pay said sum to the Hilton Cincinnati Netherland Plaza (wam, ) (Entered: 12/21/2006)
246 NOTICE of Hearing: Status Conference set for 1/31/2007 at 3:30 PM in Courtroom 7 before Susan J. Dlott. (wam, ) (Entered: 01/09/2007)
247 NOTICE of Hearing: Status Conference has been RESET for 2/1/2007 at 9:00 AM in Courtroom 7 before Susan J. Dlott. (wam, ) (Entered: 01/10/2007)
Minute Entry for proceedings held before Judge Michael R Merz : Status Conference held on 1/22/2007. (dp1 ) (Entered: 01/22/2007)
248 ORDER By United States District Judge Susan J. Dlott and United States Magistrate Judge Micheal R. Merz setting this for a status conference on 2/1/07 at 9:00 a.m. in Judge Dlott's Chambers, Rm. 227. (wam, ) (Entered: 01/24/2007)
Minute Entry for proceedings held before Judge Susan J. Dlott and Magistrate Judge Michael R. Merz: Status Conference held on 2/1/2007. (wam1, ) (Entered: 02/05/2007)
Minute Entry for proceedings held before Judge Michael R Merz : Status Conference held on 2/1/2007. (dp1 ) Modified on 2/5/2007 (wam1, ). (Entered: 02/02/2007)
249 ORDER by Judge Susan J. Dlott authorizing the Monitor to withdraw, and US Bank N.A. to pay $124,420.75 from the escrow account. (scot1, ) (Entered: 02/09/2007)
250 ORDER by Judge Susan J. Dlott; Status Conference set for 3/15/2007 09:00 AM in Courtroom 7 before Susan J. Dlott. (wam, ) (Entered: 02/12/2007)
251 ORDER by Judge Susan J. Dlott and Magistrate Judge Michael R. Merz regarding the agenda for the status conference set for 3/15/07. (wam, ) (Entered: 03/13/2007)
252 NOTICE by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc of filing two copies of a February 23, 2007 letter to Assistant Solicitor Stackpole, and supporting documents, with Chambers for their use in the all parties meeting to be held on March 15, 2007. (Gerhardstein, Alphonse) (Entered: 03/14/2007)
Minute Entry for proceedings held before Judge Michael R Merz : Status Conference held on 3/15/2007. (dp1 ) (Entered: 03/15/2007)
Minute Entry for proceedings held before Judge Susan J. Dlott : Status Conference held on 3/15/2007. (wam, ) (Entered: 03/16/2007)
253 ORDER by Judge Susan J. Dlott and Chief Magistrate Judge Micheal R. Merz setting this case for a Status Conference on 5/7/2007 at 9:00 AM in Courtroom 7 before Susan J. Dlott. (wam, ) (Entered: 03/21/2007)
254 ORDER by Judge Susan J. Dlott authorizing the Monitor to withdraw, and US Bank N.A. to pay 124,420.75 from the escrow account. (wam, ) (Entered: 04/09/2007)
255 ORDER by Judge Susan J. Dlott. Upon agreement of the parties and the monitor the Court vacates the previously scheduled 5/7/07 status conference. In lieu of the status conf. the parties present at the 4/19/07 facilitated meeting have agreed to meet again at 9:00 a.m. on 5/7/07 in RM 210 (ADR Suites) (wam, ) (Entered: 04/26/2007)
256 Mail Returned as Return to Sender − No Such Number − Unable to Forward. Doc. 255 sent to Gene Seay, President of Sentinals. (eh, ) (Entered: 05/01/2007)

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05/08/2007 06/20/2007 07/02/2007 07/04/2007 07/05/2007 07/05/2007 07/06/2007 07/30/2007 08/01/2007
08/15/2007
08/23/2007
11/29/2007 11/30/2007

257 NOTICE of Hearing:facilitated mediation set for 5/31/2007 at 9:00 AM in the ADR Suite Rm#210. (wam1, ) (Entered: 05/08/2007)
258 Joint MOTION to Amend/Correct the Collaborative Agreement by Defendants City of Cincinnati, Fraternal Order of Police, Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Gerhardstein, Alphonse) (Entered: 06/20/2007)
259 ORDER granting 258 Motion to Amend/Correct. Signed by Judge Susan J. Dlott on 7/2/07. (wam1, ) (Entered: 07/02/2007)
260 Joint MOTION to Amend/Correct Order Granting Modification of Collaborative Agreement by Defendant City of Cincinnati, Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Attachments: # 1 Text of Proposed Order Draft Order) (Gerhardstein, Alphonse) (Entered: 07/04/2007)
Notice of Correction; Former doc. #260 has been deleted due to filing error. Filing atty is to refile the motion. (wam, ) (Entered: 07/05/2007)
261 Joint MOTION to Amend/Clarify 259 Order granting Motification of Collaborative Agreement. (Attachments: # 1 Draft Order) (Gerhardstein, Alphonse) Modified on 7/5/2007 − To modify docket text (tt1, ). (Entered: 07/05/2007)
262 ORDER by Judge Susan J. Dlott granting 261 Motion to Amend the marginal entry granting the joint motion to modify the collaborative agreement. (wam1, ) (Entered: 07/06/2007)
263 ORDER by Judge Susan J. Dlott authorizing the Monitor to withdraw, and US Bank N.A. to pay $124,420.75 from the escrow account. (wam, ) (Entered: 07/30/2007)
264 MOTION for Order to Transfer the Remaining Funds in the In Re. Cincinnati Policing Damage Claims Qualified Settlement Fund to the Unclaimed Funds Account of the District Court by Plaintiffs Elsie Carpenter, Bomani A Tyehimba, Mark A Ward, Ronald Cuthbertson, Antonio Johnson, Matthew Shaw, Charles A Wiley, Lisa Youngblood−Smith. Associated Cases: 1:99−cv−03170−SJD−MRM et al. (Gerhardstein, Alphonse) (Entered: 08/01/2007)
265 ORDER by Judge Susan J. Dlott. The Court having granted the parties motion to alter or amend the marginal entry granting the joint motion to modify the Collaborative Agreement (Doc. 262, "Order granting motion to alter or amend"), and to extend Court supervision solely over the terms set forth in the Order granting motion to alter or amend until August 5, 2008, the Court hereby continues the appointment of Saul Green as Monitor for the Collaborative Agreement pursuant to the terms of the December 17, 2002 Agreed Order Appointing Monitor (Doc. 101) through August 5, 2008. The Monitor shall file a final report by October 1, 2008. The Monitor shall file a revised project based budget with the Court reflecting the modifications within 30 days of the entry of this Order, and which shall be budget neutral to the City of Cincinnati. (scot1, ) (Entered: 08/15/2007)
266 ORDER by Judge Susan J. Dlott in case #'s 1:01−cv−00271−SAS; 1:99−cv−00227−SJD; 1:99−cv−00317−SJD−MRM; 1:99−cv−00494−SJD; 1:99−cv−01063−SJD; 1:99−cv−01064−SJD; 1:99−cv−03170−SJD−MRM; 1:00−cv−00267−SJD; 1:00−cv−00434−SJD; GRANTING Motions for Order to deposit all the remaining assests into the Hamilton County Clerk of Courts Unclaimed funds account in cases. All future corrrespondence regarding the assets held originally by the Fund be directed to the Ham. Cty Clerk of Courts Unclaimd funds account; and, the Fund closed and the Administrator discharged of all his duties. Associated Cases: 1:99−cv−03170−SJD−MRM et al. (wam1, ) Modified docket text on 8/24/2007 (scot1, ). (Entered: 08/23/2007)
267 ORDER by Judge Susan J. Dlott authorizing the Monitor to withdraw, and US Bank N.A. to pay $124,420.75 from the escrow account. (wam, ) (Entered: 11/29/2007)
Minute Entry for proceedings held before Judge Michael R Merz : Status Conference held on 11/30/2007 with Judge Susan Dlott. (dp1 ) (Entered: 11/30/2007)

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02/05/2008
05/23/2008 06/20/2008 06/23/2008 07/03/2008 07/08/2008 07/14/2008 07/15/2008 07/15/2008 07/22/2008
08/19/2008
08/20/2008
08/21/2008
08/26/2008
08/26/2008
10/22/2008 11/18/2008

268 ORDER by Judge Susan J. Dlott authorizing the monitor to withdraw, and US Bank N.A. to pay $123,417 from the escrow account. (wam1, ) (Entered: 02/05/2008)
269 ORDER by Judge Susan J. Dlott authorizing the monitor to withdraw, and U.S. Bank to pay $62,155.33 from the escrow account. (wam1, ) (Entered: 05/23/2008)
270 NOTICE of Hearing: Status Conference set for 7/15/2008 10:00 AM in Courtroom 7 before Judge Susan J. Dlott. (wam1, ) (Entered: 06/20/2008)
271 Mail sent to George Ellis Returned as Undeliverable. (mg1, ) (Entered: 06/23/2008)
272 ORDER by Judge Susan J. Dlott setting forth the agenda for the July 15, 2008 status conference (wam1, ) (Entered: 07/03/2008)
273 Mail sent to Georger Ellis, ACLU Returned as Undeliverable re 272 Order. (mg1, ) (Entered: 07/08/2008)
274 Mail sent to Gene Seay Returned as Undeliverable re 272 Order. (mg1, ) (Entered: 07/14/2008)
275 STATUS REPORT by Plaintiff American Civil Liberties Union of Ohio Foundation, Inc. (Gerhardstein, Alphonse) (Entered: 07/15/2008)
276 ORDER ON FINAL HEARING. A Hearing is scheduled for 8/26/08 at 1:00 p.m. (wam1, ) (Entered: 07/15/2008)
277 ORDER by Judge Susan J. Dlott authorizing the monitor to withdraw, and US Bank N.A. to pay $62, 155.33 from the escrow account. (wam1, ) (Entered: 07/22/2008)
278 MOTION for Extension of Time New date requested 8/21/2008. by Defendant City of Cincinnati. Associated Cases: 1:99−cv−03170−SJD−MRM et al. (Stackpole, Peter) (mg1, ). (Entered: 08/19/2008)
279 ORDER granting 278 Motion for Extension of Time until 8/21/08 to file collaborative agreement. Signed by Judge Susan J. Dlott on 8/20/08. (wam1, ) (Entered: 08/20/2008)
280 NOTICE by Defendant City of Cincinnati of Filing Collaborative Agreement Plan (Attachments: # 1 Collaborative Agreement Plan, # 2 Exhibit A, # 3 Exhibit B) (Stackpole, Peter) (Entered: 08/21/2008)
281 NOTICE by Defendant City of Cincinnati re 280 Notice (Other) of Filing Amended Collaborative Plan (Attachments: # 1 Amended Collaborative Plan, # 2 Exhibit A, # 3 Exhibit B) (Stackpole, Peter) (Entered: 08/26/2008)
282 Minute Entry for proceedings held before Judge Susan J. Dlott: Final Hearing held on 8/26/2008. (Court Reporter Julie Wolfer (Official).) (wam1, ) (Entered: 08/26/2008)
283 ORDER by Judge Susan J. Dlott authorizing the monitor to withdraw, and U.S. Bank to pay $62,155.33 from the escrow account. (wam1, ) (Entered: 10/22/2008)
284 Transcript of Proceedings (Hearing) held on August 26, 2008, before Judge Susan J. Dlott and Magistrate Judge Michael R. Merz. Court Reporter/Transcriber Julie Wolfer (Official). Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 12/9/2008. Redacted Transcript Deadline set for

Case: 1:99-cv-3170 As of: 02/23/2016 07:44 PM EST 24 of 24

03/04/2009 03/04/2009

12/19/2008. Release of Transcript Restriction set for 2/17/2009. (scot1, ) (Entered: 11/18/2008)
285 ORDER by Chief Judge Susan J. Dlott authorizing the monitor to withdraw, and U.S. Bank to pay $45,013.00 from the escrow account. (wam1, ) (Entered: 03/04/2009)
286 ORDER by Chief Judge Susan J. Dlott that US Bank is to send the City of Cincinnati the balance of the monitors escrow account immediately upon receipt of this order. (wam1, ) (Entered: 03/04/2009)

 
 Attachment A-1 to Collaborative Agreement
Collaborative Community Partnering Plan for Community Problem Oriented Policing
Introduction
Since March of 2001, The ARIA Group has been working on a collaborative process for addressing police-community relations in the city of Cincinnati. In May, Jay Rothman, President of The ARIA Group, was appointed Special Master by the U.S. Federal Court to conduct this collaborative effort.
We have generated a collaborative dynamic to begin transforming the crises of police-community relations - that came to a head with the riots in April - into an opportunity for positive change and improved relationships. Beginning in June 2001, data was collected by questionnaire from all segments of the community, including: African Americans, white citizens, leaders of religious organizations and social service agencies, business leaders and foundation professionals, educators, youth, police and their families, city employees and other minority persons.
Through this unprecedented process designed to maximize community participation, over thirty-five hundred respondents shared their goals for police-community relations along with their rationale and up to three solutions for each goal. A significant portion of the nearly 10,000 suggested solutions they proposed are grass-roots in orientation.
Purpose
These solutions offer tangible ways for the community and police to enhance their partnership. They are rooted in two key principles: First, conflicts should be engaged through careful analysis based on detailed information and a willingness to explore a wide range of alternatives (problem solving) and second, achieving the five overarching goals agreed to by the 3500 respondents (see below) is an important criteria for success of the collaborative.
For these reasons, a Community Partnering Plan enabling the community to assume a leadership role in community based problem solving and partner with the police in problem oriented policing (CPOP) must be an integral element of any formal written agreement. .

Potential Benefits: . Maximizes Community Ownership o Grassroots and non-profit organizations o Existing collaborative participants (3500+) o Open to all local Communities . Maximizes Accountability and Sustainability o Through participation o Ownership of success o Leverage new resources . Increases and Strengthens Police-Community Collaborative Contacts o Recreational o Educational o Social o Joint problem solving
Goals and Objectives
The primary goal is to enable the community to assume a leadership role in community based problem solving in partnership with the police. These roles will achieve community compliance with the Five Collaborative Goals:
1. Police officers and community members will become proactive partners in community problem solving.
2. Build relationships of respect, cooperation and trust within and between police and communities.
3. Improve education, oversight, monitoring, hiring practices and accountability of CPD.
4. Create methods to establish the public’s understanding of police policies and procedures and recognition of exceptional service in an effort to foster greater support for the police.
5. Ensure fair, equitable, and courteous treatment for all
Additional outcomes: . Existing Groups and Organizations are able to create and implement action plans that help achieve the community consensus goals.
Groups/organizations can use the information obtained through the collaborative process (thousands of solutions or ‘hows’ not requiring formal oversight).
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. Groups and organizations can modify existing ‘hows’ and create new ‘hows’ based on their specific needs and based on what will work for their constituents.
Methods
Overview The Community Consensus Goals and consensus goal two in particular (Build relationships of respect, cooperation, and trust within and between police and communities) are the core of the Community Partnering Plan. All initiatives associated with this process must address one of the five consensus goals.
The coordinator of the collaborative community partnering plan, will work with the collaborative’s database and make an initial effort of analyzing it for solution ‘themes’ that will be developed into draft implementation action plans. These action plans will be made available to community stakeholders that desire to participate during the implementation phase. Initial activities will focus on those stakeholders that are current collaborative friends and others that have the infrastructure and networks necessary to facilitate community involvement through the religious, health, social services, and education systems as well as the workplace and community at large. It is anticipated that these groups may chose to implement the action plans provided as well as utilize the database and consensus goals to develop additional action plans with their constituents.
Collaborative respondents will serve as an important resource for reviewing, commenting on, and legitimizing proposed plans in addition to the legitimizing function they already provide to the formal process. We continue to communicate project updates to the respondents and are identifying which of the 3500+ respondents are willing to have their contact information shared with other Collaborative stakeholders.
Action Plan
It is critical that groups and individuals function as co-creators of all solutions/action plans to maximize ownership and enthusiasm. Those solutions existing from the collaborative process potentially hold significant value if they are embraced and owned by the groups using them. Specific solutions suggested by the 3500 respondents will be offered only as resource material for the groups to utilize as they see fit. They are the ‘experts’ and know what will work in their environments therefore the groups may choose not use the existing solutions at all, they may use them as a template to develop new solutions, modify the existing solutions to better meet their needs, or use them as provided.
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1. Training made available for all group facilitators . In “action evaluation” to help them design, promote and assess success. . How to gain consensus that all outcomes need to be in support of the community consensus goals . In use of standardized action plan formats/templates
The intent is to provide all groups participating with the big picture and overarching structure yet allow them to function with ‘collaborative autonomy’ at the grassroots level.
There are dozens of groups and non-profits in Cincinnati that are working independently and collectively to accomplish unique, shared and perhaps even divergent goals. These organizations represent a significant resource having the potential to be utilized to achieve the community consensus goals identified through the collaborative process, especially in achieving those goals not requiring formal oversight.
Personnel and Activities
1. Coordinator (1)
The Coordinator will work for the agreement monitor. He or she will harness existing community efforts and lead a focused training effort to promote community problem solving and CPOP. This person will train the trainers, carry forward the existing ‘how’ ideas recorded from the 3500 Collaborative participants, assist groups and organization developed additional solutions, oversee ‘marketing’ of CPOP in the community, and take responsibility for overall coordination of the community partnering effort.
2. Program Workers (3 Funded)
The Coordinator will partner with community-based organizations to identify dedicated existing or new staff persons. The three Program Workers will each be employed by one of the partner organization with funds solicited for this purpose.
3. Program Workers (1-2 donated)
The fourth and fifth Program Workers will be paid from funds yet to be donated by the business community or through in-kind giving such as a ‘Loaned Executive’.
The Coordinator and Program Workers will collaborate with city police department officials, community groups, organizations and others to provide the following sample proposed activities and other services/activities as they are developed to meet specific needs:
4

Draft simple materials and referral information on community oriented and problem oriented policing.
. Provide community problem solving and CPOP training to property owners, social service agencies, schools, faith-based organizations, recreational organizations, businesses, tenant associations, community councils, other organizations and individuals.
. Promote Public Service Announcements about CPOP through local media outlets.
. Develop training video on CPOP to be aired through public access and distributed to libraries and video stores to be loaned for private viewing free of charge.
. Provide presentations on CPOP at festivals and public events in Cincinnati during the summer of 2002.
. Participate on Radio/TV talk show(s) hosted for the purpose of receiving calls from the public and dialoguing on the air with a CPD officer about how various problems could be addressed through CPOP.
. Coordinate widespread distribution of the CPOP information and referral literature through the schools, libraries, media outlets, social service agencies, and, if possible, billing departments of the Cincinnati Water Works, utility companies, telephone companies, and others.
. Cooperate with the CPD Training Academy to help involve police recruits in community activities that may be unfamiliar to the recruit in order to help the recruit gain increased cultural, racial and religious sensitivity.
. Encourage and assist community groups across the region in establishing and maintaining athletic, educational and other programs that will foster positive interaction between the police and youth. These initiatives will include but not be limited to: The Study Circle initiative by the Cincinnati Human Relations Commission; Neighbor to Neighbor; athletic teams coached by police officers in CRC leagues; mentoring programs by the Sentinel Police Association, Mallory Center, etc.
. Provide speakers to schools and encourage schools across the region to include CPOP and appropriate conduct when interacting with police in their curriculums.
. Promote ways to access youth through community-based organizations and schools to educate them on CPOP, local government, personal safety, answer their own concerns about safety and crime, and develop ways to achieve positive interactions between youth and police officers.
The Coordinator and Program Workers will accomplish these tasks by entering into work plans or action plans with organizations throughout the City. This will be a coordinated, structured comprehensive effort to blanket the city with the training and support needed while minimizing
5

gaps and duplication. Special initial emphasis will be made to target, accomplish and promote results with residents and property owners in those districts experiencing high levels of dissonance. Evaluation Each action plan implemented will specify desired outcomes, benchmarks and evaluation criteria (see training in Action Evaluation above). Funding All funds for the Community Partnering Plan shall be administered by the Court through the Collaborative Escrow Account. Action plans will include terms that will promote sustainability of CPOP efforts, as it is central to this community partnering plan that community problem solving and CPOP efforts become a part of the fabric of community life.
6

 
 COLLABORATIVE AGREEMENT GLOBAL DAMAGE CLAIMS SETTLEMENT
This Collaborative Agreement Global Damage Claims Settlement, made this 21st day of May, 2003, by and between the plaintiffs (hereafter “Plaintiffs”) and the defendants (hereafter “defendants”) in each of the following actions:
Lisa Youngblood-Smith v. City of Cincinnati, Case No. C-1-00-434 Elsie Carpenter v. City of Cincinnati, Case No. C-1-99-227 Vincent Clark, et al. v. City of Cincinnati, Case No. C-1-02-645 John E. Harris v. City of Cincinnati, Case No. C-1-02-761 Stephanie Keith and Paul Keith v. City of Cincinnati, Case No. C-1-02-777 Enrico Martin v. City of Cincinnati, Case No. C-1-02-762 Roderick Glenn v. City of Cincinnati, Case No. C-1-02-760 Arnold White v. City of Cincinnati, Case No. C-1-02-759 Tony Stillwell v. City of Cincinnati, Case No. C-1-02-763 Sheila Barnes v. City of Cincinnati, Case No. C-1-02-758 Angela Leisure, et al. v. City of Cincinnati, Case No. C-1-01-286 Antonio Johnson v. City of Cincinnati, Case No. C-1-99-1063 Matthew Shaw v. City of Cincinnati, Case No. C-1-00-1064 Mark A. Ward v. City of Cincinnati, Case No. C-1-99-494 Charles A. Wiley v. City of Cincinnati, Case No. C-1-00-267 Bomani Tyehimba v. City of Cincinnati, Case No. C-1-99-317
and the Fraternal Order of Police, in its representative capacity as a party to the Collaborative Agreement approved August 5, 2002, is executed pursuant to the following terms:
(A) Over the past four years, Plaintiffs filed the actions listed above against Defendant City of Cincinnati and individual Defendants. Those cases remain on the docket of the United States District Court. The various Plaintiffs’ claims seek damages in an amount to be determined at trial and reasonable attorney fees, based upon allegations against the City of Cincinnati and the individual Defendants.
Plaintiffs allege that Defendants selectively enforced laws against them, used excessive force, or otherwise unreasonably searched or seized them. Plaintiffs claim that as a direct and proximate result of the acts and/or omissions of Defendants, they suffered injuries and also incurred expenses. The Defendants fully deny the claims made by the Plaintiffs.
(B) The “Collaborative Agreement” executed on April 3, 2002, and approved by the United States District Court in In re Cincinnati Policing, Case No. C-1-99-317, on August 5, 2002, provides that its purposes are to resolve social conflict, improve community-police relationships, reduce crime and disorder, fully resolve pending claims of all individuals and

organizations named in the underlying litigation, implement consensus goals, and foster an atmosphere throughout the community of mutual respect and trust among community members including the police.

(C) Sections 115 and 116 of the Collaborative Agreement provide that the individual damage claims identified above will be subject to a form of alternative dispute resolution. In addition, the Plaintiffs in Case No. C-1-01-286 have agreed to be bound by the settlement described in this document.

(D) Plaintiffs and Defendants wish to fully and permanently terminate the aboveidentified cases by settling all differences and disputes between them, thereby advancing the spirit and purposes of the Collaborative Agreement and extinguishing any alleged civil liability for the Defendants on the terms herein.

NOW, THEREFORE, in consideration of the above circumstances and the mutual promises of the parties hereto, and upon approval by the Court, the parties agree as follows:

1.

Defendant City of Cincinnati, on behalf of itself and the individual Defendants,

shall pay into a Damage Claims Qualified Settlement Fund approved by this Court, within 60

days of District Court approval of the Motion to Establish A Qualified Settlement Fund

(attached) and this document, the amount of $4.5 million (four and one-half million dollars) in full

settlement of any and all claims asserted, or that could have been asserted, in the above-identified

cases against the City and the individual Defendants.

2. Upon payment by the City into the Damage Claims Qualified Settlement Fund of the above-identified amount, each Plaintiff shall immediately dismiss, with prejudice, each pending litigation, thereby releasing the City of Cincinnati, its council members, agencies, departments, divisions and all of its employees including, specifically, all the named Defendants, as well as their heirs, assigns and/or successors in interest, as the case may be, both individually and collectively, from any and all claims, causes of action, damages and demands for relief, including, court costs, expenses, and attorney’s fees, including those claimed under 42 U.S.C. §1988, arising directly or indirectly out of, or in any way connected with or based upon facts which have been alleged or might properly have been alleged in the pending litigation.

3. This Collaborative Agreement Global Damage Claims Settlement is entered into as a compromise between all parties hereto for the complete and final settlement of all their disputes, controversies, differences, claims and/or causes of action against each other, known or unknown, existing and potential, including but not limited to those described in each litigation, so that no further claims or legal proceedings between them, of any kind, will continue or ensue. Payment of the settlement amount shall in no manner indicate or constitute an admission of wrongdoing or liability on the part of any party to this Agreement, and all Defendants specifically deny any wrongdoing on their part.
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4. This Collaborative Agreement Global Damage Claims Settlement is entered into freely and voluntarily by the parties. The Settlement intends, in part, to fulfill the spirit and achieve the purposes of the Collaborative Agreement approved on August 5, 2002.

5. This Collaborative Agreement Global Damage Claims Settlement and the documentation related to the In re Cincinnati Policing Damage Claims Qualified Settlement Fund constitute the entire agreement between the individual Plaintiffs and all the Defendants related to each above-identified case, including the required individual releases described below, and the Plaintiffs and the Defendants acknowledge that there have been no warranties or representations, either expressed or implied, outside the terms hereof to induce them to enter into this Settlement and participate in the qualified settlement fund.

6.

This Agreement does not affect the continuing jurisdiction of the Court or the

obligations of the parties to the Collaborative Agreement in In Re Cincinnati Policing, C-1-99-

3170.

7. This Collaborative Agreement Global Damage Claims Settlement shall be interpreted pursuant to the laws of the State of Ohio.

8.

Each party agrees that the facts pursuant to which this Collaborative Agreement

Global Damage Claims Settlement is made may hereinafter prove to be other than, or different

from, the facts now believed by the parties to be true. Each party hereto expressly agrees that it

is its express and specific intent to assume and accept the risk of the facts proving to be different,

and each party agrees that all of the terms of this Settlement shall in all respects be final and

binding and not subject to termination or rescission because of any actual difference in the facts.

9. The parties acknowledge that the terms of this Collaborative Agreement Global Damage Claims Settlement will be available to the public as provided in the Collaborative Agreement, Paragraph 116. Each Plaintiff, however, agrees to enter into a separate Qualified Settlement Fund Agreement and Release between the plaintiff and the fund administrator. Those agreements between the plaintiffs and the fund administrator are confidential between those parties. The parties agree to enter into separate mutual full and final releases simultaneously with any payment they receive.

10. The parties and their counsel acknowledge that the City Solicitor of the City of Cincinnati will develop an alternative dispute resolution/claims process to evaluate allegations of the violation of citizens’ constitutional or other rights. All citizens, if they choose, may avail themselves of the alternative dispute resolution/claims process as an alternate means to litigation for resolving disputes with the City of Cincinnati or its officials and employees.

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11. The parties agree that this agreement may be executed through multiple copies and that each shall serve as the original.
IN WITNESS WHEREOF, the parties hereto have executed this Collaborative Agreement Global Damage Claims Settlement as to the day and year first noted above. FOR PLAINTIFFS
By their counsel:

Scott T. Greenwood (0042558) Trial Attorney for Plaintiffs 1 Liberty House P.O. Box 54400 Cincinnati, OH 45254-0400 (513) 943-4200

Alphonse A. Gerhardstein (0032053) Trial Attorney for Plaintiffs 1409 Enquirer Building 617 Vine Street Cincinnati, OH 45202 (513) 621-9100

Kenneth L. Lawson (0042468) Kenneth L. Lawson & Associates Trial Attorney for Plaintiffs 1014 Vine Street, Suite 1575 Cincinnati, Ohio 45202 (513) 345-5000
FOR DEFENDANTS:
By their counsel:

J. Rita McNeil (0043535) City Solicitor City of Cincinnati City Hall, Room 214 801 Plum Street

Don Hardin (0022095) Steve Lazarus (0041368) 915 Cincinnati Club Building 30 Garfield Place Cincinnati, OH 45202
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Cincinnati, OH 45202 Attorneys for City of Cincinnati and City Defendants

Attorneys for Individual Officer Defendants in their Individual Capacities

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 City of Cincinnati Independent Monitor’s First Quarterly Report
April 1, 2003
Quarterly Report regarding compliance with and implementation of the Memorandum of Agreement between the United States Department of Justice and the City of Cincinnati and The Cincinnati Police Department and the Collaborative Agreement between the Plaintiffs, the Fraternal Order of Police and the City of Cincinnati

Saul A. Green, Monitor

Richard B. Jerome, Deputy Monitor
www.cincinnatimonitor.org

INDEPENDENT MONITOR TEAM
Saul Green Independent Monitor
Richard Jerome Deputy Monitor
Joseph Brann Rana Sampson Nancy McPherson
Tim Boyle Wayne Eveland John Williams Kristina Maritczak David McDonald

TABLE OF CONTENTS
Page EXECUTIVE SUMMARY.......................................................................... 1 Chapter 1. Introduction ......................................................................... 8 Chapter 2. Monitor’s Approach ............................................................ 11
A. Selection of Monitor........................................................... 11 B. Role of Monitor .................................................................. 11 C. Who We Are ....................................................................... 11 D. Methodology ...................................................................... 12 E. Monitor’s First Report........................................................ 12 Chapter 3. General Findings................................................................ 13 A. Cincinnati and the Police Department Need to
Embrace the Reforms in the Agreements........................... 13 B. CPOP Involves a Change in Orientation for the
Community and the Police; A Shared Vision is Necessary .......................................................................... 13 C. Changes in Policy Need to be Incorporated into Training ............................................................................. 14 D. CPD Needs to Upgrade its Problem Analysis Capabilities, and Enhance its IT Expertise and Planning ............................................................................ 14 Chapter 4. The Memorandum of Agreement ........................................ 16 I. General Policies........................................................................... 16 A. Mental Health Response Team........................................... 16 B. Foot pursuits ..................................................................... 18 II. Use of Force................................................................................. 20 A. General Policies ................................................................. 21 B. Chemical Spray ................................................................. 23 C. Canines ............................................................................. 26 D. Beanbag Shotguns............................................................. 30 III. Incident Documentation, Investigation........................................ 31 A. Documentation.................................................................. 32 B. Investigation ...................................................................... 34 C. Review of Critical Firearms ................................................ 37
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TABLE OF CONTENTS (continued) Page
IV. Citizen Complaint Process........................................................... 38 A. Openness of Complaint Process......................................... 38 B. Investigation of Complaints ............................................... 39 C. Adjudication of Complaints ............................................... 41 D. Creation of CCA................................................................. 42
V. Management and Supervision ..................................................... 44 A. Risk Management.............................................................. 44 B. Audit procedures ............................................................... 48 C. Video Cameras................................................................... 50 D. Police Communications Section......................................... 51 E. Discipline........................................................................... 51
VII. Training....................................................................................... 52 A. Use of Force—Management Oversight and Curriculum ..... 53 B. Handling Citizen Complaints ............................................. 54 C. Leadership/Command Accountability ............................... 55 D. Canine Training................................................................. 55 E. Scenario Based Training .................................................... 56 F. Revised Training Based on Review of Civil Lawsuits Pertaining to Officer Misconduct........................................ 57 G. Orientation to the MOA ..................................................... 58 H. FTO Program...................................................................... 58 I. Firearms Training .............................................................. 59
Chapter 5. Collaborative Agreement .................................................... 60 I. CPOP........................................................................................... 62 II. Evaluation Protocol ..................................................................... 76 III. Pointing Firearms Complaints..................................................... 80 IV. Fair, Equitable and Courteous Treatment................................... 81
A. Data Collection and Analysis............................................. 81 B. Training and Dissemination of Information ....................... 85 C. Professional Conduct......................................................... 87
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TABLE OF CONTENTS (continued) Page
V. CCA............................................................................................. 88 A. Establishment of CCA, and CCA Board ............................. 88 B. Executive Director and Staff .............................................. 89 C. CCA Investigations and Findings....................................... 89
VI. Individual Actions........................................................................ 92 Chapter 6. Review of Sample Investigations......................................... 92 I. Sample Chemical Spray Investigations........................................ 92
A. Spray into Crowds ............................................................. 92 B. Chemical Spray on Restrained Individual .......................... 95 II. Sample of Canine Investigations ............................................... 100 III. Sample Force Investigations...................................................... 103 APPENDIX 1........................................................................................ 106 APPENDIX 2........................................................................................ 110 APPENDIX 3........................................................................................ 114 APPENDIX 4........................................................................................ 116 APPENDIX 5........................................................................................ 118
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CITY OF CINCINNATI INDEPENDENT MONITOR’S FIRST QUARTERLY
REPORT
EXECUTIVE SUMMARY
On April 12, 2001, the City of Cincinnati entered into a Memorandum of Agreement (MOA) with the United States Department of Justice resolving allegations of police misconduct. The MOA calls for police reforms in the areas of police use of force, citizen complaints, risk management, and training. On the same date, the City of Cincinnati signed a Collaborative Agreement (CA) with the Cincinnati Black United Front, the American Civil Liberties Union of Ohio Foundation Inc., and the Fraternal Order of Police. The Collaborative Agreement calls for the implementation of Community Problem Oriented Policing (“CPOP”), mutual accountability and evaluation, bias-free policing and the establishment of the Citizen Complaint Authority. The CA was entered by the United States District Court for the Southern District of Ohio after a Fairness Hearing was held on August 5, 2001.
Both of the Agreements call for the appointment of an Independent Monitor to evaluate and report on the City’s and the Parties’ compliance with the terms of the Agreements, as well as provide technical assistance to the City and the Parties in implementing the Agreements. On December 17, 2002, U.S. District Court Judge Susan Dlott appointed Saul Green as Monitor. Richard Jerome serves as the Deputy Monitor.
While there has been progress in a number of areas, the City and the Parties generally have not met the deadlines of either the MOA or the CA. Implementation and compliance will take a greater commitment of time and resources. We also believe it also will require collaboration among the Parties. The Parties must find sufficient common interest, and demonstrate the needed cooperation and respect, to deliver the essential promises of the Agreements.
MEMORANDUM OF AGREEMENT
For most of the provisions of the MOA, implementation was required within 90 days of the Agreement (July 12, 2002). Between April and July 2002, the Cincinnati Police Department (CPD) made noteworthy efforts to revise its policies and practices and develop the training required by the MOA. In some significant areas, however, particularly on the crucial issue of a new Use of Force policy, the City did not meet the MOA deadlines. Moreover, after the initial flurry of activity to develop new policies in 2002, it appears that progress towards MOA compliance has slowed.
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General Policies
The MOA requires the City to develop a Mental Health Response Team (MHRT), consisting of officers specially trained to respond to incidents involving persons who are mentally ill. CPD selected and trained 90 officers to serve on the MHRT, and revised its policy on dealing with the mentally ill to reflect the availability of the MHRT. We believe the MHRT is a very positive development, and will assess its implementation in future reports.
The MOA also requires CPD to develop and adopt a “foot pursuit” policy, requiring officers to weigh various factors in determining whether a foot pursuit is appropriate. CPD has developed a policy that meets the language of the MOA. In future reports we will review training on and implementation of this policy.
Use of Force Policies
Under the MOA, the City is required to revise its Use of Force polices in a number of specific ways. In particular, it must define “force” as that term is defined in the MOA. In addition, the MOA requires CPD to revise its policies regarding chemical spray, canines, and the use of beanbag shotguns and forty-millimeter foam rounds.
CPD proposed a revised Use of Force policy in July 2002. Because of concerns expressed by the Department of Justice that the policy did not meet the requirements of the MOA, CPD adopted a new policy in September, 2002. However, in several important respects, this second policy did not comply with the MOA and the City requested additional time to revise its policy once again. A new deadline of January 24, 2003, was not met.
The September 2002 Use of Force policy is currently in effect. While it does comply with some of the MOA provisions on use of force, it does not define “force” as required by the MOA. Similarly, the chemical spray policies adopted by CPD complies with some of the MOA provisions, such as limiting deployment of chemical spray into crowds, and requiring a verbal warning and an opportunity to comply before officers use chemical spray. However, it does not comply with other MOA requirements. For example, it does not sufficiently limit chemical spray against restrained individuals. In the same vein, the CPD Use of Force policy does not limit the use of beanbag shotguns and forty-millimeter foam round only to subdue or incapacitate subjects to prevent imminent physical harm to officers or to others, as required by the MOA. CPD proposed a new Use of Force policy on March 28, 2003. We will evaluate this policy’s compliance with the MOA in our next report.
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After significant discussion between Cincinnati and the Department of Justice, and numerous drafts, CPD has adopted a Canine policy that complies with the MOA requirements. However, our review of CPD’s investigations of canine bites leads us to question whether CPD’s deployment of canines is consistent with the MOA or its new policy. The MOA requires improved handler control of the canines and a loud and clear warning before a canine is deployed. The dog is only allowed to bite if the suspect is actively resisting or escaping; and, if a suspect is bitten, the handler must call off the dog at the first moment it is safe to do so. In several incidents, it does not appear that these requirements were met.
Incident Documentation, Investigation, and Review
CPD has made some progress in the area of use of force reporting and investigation. CPD has revised and implemented new use of force forms for documenting use of force incidents. It continues to tape record interviews of involved officers and witnesses for most of its force investigations. It has revised its procedures for the Internal Investigation Section (IIS) to comply with the MOA. It also has expanded the role of the Inspections Section in reviewing force investigations. For firearms discharges (except range firings and discharges at animals), CPD has created a Firearms Discharge Board to review investigations for policy compliance, tactics and training implications. There are other aspects of CPD’s force investigations, however, that do not comply with the MOA.
Citizen Complaint Process
CPD has revised its citizen complaint process to be more open and accessible, including the creation of a new citizen complaint form (postage free), and allowing complaints to be filed in writing, in person, by mail, fax or phone. It has also revised many of its investigative standards and procedures to comply with the MOA. CPD has not instituted all of the changes required for adjudication of complaints, however, particularly with respect to cases assigned for the Citizen Complaint Resolution Process (CCRP).
One of the significant accomplishments of the City (and the Parties to the CA) has been the creation of the Citizens Complaint Authority (CCA) to investigate citizen complaints and review serious use of force incidents. Although the selection of the CCA executive director and the start of CCA operations were delayed, the Department of Justice (and the Parties to the CA) agreed to the delays. In future quarters, we will examine whether CCA investigations are complying with the MOA investigatory standards.
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Management and Supervision
The MOA requires Cincinnati to develop a computerized Risk Management System to track data on police activities and better identify and manage at-risk officer behavior. CPD published a Request for Proposal (RFP) for the system and has identified a preferred vendor, although the contract award is still pending. Development of the protocol for use of the system has been deferred until the selection of the vendor is finalized. We identify in our Report several concerns regarding the City’s ability to implement this system with its current IT resources and capabilities.
Training
Our preliminary review of CPD training indicates that a good faith effort is underway to achieve compliance with the MOA. However, because in some areas CPD has not adopted policies and procedures that comply with the MOA (most importantly Use of Force), CPD’s training in those areas do not comply with the MOA. In addition, we were not able to fully assess compliance because we need to audit and conduct on-site observation of training activities.
COLLABORATIVE AGREEMENT
CPOP
Although nearly eight months have passed from the Fairness Hearing to this Monitor’s Report, the Parties have met few of the CA deadlines that have come due during this time. The Parties appear to hold differing views of what CPOP entails, how it should be implemented, and their respective roles in its implementation. Irrespective of these differences, the CA requires the Parties to take certain concrete steps to research best practices, train community members on problems solving, develop a problem-tracking system, and coordinate the work of other City departments in the delivery of services under CPOP, among other things.
The Parties are not in compliance with their obligations to: • Coordinate City agencies (predominantly a City responsibility); • Adopt a systematic approach to problem solving, including an emphasis on problem solving in field and in-service training; • Establish an ongoing community dialogue, including structured interaction between CPD and youth, among other segments of the community; • Establish an annual CPOP award program; • Have CPD District commanders and others prepare quarterly reports detailing problem solving activities (a City responsibility); • Review and revise training regarding the urban environment in which CPD officers work;
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• Develop a problem-tracking system to document problem solving activities and results;
• Review, and where appropriate, revise CPD policies, job descriptions, organizational plans and performance evaluation standards, to be consistent with CPOP.
The Parties are in partial compliance with their obligations to: • Develop a comprehensive library of best practices related to CPOP; • Research best practices of other agencies and other professions; • Inform the public about police policies and procedures; • Create a Community Relations Unit (a City responsibility).
One area where significant progress has been made is the development of the Community Partnering Center, an organization created by the Parties to undertake CPOP training for community groups. The Center is established, Board members have met on a number of occasions and fundraising for the Center is underway. Still awaited, however, are an agreed-upon curriculum for CPOP training, a training delivery plan, and field testing of the training.
Evaluation Protocol
The CA calls for an evaluation system to track progress towards the goals of the Agreement. As noted in the CA, this ‘mutual accountability plan’ should closely monitor the conduct of the City, CPD, and members of the public “so that favorable and unfavorable conduct of all” is fully documented. The Evaluation Protocol requires periodic surveys of citizens and officers; observations of meetings, problem solving projects and the complaint process; data collection and annual statistical compilations; a review of in-car video and audio recordings; and an annual report on progress. This Protocol was to be developed within 90 days of the Fairness Hearing, and implemented 60 days after that.
The Parties are not in compliance with the Evaluation Protocol provisions of the CA. They plan to issue an RFP for an outside entity to undertake the tasks of the Evaluation Protocol. As noted in our Report, the draft RFP prepared by the Parties does not appear likely to produce a workable Evaluation Protocol.
Pointing Firearms Complaints
As required by the MOA, CPD has established an expedited complaint process for persons alleging that CPD officers improperly pointed their guns. The Parties are in the process of compiling these investigations and reporting them to the Monitor. When we receive the
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reports from the Parties, we will evaluate compliance and forward the data to the Conciliator.
Fair, Equitable and Courteous Treatment
The CA provisions relating to fair and equitable treatment for all consist of three components: data collection on all CPD traffic and pedestrian stops, training for all CPD officers on bias-free policing and professional traffic stops, and a requirement that officers explain to citizens why they were stopped, except in exigent circumstances.
The City’s data collection efforts have been hampered by the absence of a system to ensure timely and accurate collection and entry of data. Moreover, the Parties have not determined who will analyze the data, beyond the one time analysis that Professors Eck and Liu are doing on 2001 data. CPD hopes to collect the data on mobile terminals in their patrol cars, but this system is still in the planning stage and must be integrated with other CPD systems not yet developed in order to produce the analysis called for in the CA.
The Monitor has been provided with some information indicating that bias-free policing training was included in In-Service training. However, because we have not had an opportunity to observe this training or determine whether all officers were able to attend training, we are unable to assess compliance with this provision of the CA. On the requirement to explain to citizens why they were stopped, implementation has been stalled by disagreement among the Parties over whether to specifically define “exigent circumstances.”
Citizens Complaint Authority
As noted above, the City has created an independent entity, the CCA, to investigate citizen complaints and serious use of force incidents. CCA Board members were appointed and trained, an Executive Director was selected, and the CCA took over the functions of the prior Office of Municipal Investigations and the Citizen Police Review Panel.
The Parties are in partial compliance with the provisions of the CA related to the CCA. The CCA is in place and is ready to conduct investigations. It is in the process of hiring new investigators. However, there are ongoing disagreements regarding whether CCA investigators should be allowed to begin their investigations, monitor CPD investigators, and attend CPD interviews, until after CPD investigations have been completed.
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Conclusion The City of Cincinnati and the Parties to the CA are not yet in compliance with the requirements of the MOA and the CA. There is significant work ahead to remedy the deficiencies noted in this Report. We are hopeful, however, that the Parties will devote the energy necessary to accomplish the reforms that the Agreements call for and that the citizens of Cincinnati deserve.
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INDEPENDENT MONITOR’S FIRST QUARTERLY REPORT
APRIL 1, 2003
Chapter 1. Introduction
The citizens of Cincinnati have pioneered a bold course of action to address police reform and the enhancement of police/community trust. Conflicts between police and community have been on the rise in many American cities. In some cities, where a breakdown of police/community relationships accompanies allegations of excessive use of force and racial profiling, the Department of Justice has initiated a “pattern or practice” investigation to determine if there has been unlawful police conduct. In those instances where corrective actions are deemed necessary, the Department of Justice and the municipality have entered into either a Memorandum of Agreement or a Consent Decree to implement the required police reforms under the oversight of an independent monitor.
Cincinnati faces this precise challenge of implementing police reform and raising police/community trust under the terms of an April 2002 Memorandum of Agreement (MOA) between the City of Cincinnati and the Department of Justice. Mayor Charles Luken requested the federal investigation in the spring of 2001 after the civil unrest that followed the fatal shooting of Timothy Thomas. The April 2002 Memorandum of Agreement that resulted from the Department of Justice investigation is directed at police use of force, citizen complaints, incident documentation, investigation and review, enhancement of risk management, and training.
Unlike other jurisdictions facing police reform through a Justice Department settlement, Cincinnati has taken the historic step of coupling the Memorandum of Agreement with a second agreement developed by significant community stakeholders. This agreement not only identifies police reform issues and required policy changes, but also is designed to change the culture of looking solely to the police as the only entity responsible for preventing and addressing crime. On April 11, 2002, the City of Cincinnati, the Cincinnati Black United Front, the American Civil Liberties Union of Ohio Foundation Inc., and the Fraternal Order of Police entered into a Collaborative Agreement (CA) that envisions the Parties helping the police and community work together to prevent and address crime and disorder. The Collaborative Agreement calls for the implementation of Community Problem Oriented Policing (“CPOP”), mutual accountability and evaluation, bias-free policing and the establishment of the Citizen Complaint Authority. The goals of the CA are:
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• Police officers and community members will become proactive partners in community problem solving.
• Build relationships of respect, cooperation and trust within and between police and communities.
• Improve education, oversight, monitoring, hiring practices and accountability of Cincinnati Police Department (CPD).
• Ensure fair, equitable and courteous treatment for all. • Create methods to establish the public understanding of police
policies and procedures and recognition of exceptional service in an effort to foster support for the police.
The Parties have agreed that the implementation of CPOP is the vehicle for accomplishing the change in the culture of public safety and the goals of the Collaborative Agreement. The Collaborative Agreement describes CPOP as:
• The resolution of troublesome circumstances in the community that are framed as problems to solve. These problems need to be carefully defined.
• Problems need to be carefully analyzed prior to developing a solution. There is a high premium placed on data, intelligence, community input, and analysis.
• Police and their partners should engage in a broad search for solutions based on the analysis of information.
• Problem solving efforts are evaluated to determine if the problem has been reduced.
The Collaborative Agreement is historically significant, visionary and risky. It is historically significant because a community facing police reform issues has chosen to make diverse community stakeholders, beyond the police department and city officials, equal participants in formulating and implementing police reform.
It is visionary because it epitomizes the concepts of community oriented policing and problem solving by identifying the important stakeholders, and engaging them to actively participate in problem identification and solution. It envisions a community where the stakeholders work together to reduce friction between the community and police, foster mutual trust and enhance public safety.
It is risky because it assumes, and then announces in a very public way, that the parties to the Agreement are, in fact, ready to collaborate in an open and mutually respectful way to implement CPOP and the required police/community reform efforts. It would be naive to believe that the Collaborative Agreement was developed amidst a backdrop of amicability and trust. In fact, as in any difficult negotiation regarding highly sensitive issues, there were high levels of anger and distrust that had to be overcome for the Parties to reach agreement on
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the Collaborative Agreement. It would be even more naive to believe that the anger and distrust have been eliminated since the execution of the Collaborative Agreement. Implementation is going to be more challenging than was the negotiation of the Agreement. It is imperative that the Parties find enough common interest, and demonstrate the requisite cooperation and respect, to deliver to the Cincinnati community the essential promises of the Collaborative.
The Monitoring Team was selected little more than 90 days ago. Our team was built around the specific provisions and requirements of the Agreements, including extensive experience with community and problem-oriented policing. During the short duration we have been in place, difficult growing pains in the collaborative process have been observed. By way of example, on March 19, 2003, the Cincinnati Black United Front, a signatory to the Collaborative Agreement, filed a Motion To Withdraw As Class Representative for the plaintiff class. On March 20, 2003, there were published reports that Cincinnati public officials were questioning the continued participation of the City in the collaborative. The Monitoring Team strongly believes that the collaborative process, built around implementation of the CPOP vision described in the Collaborative Agreement, is the most effective way to accomplish enhanced police/community trust, and the police reforms required by the Agreements.
The growing pains must be overcome for there to be effective implementation of the Agreements. Among the issues that must be addressed are:
• The creation of effective project management of data and document production essential to the production of meaningful status reports required under the Agreements and necessary for the preparation of thorough monitor reports.
• Recognition that the Agreements are the binding obligations of the Parties, the Collaboration Agreement in settlement of litigation, and the Memorandum Of Agreement in avoidance of litigation. Both Agreements are enforceable by the Federal Court, and no Party can unilaterally alter or avoid compliance with the terms of the Agreements.
• A recognition by the Parties that they have set aggressive timelines for compliance, and that a greater commitment of time and resources (i.e., project management) is going to be needed to meet their announced implementation schedule, and community expectations.
• The Parties have to develop a shared vision to accomplish the change in orientation for police and community that the Agreements envision. This will require greater levels of trust and leadership than have been witnessed to date.
It is against this backdrop that we prepare our first Monitor’s Report.
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Chapter 2. Monitor’s Approach
A. Selection of Monitor
The Monitor was appointed on December 17, 2002, by Judge Susan Dlott, after unanimous agreement of the Parties.
The MOA was signed on April 12, 2002, and the CA was entered by Judge Dlott after a fairness hearing on August 5, 2002. As required by the Agreements, the City issued a Request for Proposals for an Independent Monitor in May, 2002. The Agreements called for the Parties to jointly select a Monitor, with the judge appointing a monitor only if the Parties were unable to agree on a selection. The Parties were unable to agree, and Judge Dlott appointed a Monitor on October 10, 2002, who subsequently resigned. Our appointment followed.
B. Role of Monitor
The Monitor’s role is not to displace or diminish the authority of the Chief of Police or act to circumscribe the Chief’s autonomy and freedom of action. Rather, we expect to deal constructively with the Cincinnati Police Department and, while staying at arm’s length, nonetheless work respectfully with the Department.
At the same time, we will not hesitate to state in a frank and deliberate way whether the City, or any other Party, is failing or falling behind in its efforts to implement meaningful reform. We have and will continue to establish benchmarks and baselines from which to measure progress, and we will rigorously assess whether the Department is successfully managing the risk of police misconduct and taking all reasonable steps to assure that officers perform their duties within constitutional and legal bounds. Pursuant to the Agreements, we will examine not only how the Department deals with its patrol officers, but also whether the department deals adequately and fairly with managers and executives who fail in their duties of proactive oversight, hands-on supervision, and, if necessary, speedy intervention. We will also assess the progress in building the mutual trust, respect and cooperation between the community and police that are called for in the Agreements.
C. Who We Are
Our Monitor Team brings together individuals with expertise in law enforcement practices, civil rights, monitoring, community policing and problem solving, information technology, and data management. We also have available the resources of a national, full-service law firm (Miller, Canfield) and a leading public safety consulting firm (PSComm, LLC). Saul Green serves as the Monitor, and Richard Jerome serves as the
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Deputy Monitor. Bios of each of the members of the Monitor team are attached in Appendix 1.
By design, the Monitor Team includes team members with extensive experience with community and problem-oriented policing. This expertise is important for two reasons. First, it allows the Monitor Team to support the work of the Parties as they proceed. Second, it allows the Team to fulfill its monitoring obligations with knowledge of CPOP as its guide, recognizing that Cincinnati will define CPOP tailored to fit the needs of the city.
D. Methodology
The Monitor’s job is to assess compliance with the Agreements, help facilitate change, and provide technical assistance when appropriate. We will work in a cooperative and transparent fashion. To that end, at the beginning of our engagement, we prepared and provided to the Parties a “Draft Communication Plan” describing the organization of our team and how we proposed to interact with the Parties. The Communications Plan is attached as Appendix 2. In addition, a summary of our activities to date, including the documents and investigations reviewed, meetings held, and training attended, is contained in Appendix 3.
E. Monitor’s First Report
This First Quarterly Report of the Monitor covers both Agreements, as will each subsequent report.
Our Report reflects our assessment of the Parties’ compliance with their obligations under the Agreements; any progress towards it; and, where progress is lacking, recommendations for next steps. Most of the timelines for compliance in both Agreements have already passed. To the extent that the City has come into compliance by the writing of this report, the fact that it did not do so by an earlier MOA or CA deadline (most of the deadlines fell before January 2003) will not by itself lead us to report non-compliance. However, timelines do have meaning, and if the City or another Party is not in compliance by the date of writing this report, we say so.
A major focus of this first Report is our assessment of the policies and procedures adopted by the CPD and the City to comply with the Agreements. Where possible, we also review the City’s and the Parties’ efforts to implement the new policies and procedures, and the police training that is required under the Agreements. We also include case summaries on a number of use of force investigations.
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There are some pertinent limitations of this first Report:
While this report will be released on April 1, we have had to pick an earlier time by which to assess compliance. We have generally used March 5, 2003, the date of the Parties’ Status Report to the Monitor under the CA. We also received the City’s First, Second and Third Status Reports under the MOA (dated August 12, 2002, November 12, 2002, and February 19, 2003). As much as possible, we have tried to reflect the progress described in these reports.
Second, since we began our activities, we have asked for a significant volume of documents from the City and CPD. Initially, we received only a small portion of what was requested. In a February 2003 site visit, the City’s Compliance Coordinator showed us the files he maintains on compliance, many of which corresponded to our original document requests. The City copied these documents and sent them to the Monitor. We received the material in the first week of March. Again, we have tried to incorporate as much as possible into our Report. We are hoping that future efforts to produce documentation reflecting the City’s and the Parties’ compliance efforts will go more smoothly.
Chapter 3. General Findings
A. Cincinnati and the Police Department Need to Embrace the Reforms in the Agreements
To be successful in this important endeavor, the City and the Police Department will need to assert leadership and require accountability. The reforms in these Agreements are binding on the Parties and call for changes that are not easily accomplished. These changes will only happen if the Police Department embraces the reforms. We have been told too often that CPD is implementing CPOP without any reference to collaboration or consultation with the other Parties, and without reference to the requirements of the CA. Chief Streicher must put his prestige and authority behind the Agreements, and empower those within the Department who are responsible for implementing them. Similarly, the City Manager and the political leadership of the City must hold the Chief and his command staff accountable for accomplishing the reforms required by the Agreements
B. CPOP Involves a Change in Orientation for the Community and the Police; A Shared Vision is Necessary
CPOP presents a new approach to policing. Police and community partner to address crime problems. Implementing the Agreements presents an opportunity for CPD to improve police services and outcomes, while at same time enhancing community trust. CPOP, if
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done well, will increase the effectiveness of the Department in fighting crime.
Our concern is that some in the Department view compliance with the Agreements as an extra burden. In this view, doing the work of the MOA and CA takes officers, supervisors and managers away from the “real job” of policing. This is a false choice. Implementing the changes in the Agreements allows the Department to do the “real job of policing,” only better.
The Agreements also require change from members of the community. No longer are they free to criticize from the outside, without taking a stake on the inside. Community leaders, including the Plaintiffs, must shoulder some of the burden by participating and assisting the police.
C. Changes in Policy Need to be Incorporated into Training
The CPD admirably has made many changes in policy and procedures, especially with respect to complying with the MOA. These policies need to be broadly disseminated to officers and reinforced through training. In some cases, it does not appear that police training has changed to reflect the newly adopted policies and practices.
D. CPD Needs to Upgrade its Problem Analysis Capabilities, and Enhance its IT Expertise and Planning
Information Technology requirements are woven throughout the CA and the MOA. The ability of the Cincinnati Police Department (CPD) to meet these requirements will depend both on the Department’s technological capabilities and its level of understanding of problem detection and problem analysis – including evaluated best practices in impacting specific crime and safety problems.
To assess those capabilities, we interviewed those most knowledgeable in the Department. Our interviews focused on understanding CPD’s technology baseline, understanding the mission as defined in the Agreements, understanding the gap between the baseline and the mission, and identifying how Cincinnati plans to close that gap and achieve its mission. Based on our review, we make the following observations:
• CPD will need additional automation to capture required data elements.
• CPD will need additional integration of existing and proposed systems.
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• CPD will need an aggressive IT plan to meet the required timelines.
• CPD will need increased coordination throughout the department and across interagency boundaries.
The process of collecting and analyzing data, evaluating trends, and communicating with the Parties as outlined in these Agreements requires a significant amount of planning to ensure that IT systems emerge in an integrated fashion. It is clear that CPD is undertaking many of the individual tasks required to accomplish this end, through the writing and issuance of several RFP’s (Requests for Proposals) and through CPD’s participation in several data collection projects, such as the COPSMART project, the Employee Tracking Solution, the collection of contact cards, and the Records Management System purchase. Communications modernization also is taking place, and an old Computer Aided Dispatch system is being evaluated.
What is not as clear is the overall plan. It appears that Cincinnati is depending a great deal on contractors to pull the information technology requirements together into a cohesive system. Because of staff limitations and the aggressive timelines required by the Agreements, the use of consultants in the process is appropriate. However, the high degree of reliance upon outside contractors who do not know the business of CPD could result in systems that lack the “completeness” required by the Agreements, and may not result in the requisite IT expertise and learning within CPD to maintain and implement the systems. CPD IT personnel must develop sufficient expertise in the research requirements of problem-oriented policing so the systems developed contain the capabilities required to detect, analyze, address, and evaluate crime and safety problems.
E. Project Management Concerns
During meetings with Chief Streicher and CPD staff, and at each of our first two joint Party meetings, the Monitor Team has stressed the need for improved project management in the implementation of the Agreements. It has been suggested that CPD create an internal committee to work with the Compliance Coordinator to facilitate implementation of the provisions of the Agreements. This group of CPD officers, reporting directly to Chief Streicher, would be selected based on their relevant CPD responsibilities in relationship to specific provisions and requirements of the Agreements. These officers would facilitate implementation of the provisions of the Agreements within the Department, as well as obtaining and exchanging information with the Monitor Team. The committee would not displace Greg Baker as the Compliance Coordinator; however, based on the breadth of issues covered by the Agreements, and the magnitude of information needed to
15

monitor the Agreements, it is believed such a committee would be of tremendous value to the Compliance Coordinator and the Monitor. Further, at the January and February joint Parties meetings, the Parties were requested to appoint a single point person for each of the substantive paragraphs and subparagraphs in the CA as a liaison to the Monitor Team for accountability. On March 5, 2003, the Parties announced the point people for these items, and we will look to these individuals to take responsibility for ensuring the substantive requirements of the CA are being met.
Chapter 4. The Memorandum of Agreement
After the signing of the MOA, the City started quickly to begin making the changes required. Between April and July 2002, the City formed a number of committees to review the MOA requirements, revise policies and practices, and develop training.1 Although the Monitor Team was not in place during the first six months of the MOA, our review of the work done at that time indicates a sincere effort to meet the MOA provisions. In the absence of an Independent Monitor, the City worked with the Department of Justice to resolve a number of MOA issues. In some significant areas, however, particularly on the crucial issue of a new Use of Force policy, the City did not meet the MOA deadlines and there have been substantial disagreements between DOJ and City. Moreover, after the initial flurry of activity to develop new policies in 2002, it appears that progress towards MOA compliance has slowed.
I. General Policies
A. Mental Health Response Team
Interactions between law enforcement officers and persons with mental illness have been at the center of many high profile use of force incidents around the country. As a result, many police departments have developed specialized training and procedures to address and resolve these interactions. Officers are provided needed background on mental health issues and the options available beyond arrest, and are given additional training in de-escalation. The Memphis, Tennessee, Police Department’s Crisis Intervention Team (CIT) provides a model for such training, and served as the model for Cincinnati’s efforts.
1 CPD formed an Implementation Committee that met frequently (at times weekly) in the first few months after the signing of the MOA. In addition, there were seven subcommittees formed within CPD: Policy Procedure Revision; Mental Health Response; Police Shooting Review Board; Disciplinary Matrix; CPOP; Risk Management; Citizen Complaint Process.
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1. Requirement
CPD is required to create a “cadre of specially trained officers available at all times to respond to incidents involving persons who are mentally ill.” These officers will be called to the scene and assume primary responsibility for responding. Training for these officers shall include multi-disciplinary intervention training, with a particular emphasis on de-escalation strategies, as well as instruction by mental health practitioners and alcohol and substance abuse counselors. CPD also shall implement a plan to partner with mental health care professionals, to make such professionals available to assist CPD officers on-site with interactions with mentally ill persons.
2. Status
CPD has created the Mental Health Response Team (MHRT). Ninety CPD officers were selected in June 2002 and provided a 40 hour training course. The training sessions were conducted June 17-21, 2002, and June 24-28, 2002. According to the City, 27 mental health agencies and organizations, mental health consumers and their families contributed to the design of the training program. Trainers included mental health consumers, psychiatrists, a case management coordinator, the manager of the Mobile Crisis Team, the director of a mental health consumer network, the director of the Mental Health Association, a mediator, a legal aid attorney, social workers and CPD officials.2 Topics covered included:
§ Review of mental illness § The mental health system § Orientation/ shadowing a mental health professional § Police hotline and state mental hold § MHRT interface with SWAT and Crisis Negotiation Teams § Review of non-lethal force options § Special populations § Role of Mobil Crisis Team § Suicide § Legal issues § Mediation § Problem solving and community resources.
Training also included “shadowing” sessions, where officers accompanied mental health professionals in their work, and role-play scenarios.
Pursuant to the MOA, CPD revised its policy on dealing with the mentally ill -- Procedure 12.110 -- to incorporate the availability of the
2 The Director of the Memphis CIT program and the Director of the National Alliance for the Mentally Ill (NAMI) also attended one of the training sessions, as it coincided with the national NAMI convention.
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MHRT. MHRT officers are assigned to regular patrol, but they are specifically designated in the Police Communications System. When dispatchers get a call involving a mentally ill person (Code 9 or Code 9V), they review the unit roster to determine which MHRT officers are available in that district to respond. Based on CPD’s CAD printouts, it appears there were 1,362 Code 9 and Code 9V incidents from October 13, 2002 to January 12, 2003. The Monitor has not reviewed these CAD printouts to determine if MHRT officers were called to the scene and able to respond to the incidents.
3. Assessment
Our initial impression of the MHRT is very positive, although we have some questions on the CPD policy and on MHRT implementation. Procedure 12.110 states that MHRT officers “will be the first responders, when available, on all runs involving suspected mentally ill individuals.” The MOA states that CPD will have specially trained officers “available at all times” to respond to incidents involving mentally ill persons. It is our understanding that MHRT officers are assigned on regular patrol during their shifts, but are available to respond to calls from dispatch. One issue we will examine going forward is the extent of MHRT coverage on all shifts and in the various districts.
A second question is the number of supervisors who have undergone MHRT training. Under the CPD procedure, a supervisor is required to respond to any radio run involving violent or potentially violent mentally ill subjects. The supervisor will consult with the MHRT officer on scene “when possible” to decide a course of action. We expect there would be more consensus over the police response if both the supervisors and the officers had MHRT training.
CPD provided the Monitor team with training materials from the June 2002 training. Our preliminary review suggests it covered the required topics and was multidisciplinary. However, we have not had the chance to observe training and to more fully examine the workings of MHRT. In future quarters, we will examine continuing training for MHRT officers, how the MHRT is replenished when officers leave the team, and whether any new training classes have been conducted
Given the information reviewed to date, the City is in compliance with this provision, with the noted concerns. The Monitor will assess implementation and training in future Monitor reports.
B. Foot pursuits
There are inherent risks to a police officer when he or she engages in a pursuit of a fleeing suspect on foot, especially in chasing a suspect into a wooded area, building, or confined space. Often in such
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situations, when the officer is faced with a threat from the suspect, he or she feels compelled to use a high level of force. This is an important aspect of the MOA not only because the Timothy Thomas incident began with a foot pursuit, but because this is a significant issue in policing around the country. For example, the 16th Semi-Annual Report of the Special Counsel of the Los Angeles Sheriff’s Department (February, 2003) examines officer-involved shootings that might have been avoided; 22% of shootings in the LASD from 1997-2000 involved foot pursuits.3 The Special Counsel noted numerous pursuits that were tactically and strategically unsound, and where officers failed to communicate with their partners and Dispatch.
1. Requirements
The MOA requires CPD to develop and adopt a foot pursuit policy. The policy must require officers to consider particular factors in determining whether a foot pursuit is appropriate.
2. Status
CPD drafted and implemented a foot pursuit policy in September 2002 -- Procedure 12.536. The Department of Justice raised concerns over this policy, however, and Cincinnati asked for an opportunity to revise the policy, along with its Use of Force policy. The Department of Justice agreed to a January 17, 2003, deadline for the new policy; the deadline was then extended at the City’s request to January 24, 2003. On January 24, 2003, CPD provided the Department of Justice and the Monitor with a revised foot pursuit policy.
Before initiating a foot pursuit, the new procedure requires officers to make a “quick risk assessment.” They must evaluate the risk involved to themselves, other officers, the suspect, and the community, versus what would be gained from pursuing the suspect. Officers are to consider the following factors when initiating pursuits: whether the suspect is armed, the offense committed, the location, the ability to apprehend the suspect at a later date, communications capabilities, and the availability of backup. Officers should also consider area containment, surveillance and calling for backup before beginning a pursuit.
If a pursuit is initiated, the officer must notify the Police Communications Section and coordinate with other officers. Under Procedure 12.536, officers are to terminate the pursuit (and supervisors are to order termination), if the danger to the pursuing officers or the public outweighs the necessity for immediate apprehension of the suspect.
3 http//www.Parc.info/pubs/pdf/LAPD16.pdf
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3. Assessment.
The language of CPD’s foot pursuit policy complies with the requirements of the MOA. For this provision, however, the important changes must come in training and implementation. It is not easy to change what may be many officers’ initial inclination (and one that often springs from a sincere desire to protect the public) to immediately chase a fleeing suspect. Officers’ adrenaline levels at that point are high. However, the dangers of foot pursuits, both to the officer and the citizen, necessitate caution, communications, and a consideration of whether there are alternative ways of apprehending the suspect. The report of the LA Sheriff’s Department Special Counsel cites the policy adopted by the Collingswood, NJ, Police Department as one that addresses these issues. We recommend that Cincinnati examine that policy for whether additional training or policy revisions are advisable.
In future reports, we will evaluate how the new, January 24, 2003, policy is being disseminated to officers and trained. It is evident, even from the limited sample of cases we reviewed for this Report, that a number of use of force incidents and complaint investigations start with a foot pursuit. The February 2003 officer-involved shooting began with a foot pursuit. The CPD policy does not establish which pursuits officers should or should not initiate. Such precision may not be possible. However, we believe that CPD should evaluate officers’ foot pursuits, and then counsel or retrain officers who engage in ill-considered and unsafe pursuits. We expect that this issue is one that CPD will examine when it investigates and assesses future incidents, and our future Reports will assess compliance in this area.
II. Use of Force
A significant focus of the MOA is the development of new policies and training on the use of force by CPD officers. These policies are to govern the definition of force; documentation, review, and investigation of use of force incidents; and use of force training. Given that it was an officer-involved shooting that touched off the disturbances in April 2001, it is appropriate for us to note that for 14 months, from November 2001 to February 2003, there were no officer-involved shootings in Cincinnati. This hiatus was broken by the fatal shooting of a robbery suspect by a CPD officer on February 9, 2003. This incident itself is not a focus of this report. Future reports will, however, examine the shooting, the Department’s response and investigation of the shooting, and the Citizen Complaint Authority’s (CCA) independent investigation.
Future reports will also have additional statistics on use of force, as required by the Collaborative Agreement. For this Report, Appendix 4
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contains summary comparisons of use-of-force statistics from 2001 and 2002 prepared by CPD.

A. General Policies

1. Requirements

Under the MOA, Cincinnati is required to revise its Use of Force policy. The revised policy must do the following:

§

It must clearly define the terms used in the policy (para.

12.a)

§

The term “force” must be as defined as it is defined in the

MOA (12.b)

§

It must incorporate a “use of force model” that relates the

officer’s responses and use of force options to the actions of

the subject, and teaches that disengagement, area

containment, or calling for reinforcement may be an

appropriate response to a situation (12.c)

§

Whenever possible, individuals should be allowed to submit

to arrest before force is used (12.d)

§

Advise against excessive force (12.e)

§

Prohibit choke holds (12.f)

§

The term “restraining force” must be removed from CPD’s

policy (12.g)

§

CPD’s revised Use of Force policy must be published on

CPD’s website and be disseminated to community groups

(13)

2. Status

CPD first adopted a Use of Force policy in response to the MOA in July of 2002. Because of concerns expressed by the Department of Justice that the policy did not comply with the requirements of the MOA, CPD adopted a new policy on September 9, 2002. It is this policy (Procedure 12.545) that is on the CPD’s website, has been disseminated to CPD officers, is being used for training (at least to some extent), and, presumably, is being implemented in the field. As acknowledged by the City to the Department of Justice on December 12, 2002, however, this Use of Force policy does not meet the MOA requirements in several important respects. Therefore, the City withdrew the September 9, 2002, force policy from consideration by the Department of Justice and requested an opportunity to revise its policy once again to comply with the MOA. The City hired a use-of-force expert to assist the CPD in developing a policy to meet the MOA and accommodate CPD’s concerns and interests. The City did not meet the revised MOA deadline of January 24, 2003.

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On January 28, 2003, the Department of Justice wrote the City of Cincinnati notifying it of the Justice Department’s determination of noncompliance, and providing the City with 60 days to adopt a use of force policy complying with the MOA, after which the Justice Department stated it might resort to various remedies under the MOA (including suing the city). At the February 20, 2003, “all Parties” meeting, the City agreed to provide a revised Use of Force policy. It also agreed to provide the proposed policy to the Plaintiffs for their comments and input before submitting it to the Monitor and the Department of Justice. On March 28, 2003, the City sent a revised policy to the Monitor and the Department of Justice. We will review this policy and report on its compliance in our next report.
3. Assessment
The City did not meet the deadline for issuing a revised Use of Force policy that meets the MOA. The current Use of Force policy, Procedure 12.545, does not comply with the MOA requirements in several respects. The most significant deviation is in its definition of “force”.
There are four differences between the MOA and CPD definitions of “force.”
§ First, CPD limits force to a strike or instrumental contact “to meet active resistance [which is defined in CPD’s policy to include at least 7 different kinds of subject behavior] in the course of an arrest or stop.” An officer’s use of force, however, is not limited to arrest and stop situations. Force can be used by an officer even when an interaction with an individual began as a consensual encounter. The definition also should not be limited to situations where the individual is actively resisting the officer. Force used on a compliant individual is force nonetheless.
§ Second, the MOA definition of force includes “significant physical contact that restricts the movement of a person.” This is omitted in the CPD definition.
§ Third, the MOA categorizes any canine deployment as force, while CPD includes only canine deployments that lead to a bite.
§ Fourth, the MOA definition includes the use of “hard hands” and defines the term “hard hands,” while CPD includes “use of a pain compliance hold or technique that causes pain or leaves a mark such as a bruise, abrasion or laceration.”
Procedure 12.545 does comply with some of the MOA use of force provisions. It requires officers to allow persons to comply before using
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force; it advises officers against excessive force; it removes the term “restraining force” from the policy, and it prohibits choke holds.

The September 2, 2002, use of force policy does not explicitly include a “use of force model” as described in the MOA, but it does reference options and decision making, including disengagement. The revised policy that CPD will be proposing may be more explicit in relating an officer’s force options to the actions of the suspect/subject. To the extent that this kind of use of force model is reflected in the training officers receive on use of force, we will be reviewing CPD’s compliance in future reports.

Finally, we also want to comment on the MOA requirement that CPD’s Use of Force policy “clearly define terms.” The CPD procedure does have a “Definitions” section. We would note, however, that Procedure 12.545 includes definitions, two pages of “Information,” a three page section entitled “Policy,” and then numbered Procedures for 18 more pages. We recommend that the policy be redrafted to better organize it. For example, provisions relating to chemical spray are located in at least three different sections of the policy; this is true also for provisions on the use of bean bag shotguns. We also think the policy would be clearer if substantive directives were all contained in the numbered “Procedures” section rather than woven into the “Information” and “Policy” sections.

B. Chemical Spray

Police Departments are increasingly using chemical irritants as a low-level use of force for defense or to assist in effecting an arrest. The advent of their use in policing has reduced the need for other, more serious types of force. Still, officers need to limit their use of chemical spray to situations where force is needed, and not in situations where individuals are complying with an officer’s commands, or as a threat to gain compliance, or for the dispersal of non-violent persons. For the 3rd quarter of 2002, there were 93 incidents where officers used chemical spray, and there were 117 incidents in the 4th quarter of 2002. For all of 2002, there were 366 instances of use of chemical spray, as compared to 589 instances in 2001.

1. Requirements

CPD must revise and augment its chemical spray policy to do the following:

§

Clearly define terms (14.a)

§

Limit use of spray, including against crowds, to only those

cases where force is necessary to effect the arrest of an

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actively resisting person, protect against harm, or prevent

escape (14.b)

§

Provide that chemical spray may be used only when verbal

commands would be ineffective (14.c)

§

Require supervisory approval for use of chemical spray

against a crowd, absent exigent circumstances (14.d)

§

Require a verbal warning and the opportunity to comply

before using a chemical spray, unless doing so would be

dangerous (14.e)

§

Require officers to aim at the subject’s face and upper torso

(14.f)

§

Provide guidance on duration of bursts and recommended

distance (14.g)

§

Require officers to offer to decontaminate sprayed individuals

(14.h)

§

Request medical response for complaining subjects (14.i)

§

Prohibit keeping sprayed subjects in a face down position

any longer than necessary (14.j)

§

Prohibit use of spray on a restrained person, except to

protect against harm or escape (14.k)

§

Use of spray against restrained persons must be

investigated, including tape recorded statements of officers

and witnesses. Investigations of these incidents must be

reviewed by CPD’s Inspections Section. (15)

§

Provide restraining equipment in CPD squad cars(16)

§

Provide In-service training on chemical spray (17)

§

Account for chemical spray canisters (18)

§

Periodically review research on chemical spray (19)

2. Status

CPD policies relating to chemical spray are contained in the CPD’s general Use of Force policy, Procedure 12.545. As noted above, CPD acknowledges that its current policy does not comply with the MOA, and is in the process of revising it. The following discussion relates to the procedure that is currently in place, adopted on September 2, 2002.

3. Assessment

Procedure 12.545 does comply with some of the MOA chemical spray requirements. For example, it limits the use of chemical spray into crowds and requires supervisor approval, except in exigent circumstances; it requires Inspections to review incidents of chemical spray used on restrained persons; it requires a verbal warning and an opportunity to comply before officers use chemical spray. It also provides guidance on the duration, target and optimal distance for use of chemical spray, and requires officers to offer to decontaminate persons sprayed, and to call for medical response when requested.
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However, in some important respects, the CPD policy is not consistent with the MOA requirements. First, it does not limit use of chemical spray to situations where verbal commands would be ineffective. “CPD personnel will use chemical irritant as the primary response to aggressive citizen behavior when verbal commands and other techniques that do not require the use of force would be ineffective.”4 While chemical spray may be the preferred option when some force is required, it should be explicitly prohibited in situations when no force is required.
Similarly, the policy does not sufficiently limit chemical spray against restrained individuals. Section F.3 of Procedure 12.545 is a positive grant of authority, not a restriction on authority: “Officers may use chemical irritant on handcuffed or otherwise restrained individuals to prevent injury to the individual or another person or to prevent escape.” The insertion of the word “only” after “may” would place CPD in compliance with the MOA provision. This requirement is important because of the prevalence of use of spray against restrained individuals (see case samples, in Chapter 6). Indeed, Procedure 12.545 provides guidance for spraying prisoners in the back seat of the patrol car. The CPD’s Form 18 Field Manual (for training supervisors on how to fill out use of force forms) uses several examples of the use of chemical spray on restrained individuals.
We anticipate that the new Use of Force policy will address these inconsistencies with the MOA.
In future quarters, the Monitor will review CPD’s training on use of chemical spray, and CPD’s implementation of its policies. There are several issues we note, however:
i. Restraining equipment. The MOA requires CPD to ensure that its cars have sufficient equipment to properly restrain subjects, and to train officers to use that equipment when needed. CPD cars are equipped with shoulder and lap belts, as well as a restraining bar. From our review of chemical spray incidents, however, it appears there were a number of instances where the lap belt was not used, or where prisoners were able to get out from under the restraining bar. CPD should consider additional training on restraining individuals, and consider keeping track of incidents where transported suspects were able to defeat the restraining systems.
4 “Aggressive citizen behavior” is defined by CPD’s procedures to include “resistive tension, conspicuously ignoring, exaggerated movement, … excessive emotional tension, subject ceased all movement …” We question whether it is appropriate for a CPD officer to spray a subject when they are simply ignoring the officers presence or attempting to leave, and not complying with a verbal command.
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ii. CPD has a policy for dealing with persons in custody suspected of swallowing or attempting to swallow evidence or contraband. Section B.5 of Procedure 12.600 (Prisoners: Securing, Handling and Transporting) states that chemical irritant “is the primary response to prevent persons from swallowing evidence or contraband.” Individuals suspected of swallowing contraband should then be taken to the hospital. Under the MOA, chemical irritant is to be used only for apprehension or to protect the officer, the subject, or another party from physical harm. CPD may be justifying its use of chemical spray in these situations as a measure to protect the individuals from the potentially deadly effect of swallowing drugs. However, the Monitor believes this use of chemical spray is inconsistent with best practices in the police profession. Individuals sprayed with chemical agents will often respond by gasping for breath, as the physical and psychological effects of chemical spray include choking. Rather than having the suspect spit out the contraband, use of chemical spray could have the opposite effect. We are not aware of other police agencies that have similar policies. Rather, immediate transportation to the hospital appears to be the preferred policy.
C. Canines
Canines are “finding tools” for the police. Trained law enforcement canines are a valuable supplement to police manpower because of their superior sense of smell and hearing. The use of canines in a search for a potentially armed individual also protects against harm to a police officer who might otherwise be making that search. Because of the potential for injury from a dog bite, however, using canines for apprehension (as opposed to narcotics sniffing dogs, rescue/cadaver dogs, and explosives detection dogs) should be limited to serious crimes or searches for suspects who are potentially armed. The Cincinnati canine unit has 10 officers and 10 dogs. In 2002, there were 732 canine deployments. OF these, there were 89 canine “finds) and 12 persons bitten. In 2001, there were 29 persons bitten.
1. Requirements
The MOA requires the CPD to revise and augment its canine policies, subject to Department of Justice’s review and approval. The CPD is to make continued improvements in its canine operations, including the introduction of an “improved handler-controlled alert curriculum” and the use of new canines. Specifically, the new canine policy must:
§ Limit off-leash deployments to searches of commercial buildings or for suspects wanted for a violent offense or reasonably suspected of being armed.
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§ Require approval of a supervisor before deployment, except for onleash deployments.
§ Provide for a loud and clear announcement, warning of the canine deployment, and require officers to allow the suspect time to surrender.
§ Handlers shall not allow their canines to bite a person unless the person poses imminent danger, or is actively resisting or escaping.
§ Where the canine does bite a person, the dog shall be called off at the first moment the dog can safely be released. The policy shall prohibit canines from biting nonresistant subjects. Also, immediate medical attention must be sought for all canine related injuries.
§ CPD shall track deployments and apprehensions, and calculate bite ratios. These bite ratios shall be included in the Risk Management System.
2. Status
CPD submitted to the Justice Department its first attempt to revise its canine policy in June 2002, but then withdrew the policy and asked for an extension until July 19, 2002. A second policy was submitted to DOJ on July 20, 2002, but CPD informed DOJ that the July 2002 policy was not final, nor complete. A third policy was sent to DOJ on August 9, 2002. Later in August, the Justice Department wrote back to CPD listing what it considered the policies’ deficiencies. CPD then requested until October 2002 to cure those issues and provided a new (fourth) policy on October 11, 2002. Disagreement continued between the Justice Department and CPD over several aspects of the policy until a fifth and then sixth version of the policy was proposed on January 30, 2003. The Department of Justice approved this policy in a letter to Cincinnati dated February 7, 2003.
3. Assessment
A new canine policy has now been agreed upon (Procedure 12.140). The policy limits off-leash deployments to searches of commercial buildings or for suspects wanted for violent offenses or who are reasonably suspected of being armed. It requires approval of a supervisor before deployment, except for on-leash searches, and requires loud and clear canine warnings. It prohibits canines from biting nonresistant subjects.
The specific disagreement that held up Department of Justice approval in the end was how the policy should address persons who did
27

not surrender to the officers after an announcement, but instead hid from the officers and the dog. The dispute was over whether this action constituted “active resistance” and justified allowing the canine to bite the suspect upon finding him or her. The agreed-upon policy now states:
“In the case of concealment, consistent with the use of force policy, handlers will not allow their canine to engage a suspect by biting if a lower level of force could reasonably be expected to control the suspect or allow for the apprehension.”
Procedure 12.141.A.3.e. Where a bite does occur, the policy requires the handler to call off the dog at the first moment the canine can safely be released. Immediate medical attention must be sought for all canine related injuries.
We believe the policy complies with the MOA requirements.
In addition to reviewing the canine policy, we also reviewed canine training, operations, and CPD’s investigations of canine bites that occurred in the 3rd quarter of 2002. The first occasion the team had to visit with the CPD Canine Supervisor was in January of 2003. At that time, the Canine Supervisor and the command staff of the CPD were still in negotiations with the Justice Department over the canine policy.
The Monitor Team made an on-site visit to the Police Department on February 19 and 20, 2003, and had an opportunity to participate and observe the CPD police canine training. During the training, Monitor team members observed the police canines in an obedience drill, bite exercise, and two recall exercises. The Monitor team also participated and observed a building search of a commercial establishment where a suspect had hidden inside and would not comply with the officer’s commands to surrender.
The Monitor Team had several conversations with both the Canine Supervisor and the Canine trainer about the history of the Canine Unit and the training of both the officers and the dogs. We also discussed the differences in opinion with the Justice Department over the issue of canine techniques or methodology. (Although the MOA does not explicitly require a “find and bark” technique -- versus the “find and bite” technique being used by the CPD -- it does require the handlers to maintain control over their dogs and train them not to bite unless there are no alternatives using less force). During this visit, we asked the canine supervisor what changes he felt needed to be made in his training program to accommodate the new wording in the canine policy that the City and the Justice Department recently agreed upon. His response was that no changes were required to comply with the new language in the policy, because in his view the canine officers and dogs currently comply with the new language.
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The Monitor will continue to review canine training, and will review future investigations of canine bites to determine if the CPD is complying with the new policy, as well as meeting the concerns outlined in the MOA. In addition, we will examine CPD’s records of deployments and apprehensions, and how they calculate bite ratios. At this time, CPD does not include its canine bite ratios in a risk management system, as they have not yet developed or implemented this system.
4. Concerns from Review of Canine Investigations
A summary of our review of canine bites is contained in Chapter 6. Our review raised several concerns about CPD’s compliance with its own policies and with the MOA’s canine provisions. In at least two of the five canine bites that occurred during the third quarter of 2002, the CPD handler did not call the dog off “at the first moment the canine could be safely released, taking into account that the average person will struggle if seized or confronted by a canine.” As stated in the MOA and CPD policy, struggling alone will not preclude the release of the canine.
Four of the five canine investigations reviewed where tracking was performed made no mention of any warning being given before or during the canine deployment. The only warning that was given in the four cases was after the canine bit the suspect. Section A.4 of the canine policy requires a loud and clear announcement when a canine team is deployed for tracking, unless the supervisor authorizing the deployment reasonably believes that the suspect is armed or the verbal warning will cause unnecessary danger to the officers. In none of the four reports was a reason given for a warning not being used.
In addition, in the four canine bites involving tracking, the suspect is reported to be hiding, rather than engaging in attempts to escape or actively resist the officers. These incidents do not appear to comply with the MOA provisions requiring improved handler control of the canines and limiting canine bites. The handlers lost sight of the dogs while the dogs were on-lead, and the dogs bit the suspects before the handlers reached the scene. Moreover, by not providing a warning, the suspects were not given an opportunity to surrender. Thus, there may have been alternatives using a lower level of force that reasonably could have been expected to lead to apprehension of the suspects.
In one report, the supervisor who approved the use of the canine was also the supervisor who did the on-scene investigative report, in violation of section E.2 of the Canine policy.
The Monitor was also given three initial investigative reports for the 4th quarter of 2002. Because we have not been provided with the complete investigation in these cases, we cannot make a determination of
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compliance. However, there are a few areas of concern the CPD should address.
i. The Monitor was provided the CPD’s Canine Deployment Stats At A Glance report covering October 13, 2002 to January 12, 2003. In the report, it does not list a canine bite for which the Monitor has a written report.5 Not only is the deployment report inaccurate, but including this bite raises the canine’s and canine handler’s bite ratio well above the 20% threshold for review.
ii. The deployment report also lists a bite for which the Monitor has no initial report.
D. Beanbag Shotguns
Beanbag shotguns are weapons that fire a small non-lethal beanbag round.6 They offer a non-deadly alternative to assist in apprehending violent individuals while maintaining officer safety. For example, beanbag shotguns are often used in situations where police officers are faced with mentally ill individuals who may have a weapon such as a knife.
1. Requirements
The MOA requires CPD to revise its policies on the use of beanbag shotguns and forty millimeter foam rounds in the following manner:
§ Clearly define terms § Weapons only to be used to subdue or incapacitate subjects to
prevent imminent physical harm to officers or others § Prohibit the use of weapons for prevention of theft or minor
vandalism § Prohibit use of weapons against crowds, absent an ability to target
a specific individual who poses an imminent threat of physical harm § Advise officers that the use of the weapon may be inappropriate even if not using it allows the suspect to escape § Require supervisory approval, absent exigent circumstances § Continue CPD policy that limits simultaneous deployment of beanbag shotguns/foam rounds against a single individual § Use of force reports will include the estimated distance between the officer and the subject § Require verbal warnings, where feasible
5 The bite occurred on 2/15/2002 at 2245 Westknolls Lane. 6 To say that the beanbag shotgun is a non-lethal, or less-than-lethal, weapon is not to say that its deployment can never lead to death. A few fatalities have occurred where persons were hit in the head with a beanbag round. However, beanbags are intended as an impact weapon and in the vast majority of cases are not deadly.
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2. Status
As noted above, the CPD adopted a new Use of Force policy on September 2, 2002. In that policy, CPD made changes in procedures related to the MOA on beanbag shotguns and foam rounds. However, the City acknowledged to the DOJ that Procedure 12.545 did not comply with MOA. It was therefore withdrawn, with a request for an extension to adopt a revised policy. The CPD has not yet proposed its new policy.
In its 3rd Status Report to the Monitor under the MOA, Cincinnati states that modifications have been requested to paragraph 21(b), which limits the use of beanbag shotguns to incapacitate persons posing an imminent threat of harm, and paragraph 21(e), requiring the City to advise officers that it may be appropriate to allow persons to escape rather than use a beanbag weapon. Other than this reference, neither the Department of Justice nor the Monitor has received any request from Cincinnati to modify these MOA requirements.
3. Assessment
There are two areas where the CPD’s policy is inconsistent with the MOA. Procedure 12.545 states that beanbags, foam rounds and pepper ball guns “may be used anytime” officers encounter individuals “actively resisting arrest” or threatening harm to themselves or others. Actively resisting includes making physically evasive movements, verbally signaling an intention to avoid being taken into custody, concealment and ignoring commands to submit to arrest. The use of beanbag shotguns is not limited to subduing or incapacitating subjects to prevent imminent harm to the officers or others. In addition, the policy does not advise officers that use of the beanbag weapon may be inappropriate even in cases where not using it might allow the suspect to escape (MOA Paragraph 21(e)).
There was at least one use of a beanbag round in the 3rd quarter of 2002. There were also several citizen complaints resolved in the 3rd quarter of 2002 that involved beanbag shotgun incidents from the 2nd quarter of 2002. We have requested and are awaiting the investigative files for several of these complaints. Our next report will discuss our observations from these incidents.
III. Incident Documentation, Investigation
Proper management of a police agency involves the documentation, review and investigation of use of force, to ensure that officers are using force appropriately. This review also allows the department to analyze use of force incidents, trends and patterns to determine if any revisions to tactics, training or procedures are advisable.
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A. Documentation
1. Requirements
§ All uses of force are to be reported. The use of force form shall indicate each use of force and require evaluation of each use of force. Use of force reports will include the supervisor’s and officer’s narrative description, and the officer’s audio taped statement.
§ CPD will implement an automated data system allowing supervisors access to all use of force information.
§ CPD will implement a Canine deployment form.
§ If the gun pointing requirement is triggered under the Collaborative Agreement, data reported shall be included in the risk management system.
2. Status
CPD has revised and implemented new use of force forms (Form 18) for each type of use of force. There is a separate form for physical force (18F); canine (18C); chemical spray (18CI); and beanbag, taser, foam or pepper ball use (18TBFP). The Canine Unit also has developed a canine deployment form for all deployments, whether or not there is a canine bite. CPD also revised the use of force policy (Procedure 12.545) relating to completing forms and obtaining taped statements.
Because of the revised definition of force in Procedure 12.545, a broader category of uses of force is now being documented, compared to before the MOA. For example, takedowns of suspects by officers are now categorized as physical force, and a supervisor’s use of force report, complete with Form 18F and taped statements of the officers and witnesses, is prepared. However, because there is a lack of a final definition of force (given the differences between Procedure 12.545 and the MOA definition of force), the exact contours of what kinds of police actions require a use of force report and taped statements is not completely determined. For example, certain actions that might be considered the use of “hard hands” under the MOA definition may not fit under the CPD definition of force. In fact, it is not clear that even incidents meeting the CPD definition of force (such as pain compliance holds] are being captured on use of force forms.7
7 The MOA is also ambiguous as to whether investigations of use of chemical spray need to include taped statements. Currently, under the force policy now in place in CPD, chemical spray incidents require taped statements only when the person sprayed was restrained. Paragraph 15 of the MOA requires taped statements where spray is used on
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The MOA also requires CPD to develop an automated document management system giving supervisors access to all use of force information. CPD plans to use the risk management system discussed in Section V below (to be known as the Employee Tracking Solution), as that automated system. It is not anticipated that this system will come on line for some time. In the meantime, use of force incidents are entered into a Microsoft Access database at CPD’s Inspections Section, though supervisors do not have access to this database. CPD also has instituted a filing system improvement that should assist in maintaining use of force investigations intact. All use of force reports, tapes, photographs and other materials will now be placed in a Use of Force Jacket, with a routing label that directs the package as it is reviewed through the chain of command.
3. Assessment
CPD is in partial compliance with these requirements. It appears that CPD has made progress in the area of force reporting. However, as noted below, there remain some matters to review relating to implementation of these provisions.
Section J of Procedure 12.545 (Priority of Forms) states that if there is more than one use of force, only one report needs to be filled out. While some of the forms prompt the individual filling out the form to note additional uses of force, not all of them do. For example, Form 18F (Use of Physical Force) also asks whether chemical spray, impact weapons or firearms were used; on the other hand, 18C (Canine) does not ask if impact weapons or physical force was used. Also, the forms do not appear to require the supervisor to list and describe every use of force and evaluate each one. Rather, the supervisor is asked whether the force used “as described above” was consistent with Police Department policy.8
Monitor’s Note on Use of Force forms: From our review of a sample of force investigations (see Chapter 6), we have a number of concerns relating to the use of force forms.
a restrained individual, suggesting that taped statements are not needed in other instances of chemical spray use. The MOA states that all uses of force will be “reported in the same manner as the CPD currently reports incidents it classifies as uses of force.” While the Justice Department reads this to require taped statement for all uses of force, including all uses of chemical spray (as that was the way force was reported when the MOA was signed), they indicate that they would consider a revision to the MOA in this respect. 8 It should be noted that the Form 18 Field Manual states that supervisors and command officers should “[c]onsider each tool or weapon used by the officers (i.e., chemical irritant, PR24, etc.) separately to ensure that each contact with the suspect was consistent with Department policy.” This is an issue we will examine in our review of sample investigations.
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1. The forms do not appear to contain sufficient information to allow the chain of command to properly assess the incident and whether the use of force was appropriate.
2. The forms do not reflect the requirements of the MOA, so the CPD and the Monitor can’t review the form to check MOA compliance. For example, the canine form (18C) does not ask whether there was supervisory approval of the deployment, or a canine announcement; the chemical spray form (18CI) does not address verbal warnings.
3. We also have a concern over the “check boxes” approach for certain information. This approach is helpful as a data collection tool, and a short-hand way of ensuring that certain information is captured. But, checking boxes is counterproductive if it substitutes for a narrative description of the event that is needed for context. It is also causes concern if the boxes are labeled in a way that prejudges or shades the actions taken. In particular, the fields under the headings “Subject’s Noncompliance” and “Subject’s Pre-attack Posture” seem shaded in a way to justify force. We recommend the City reexamine these forms in light of the new use of force policy to be proposed and these issues.
B. Investigation
1. Requirements
§ Officers to notify supervisor following any use of force, or allegation of excessive force. Supervisor to respond to scene. Incident not to be investigated by officer who used force or who authorized force.
§ CPD supervisors will investigate each use of force incident, with evaluation of compliance with CPD policies and of tactics, including basis of any stop or seizure.
§ Internal Investigations Section (IIS) will respond to scene of all “serious uses of force” and all canine bites with serious injuries. Inspections Section will review all investigations of canine bites, bean bags, foam rounds and baton uses.
§ Investigators prohibited from asking leading questions. Investigators to consider all relevant evidence and make credibility determinations. No automatic preference for officer’s statement over citizen’s; nor discount statement of witness with connection to complainant. CPD to resolve material inconsistencies. CPD will train investigators on factors to consider in investigations.
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§ Investigators to ensure that all witness officers provide statement. Supervisors will ensure that reports list all officers involved or on scene, and document any medical treatment or refusal of medical care.
§ Lieutenant or higher will review each investigation conducted by CPD supervisors and identify any deficiency and require corrections. CPD supervisors to be held accountable for quality of investigations. Appropriate non-disciplinary or disciplinary action will be taken if investigations are not thorough, properly adjudicated, or where appropriate corrective action not recommended.
2. Status
CPD’s September 2, 2002 Use of Force policy (Procedure 12.545) includes notification of a supervisor of use of force incidents; supervisory investigation; and a prohibition on conflicts of interest. The use of force forms (Form 18) require an assessment of the basis for the initial stop. In addition, Procedure 12.545 requires Inspections to review investigations, and Inspections has begun to do those reviews. CPD also revised its policy on prisoner securing, handling and transportation, Procedure 12.600, to require that all officers witnessing force provide a statement, and to require documentation of medical care or refusal of medical care. In addition, CPD revised the standard operating procedures (SOPs) for the Internal Investigations Section (IIS) and the Inspection Section to comply with the MOA.
The City’s 3rd Status Report to the Monitor under the MOA expresses a concern over the time it takes supervisors to audiotape interviews with involved officers and witnesses, in particular for instances of takedowns, which it states occur with some frequency. Cincinnati indicates that this has “adversely impacted on the number of officers and supervisors available to meet field demands.” [p. 33] It also suggests that the increased number of incidents for which a force investigation is required “has placed such a strain on the review process that each layer of the process has become backlogged.” [id.]
3. Assessment
Many of the requirements in MOA Paragraphs 24 to 31 have been adequately addressed in CPD policy. Some concerns remain. For example, Procedure 12.545 requires notification of a supervisor following any use of force, and a supervisor must respond to the scene. The procedure does not include notice to a supervisor, however, upon an “allegation of excessive force.” Procedure 12.545 also requires notice to IIS of serious injury or hospitalization of the arrestee, and IIS is directed
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to investigate any injury resulting from the use of force. However, CPD’s Canine policy states that investigations of canine bites will be conducted by the on-duty canine supervisor or on-duty park supervisor. It appears that only if there is serious injury and hospital admission, will IIS investigate.
More telling than policy will be implementation. Are thorough and unbiased investigations being completed? Are field supervisors being trained to conduct investigations? Are IIS and CCA investigators following proper standards for investigations?
We have reviewed a sample of force investigations this quarter (see Chapter 6) and we requested additional files that have not yet been provided to Monitor. This is an area on which the Monitor will focus significant attention in future quarters. We will also examine CPD’s own efforts to improve its investigations and hold supervisors accountable for incomplete or improperly adjudicated investigations.
In this regard, the Inspections Section in particular has undertaken significant additional responsibilities under the MOA. This is a crucial element of the MOA reforms. Over time, we look to the Inspections Section to take on much of the functions of the Monitor as its capabilities increase. We hope to work with the Inspections Section to ensure consistency and care in their reviews, although we share the City’s concerns over workload and a potential backlog.
On the issue of taped interviews, the City has not provided much support for its contention that the additional effort of taking taped statements is having a damaging effect on the Department. Obtaining taped interviews makes the investigation more complete and requires the supervisor to be more thorough. Supervisors, even before the MOA, were still supposed to be doing the interviews, so any additional time and effort may be the result of more thorough interviews or interviewing additional witnesses. It is true that reviewing the tapes creates more work and takes additional time for the chain of command and for Inspections. However, it also makes their review and assessment more accurate. It is often difficult to assess the appropriateness of a use of force simply from the Form 18 report, especially when the report contains only short summaries of witness statements, and sometimes only the notation that the witness corroborates the involved officer, and no more.
On the other hand, we do recognize that not all levels of use of force require the same amount of investigation. While we believe the MOA requirement of taped statements for takedowns should remain a requirement, absent agreement by the Department of Justice and additional discussions with the City, we recognize that there may be other areas where clarification of the level of investigation is appropriate.
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C. Review of Critical Firearms
Firearm discharges are of specific concern to the community, and their careful review is crucial to the management of any police agency. Thus, the MOA includes special requirements for firearms discharges.
1. Requirements
§ Critical Firearms Discharges. CPD investigations will account for all shots, and locations of officers discharging their firearm. CPD will conduct appropriate ballistics or crime scene analysis, including gunshot residue or bullet trajectory tests.
§ A Firearms Discharge Board (FDB) shall review all critical firearms discharges; review IIS and CIS investigation for policy compliance, tactical and training implications. The FDB will prepare a report to the Chief of Police. The FDB will determine (a) whether all uses of force during encounter were consistent with CPD policies and training; (b) whether the officer/s used proper tactics; (c) whether lesser force alternatives reasonably were available.
§ The policy for the FDB shall include : a review within 90 days from the end of the criminal investigation; FDB to act as quality control; authorize recommendations to the Chief of Police; require annual review for patterns, with findings to the Chief of Police.
2. Status
Chief Streicher established the Firearms Discharge Board for the review of critical firearms discharges. The Board will consist of a CPD Command Staff officer, the Academy Director, the affected Bureau Commander, and an attorney from the Solicitor’s office.
In September 2002, CPD adopted a revised policy on Firearms Discharges, Procedure 12.550. A further revision to this policy was proposed by Cincinnati on January 24, 2003, to better track the language of the MOA . The revised policy would require accounting for shots and location, appropriate crime scene analysis, gunshot residue tests and ballistics tests.
Procedure 12.550 defines a “critical firearms discharge” consistent with the MOA, and requires the FDB to evaluate all critical firearms discharges, to be completed within 90 days of commencement. The Board is required to review IIS and CIS files and meet with investigators. Procedure 12.550 also defines the contents of FDB reports, including whether the discharge was consistent with policy, whether proper tactics were used, and whether alternatives to deadly force were available. The
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FDB is given the authority to return incomplete investigations for additional work, and to recommend changes in investigatory protocols and standards.
There were no firearms discharges from the signing of the MOA on April 12, 2002 to Feb, 2003. Therefore, the FDB did not convene during the reporting period of this report, and did not prepare the annual report called for in paragraph 34 of the MOA. However, with the officer-involved shooting on Feb 9, 2003, and the closing of the criminal investigation of that case, a Firearms Discharge Board should be convened.
3. Assessment
CPD has created the FDB in compliance with the MOA and provided for its operation. We did raise a question concerning the statement in Procedure 12.550 that “[t]he review [by the FDB] will begin at the Police Chief’s direction.” Under the MOA, the operation of the FDB is mandatory for all critical firearms discharges. The City has informed us that this procedure simply reflects a check to ensure that criminal proceedings have been completed.
IV. Citizen Complaint Process
To ensure that police agency procedures and actions are reasonable and effective, agencies should provide a readily accessible process in which community and agency members can have confidence that complaints will be given prompt and fair attention. Thorough and impartial investigations not only provide for corrective action where appropriate, but also protect against unwarranted criticisms when actions and procedures are proper. These sections of the MOA are designed to open up the complaint process and provide an avenue for citizens to bring allegations to the City without discouragement or fear of retaliation. They also ensure that the CPD tracks and investigates complaints as part of its efforts to manage the Department. Finally, a new entity, the Citizen Complaint Authority (CCA), is created in an effort to provide an alternative forum and investigation, to bolster the confidence of the public that allegations of misconduct will be fairly and objectively investigated and adjudicated.
A. Openness of Complaint Process
1. Requirements
§ Publicity program for complaint process § Availability of complaint forms, informational brochure § Complaints may be filed in any form; intake officers not to opine on
veracity or mental capacity. Complaint form completed for every complaint
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§ Every complaint to be resolved in writing § Each complaint gets unique identifier and tracked § Copies of allegations filed with the Citizen’s Police Review Panel
(CPRP), the Office of Municipal Investigations (OMI), CCA, Human Relations Commission referred to IIS within 5 days
2. Status
CPD revised its policy regarding Citizen Complaints (Procedure 15.100) to comply with the MOA. Complaints may be filed in writing, verbally, in person, by mail, fax, or phone. Postage free forms have been printed and are available at all districts. The CPD Web site also has the complaint form, which can be filled out and e-mailed. All officers are also required to carry complaint forms in their patrol cars. The CPD policy also authorizes third party and anonymous complaints as required by the MOA.
In addition, Cincinnati conducted a publicity campaign relating to citizen complaints, including a brochure, posters and public service announcements (PSAs). It also developed a “Citizen Feedback Form” that can be used by citizens to provide positive comments on police interactions.9
3. Assessment
Based on the policy changes made, the City is in compliance with these provisions. In future reports, the Monitor will review implementation of these provisions, including the availability of forms and the accessibility of the complaint process.
Paragraphs 37 and 46 of the MOA address the IIS (Internal Investigations Section) tracking of complaints. CPD is entering complaint information into a Microsoft Access database at IIS. The expectation is that the interface described in the Employee Tracking Solution will provide the information for analysis as part of a risk management system.
B. Investigation of Complaints
1. Requirements
§ Preponderance of evidence standard; City will develop appropriate training
§ Officers who used spray or force, or authorized the conduct at issue, may not investigate the incident
9 The FOP notes its view that the City has provided many avenues for citizens to complain about officer conduct, but little effort has been put into documenting citizen’s reports of favorable officer conduct. See Chapter 5, Section V.A, below.
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§ All relevant evidence to be considered § No automatic preference of officer’s statements; investigators will
attempt to resolve inconsistencies; no leading questions; all officers on the scene are required to provide a statement § All relevant police activity, including each use of force, will be investigated; searches and seizures will be evaluated; investigations are not to be closed simply because a complaint has been withdrawn § Conviction of the complainant will not be used as evidence of the appropriateness of the action of the CPD officer § Complainant to be kept informed § IIS to investigate complaints of force, pointing firearms, searches, discrimination § Citizen Complaint Resolution Process (CCRP) complaints will be fully investigated § CCRP complaints will be investigated by chain of command, with report. District or unit commander will evaluate investigation § For IIS Investigations: a. tape all interviews with complainants, involved officers, and witnesses b. interviews at convenient times c. prohibit group interviews d. notify supervisors of complaints e. interview all appropriate CPD officers, including supervisors f. collect and analyze all appropriate evidence, canvass scene for witnesses, obtain medical records g. identify material inconsistencies § Report on investigation to include a summary, proposed findings and analysis § Investigation to be complete within 90 days, absent exceptional circumstances.
2. Status
Several of the requirements of the MOA are contained in revised CPD policies and procedures. IIS SOP 104.12 states that investigations will be judged using a preponderance of the evidence standard. The CPD policy on Citizen Complaints (Procedure 15.100) provides that an officer who uses or authorizes force cannot also be the officer investigating the incident. Procedure 15.100 also states that all relevant evidence will be considered in an investigation, and prohibits leading questions. This procedure also states that all relevant police activity, including each use of force, will be investigated, and that CPD will not close an investigation just because a complaint is withdrawn or the complainant is unwilling to provide records. The newly proposed Procedure 15.100 also has a requirement to evaluate the initial search and seizure and states that the conviction of complainant will not be a reason to uphold the officer’s side of the story.
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The City Manager issued a directive to City Departments and the CCA that any complaints received had to be forwarded to the CCA within five days.
3. Assessment
The City is in partial compliance with this requirement. As noted, CPD policies incorporate many of the requirements of the MOA. One issue that arises is how complaints are allocated between IIS and Field Patrol supervisors. Under the MOA, it is contemplated that IIS makes the determination as to whether a complaint should be handled by IIS or handled as a CCRP complaint by the Patrol supervisor. The process as it is set up in CPD procedures indicates that the supervisor in the field determines whether to keep the complaint or send it to IIS. This does not allow for IIS to decide whether a complaint involves serious misconduct.
In addition, neither the complaint procedure nor the IIS SOPs describe the standards to be used for the investigation as laid out in the MOA. Provisions relating to no automatic preference of the officer’s statements; investigators will attempt to resolve inconsistencies; and investigators will be trained on evaluating credibility, are not stated in CPD policy. The Monitor will review a sample of complaint investigations to determine if these standards for investigation are being met. We requested complete investigations for 12 complaints from the 3rd quarter of 2002 and we will report on these investigations in the next quarterly report.
C. Adjudication of Complaints
1. Requirements
§ Every allegation to be resolved with determination – unfounded, sustained, exonerated, not sustained.
§ Unit commanders to evaluate each investigation to identify problems and training needs.
2. Status
As stated in its 3rd Status Report to the Monitor, the City has taken the position that CCRP cases do not need to be adjudicated with one of the dispositions required by the MOA (unfounded, sustained, exonerated, not sustained). A list for CCRP cases closed in 2002 lists the outcome of cases as “MET STANDARDS” or “DID NOT MEET.” These are not the same dispositions used for IIS investigations.
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It is our understanding that the City’s concern is that using the dispositions listed in the MOA would trigger formal administrative discipline procedures, which the City believes is not appropriate for CCRP cases. Presently, as we understand CPD procedures, field supervisors can impose counseling and retraining without triggering formal administrative procedures. However, if a written reprimand or suspension is recommended, the supervisor must initiate the formal disciplinary process, and the recommendations need the review and approval of the chain of command.
3. Assessment
The Monitor recognizes the value of the CCRP process and the benefits of mediation and resolution between the officer and the complainant. We also recognize that some police agencies attempt to resolve minor procedure and demeanor violations through less formal corrective actions. Under the MOA, however, the Department must make a determination as to the appropriateness of the officer’s behavior, regardless of whether or not the citizen is satisfied in a resolution meeting, or participates or not in the CCRP process. The MOA also sets out the disposition terms for these determinations. Therefore, the City is not in compliance with this provision of the MOA.
The Monitor will review and evaluate how CPD is handling CCRP cases, and what corrective actions, if any, the Department is taking for cases where the field supervisor finds that the officer involved “did not meet” CPD standards.
D. Creation of CCA
A principle mechanism of both the CA and the MOA is the creation of a new entity to investigate police conduct. The mission of the Citizens Complaint Authority (CCA) “is to investigate serious interventions by police officers, including shots fired, deaths in custody, major uses of force, and to review and resolve all citizen complaints in a fair and efficient manner. It is essential that the CCA uniformly be perceived as fair and impartial, and not a vehicle for any individuals or groups to promote their own agendas.”
The CCA is an independent city agency directed by a board of citizens and staffed by a professional executive director and a minimum of five professional investigators. CCA investigations would be conducted independent of the police department and the results of its investigations and recommendations are forwarded to the City Manager at the same time as those of the Chief of Police.
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1. Requirements

§ CCA to assume all of the responsibilities of the OMI within 120 days from the date of the agreement.

§ Copies of all complaints, no matter with which office they are filed, will be directed to the CCA. The CCA is to have jurisdiction over complaints of excessive force, pointing firearms, unreasonable search or seizure, or discrimination. CCA shall have sufficient number of investigators, with a minimum of five.

§ CPD officers must answer CCA questions. CCA director to have access to CPD files and records.

§ City to develop procedures to coordinate parallel investigations.

§ City will take appropriate action on CCA completed investigations.

§ CCA will complete investigations within 90 days. City Manager to take appropriate action within 30 days of CCA completion of investigation.

2. Status

The Citizen Complaint Authority was created and commenced operations on January 6, 2003, assuming all of the functions of the former Office of Municipal Investigations (OMI). As described in the City’s 3rd Status Report to the Monitor, progress towards this milestone was accomplished as follows:

May 13, 2002 June 26, 2002
July 29, 2002
August 3, 2002 August 26, 2002 Sept. 3, 2002
Nov. 12, 2002
Jan. 6, 2003
Jan. 22, 2003

City Council approves CCA ordinance City Council confirms seven CCA board members chosen by the Mayor Cincinnati begins public solicitation for CCA executive director applications CCA Board members begin training sessions City hires consultant to assist CCA Selection process for Executive Director extended CCA Board members sworn in; CCA Interim Director appointed CCA commences operations, OMI responsibilities transferred to CCA Permanent Executive Director named

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3. Assessment
The City is in compliance with the provisions of the MOA that require the creation of the CCA. Although the selection of the CCA Executive Director and the start of CCA operations were delayed, those delays were agreed upon by the Department of Justice and the Parties to CA. The executive director search was extended so that the Parties to the CA could have more input into the process of selection, and so that the search could be broadened. We commend the Parties for their actions in this matters.
The CCA is now in the process of establishing policies and procedures for its operations. There is some dispute among the Parties to the Collaborative Agreement regarding the 90 day provision for completion of CCA investigations, and when a CCA investigation ought to commence. This and other issues are discussed in more detail in Chapter 5, Section V, of our Report. Future reports will also examine CCA investigations to determine if they comply with the standards set out in the MOA.
V. Management and Supervision
A. Risk Management
The MOA requires Cincinnati to take a variety of measures to better identify and manage at-risk behavior of officers. The principle aspect of the management and supervision section of the MOA is a computerized system (the Risk Management System) to track data on police activities.
1. Requirements
Under the MOA, CPD is required to enhance and expand its risk management system by creating a new “computerized, relational database.” CPD is to use the data in this system “to promote civil rights and best practices, manage risk and liability, and evaluate the performance of CPD officers.”
§ The information in the Risk Management System is to include: uses of force canine bite ratio canisters of chemical spray used injuries to prisoners resisting arrest, assault on p.o. and obstruction charges critical firearms discharges complaints, dispositions criminal and civil proceedings against officers vehicle pursuits
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pointing of firearms (if added) disciplinary actions
§ The data in the risk management system will also include identifying information, demographics, for officers and civilians
§ CPD must develop a plan for inputting historic data now in existing databases, within 90 days (Data Input Plan)
§ CPD must develop a protocol for using the risk management system, subject to DOJ approval, within 90 days
§ The protocol will include the following elements: § data storage, data retrieval, reporting, data analysis, pattern identification, supervisory assessment, supervisory intervention, documentation, and audit § the system will generate monthly reports § CPD commanders, managers and supervisors must review, at least quarterly, system reports and analyze officer, supervisor, and unit activity § CPD commanders and managers must initiate intervention for officers, supervisors or units, based on appropriate “activity and patter assessment” of the information in the RMS § intervention options include counseling, training, action plans; all interventions must be documented in writing and entered into the system § the data in system must be accessible to CPD commanders, managers and supervisors; they must review records of officers transferred into their units § CPD will conduct quarterly reviews of performance citywide
§ Schedule for system development and implementation 90 days from April 12, 2002, for RFP, with DOJ approval 120 days from RFP, select contractor 12 months from selection contractor: beta version ready for testing 18 months from selection of contractor: Computer program and hardware to be “operational and fully implemented”
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2. Status
CPD provided a draft RFP to the Department of Justice on June 28, 2002. CPD published the RFP on July 10, 2002, without obtaining approval of the RFP from the Justice Department, as required by the MOA. On July 26, the Department of Justice sent the City written notice of failure to comply with the MOA requirements. According to the City’s 3rd Quarterly Status Report, as a remedy for this omission, CPD sent vendors additional information on the specifications and operation of the system based on the Justice Department technical assistance.
Three responses to the Employee Tracking Solution RFP were received:
• Management Science Associates, Inc. 6565 Penn Avenue Pittsburgh, PA 15206 (412) 362-2000
• ABM America, Inc. 2214 Rock Hill Rd. Suite 501 Herndon, VA 20170 (703) 326-1366
• MEGG Associates, Inc. (dba CRISNet) 756 East Winchester St. Suite 150 Salt Lake City, Utah 84107 (801) 486-9939
The MEGG Associates CRISNet solution was deemed by Cincinnati to be the best choice. The proposal is pending a contract award. The proposed MEGG Associates CRISNet solution addresses most of the data elements required by the MOA in its “Module 3.1” and “Module 3.5.” For certain arrest data that need to be captured (e.g., resisting arrest, obstruction), the CRISNet system could capture the data on a customized form, or through a link to the RMS (Records Management System) arrest report. This process has not been identified. For disciplinary action taken against officers, the CRISNet system will need a link to the IIS database and personnel database.
Paragraph 59 of the MOA requires that the risk management system include appropriate identifying information for officers and civilians. This will require a link to CPD’s personnel database, or an alternative input source. Paragraph 60 requires the development of a Data Input Plan for the inclusion of historic data that are contained in
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the City’s current databases. As of now, CPD and the proposed vendor have not developed a data input plan.
With respect to a protocol for using the risk management system, CPD has determined that the protocol should be developed in conjunction with the risk management system vendor. Thus, the protocol has not been developed and is pending the choice of vendor.
3. Assessment
The City is not yet in compliance with these provisions. Some progress has been made in defining risk management requirements. The RFP for an Employee Tracking Solution has been issued and responses have been evaluated.
Some issues of concern are raised by the lack of communication within CPD regarding IT requirements. The City proposed to use several systems currently under development to satisfy the requirements of a risk management system. There does not appear to be a comprehensive plan for those systems. Detailed design of the system also is lacking. For example, a mobile data computer project, run by RCIC, will put hardware and communication software into approximately 225 marked vehicles for CPD, but there is still a question as to whether all pertinent contact data will be collected. An RMS (records management) system is being planned, and a significant integration requirement will be placed on the vendor writing the RFP for that system. But the integration efforts should probably be separate from the RMS project. Moreover, the frontend data that will be required for the risk management system has yet to be completely defined, and the collection process is not now automated. In addition, different committees appear to be spearheading various IT projects and CPD does not have one person, or a single team, coordinating all of its IT projects.
In February 2003, we met with Lt. Col. Combs, Greg Baker, Vanessa McMillan-Moore and Terry Cosgrove. We raised the concern regarding the number of committees handling IT issues. After reviewing the committee members and responsibilities of each committee, it appeared that several IT-related committees were proceeding down independent paths without a common thread. CPD and City officials acknowledged that there are significant integration issues. They plan to have a third-party contractor, the Gartner Group, assess and identify CPD’s integration requirements and use the City’s RMS (records management system) purchase to close the integration gap.
The decision to use the MEGG Associates (CRISNet) solution was also discussed at the meeting. We raised a concern about the significant customization of CRISNet’s products that MEGG Associates describe in their RFP response in order to meet the requirements of the RFP. While
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the vendor’s response to the RFP stated that its current solution could satisfy the requirements of the RFP, many of the requirements will require modification to their system.10
Also of concern is the handling of “feeder” systems currently in place in CPD. In order for the new system to be accurate, the data in the feeder systems must be accurate, and an automated approach to data acquisition must be defined. Any inadequacies in the feed will skew the results in the new system. CPD has identified the following feeder systems:
o CHRIS Interface (PeopleSoft) o CPD Personnel Database (MS Access) o Internal Investigation Interface (MS Access)
We have recommended that CPD continue defining “input” and “output” requirements for the risk management system, and whether automated data currently exists or not, and the data location. This would help identify gaps and facilitate closing identified gaps. It would also assist CPD in preparing the Data Input Plan, which also has not been completed, and is pending the selection of the vendor.
The MOA also requires CPD to use its existing databases and resources to the fullest extent possible, prior to the creation of its new risk management system, to identify patterns of conduct by CPD officers or groups of officers. There is no evidence that this is being done to date.
B. Audit procedures
1. Requirements
§ CPD to develop a protocol for audits § Regular audits
of the citizen complaint process Integrity audits of IIS investigations § Meetings with prosecutors
2. Status
CPD has assigned responsibility for audits under the MOA to the Inspections Section. The Inspections Section has adopted new SOPs 1.54 and 2.42, for quarterly audits of the citizen complaint process and semi-annual audits of IIS investigations.
10 A summary of CRISNet’s response, listing the requirements and which ones would require modification of their system, is contained in Appendix 5.
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Pursuant to the Inspections SOP, the IIS audit will include the review of one completed case of each investigator from the previous six month period. At least one case will be an excessive force case and one case will be a criminal complaint allegation. The review will include an assessment of the reliability and completeness of IIS’s canvassing and interviewing of witnesses; preservation of the incident scene; analysis of the scene, if applicable, and the appropriateness of the IIS conclusions.
The CCRP audits will review: each District’s or Section’s database; matching the cases in the database with hard copies; random selection from each district, section or unit of 30% of the cases closed through complainant participation and 30% from cases closed without participation. The case review will examine: whether all documents required are in file; whether documents are complete; whether case was appropriate for CCRP process. The auditor also contacts the complainant to determine if the complainant participated, was given an opportunity to express his or her views, was the complainant satisfied with the results of the meeting.
In October, 2002, the Inspections Section completed an audit of the CCRP process for the 3rd quarter of 2002. The audit examined the accuracy of the CCRP database, the notification of complainants regarding the CCRP outcome and action taken, and the availability of complaint forms and informational brochures at police facilities and in police cars. According to this audit, CPD found no problems in the operations of the CCRP process.
In July, 2002, Inspections conducted its first semi-annual audit of IIS investigations. The audit examined five criminal investigations and two administrative investigations. The audit found that all documents, interviews and reports were in compliance with CPD standards, but did raise a concern about one investigation and requested additional investigation. As a result, additional interviews were completed in that case and a sustained finding resulted.
The CPD has also adopted a policy requiring bi-monthly meetings between the Inspections Section and members of the County Prosecutors’ office and the City Prosecutor’s and Solicitor’s offices. No meetings were held pursuant to this requirement in the fourth quarter of 2003.11 However, the City has informed us that a meeting did take place in January 2003 and additional meetings are being scheduled.
11 It does not appear that these meetings occurred during the 2nd or 3rd quarter of 2002, either.
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3. Assessment
Cincinnati has partially complied with these requirements. The Inspections Section has established appropriate procedures for conducting audits, and has prepared two so far. From its CCRP audit, it appears that complaint forms are available to the public. However, Inspections did not take note of the fact that CPD supervisors are not adjudicating CCRP cases in accordance with the MOA. With respect to the audits of IIS investigations, the audit identified some apparent problems with one investigation. We believe that Inspections will need to work with IIS on the quality of investigations. In future quarters, we will examine more fully the criteria for Inspections’ audits, as well as how they are conducted. Further, we will review the documentation of bimonthly meetings between CPD and prosecutors.
C. Video Cameras
1. Requirements
The MOA requires that all patrol cars be equipped with mobile video recorders (MVR).
§ Mandatory activation of MVR for all traffic stops § Recording of consent to search, deployment of drug sniffing
canines, and vehicle searches § Recording of violent prisoner transport, where possible § Supervisors to review all tapes where there are injuries to
prisoners, uses of force, vehicle pursuits, citizen complaints § CPD to retain and preserve tapes for 90 days, or as long as
investigation is open § If stop is not recorded, officer to notify shift supervisor § Periodic random reviews of videotapes for training and integrity
purposes; supervisors are to keep a log book of these reviews § Random surveys of equipment
2. Status
CPD has made revisions in the following procedures to meet the MVR requirements of the MOA
§ Procedure 12.205 -- Traffic Stops § Procedure 12.535 -- Emergency Operation of Police Vehicles and
Pursuit Driving § Procedure 12.537 -- Mobile Video Recording Equipment
These policies require CPD officers to activate the MVR cameras in all traffic stops and pursuits and, where practical, for incidents in which the prisoner being transported is being violent. These policies also require
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supervisors to review tapes in incidents of injuries to prisoners, use of force, vehicle pursuits and citizen complaints.
3. Assessment
The City is in partial compliance with these provisions. The required policies are in place. We understand from CPD that working cameras are in approximately two thirds of CPD cars. The Monitor will review with CPD plans to fully equip the remainder of cars. We will also assess whether supervisors are reviewing MVR tapes as part of pursuit, complaint, and force investigations, and whether the MVR cameras in patrol cars are kept in working order.
D. Police Communications Section
1. Requirements
§ City to provide resources for Police Communications Section’s technology
§ Written protocol or checklists to guide PCS operators
2. Status
As part of its plans to upgrade technology in the CPD, Cincinnati plans to implement a 800 MHz communications System, replace its 911 phone system, and replace its Computer Aided Dispatch (CAD) system. In addition, CPD has developed a Call Takers Response Guide for Communications personnel. The guide describes the proper procedures and protocol for handling various types of reported incidents.
3. Assessment
The city is in compliance with these MOA provisions.
E. Discipline
1. Requirements
§ CPD to revise disciplinary matrix to increase penalties for serious misconduct violations, such as excessive use of force and discrimination.
§ Where matrix indicates discipline, it should be imposed absent exceptional circumstances. CPD shall also consider nondisciplinary corrective action, even where discipline is imposed.
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2. Status
In the 3rd quarter of 2002, CPD adopted a revised discipline matrix. On September 4, 2002, the Department of Justice approved the revised discipline matrix. In its letter to the City of Cincinnati, DOJ states:
“For the CPD to satisfy the increased penalty requirement of the MOA also depends on the exercise of considerable discretion. In response to the requirement to increase penalties for certain types of infractions, the CPD raised the maximum penalty that can be imposed for certain infractions, but has not changed the minimum sanction that can be imposed. Thus, the CPD will not have actually increased the penalty for these offenses if it habitually imposes the minimum disciplinary action allowed under the matrix.”
3. Assessment
The disciplinary matrix adopted by CPD complies with the MOA. In future quarters we will evaluate the discipline actually imposed to assess compliance.
VII. Training
During the first reporting period, members of the Monitor Team began their assessment of CPD’s capacity to meet the Training requirements in the MOA. The Monitor Team met with the Training Academy staff, toured the training facilities, discussed training theories and methodologies with Academy leadership, and requested documents that would reflect compliance with Paragraphs 77-91 of the MOA and Paragraphs 29 (c, e, l) of the Collaborative Agreement. The Monitor notes that command staff responsible for training were responsive to requests from the Monitor Team and very helpful.
In this report, we enumerate the requirements for training in the MOA and the Collaborative Agreement (CA) to clarify the Monitor’s expectations for compliance in Training in future quarters. The Monitor appreciates the memorandum from Lieutenant Howard Rahtz to Colonel Streicher that detailed the Training Division’s response to each Requirement of the MOA. Where possible, the Monitor will note documentation provided by the City that progress is being made to achieve compliance. In the area of Training, the Monitor Team believes that a good faith effort is underway to achieve compliance with the requirements of the MOA. However, we are not able to fully assess compliance in most areas under this section of the MOA during this quarter for the following reasons:
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§ The City forwarded the majority of requested training documents to the Monitor during the first week of March, which precluded a comprehensive examination of those documents prior to the submission of this report. A more complete review of those training documents will therefore occur in the next quarter.
§ It will be necessary for the Monitor to audit and conduct on-site observations of training activities in future quarters in order to verify written documentation submitted to the Monitor.
§ In addition, in a number of areas, most importantly Use of Force, the City has not adopted procedures that comply with the MOA. Therefore, CPD’s training in those areas cannot be in compliance with the MOA.
A. Use of Force—Management Oversight and Curriculum
1. Requirements
[Paragraphs 77-81] The MOA requires the CPD to provide management oversight over use of force policy and training. The oversight includes ensuring that both policy and training (including the instructors) meet standards of quality, consistency, and compliance with applicable laws and CPD policy. Once these standards are achieved, the MOA requires regular, subsequent reviews, which have been defined as at least semi-annually, to ensure the standards are maintained. In addition to management oversight, annual in-service training for all members in the current use of force policy is required.
2. Status
For the reporting period ending March 5, 2003, the Monitor requested specific documents to conduct a preliminary review of CPD’s compliance with the MOA for management oversight of use of force policy and training. Some requested documents pertaining to use of force, mental health response, canine, and less lethal options training were received in the Monitor’s office the first week of March and it is evident that some training is underway in the basic academy, roll calls and inservice. Unclear, however, are the standards established and used to ascertain quality, consistency, and compliance as set forth in the MOA. For example, although roll call training is conducted, what expectations have been set for the supervisor (or other designee) who conducts that training? What evaluation is done of the training to ensure the quality of the delivery and content? And what performance measures are used to determine the effectiveness of the training? The Monitor has requested documents describing the CPD training methodology, instructor certification requirements, lesson plan templates, and others, which will
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be used to determine the benchmarks CPD is using to evaluate quality, consistency, and compliance with the MOA.
3. Assessment
As of March 5, 2003, the City is in partial compliance with Paragraph 77 in that in-service training on use of force has been undertaken; however, the Use of Force policy that is currently in place is not in full compliance with the MOA. Therefore the Use of Force training cannot be deemed to be in compliance with the MOA until such time as the policy issues have been resolved. The City has not demonstrated compliance with Paragraphs 78-81 of the MOA at this time.
B. Handling Citizen Complaints
1. Requirements
[Paragraph 82] The MOA requires that appropriate training be given to all officers who handle citizen complaints as well as to new recruits. The training required must have an emphasis on interpersonal skills in recognition of the message given to citizens by complaint takers that their concerns and fears are taken seriously and respectfully. This training must also emphasize the roles of the CCRP, IIS, CCA and CPRP so that complaint takers know how and where to make referrals. For the supervisors who investigate and determine outcomes of citizen complaints, training should include appropriate burdens of proof and factors to consider when evaluating complainant or witness credibility to ensure their recommendations regarding the disposition of the complaints are unbiased, uniform, and legally appropriate.
2. Status
For the reporting period ending March 5, 2003, the Monitor requested documents describing the public information campaign for complaint reporting; documentation of the July 2002 efforts to educate the community regarding the citizen complaint process (e.g., PSAs); documentation of the orientation or training given to complaint takers; a description and documentation of roll call training on citizen complaints; and a description and documentation of in-service supervisor training on administrative investigations of citizen complaints. One document we received was the citizen complaint segment of the 2002 In-Service training. In future quarters, the Monitor will observe the training to determine if the elements of the curricula meet the stated requirements.
3. Assessment
As of March 5, 2003, the Monitor was able to determine that some materials have been developed in response to this requirement; however
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we are not able to assess compliance with the actual content and training to be provided under Paragraph 82 of the MOA.
C. Leadership/Command Accountability
1. Requirements
[Paragraph 83] The MOA requires that CPD Supervisors will continue to receive training in leadership, command accountability and techniques designed to promote proper police practices. Within 30 days of assuming supervisory responsibilities, all CPD sergeants will receive this training, and it will be made part of the annual in-service training. This requirement acknowledges the important role leaders at all supervisory levels play in ensuring that an appropriate demeanor, behaviors, and tactics are used in the operations of the agency.
2. Status
For the reporting period ending March 5, 2003, the Monitor requested documents that would demonstrate compliance with Paragraph 83, including documents describing and documenting supervisory and management training for 2002. The Monitor intends to examine documents that explicitly state the workplace expectations established for supervisors and managers and which they will be trained in, including previous and revised job descriptions for patrol supervisors, narcotics supervisors, crime analyst supervisor and manager, school police supervisors, dispatch supervisor and manager, and revised personnel evaluations for patrol and narcotics supervisors. Additional documents that will demonstrate compliance with this requirement include personnel transfer orders or promotional lists identifying individuals who have been promoted, the effective date of their promotions, and documentation as to the dates of their subsequent training that reflect that they have received the required training.
3. Assessment
As of March 5, the Monitor is unable to assess the City’s compliance with Paragraph 83 since the City has not provided the requested documentation. Once the documentation is provided, the Monitor will conduct site visits and staff interviews to assess the implementation of the strategies suggested by each of the documents.
D. Canine Training
1. Requirements
[Paragraph 84] The MOA requires the CPD to modify and augment its training program. This includes the complete development and
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implementation of a canine training curricula and lesson plans that identify goals, objectives and the mission of the Canine Unit specified in the MOA. Formal training on an annual basis for all canines, handlers, and supervisors is also required, as is annual re-certification and periodic refresher training with de-certification resulting when the requirements are not met. Within 180 days of the MOA, the CPD was required to certify all in-house canine trainers.
2. Status
For the reporting period ending March 5, 2003, the Monitor requested various documents to demonstrate CPD’s progress in meeting these requirements. These included canine policies, SOPs for the canine unit, training policies and materials for the canine units, new handler orientation plan, canine unit logs, certification standards and validation regarding the meeting of those standards. Most of these materials have been provided to the Monitor, but some materials must still be reviewed and a determination made as to whether all canine trainers have been certified.
3. Assessment
As of March 5, 2003, the City has made progress in this area, but there is insufficient evidence to determine compliance with all provisions in Paragraph 84 – 84 (e). In particular, the City has not demonstrated how its canine training has been or will be adapted and revised to ensure that it is consistent with the new Canine policy.
E. Scenario Based Training
1. Requirements
[Paragraph 85] The MOA requires that the CPD ensure that training instructors engage students in meaningful dialogue regarding scenarios, preferably taken from actual incidents involving CPD officers, so that lessons learned regarding legal and tactical issues are transmitted to the students.
2. Status
For the reporting period ending March 5, 2003, the Monitor requested documents regarding the training methodology used by CPD, documentation of instructor certification and competency, and lesson plans involving current legal and tactical issues. This requirement of the MOA encourages a no-fault learning environment, but this will be a challenge given the administrative and legal processes through which many critical incidents must pass. In initial conversations with the Training Division, it appears that an “adult learning approach” is
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preferred over traditional law enforcement training, supporting the likelihood that instructors are comfortable with scenario-based instruction. Documents pertaining to roll call training scenarios were provided to the Monitor the first week of March. Additional information is needed to evaluate compliance with this requirement.
3. Assessment
As of March 5, 2003, the Monitor finds that a good-faith effort is underway by the City to comply with Paragraph 85. However, the Monitor will not be able to assess compliance with this requirement until on-site observations of the training occurs and further discussions can be held with the trainers and legal staff.
F. Revised Training Based on Review of Civil Lawsuits Pertaining to Officer Misconduct
1. Requirements
[Paragraph 86] The MOA requires that the CPD periodically meet with the Solicitor’s Office to glean information from the conclusion of civil lawsuits alleging officer misconduct with the purpose of using the information to develop or revise training. This requirement is related to Paragraph 85.
2. Status
For the reporting period ending March 5, 2003, the Monitor requested information on training for legal updates from the Solicitor’s Office, Staff Notes from meetings with the Solicitor, and corresponding lesson plans. The Monitor will expect documentation from the Solicitor regarding consultation and guidance provided to the CPD training staff to address this requirement, and verification of a system in place to ensure that the CPD obtains information on civil lawsuits that can be used in training regularly. This documentation has not yet been provided. The City has informed us that quarterly meetings are now scheduled for the first Friday of April, July, October and January.
3. Assessment
As of March 5, 2003, the Monitor has insufficient evidence that the City is in compliance with this requirement.
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G. Orientation to the MOA
1. Requirements
[Paragraph 87] The MOA requires the City and the CPD to provide copies of the MOA and explain it to all CPD and all relevant City employees. This training was to be accomplished within 120 days of each provision’s implementation. The CPD will continue to provide training to meet this requirement during subsequent in-service training.
2. Status
For the reporting period ending March 5, 2003, the City provided a document describing the initial training on the MOA that was provided to all supervisors in July 2002. Other employees received training in structured roll call sessions.
3. Assessment
As of March 5, 2003, the City appears to be in compliance with the provision that required immediate training. The determination as to meeting the ongoing training requirements will be made as a result of further reviews that must be conducted.
H. FTO Program
1. Requirements
[Paragraphs 88-89] In recognition of the critical role that FTOs play in reinforcing or undermining the standards set for new officers in basic training, the MOA requires the CPD to develop a protocol to enhance the FTO program to include: the criteria and method for selecting FTOs, standards that require appropriate assessment of an officer’s past complaint and disciplinary history prior to selection, and procedures for reappointment and termination of FTOs at the Training Academy Director’s discretion, although District Commanders may also have discretion after consulting with Training Staff. Further requirements are that FTOs will be reviewed at least bi-annually with recertification dependent on satisfactory prior performance and feedback from the Training Academy.
2. Status
For the reporting period ending March 5, 2003, the City provided documents regarding the FTO program including FTO policies and a description of the FTO program. The CPD Training Committee did evaluate the FTO Program and made recommendations affecting
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Procedure 13.100 (FTO Program) but those proposed recommendations have not all been approved or implemented by CPD command staff.
In future quarters, the Monitor will also be examining training records and personnel files for current FTOs, their evaluations and other documentation regarding their performance, as well as that of any FTOs terminated from the program.
3. Assessment
Although developmental work has been undertaken, the command staff has not completed its review and approval process. Some progress is evident, but the City is not yet in compliance with this requirement.
I. Firearms Training
1. Requirements
[Paragraph 90] The MOA requires all CPD sworn personnel to complete mandatory annual re-qualification firearms training to include: satisfactorily completing all re-qualification courses plus achieving a passing score on the target shooting trials, professional night training and stress training to prepare for real-life scenarios. CPD is required to revoke the police powers of those officers who fail to satisfactorily complete the re-certification.
[Paragraph 91] The MOA requires firearms instructors to critically observe students and provide corrective instruction regarding deficient firearm techniques and failure to utilize safe gun handling procedures at all times. CPD is required to create and implement an evaluation criteria checklist to determine satisfactory completion of recruit and in-service firearms training. For each student, the firearms instructors will complete and sign a checklist verifying satisfactory review of the evaluation criteria.
2. Status
For the reporting period ending March 5, 2003, the CPD provided six documents describing the firearms courses offered. The Monitor will also require staff notes or memorandums documenting the results of these re-qualification training sessions, noting officers who failed to qualify, remedial training provided and any subsequent administrative actions taken. The Monitor will review the City’s implementation of these requirements by observing and evaluating firearms training, records, students, and instructors in future quarters.
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CPD also provided a firearms training instructor review checklist. Still missing is information regarding assessment of deficiencies noted in firearms techniques.
3. Assessment
As of March 5, 2003, the City is making a good faith effort to critically observe students in firearms training and provide corrective instruction. The Monitor, pending a review of all documentation available, will determine the level of compliance once audits and evaluations have been conducted of the activities listed above.
The City is also making a good faith effort to comply with the annual requalification requirement. The Monitor is unable to assess compliance, though, until all documents can be reviewed and implementation efforts can be audited.
Chapter 5. Collaborative Agreement
In the Collaborative Agreement (CA) the Parties endorsed community problem-oriented policing (CPOP) as the framework for future policing in the city of Cincinnati. The CA is the joint covenant of the Plaintiffs, the FOP, and The City. The inclusion of the FOP in the agreement is groundbreaking, as it recognizes the key role police labor groups play in making community and problem-oriented policing work.
The Parties are jointly accountable under the CA for implementing CPOP. CPOP is not police-driven, although the police (as well as the FOP, the City and all its agencies) are critical components to effective CPOP.
Under the CA, the Parties agreed to specific deadlines for progress and implementation of the various elements that ensure the five goals detailed above. These deadlines commenced on the date of the Fairness Hearing, August 5, 2002. The deadlines are ambitious. However, as a way to ensure continued momentum, they provide accountability among the Parties for meeting, planning, collaborating, developing, and ultimately implementing the Parties’ vision of CPOP with deliberate speed.
Paragraph 29, Subparagraphs 29(a) through 29(q), and Paragraphs 30 through 46 comprise the substantive provisions for designing, implementing, and evaluating CPOP in Cincinnati; each of the subparagraphs contain individual deadlines. In terms of progress on the CA through March 5, 2003, this section of the Monitor Report outlines general compliance issues, then provides greater detail on each of the items in the CA related to CPOP.
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During the Monitor Team’s initial site visit to Cincinnati, it became clear that Cincinnati had mainly focused on the MOA rather than both the MOA and the Collaborative Agreement. As a result, the Monitor, during a joint “all-Parties” meeting on January 30, 2003, requested that the Parties identify a single point person for each of the paragraphs and subparagraphs in the CA relating to CPOP, as each of these represented a distinct element in the implementation of CPOP. The point person for Subparagraph 29(e) might well be different than for 29(f). The Monitor Team believes that this form of accountability is the surest way to further progress towards compliance with the CA. On March 5, 2003, the Parties announced the point persons for these items. The Monitor Team hopes that these individuals will now take responsibility for ensuring that the requirements in the CA related to CPOP will be met. We do raise questions, however, as to whether two individuals can be responsible for all of the CPOP tasks assigned to them, and whether more attention from the sworn command staff is needed (see below at 29(i)).
Although nearly eight months will have passed from the Fairness Hearing to this first quarterly Monitor Report, the Parties have met few of the CA deadlines that have come due during that time. Some of the delay is the result of predictable differences in vision related to CPOP. While the CA aspires to clarity on the issue of CPOP, there is still room for differing interpretations in terms of process and product as to the role of the community, the police, the FOP and the City.
From the beginning of our work as Monitor, it has become clear that the Parties held a range of differing views about CPOP. This is not a criticism. The complexity of community and problem-oriented policing is often underestimated and terms such as community engagement and problem solving, unless more fully explored and researched, are easily agreed upon but the devil is always in the details.
Thus far, individual CA Parties have circulated several draft documents, none of which entirely represent the views of the Parties as a whole. The Parties have met to discuss different aspects of CPOP and have formed teams to explore some of the most challenging issues. In addition, at the request of one of the Parties (the Plaintiffs) and the Cincinnati Partnering Center (the point place for the delivery of future CPOP training to the community) three members of the Monitor Team with expertise in community and problem-oriented policing presented information to the Parties and their invitees (police officials and community members) on the lay of the land in community and problemoriented policing in other parts of the country. During this presentation, the Monitor Team shared documents from other cities and community organizations, as well as from the U.S. Department of Justice COPS Office. It is not the Monitor’s role to define Cincinnati’s vision of CPOP, but it was hoped, through the presentation, that the information shared will spur further reflection and progress among the Parties in defining
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and implementing Cincinnati’s CPOP. The Monitor Team believes that resolution by the Parties in defining a vision of CPOP is a requisite for successful implementation of CPOP as outlined in the CA.
I. CPOP
Outlined below is a description of the progress on each of the CA items related to CPOP.
1. Requirement 29(a)
City shall develop and implement a plan to coordinate the work of City departments in the delivery of services under CPOP.
2. Status
The CA established October 5, 2002, as the deadline for plan development and November 5, 2002, for plan implementation. In the Parties’ March 5, 2003, Status Report, the Parties suggest that the City will use quarterly meetings as the vehicle for engaging city agencies on crime and safety issues. As of March 5, 2003, these meetings have not yet occurred. It appears that the City and the other Parties are still in the planning stages.
The Monitor Team recommends that the City, and the Parties, research what other cities have done. Inter-agency collaboration has become key to successfully resolving some of the crime and safety problems community members experience. In at least one city, performance measures related to crime and safety are in place for individual city department heads, in recognition of the role agencies other than the police, such as Parks, Buildings, Traffic Engineering, etc. can play in safety issues.
The Monitor Team would like to see a written plan from the City (agreed to by the Parties) outlining guidelines for the inter-agency committee. The written plan should include information on who will chair the meetings, how services will be coordinated, and how community safety problems will be brought before the meetings (i.e., how will it be decided which problems will come before the inter-agency meeting group; who gets to nominate problems for consideration – community members, community groups, police, city officials, all of these); the types of problems that will take priority; whether problem identification and analysis will be the first step prior to bringing the problem before the group; whether individual police officers will be able to contact other agencies directly when their services are needed or only through the inter-agency group; whether the problems brought before the group will be documented and the solutions applied assessed.
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3. Assessment
As of March 5, 2003, the City is out of compliance with this CA requirement.
1. Requirement 29(b)
The Parties will develop a system for regularly researching and making publicly available a comprehensive library of best practices related to CPOP.
2. Status
The CA established October 5, 2002, as the deadline for plan development and November 5, 2002, for plan implementation. The Parties’ Status Report indicates that the City intends to include access to the Police Executive Research Forum’s POPNet system as part of a best practices library. While this may be a good idea, POPNet has a number of limitations. POPNet is a searchable list of problem-solving projects from a variety of police agencies, but it does not represent best practices. There is no review of what is entered into POPNet, so viewers will not know whether the agency projects listed on POPNet actually worked or whether they represent best practice based on research. As stated in the Parties’ Status Report, plaintiffs have not yet had an opportunity to provide input on the City’s plans for a researchable database.
Separately, members of the Monitor Team were shown materials on problem solving collected at the Police Academy. The materials at the Academy house some of what should be contained in a best practices library, although CPD would need to examine how to provide public access to these materials. In addition, the City of Cincinnati website, which provides access to CPD’s web pages, now includes linkages to the U.S. Department of Justice problem-oriented guide series.12
We recommend that the Parties coordinate additional research on a best practices library with the University of Cincinnati’s Criminal Justice Department, as the faculty there is particularly well-regarded nationally on best practices.
12 These guides, 19 so far, represent research-based best practices for the following common crime and safety problems: acquaintance rape of college students, assaults in and around bars, bullying in schools, burglary of retail establishments, burglary of single-family homes, clandestine drug labs, disorderly youth in public places, drug dealing in privately owned apartment complexes, false burglar alarms, graffiti, loud car stereos, misuse and abuse of 911, panhandling, rave parties, robberies at automated teller machines, shoplifting, speeding in residential areas, street prostitution, and theft of and from cars in parking facilities.
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3. Assessment
As of March 5, 2003, the Parties are in partial compliance with this CA requirement
1. Requirement 29(c)
City development of a continuous learning process concerning problem solving, made public, and also a continued emphasis on problem solving in field and in-service training.
2. Status
The CA established October 5, 2002, as the deadline for plan development and November 5, 2002, for plan implementation. As of March 5, 2003, the date of the Parties status report, there does not appear to be a written plan or draft for this requirement. It is anticipated that the Regional Computer Center will be developing a web site containing information on problem solving efforts, as well as City and community resource information, but this is not yet in place, other than the problem solving guides discussed in 29(b).
In addition, the Parties’ status report does not specifically address a continued emphasis on problem solving in field and in-service training. Adopting a systematic and analytical approach to problem solving requires on-going reinforcement of problem solving principles and methods, introduction of the preferred problem solving model to new employees, supervisory and management reinforcement of problem solving through coaching and evaluation training, and the development of more advanced systems in crime analysis and records management to facilitate and support problem solving activities. Once initial training is accomplished, more advanced training should be put in place to further lift the level of quality of problem solving in the Department.
3. Assessment
As of March 5, 2003, the City is out of compliance with this CA requirement.
1. Requirement 29(d)
The Parties will research best practices related to problem solving from other police agencies, and other professions engaged in analogous processes.
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2. Status
The CA established October 5, 2002, as the deadline for plan development and November 5, 2002, for plan implementation. In the March 5, 2003, status report, the Parties suggest that the CPD and the Partnering Center will conduct best practices research in the coming months. Thorough research on best practices will be critical to the success of Cincinnati CPOP. The Monitor Team can better assess these efforts, as well as assist the Parties, when we are provided with the results of this research, including a list of the agencies contacted, the professions (aside from policing) researched and the product and application of that research to Cincinnati CPOP. The linkage on the CPD web pages to the Department of Justices problem-oriented policing guides is progress in this direction; however, further research, and documentation of the results of that research is required.
3. Assessment
As of March 5, 2003, the Parties are in partial compliance with this CA requirement.
1. Requirement 29(e)
The Parties, consistent with the Community Partnering Center, will conduct CPOP training for the community and jointly promote CPOP.
2. Status
The CA established October 5, 2002, as the deadline for plan development and November 5, 2002, for plan implementation. As of March 5, 2003 the Parties have not yet agreed upon a training curriculum, but there is progress related to the Community Partnering Center. The Partnering Center is established, Board members have met on a number of occasions, fundraising for the Partnering Center is underway, and the Urban League has agreed to house the Partnering Center. In addition, a search firm will be engaged to find suitable executive director candidates. It is anticipated that once there is consensus on a CPOP curriculum, community advocates recruited and employed by the Partnering Center will deliver the training first to those neighborhoods most in need (as defined by the Parties). As well, the Partnering Center’s Board members arranged for and attended the Monitor Team presentation on community and problem-oriented policing.
We are aware that questions have been raised concerning how the Partnering Center will operate, and how the work of the Partnering Center will be coordinated with the work of CPD. We believe that the Partnering Center is an important element in the reforms called for by
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the CA. Therefore, we urge the Parties to address these questions directly and resolve them to the extent possible.
3. Assessment
Considerable progress has been made towards compliance. Major hurdles remain, however, including adoption of a curriculum and a training delivery plan, and commencement of training and its fieldtesting. As of March 5, 2003, the Parties are in partial compliance with this CA requirement.
1. Requirement 29(f)
The Parties shall establish on-going community dialogue and structured involvement by CPD with segments of the community, including youth, property owners, businesses, tenants, community and faith-based organizations, motorists, low income residents, and other city residents on the purposes and practices of CPOP.
2. Status
The CA established October 5, 2002, as the deadline for training and informational materials related to the dialogue and structured involvement and November 5, 2002, for plan implementation. As of March 5, 2003, the Parties have not yet developed agreed-upon training or informational materials specific to this item and specific to the segments of the community outlined in this requirement.
3. Assessment
As of March 5, 2003, the Parties are out of compliance with this CA requirement.
1. Requirement 29(g)
The Parties shall establish an annual award recognizing CPOP efforts of citizens, police, and other public officials.
2. Status
The CA established December 5, 2002, as the deadline for completion of the award(s) design and February 5, 2003, for implementation. As of March 5, 2003, the Parties have not yet completed the award design, nor implemented or publicized the award system. In the March 5, 2003, Status Report, the Parties state that award system planning “will begin six months after formal initiation of CPOP.” We encourage the Parties to begin research on similar award systems in
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other cities and counties. If desired, the Parties might consider enlisting student interns to accomplish this in a timely manner.
3. Assessment
As of March 5, 2003, the Parties are out of compliance with this CA requirement.
1. Requirement 29(h)
The City shall develop and implement a communications system for informing the public about police policies and procedures. In addition, the City will conduct a communications audit and a plan for improved external communications. The communications strategy must be consistent with Ohio Law.
2. Status
The CA established October 5, 2002, as the deadline for developing a communications system and December 5, 2002, for implementation of the system, along with a communications audit. As of March 5, 2003, CPD policies and procedures are accessible from the City website.
The CPD contracted with consultants for a communications audit, and it is anticipated that the findings will be available to the Monitor within the next three months. The Parties also anticipate that they will, in that time, select methods to enhance internal and external communications based on the audit and input from the Parties.
3. Assessment
As of March 5, 2003, the City is in partial compliance with these CA requirements. The Monitor recognizes that the City has made significant progress in making CPD policies and procedures publicly available, but it has not completed the communications audit and improvements based on the audit’s recommendations.
1. Requirement 29(i)
The CPD will create and staff a Community Relations Office to coordinate CPD’s CA implementation.
2. Status
The CA established October 5, 2002, as the deadline for creation of the office. The City established a Community Relations Unit (CRU) in the CPD in January 2003. Vanessa McMillan Moore is the Community Relations Manager. As part of the March 5 Status Report, the Parties
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submitted a draft proposal for the portfolio of the CRU. However, the scope and duties of the CRU are still unsettled, especially as the draft proposal has not been approved by the Parties. Under the CA requirement, the Community Relations Office “is responsible” for coordinating implementation of the CA within the CPD. At the same time, Greg Baker is the Compliance Coordinator, as well as holding the title of Executive Manager of Police Relations.
The Monitor has requested a job description for the Community Relations Manager, job descriptions for her staff, and a description of their work product to date. We also request additional clarification on the CRU’s reporting authority, its current and proposed budget, and its accountability in achieving implementation of specific aspects of the CA within the CPD. We are unclear as to the relation between the Community Relations Unit and the Compliance Coordinator.
3. Assessment
Thus far, there is insufficient evidence that the Community Relations Unit will be adequate in coordinating implementation of the CA. As mentioned earlier, it appears that little attention has been paid to the individual CPOP requirements in the CA. In our monthly meetings with the Parties in both January and again in February, we requested that the Parties appoint individual coordinators for each specific requirement within the CA to spur progress. In their March 5 Status Report, the Parties identify three individuals between whom all of the requirements of the CA are divided. In addition, the CRU working proposal the Parties provided on March 5, 2003, does not reflect the coordination of the approximately 20 provisions of the CA related to CPOP. We are concerned that coordination and actual implementation of the CA within CPD may be delayed, if not jeopardized, without more attention within CPD by those in sworn authority to the individual requirements of the CA.
1. Requirement 29(j)
The Parties shall describe the current status of problem solving throughout the CPD through an annual report. They shall also detail their role in CPOP and information on efforts to improve it.
2. Status
The CA established August 5, 2003, as the deadline for completion of the annual report. In anticipation of this deadline, the Monitor Team requested that CPD provide a narrative report on the status of CPOP up to August 5, 2002. This will be used as baseline documentation to compare the extent of efforts begun after the Fairness Hearing. The Parties in their March 5, 2003, status report state that they will provide
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the Monitor with a report “when the data is available, approximately six months after the formal initiation of CPOP.”
3. Assessment
The Monitor is unable to assess compliance with this provision of the CA, as the annual report is not due until August 5, 2003. The Monitor Team believes it is important to establish a baseline from which the Parties and the Monitor can evaluate the progress made since the Fairness Hearing. We encourage the CPD to complete a narrative describing efforts up through August 5, 2002. In addition, the Monitor Team expects the Parties to meet the required deadline of August 2003, rather than the contingent deadline they propose, even though the report may document less than they hoped would be achieved.
1. Requirement 29(k)
CPD district commanders and special unit commanders or officials at comparable levels shall prepare quarterly reports detailing problem solving activities.
2. Status
The CA established November 5, 2002, as the deadline for completion of these reports. In January 2003, the Monitor Team advised the City that it would expect quarterly problem solving reports from special unit officials in Street Corner Narcotics, Vice, Planning, Crime Analysis, and Criminal Investigations Section (covering activities of homicide, personal crimes, major offenders, financial crimes units), Youth Services, Downtown Services Unit, Special Services Section (covering park unit, traffic unit), as well as the District Commanders. The CPD has not prepared these reports.
The Monitor Team believes that as the CPD plans a departmentwide adoption of CPOP, those units that are integral to a departmentwide implementation strategy should report on their problem solving efforts. For instance, homicide detectives should not just be involved in the investigation of homicide but also its prevention, based on analysis of homicides; financial crimes detectives should widen their scope to prevention of financial crimes based on an analysis of how financial crimes cluster by type of business; the Planning Section should be strategically engaged in the department-wide adoption of CPOP and should report on its role in it.13 Prevention based on predictable patterns, using an analytic problem solving approach, may already be
13 In a memo (dated April 30, 2002) from Chief Streicher to City Manager Valerie Lemmie, outlining consistencies between the Collaborative Agreement and the CPD’s strategic plan, both Patrol Bureau and Investigations Bureau units and commanders are listed as providing quarterly reports on problem solving successes and failures.
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occurring in these units. Without documentation, however, the Monitor will be unaware of efforts that should be lauded. These reports, as per 29(k) should include, to the extent practicable, specific problems addressed and steps taken by the City and the community towards resolution, as well as obstacles faced and recommendations for future improvement.
In the Parties’ March 5, 2003, Status Report, it states,
“The CPOP website will be the vehicle for documenting, tracking and reporting on problem solving activities. CPD will work with the Collaborative Partners to design a format that is informative. Reports will be made available to the Community via the CPOP website.”
The website, when it comes online, will provide a good vehicle for the publication of each of these quarterly reports. In the meantime, the reports still need to be prepared.
3. Assessment
As of March 5, 2003, the Parties are out of compliance with this CA requirement.
1. Requirement 29(l)
The Parties will review and identify additional courses for recruits, officers and supervisors about the urban environment in which they are working.
2. Status
The CA established November 5, 2002, as the deadline for completion of the review and design, and December 5, 2002, for implementation. As of March 5, 2003, the Parties have not provided any information regarding a review of Academy courses, or designs and implementation of new courses. In addition, the Monitor is unaware of efforts by the Academy to include the FOP and Plaintiffs in a review of courses provided to CPD officers.
The Parties state in their Status Report that they anticipate coming to consensus in the coming months on a CPOP training module. The Monitor reads Paragraph 29(l) as a review, design and implementation of additional courses, especially with respect to the urban environment in which officers work, and not just a CPOP curriculum, as the CPOP training curriculum is separately required and discussed in CA 29(e).
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3. Assessment
As of March 5, 2003, the Parties are not in compliance with this requirement.
1. Requirement 29(m)
The Parties, in conjunction with the Monitor, shall develop and implement a problem tracking system for problem solving efforts.
2. Status
The CA established February 5, 2003, as the deadline for system development and April 5, 2003, for implementation of the system. The Monitor Team requested a copy of any forms currently being used for problem tracking. In many police agencies, the department has an internal form that officers/staff use to document a problem for purposes of beginning a problem-oriented policing project. The Monitor Team is in receipt of a Community Priority Request Form, but this form is not a problem tracking form. Rather, it is a form that Community Councils complete and relay to CPD with a request, such as extra police or foot patrol, which is unrelated to analytic problem solving. The form does not provide room for a detailed description of the problem or analysis of whether the problem actually exists and whether the request from the Community Council is an effective countermeasure.
The Monitor Team also requested a description of how CPD’s problem tracking form (if there is one) is recorded in CPD systems (computerized, kept by the records section, hand filed by address, centrally-kept or kept by unit, etc.). The Monitor Team awaits receipt of this information.14
In the March 5, 2003 status report, the Parties state that the website and database will be in place in the coming months and available to the public. It is unclear, however, how the website proposed will address the requirements of this CA provision.
3. Assessment
As of March 5, 2003, the Parties have not shared enough details of the problem-tracking system to determine if it will meet the requirements of this provision, although it appears clear that the system development deadline in the CA has passed without compliance. As per the CA, the
14 The Monitor Team also suggested that CPD collect problem tracking documents and information on problem-tracking systems of other police agencies already engaged in problem-oriented policing, to begin comparing forms and systems. We are unsure whether this has been done.
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Monitor has a role in aspects of system development; however, the Parties have not sought the involvement of the Monitor.
The Monitor will report on compliance with implementation of this provision in our next quarterly report. In the interim, we request additional information on the planned capacity (system specifications) and the parameters of the system the Parties seek to develop, including:
§ Who will be able to enter information into the system? § How often will it be updated? § What information will be entered? § What should be excluded to conform to Ohio law? § Will it be a searchable problem tracking database? § Will there also be a CPD internal problem solving tracking
form/system that would capture details that may not be kept in a public database – for instance, if the problem solving project is on a repeat domestic violence victim? § How up-to-date will the inputted data on the problem-tracking system be? § What other systems in other cities did the Parties explore before deciding upon a model tracking system? § Who will have access to the problem tracking system? § Who will monitor the system and ascertain progress on each of the problems tracked? § Who will be responsible for quality control? § How will the system interface with any case management and records management systems in CPD?
1. Requirement 29(n)
The City shall periodically review staffing in light of CPOP.
2. Status
The CA requires ongoing review of staffing rather than a review by a certain deadline. The Monitor Team sought baseline information on patrol officer time by requesting workload studies from CPD on committed, non-committed, and self-initiated time for patrol officers. Generally, when police agencies do this as a means of assessing staffing needs for increased problem solving, they most often find that officers have more free time than initially thought. Officers often gauge their free time based on their busiest nights, discounting the fact that some days are not as busy. At present, CPD systems are unable to produce this type of workload analysis unless it is done by hand counts.
The Monitor Team is open to examining alternative measures for this provision, including alternative suggestions for conducting workload
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analyses. Under similar circumstances, a number of police agencies have conducted hand counts, although this is clearly labor intensive. 15
3. Assessment
The Monitor Team looks forward to hearing from CPD as to its suggestions and immediate steps it will take to determine officer time.
As a CALEA (Commission on Accreditation of Law Enforcement Agencies) member, the CPD understands the value and need of workload analysis, although the type of workload analysis the Monitor Team is advocating is distinct from a typical police agency workload analysis, in that this workload analysis has one mission: finding out the amount of time officers have to engage in problem solving.
The value of this type of officer workload analysis (as opposed to workload analysis by calls and crime in an area) is important in advancing problem solving in a police department. In agencies that have adopted community and problem-oriented policing, when patrol officers are first asked to regularly and consistently engage in problem solving, officers often suggest that they “don’t have time.” Yet, officers often believe they have less time than they do, since it is spaced intermittently. It is important for an agency to have a handle on how officer time is currently spent, otherwise an agency constantly battles against the “I don’t have time” argument.
In a CPOP agency, it becomes the role of a patrol supervisor to help officers build small blocks of time and to manage those with productive and effective problem solving. However, supervisors must also have knowledge about the amount of time available if they are to assist in this process. Without a relevant workload analysis, a police agency may erroneously believe that increased staffing is required, which is costly to a community and comes at the expense of other city needs.16 On the other hand, the workload analysis may also reveal that officers are indeed running from call to call and only increased staffing will allow the police routinely to problem solve. Nevertheless, additional reliance on
15 Since it is unclear when the IT solutions will be in place and operable in CPD, which would enable the CPD to do this easily, the CPD may want to consider engaging student interns in the hand-count process. The workload analysis could cover two or three months of the year (including two of the busiest months in the analysis). 16 The Parties provided the Monitor Team with a report on community policing conducted in the early 1990s under Chief Snowden. In it, researchers James Frank and R.C. Watkins conducted workload analyses of community policing officers and patrol officers and found that almost one-third of a patrol officer’s time was spent performing routine vehicle patrol, a strategy that police research suggests has little or no significant impact on crime or fear of crime. This is not to say that this proportion of time is available now to do problem solving, as circumstances and call-load in 2003 may be markedly different. Yet it does underscore the value of workload analysis in making staffing and strategy decisions.
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the use of citizen volunteers for specific types of tasks within a police agency sometimes can offer relief even to this problem.
1. Requirement 29(o)
The City shall review, and where appropriate, revise police department policies, procedures, organizational plans, job descriptions, and performance evaluation standards consistent with CPOP.
2. Status
The CA established October 5, 2002, as the deadline to complete the review and November 5, 2002, for revision. It is clear that CPD has undertaken policy review and revision pursuant to the MOA; however, this particular requirement in the CA focuses on a review in light of CPOP. Some common policies and procedures that are subject to review and revision in police agencies engaged in community and problemoriented policing include: police vehicle pursuits; response to the mentally ill; domestic violence response; false alarm policies; and personnel policies related to evaluation, reward, advancement, promotion, and transfer.
In the Parties’ March 5, 2003, Status Report, it states,
“Reviews will be conducted when necessary, as determined by success and failures of problem solving efforts, community input, problem response evaluations and changes in the law (statutory and case law).”
To meet the requirements of the CA, we encourage the CPD to begin CPOP-related review of its policies, procedures, and performance evaluation systems (acknowledging that further changes may take place as a result of additional experience with CPOP in Cincinnati). For example, the performance evaluation standards the CPD currently uses were developed in 1978, and are less suited to a problem solving, CPOPaspiring agency. In addition, job descriptions that accurately portray the expected work (in this case analytic problem solving, in addition to other important responsibilities) can become useful anchor points for shifting personnel to effective proactive approaches.
In the Parties’ March 5, 2003, Status Report, it also states,
“Plaintiffs contend that the Collaborative requires fundamental changes to the job descriptions at every rank. Plaintiffs further contend that the 1978 performance evaluation system is outdated and needs a complete overall in order to measure and reward effective problem solving. Finally, specific written policies and
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procedures should be drafted and implemented to insure implementation of the collaborative agreement.”
3. Assessment
As of March 5, 2003, the City has not demonstrated compliance with this requirement.
1. Requirement 29(p)
Design and implement a system to easily retrieve and routinely search (consistent with Ohio law) information on repeat victims, repeat specific locations, and repeat offenders. The system shall also include information necessary to comply with nondiscrimination in policing and early warning requirements.
2. Status
The CA established February 5, 2003, to complete the request for proposal for the system. The implementation deadline is to be determined by the Monitor. According to the Parties’ March 5, 2003, Status Report, the City has identified a vendor who will develop the RFP. The report states that the RFP will be completed by May, which is after the deadline in the CA.
It appears that the City contemplates meeting this provision through the acquisition of a new Records Management System (as distinct from the risk management system in the MOA). If so, the system would need to include linking mechanisms for the data stored in the system.
3. Assessment
As of March 5, 2003, the City is not in compliance on the RFP requirement.
The Monitor makes two requests with respect to this requirement. First, since system implementation will take time, the Monitor requests that CPD provide a detailed description of the capabilities of the present system, as some problem analysis is going to be dependent upon it in the interim. Second, the Monitor Team recommends that the City research systems in place in police agencies already engaged in fuller forms of problem solving. We believe that researching and documenting what is learned from other agencies will benefit the City, as it will help guide it in its systems decisions. If requested, the Monitor will provide a list of police agencies it might be profitable to contact.
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1. Requirement 29(q)
The City shall secure appropriate information technology so that police and city personnel can access timely, useful information to problem-solve (detect, analyze, respond, and assess) effectively.
2. Status
The CA established February 5, 2003, as the deadline for development of a procurement plan, April 5, 2003, to secure funding, August 5, 2003, to procure systems, and August 2004 to implement any new purchases. As the City and the CPD move forward with problem solving, linkages to other systems, not just the RMS system, will be required so that staff will be able to analyze data in different forms. In addition, the problem analysis function in CPD will require adequate staffing. To help meet this requirement, we recommend that the City and the CPD make inquiries to other police agencies about the systems they use to support problem solving detection, analysis, response and assessment and provide the Monitor with written descriptions of the capabilities of and uses of these systems. As in requirement 29(p), we believe that the process of researching and documenting what is learned from other agencies will benefit the City, as it will help guide it in its systems decisions.
3. Assessment
As of March 5, 2003, the Monitor is unable to assess compliance with this CA requirement. We would suggest, however, that as the City moves forward with data collection systems, it should at the same time address the need for adequate problem analysis systems, and staff to assist in conducting analyses.
II. Evaluation Protocol
The CA calls for a system of evaluation to track attainment of CA goals. This tracking serves as a “mutual accountability plan.” According to the CA, “[t]he term ‘mutual accountability plan’ is defined as a plan that ensures that the conduct of the City, the police administration, members of the Cincinnati Police Department and members of the general public [is] closely monitored so that the favorable and unfavorable conduct of all is fully documented and thereby available as a tool for improving police-community relations under the Agreement.” The evaluation system is to be developed “in consultation with the advice of expert consultants and under the supervision of the Monitor.” The Parties also must plan to shift portions of the evaluation oversight from the Monitor’s supervision to a “successor agency” before the end of Agreement so that ongoing evaluation efforts can continue.
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1. Requirements
The Collaborative Agreement sets out the following components of the Evaluation Protocol:
§ Protocol will include: schedule; costs; who is responsible; data collection methods, forms and procedures; guidelines for analysis and reporting; levels of statistical confidence and power
§ Protocol to include: periodic surveys; periodic observations of programs; and annual statistical compilations of police interactions
§ Probability samples surveys, with response rate of 70% a. of citizens, for satisfaction and attitudes b. of citizens with police encounters (neighborhood meetings, stops, arrests, problem solving interactions), for responsiveness, effectiveness, demeanor c. of officers and families, for perceptions and attitudes d. of officers and citizens in complaint process, re fairness and satisfaction with complaint process
§ Periodic observations of meetings, problem solving projects, complaint process; with description of activity and effectiveness
§ Periodic reporting of data to public, without individual ID, but by age, race, gender, rank, assignment and other characteristics
§ Compilations by 52 neighborhoods, for arrests; crimes; citations; stops; use of force; positive interactions; reports of unfavorable interactions; injuries to citizens; complaints
§ Data recording for problem solving projects
§ Sampling of in-car camera and audio recordings; database of sampled recordings; study of how people are treated by police
§ Examination of hiring, promotion and transfer process
§ Periodic reports with data from above (broken down by age, race, gender, area, rank, assignment). These reports should answer a number of questions, including Is safety improving? Is use of force declining, and is it distributed equally? Is the complaint process fair? Do officers feel supported? Is problem solving successful? Are police-community relations improving?
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Is progress being made on issues of respect, equity and safety?
2. Status
The CA partners have established an Evaluation Committee with representative members of the various Parties. The City has contracted with a consultant to prepare a draft RFP for an outside entity to assist the Parties in designing and implementing the Evaluation Protocol, and to develop a scoring matrix to facilitate the RFP review. The Evaluation Committee is currently reviewing and revising the draft RFP. The Parties expect to distribute the RFP, review and select a vendor, and establish a contract with a vendor within the next reporting period. According to the Parties’ March 5 Status Report, the Parties set a March 7, 2003, meeting to produce the final RFP and “determine the distribution list of proposed vendors.” The Parties now estimate they will select a vendor by May 2003.
According to the Parties’ Status Report, the City has allocated and budgeted $350,000 to design and develop the survey instruments and methodology, as well as begin preliminary data collection. The draft RFP states that the total costs of the evaluation should not exceed $280,000. In their December 19, 2002 Status Report, the Parties stated their intention to hire the outside entity by January 2003, publish a report by April 1, 2003, on progress in implementing the Evaluation Protocol, and publish by August 5, 2003, the first annual report to the community summarizing the data gathered. In their March 5 Status Report, the Parties state that the Evaluation Committee “has agreed to attempt to secure baseline findings by April 30, 2003, with annual results available April 30th of succeeding years.” The Parties acknowledge that they will not meet the April 30, 2003, schedule.
3. Assessment
The Parties are not in compliance with these provisions of the CA. We have several concerns relating to the development of a workable Evaluation Protocol to implement the provisions of the CA.
First, the Parties appear to be putting all their reliance on a single outside entity to accomplish the entire Evaluation Protocol. This entity will be responsible not only for designing and conducting the required surveys, but also for observations, data collection and analysis, review of mobile video recorders, and even on drafting the required annual reports evaluating progress. This may be asking too much of an outside entity. Some of these functions (e.g., drafting the annual report) are ones that may be better for the Parties to undertake.
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Second, we are not confident that the RFP sufficiently explains what the City needs and will succeed in securing an appropriate evaluator for Cincinnati. For the most part, the RFP simply repeats the CA provisions. For example, on data collection, the Parties cannot expect a vendor actually to collect the data; that has to be done by CPD as it undertakes police activities. But there is no description of the kinds of data collection systems being contemplated, and the how the data that will be gathered will be presented and available to the evaluator.
We are also not confident that simply putting out an RFP to bid is the best way to accomplish the goals of these provisions. The Parties need an entity (or multiple entities for various aspects of the job) that has expertise in survey research, criminal justice, and data analysis. There are a number of entities that come to mind (universities, research organizations), and we believe the Parties should make initial contacts with these institutions if they have not already done so. One suggestion would be to issue a solicitation of interest or a “request for qualifications,” whereby the Parties ask institutions to suggest research strategies in terms of time, cost, depth of analysis, etc. While we recognize that this would delay the award of a contract, we believe it is more important to get the right research plan and the right evaluator.
We are also unsure of whether the Parties will be able to secure an evaluator to do all of what is being asked of that entity for the amount of funding that is listed in the RFP.
Third, the Parties should consider how they will interact with the entity chosen as evaluator. How will disputes or questions regarding research methodology or other aspects of the evaluation be resolved? Will there be one contact point for the evaluator to serve as the “client” or will the evaluator be responsible to each Party? If there is not a clear way for questions to be answered in a timely and definite manner, the evaluator’s cost and difficulty will be increased significantly. Also, if the evaluator is required to prepare a draft annual report, will that entity be responsible for revisions requested by each Party? Again, to do so would increase the cost to the evaluator and hamper its ability to prepare timely reports.
Fourth, the Evaluation Protocol includes within it significant IT requirements related to data collection and analysis. Without the Evaluation Protocol definition, it is difficult to anticipate many IT components that will be required and to envision their place within CPD’s IT arena. Once the parameters of the protocol have been defined, a concerted effort by CPD should take place to ensure that systems being built will be able to work together in an automated fashion to enhance their effectiveness.
For example, paragraph 39 identifies the data elements that are
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sought for analysis. This is currently data that is collected without automation, but should be automated through processes discussed throughout the Agreement. Several new systems will be required to “feed” this information to allow for a more automated approach than is currently being done. It is expected that the bulk of this data will be captured in the CRISNet system.
Paragraph 40 further defines the data elements in paragraph 39 relative to providing the Monitor with incident-based data. In order to do trend analysis from an incident-based model, significant integration will be required. CPD is planning on contracting this scope of work to Gartner Group and rolling it into the RFP for a new Records Management System.
The Monitor anticipates further discussion with the Parties regarding these issues, as well as the role that the Monitor will play in “supervising” the development of the Evaluation Protocol.
III. Pointing Firearms Complaints
The Parties to the Agreement were unable to agree on whether CPD officers should have to report when they draw their firearm.
1. Requirement
CPD will develop an expedited process for handling citizen complaints based on pointed firearms:
§ Persons can file complaints with Plaintiffs’ organizations or with CPD or other civilian complaint processes.
§ These complaints will be immediately investigated by a select team of CPD officers selected by the Chief.
§ The investigators will make their determinations within 30 days and file the determinations with the Parties, the complainant and the Monitor.
§ The Monitor shall compile complaints about pointed firearms and forward the data to the Conciliator.
§ The Conciliator shall review the information, and if he determines that a pattern exists of improper pointing of firearms at citizens, the CPD will require officers to report all instances in which they point their weapons at or in the direction of a citizen.
2. Status
The CPD has established an expedited complaint process for complaints involving allegations of improper pointing of firearms. (IIS SOP 104.03) Two IIS investigators have been selected to investigate these complaints, and their investigations are forwarded to a Review
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Group consisting of two members of the City Solicitor’s office, a lieutenant in Tactical Planning, and a sergeant from the Training Section. The findings of this team are forwarded to the Police Chief for his approval.
According to the Parties’ March 5 Status Report, these investigations have been forwarded to the Parties for their review. The Monitor has received a number of complaint investigations relating to pointed firearms from CPD, but has not received the report and investigations required from the Parties.
3. Assessment
The Parties are in partial compliance with this requirement. CPD has established an expedited process for handling these complaints, but we have not received all of the investigative reports and complaints that resulted from that process. For this reason, the Monitor cannot forward to the Conciliator the data required by the CA, nor can we make any assessment or recommendation for the Conciliator at this time.
IV. Fair, Equitable and Courteous Treatment
The CA requires the Parties to collaborate in ensuring fair, equitable and courteous treatment for all, and the implementation of bias-free policing. Data collection and analysis are pivotal to tracking compliance, and training is essential to inculcate bias-free policing throughout the ranks of CPD. The Monitor, in consultation with the Parties, is required to include detailed information regarding bias-free policing in all public reports. The collection and analysis of data to allow reporting on bias-free policing is to be part of an Evaluation Protocol developed with the advice of expert consultants. The RFP for selection of the consultant (“Evaluator”) has not yet been published.
A. Data Collection and Analysis
1. Requirements
As part of the Evaluation Protocol, CPD is required to compile the following data to be analyzed, by percentage attributable to each of the City’s fifty-two neighborhoods:
• Arrests; • Reported crimes and drug complaints; • Citations of vehicles and pedestrians; • Stops of vehicles and pedestrians without arrest or issuance of
citation; • Use of force;
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• Citizen reports of positive interaction with members of the CPD by assignments, location, and nature of circumstance;
• Reports by members of the CPD of unfavorable conduct by citizens in encounters with the police;
• Injuries to officers during police interventions; • Injuries to citizens during arrests and while in police custody; • Citizen complaints against members of the CPD.
Paragraph 40 requires that the City provide to the Monitor incident-based data so that the nature, circumstances and results of the events can be examined.
Paragraph 51 refere nces Ordinance 88-2001, which identifies required data to be reported and analyzed to measure whether there is any racial disparity present in motor vehicle stops by CPD. The local ordinance requires the following information be gathered:
• the number of vehicle occupants; • characteristics of race, color, ethnicity, gender and age of such
persons (based on the officer’s perception) • nature of the stop; • location of the stop; • if an arrest was made and crime charged; • search, consent to search, probable cause for the search; if
property was searched, the duration of search; • contraband and type found; and • any additional information.
Paragraph 53 of the Collaborative Agreement requires the Monitor, in consultation with the Parties, to include in all public reports, detailed information of the following:
• racial composition of those persons stopped (whether in a motor vehicle or not);
• whether the person stopped was detained, searched or arrested;
• whether the person stopped was involved in a use of force with a member of the CPD; and
• the race of the officer stopping the person.
2. Status
The City’s data collection effort is hampered by the absence of a system to ensure timely and accurate data entry. There is thus no available data analysis to include in this first report.
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Professors John Eck and Lin Liu of the University of Cincinnati were selected in August 2001 to analyze traffic-stop data for the period May 1, 2001 – December 1, 2001 (“2001 Period”). Most of their time and effort so far has gone into checking the accuracy of the data, and correcting errors made during the data entry. Data error correction should be completed by April 17, 2003. The analysis and report on the 2001 Period is not expected to be complete until September 30, 2003.
The City has not selected any entity or individual to analyze data collected after December 2001. This will likely result in a further significant delay in providing meaningful data analysis for December 2001 forward.
CPD had developed a contact card, Form 534, to comply with Ordinance 88-2001. The first version of the Contact Card was used as the basis for the data analysis being performed by Professors Eck and Liu. The card has since been revised three times. The most recent revision was noted in CPD’s October 14, 2002, Staff Notes. New procedures requiring officers to fill out a Contact Card for every traffic stop and every field investigative stop were announced in the May 8, 2001, Staff Notes and are contained in Procedure 12.554, Investigatory Stops, and Procedure 12.205, Traffic Enforcement. These policies reflect the data collection requirements of Ordinance 88-2001 for all motor vehicle stops. The procedures and the Contact Card do not require collection of information as to whether force was used during the stop, or the race of the officer.
In addition, an “explanation sheet” was developed for officers to explain how to fill out the card. It requires that the card be completed in its entirety for every motor vehicle stop. When a traffic stop is made, the instructions indicate the officer must complete the first side of the form. If an investigatory stop is made on an individual, then the backside is to be completed for the CPD’s Criminal Intelligence Database, which was developed to assist beat officers and investigators in solving cases and compiling intelligence information.
Procedure 12.554 specifically prohibits illegal profiling and defines it as stops based on race or ethnicity. Procedure 12.205 specifically prohibits illegal profiling in traffic enforcement. If an officer violates this policy he or she may be disciplined, up to termination. Officers are required to activate their in-car video and audio equipment for every stop and continue recording until the stop is completed.
Members of the Monitor Team met with Lt. Col. Combs and Peggy O’Neill, IT Manager at RCIC, to discuss CPD’s data collection efforts. RCIC, a component of RCC, has a staff of 13 IT professionals (17 positions with 4 vacancies), serving Cincinnati, among others. RCC has approximately 100 IT professionals serving the region’s needs.
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Discussions at this meeting covered the plans to collect data elements that would be expected for the analysis of bias-free policing and the establishment of an employee tracking solution. The front-line data collection component of an automated system would be the Mobile Data Computer system, known as COP-SMART. This system, Community Oriented Policing Strengthened through Management And Reporting Technology was discussed; however, references to specific vendor details and vendor-specific software components were withheld due to a perceived restriction based on city contractual issues. Potential automation obstacles identified in the meeting were:
• Changing badge numbers and use of employee ID number • Lack of a common dataset • Location and access to data • Custom data collection for CPD • New applications for Cincinnati patrol vehicles and
maintenance • Mobile Data Computer Server location
In addition to data collection on traffic and pedestrian stops, Paragraph 39 of the CA requires CPD to collect data from citizen reports of positive interactions with police officers. As noted in Chapter 4, CPD has developed a feedback form for citizens to report favorable police conduct. It is not clear, however, how CPD is compiling information received on these feedback forms and how CPD is utilizing the information obtained. Moreover, the CA states that all City employees and police supervisors, among others, shall be encouraged to report positive police activity “to ensure that a complete record of all such favorable and positive actions are made a permanent part of any data base relating to the CPD's dealings with the community." The Monitor will examine this issue in future reports and requests information from the City regarding the steps it has taken in addressing this requirement.
There is also a requirement under Paragraph 39 that the statistical compilations from official records include an analysis of "[r]eports by members of the CPD of unfavorable conduct by citizens in encounters with the police." The FOP has suggested a separate form that could be submitted by police officers and supervisors, and submitted a draft form to the Parties on October 22, 2002. Plaintiffs objected to the FOP draft, and submitted their own draft on November 19, 2002, suggesting that the form not contain any identifying information. The Parties have not resolved this issue, or developed any alternative for reporting “unfavorable” conduct by citizens.
3. Assessment
The City’s data collection efforts have focused on only the sixmonth 2001 Period, and will not be brought forward until the City selects
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an entity or individual to analyze additional data. Moreover, while the data being analyzed for the 2001 Period includes motor vehicle stops and some pedestrian stops, officers during that time period were not required to complete the forms for pedestrian stops. Thus, those data are not complete. The Collaborative Agreement requires the analysis of all stops, both traffic and pedestrian stops. Even with respect to the 2001 Period, the collection and analysis of data has been severely hindered because:
• the information on the Contact Card was not entered into a database until nine (9) months to one year after it was gathered;
• there were discrepancies between the information entered into the database and the information on the Contact Cards;
• the Contact Cards required a complicated data entry program, which often resulted in data entry errors, including duplicate records;
• the Contact Cards were not submitted when required (for example, data from the Traffic Division and Parks Division had been missing; once located, the data had to be entered, causing further delay).
The current Contact Card does not meet the requirements of Paragraph 53 of the Collaborative Agreement because it does not include whether force was used. Also, there are insufficient policies and procedures for ensuring that Contact Cards are filled out accurately, that they are reviewed by a supervisor, and that the data from them is entered into a database and analyzed as required by the CA.17 An additional concern is whether CPD has sufficient staff resources, and IT capability to efficiently input the required data. These are issues that will be examined in more detail in future reports.
B. Training and Dissemination of Information
1. Requirement
The Collaborative Agreement requires that all Parties cooperate in the ongoing training and dissemination of information regarding the Professional Traffic Stops/Bias-Free Policing Training Program.
2. Status
In 2001, CPD approved a proposal to include a four hour class on Professional Traffic Stops as part of the Police Academy basic training course. The proposed class would address the concept of illegal profiling
17 We also note that the “explanation sheet” wrongly specifies that all of the fields on the Contact Cards are only to be filled out when there is a traffic stop.
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in traffic stops and would present a review of basic search and seizure requirements that apply to traffic enforcement. It would give the student a greater understanding of the dynamics of the relationship between a police officer and a motorist or pedestrian who is stopped on reasonable suspicion or probable cause. The training also would provide suggestions for turning what could be a confrontational encounter into an opportunity to change the motorist’s future driving behavior and build a better relationship. It is unclear whether this training class was included in new recruit training at the Police Academy.
CPD did include training on bias-free policing in its 2002 In-service Training for Police Officers and Specialists, which included a four-hour session on professional traffic stops. CPD provided the Monitor with a power-point program entitled “Effective Traffic Stops & Preventing BiasBased Profiling.” Segments of the training contain information regarding bias-based policing and preventing racial profiling. Portions of the training also address police professionalism.
3. Assessment
Given the information we have to date, we are unable to determine compliance with these provisions of the Collaborative Agreement. Inservice Training on bias-free policing was provided in 2002 for CPD officers. We have not had the opportunity to observe the training, however, nor do we have information regarding how often the training was conducted, and whether all CPD officers were able to attend training.
The 2002 Cincinnati Police Management Training manual does not reflect bias-free policing training and there is no additional information as to whether supervisors obtained any additional training. The New Supervisor’s Training Curriculum does not include bias-free policing training. The information provided to the Monitor regarding new recruit training also does not include training on bias-free policing. The Monitor was provided with approximately 75 roll call training scenarios and none of them include training on bias-free policing. There is no additional information regarding roll call training on this issue.
A memorandum dated October 2, 2002, of the Fairness Committee refers to videotapes that serve as training materials for Professional Traffic Stops. The Committee was to view the tapes and participate in training for the recruit class. No such tapes have been provided to the Monitor. Also, no information regarding recruit class training related to bias-free policing has been provided.
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C. Professional Conduct
1. Requirement
Paragraph 54 of the CA requires that when providing police services, officers conduct themselves in a professional, courteous manner, consistent with professional standards. Except in exigent circumstances, when a citizen is stopped or detained and then released as a part of an investigation, the officer must explain to the citizen in a professional, courteous manner why he or she was stopped or detained. An officer must always display his/her badge on request and must never retaliate or express disapproval if a citizen seeks to record an officer’s badge number. These provisions are to be incorporated into written CPD policies.
2. Status
The Monitor has been provided excerpts from CPD’s Manual of Rules and Regulations generally mandating courteous, fair treatment of all. CPD also provided the Monitor with a power-point program entitled “Effective Traffic Stops & Preventing Bias-Based Profiling.” Segments of the training contain information regarding professionalism. The Monitor was provided with an “Agreed Order Interpreting Collaborative Agreement ¶ 54” that is unsigned by the Judge and the Parties. Within this order, the Parties agree that the word “exigent” means that “except when public safety demands are so great that at that time there is no time to explain.” Even so, the status report indicates that there is still a disagreement concerning the circumstance in which a police officer must explain to a citizen the reason for the stop. The FOP objects to a specific definition of “exigent circumstances,” while other Parties do want such a definition. The Plaintiffs and the City have agreed to define the word “exigent” and accordingly the CPD has written proposed Policy 12.205 (Traffic Enforcement) and 12.554 (Investigatory Stops).
3. Assessment
There remains a disagreement concerning the circumstances under which a police officer must explain the reason for a stop of a citizen. The CA does not require an explanation in “exigent circumstances.” The City and the Plaintiffs believe that any adopted procedure should contain the CA language, with a definition of “exigent circumstances.” The FOP objects to including a definition of “exigent circumstances.”
The Monitor requests that CPD provide any training material or other written explanations relating to how officers making traffic stops (in other than “felony stop” situation) are supposed to approach the car and initiate the interaction with the driver. For example, many agencies have
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implemented SOPs directing officers when first addressing the motorist to introduce themselves and explain why the vehicle was stopped. Officers then ask for the motorist’s driver’s license and registration. [See NHTSA, Traffic Law Enforcement Division, “Conducting Complete Traffic Stops,” Module 5, Professionalism at the Traffic Stop, August 2000.]
V. CCA
A. Establishment of CCA, and CCA Board
1. Requirements
§ City will establish Citizen Complaint Authority
§ CA will replace CPRP and investigative functions of OMI. CCA will investigate serious interventions by police including shots fired, deaths in custody, major uses of force; and will review and resolve citizen complaints.
§ Board of seven citizens; Executive Director; and professional investigators. Board to be diverse.
§ Board and Executive Director to develop standards for board members, and training program, including Academy session and ride-along
§ Board and Executive Director will develop procedures for CCA
§ CCA to examine complaint patterns
§ CCA to develop a complaint brochure, as well as information plan to explain CCA workings to officers and public
§ CCA to issue annual reports
§ City Council to allocate sufficient funds for CCA
2. Status
As noted in Chapter 4, the CCA was created by City Ordinance on May 13, 2002 and came into operation on January 6, 2003. CCA Board members were selected by the Mayor and approved by the City Council. The CA requires that the Board members undergo a training program before they can begin their duties. The City developed a 40 hour training program for Board members, coordinated by Dan Baker a consultant to the City who later became interim Executive Director of the CCA. Each Board member also went on at least 20 hours of ride-alongs with police officers. According to the Parties December 19, 2002 Status Report, the
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Plaintiffs sat in on the legal training for CCA Board members regarding use of force, search and seizure and Miranda rights. In addition, after representatives of the Plaintiffs previewed the Firearms Simulator Training (FATS) to be presented to CCA Board members, a role playing component was added allowing the Board members “to be in the shoes of the civilian.” The CCA Board completed their training in November 2002.
The budget of the CCA is $670,000 for 2003 and $690,000 for 2004. The Solicitor’s Office has assigned an assistant Solicitor to the CCA to provide legal advice.
3. Assessment
The Parties have complied with these provisions of the CA.
B. Executive Director and Staff
1. Requirements
§ City Manager shall appoint Executive Director; the Executive Director is responsible for the operations of the CCA
§ City Manager and other city officials are prohibited from interfering with individual investigations.
2. Status
Nathaniel Ford appointed as Executive Director on January 22, 2003. All of the Parties participated in the executive director search and interviews for the position. The Parties agreed to his selection.
3. Assessment
The Parties have complied with these provisions of the CA.
C. CCA Investigations and Findings
1. Requirements
§ Officers must give compelled statements to CCA. Board has power to subpoena other witnesses.
§ At least 5 professional investigators.
§ All citizen complaints referred to CCA. CCA to notify CPD of any complaints received. CCA to open its own investigation upon complaint of serious misconduct or allegations of serious police intervention.
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§ CCA will assign investigator within 48 hours. CPD to notify CCA of serious police intervention and CCA investigator to go to scene to monitor work of CPD at scene.
§ CPD may conduct its own parallel investigation, and will conduct all internal investigations.
§ CPD officers to submit to CCA questions; CCA to have access to CPD records.
§ The Chief of Police and the CCA Executive Director shall develop written procedures for coordination of their respective investigations.
§ CCA investigations are to be completed within 90 days, with extensions possible.
§ CCA investigative reports, with proposed findings and recommendations, will be forwarded to the CCA Board; the Board may hold a hearing or make a summary disposition.
§ The purpose of a CCA Board hearing on an individual complaint is review, not reinvestigation; the Board hearings are to be nonadversarial. Hearings can be in closed sessions, with written record kept.
§ Board to approve or disapprove Executive Director’s findings; Board’s decision to be submitted to the Chief of Police and City Manager. The City Manager shall agree or not; if not, with reasons.
§ CCA and CPD shall create a shared electronic database to track citizen complaints. This database shall be integrated into the Risk Management System.
2. Status
The CCA Ordinance requires officers to provide statements to the CCA. A Policy and Procedures Manual for the CCA has been drafted and approved by the CCA Board. This manual establishes procedures for CCA meetings, the obligations of the Executive Director and CCA Board members, and complaint intake and review. The CCA is in the process of developing hearing procedures and investigative standards. The CCA has inherited from OMI its Microsoft Access database for tracking complaints. It is also working with CPD on developing a shared database.
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Currently, the CCA is operating with carry-over staff from the OMI. The executive director is in the process of hiring new investigators (although some of the OMI investigators have also reapplied for the positions), and the Parties are participating in the hiring process. At least 125 resumes have been considered.
A number of investigations were pending before OMI when the CCA came into operation. Those investigations are now the responsibility of the CCA. A small number of investigations were essentially completed by OMI, but no decision on them had been made prior to January 6, 2003. Those cases are being reviewed by the CCA, and being prepared for CCA Board action. So far, there have not been any CCA appeals hearings, but CCA is taking and investigating new complaints.
The CCA Executive Director has begun discussions with the Chief of Police regarding dual investigations, but those discussions have not been completed, and there is as yet no written plan for coordination. As noted in the Parties March 5 Status Report, a significant dispute had developed relating to when CCA investigations should begin, and what CCA investigators may do when there is an ongoing criminal investigation, or a parallel IIS administrative investigation.
The CA states that the CCA will complete its investigation within 90 days of its receipt of the complaint from a complaining citizen. It also states that the CCA shall “open its own investigation” when the CCA Executive Director learns of allegations of “serious police intervention,” defined in the CA as including major use of force, shots fired, or deaths in custody. Separately, the CA requires CPD to notify CCA when a serious police intervention occurs and requires CCA to dispatch a CCA investigator to the scene. That investigator shall not enter the crime scene or impede a criminal investigation, but the CPD may not interfere with the CCA investigator’s ability to monitor the work of the CPD at the scene and monitor interviews conducted.
Because the CCA is a City entity, and its investigations are administrative in nature, it is subject to the disclosure requirements of the Ohio public records law. The Parties’ Status Report states that for this reason, the CPD is taking the position that CCA investigators should not document their investigation pending the completion of a criminal investigation. The City’s Law Department is researching the issue, but it does appear that Ohio’s public records law does allow disclosure of any City record, even if the investigation is still ongoing, so long as it is an administrative and not criminal investigation. Because disclosure of any information resulting from a compelled statement by a CPD officer could jeopardize a criminal prosecution, this is an issue that must be resolved carefully. Our understanding from the Parties to the CA is that the investigator’s personal notes may not be subject to disclosure. One resolution, therefore, could be allowing CCA investigators to monitor the
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scene and the CPD investigation, but without preparing memoranda until the criminal investigation is complete.

3. Assessment

The Parties are in partial compliance with these requirements. The CCA is in place and ready to conduct its investigations. It is in the process of hiring new investigators. Moreover, its jurisdiction is clear regarding which cases it will take as mandatory investigations. However, there are ongoing issues relating to whether CCA investigators are being allowed to begin their investigation, and monitor CPD work and interviews, until after the CPD investigations (both criminal and administrative) have been completed. While the CA is clear that investigations beginning with a complaint should be complete within 90 days, absent an extension, that provision is not clear regarding how it applies to investigations started with notice of a serious police intervention, and how it should apply to incidents where there is also a criminal investigation.

The Parties are in the process of working through these issues, and we will work with them in addressing them. In future reports, we will also assess the completeness and quality of CCA investigations through a review of a sample of CCA investigative files.

VI. Individual Actions

Paragraph 116 of the CA states that the Parties agree to develop, within 30 days of approval of the Agreement, an expedited arbitration process for the individual litigation matters listed in the CA. While the parties did not develop that process within 30 days of the Fairness Hearing, there have been ongoing discussions between representatives of the Plaintiffs, the City and the FOP on resolving these matters. As of yet, however, the Parties have not determined what process will be used to resolve the individual claims.

Chapter 6. Review of Sample Investigations

I. Sample Chemical Spray Investigations

A. Spray into Crowds

Tracking Number

Date

Time

20020510

8/17/02

0310 hrs

Investigation: Officer sprayed chemical irritant into crowd.

Review: the officer was clearing a parking lot at the Ritz Club when a large crowd started to form and a fight broke out. The officer gave several commands for the crowd to disperse. The crowd did not comply. The
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officer sprayed chemical irritant into the crowd. The crowd fled in several directions.

Areas of concern: (1) The use of chemical irritant report in this case was not detailed. We cannot assess whether the situation was so exigent that supervisory approval was not able to be obtained. There also is no information about whether the spray was deployed at the correct distance, in the correct amount. We recommend that the force forms be revised to identify MOA requirements.

Tracking Number

Date

Time

20020505

8/17/02

2250 hrs

Investigation: Officer sprayed chemical irritant into crowd.

Review: The officer observed a juvenile being assaulted in front of a restaurant by five suspects. The officer issued several warnings to stop fighting to no avail. The officer sprayed a three to five second burst of chemical irritant into the crowd. The group, including the victim in the assault fled on foot.

Areas of concern: (1) The report covered most of what was needed to assess compliance with MOA provisions; however it did not address whether supervisory approval was possible. The Monitor is left to assume that there was not enough time to obtain the approval.

Tracking Number

Date

Time

20020459

7/27/02

0213 hrs

Investigation: Officer sprayed chemical irritant into crowd.

Review: The officer was clearing a parking lot at a local Club when a large crowd started to form and a fight broke out. The officer gave several commands for the crowd to disperse. The crowd did not comply. The officer sprayed chemical irritant into the crowd. The crowd fled in several directions.

Areas of concern: (1) The use of chemical irritant report in this case was not detailed. It is not possible to assess whether spray was necessary, whether supervisory approval was impractical, and whether the spray was properly deployed. Given that, it is also not possible for the supervisors in the chain of command to make these assessments.

Tracking Number 20020459

Date 7/27/02

Time 0213 hrs

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Investigation: Officer deployed chemical irritant at suspect who was fighting.

Review: The officer observed a “big fight” break out while on patrol. The officer ordered a suspect to stop fighting. The suspect refused. The officer deployed his chemical irritant at the suspect. The suspect was arrested without further incident.

Areas of concern: (1) This report was categorized as a use of chemical irritant deployed in a crowd. However, the report does not describe the crowd or what the officer refers to as a “big fight.” If this was a crowd situation, there is very little information to determine whether the officer followed the MOA requirements.

(2) The report does not identify with whom the suspect was fighting. Nor is there a statement from the officer who is listed as a witness. The only information contained in the report is that the witnessing officer corroborates the involved officer’s statement.

Tracking Number

Date

Time

20020463

7/30/02

2101 hrs

20020464

7/30/02

2101 hrs

20020465

7/30/02

2101 hrs

Investigation: Officer deployed chemical irritant at a subject resisting

arrest and at two subjects pulling the suspect away from the officer while

attempting to arrest the suspect.

Review: The officer observed a large crowd of people fighting on the street. The officer called for assistance. The officer confronted a woman who was part of the crowd holding a baseball bat in her hand. The officer ordered the women to put down the bat; an unknown woman in the crowd took the bat from the first woman. The officer took the bat from this second woman. The officer advised the first woman that she was under arrest for disorderly conduct. The woman actively resisted by swinging her arms away from the officer. The officer deployed a one second burst of chemical irritant to the woman’s face. While the officer was attempting to arrest the first woman, a man and another woman grabbed the first woman and tried to pull her away from the officer. The officer also sprayed both subjects with one second bursts of chemical irritant, which caused them to flee from the scene.

Areas of concern: (1) The officer reacted well in limiting his use of chemical irritant to the individuals involved in the resisting arrest incident.
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(2) There are, however some confusing issues about the report. In one report it states that the woman fled the scene, but the box is also checked for “allowed person to wash face.”
(3) In report 0465, there is no interview with the father who brought his son to the officer to turn himself in.

B. Chemical Spray on Restrained Individual

CPD notes 24 uses of chemical spray on restrained individuals in the 3rd quarter of 2002, and 15 in the 4th quarter of 2002. The Monitor team reviewed a sample of theses cases.

Tracking Number

Date

Time

20020576

9/22/02 0028 hrs

Investigation: Officer sprayed chemical irritant on a suspect who was

restrained in the rear of the officer’s car. A citizen complaint was filed as

a result.

Review: The officer caught the fleeing suspect after engaging in a short foot pursuit. The suspect was handcuffed and placed in the rear of the police car with the lap bar in place. While the suspect was in the rear of the car, he started to hit his head on the Plexiglas partition. The officer advised the suspect several times to stop hitting his head on the partition. The suspect continued to hit his head on the partition. The officer opened the rear window of the police car and sprayed the suspect with chemical irritant. The suspect stopped hitting his head on partition.

Areas of concern: (1) The officer said a lap belt was not used because the suspect was being disorderly when he was put in the rear seat. There is a very good chance that the suspect would not have been able to hit his head against the partition if he was restrained by a seat belt.

(2) The MVR tape was not included in the package sent to the monitor. (Another one of the reports indicated that the MVR system malfunctioned while the suspect was hitting his head on the partition. This is unfortunate, as the tape would have been helpful in determining whether the officer followed proper procedure.) Officers are supposed to activate their MVR cameras when transporting violent prisoners (MOA Paragraph 70).

Tracking Number

Date

Time

20020579

9/13/02 2234

20020566

9/13/02 2350

20020580

9/13/02 2305

Investigation: Officer sprayed chemical irritant at a suspect who was

restrained in the rear seat of a police car.

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Review: The suspect, accused of a drugstore theft, was placed under arrest. The officer placed the suspect in the rear of the police car and took him back to the store to get a positive ID from the store employees. Once the employees gave the officer positive ID on the suspect, the suspect started yelling and kicking at the rear window of the police car. The officer warned the suspect several times to stop his behavior, then sprayed the suspect with a three-second burst of chemical irritant. After the suspect was sprayed, the officers secured him in the rear seat with a restraining bar and a lap/shoulder belt. When the officers arrived at the Justice Center, the suspect once again freed himself from the restraining bar and the seatbelt and started kicking the windows of the police car. The officer warned the suspect again to stop kicking the windows. The suspect refused and the officer sprayed the suspect with a three second burst of chemical irritant. Once at the Justice Center and sometime during processing, the corrections staff noticed that the suspect received a laceration to his hand. The suspect was transferred to the hospital for treatment.

Areas of concern: (1) There was an interview with an officer who is not listed on the use of force report. (2) The person listed as a “stranger” in the witness block, is one of the complainants who identified the suspect as the person who stole items from the drugstore. She probably should be listed as a “victim” so that her statements can be objectively assessed. (3) There are no interviews with the persons at the Justice Center who first noticed the suspect’s injuries, regarding how the injury might have occurred. (4) This is one of several reports reviewed where the suspect has defeated the restraining system in the rear of the police vehicle. The CPD should consider examining these incidents and research other alternatives.

Tracking Number

Date

Time

20020552

9/4/02

1310 hrs

Investigation: The officer sprayed the suspect twice with chemical

irritant while the suspect was handcuffed.

Review: The officer placed the suspect under arrest for trespassing in an apartment house. The officer was escorting the suspect out of the building when the suspect went limp and pressed against a door jam, refusing to move. The officer ordered the suspect to cooperate and continue to walk forward. The suspect refused. The officer warned the suspect that he would be sprayed with chemical irritant if he did not cooperate. The suspect told the officer to spray him. The suspect then stuck his face out, closed his eyes and took a deep breath. The officer sprayed the suspect. The suspect then cooperated until he got to the officer’s car. As the officer was placing the suspect in the car, the
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suspect locked arms with the officer and stepped into the door area of the police car, locking his leg. The action taken by the suspect kept the officer from putting the suspect in the car. It also kept the officer from being able to control the suspect. The officer warned the suspect to stop his actions. The suspect refused, so the officer sprayed him a second time. There were no further incidents.

Areas of concern: There were no concerns with this incident. The investigative tapes corroborate the officer’s statements.

Tracking Number

Date

Time

20020551

9/02/02 0515 hrs

Investigation: The suspect was sprayed with chemical irritant while

secured in the rear of a police car.

Review: The suspect was arrested for interfering with an arrest. The suspect was placed in the rear of a police car for transport. While in the police car, the suspect freed himself from the lap bar four times and started kicking the Plexiglas partition. The suspect continued to kick at the partition and the windows of the police car. The officer warned the suspect that he would be sprayed with chemical irritant if he did not stop kicking. The suspect refused. The officer sprayed the suspect. The suspect stopped kicking but screamed and yelled during the remainder of the transport.

Areas of concerns There were no concerns with this case. In the taped interview, the suspect indicated that he told the officers to go ahead and spray him.

Tracking Number

Date

Time

20020740

11/9/02 0308 hrs

Investigation: The officer sprayed the handcuffed suspect with chemical

irritant while the suspect was in the rear of the police car.

Review: The suspect was handcuffed with her hands behind her back and secured by seat belt and lap restraint in the police car. While she was being transported for processing, the suspect was able to get her hands in front of her and began punching the transport partition. The suspect then began kicking the rear of the officer’s seat and striking her head against the transport partition. The officer ordered her to stop her disorderly conduct. The suspect refused. The officer arrived at the justice center and started filling out the required paper work in the sally port. While the officer filled out the paper work, the suspect again started hitting her head against the transport partition. The officer, fearing that the suspect would injure herself, sprayed the suspect with chemical irritant. The suspect ceased the disorderly behavior.

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Areas of concern [We note that the CPD in its investigation identified the same areas of concern as did the Monitor]:

(1) The officer used poor judgment and put the suspect in danger of causing harm to herself by not stopping and calling for assistance as soon as the suspect started hitting her head on the transport screen.

(2) The officer should have secured the suspect after entering the sally port and before filling out his paper work.

(3) The officer used poor judgment when he stated he did not want to use chemical irritant on the suspect during transport, because he wanted to spare the supervisor from having to write a report.

(4) The report indicated that the officer was counseled for this incident. The Monitor would like to confirm this was completed.

Tracking Number

Date

Time

20020732

11/05/02 1155 hrs

Investigation: The officer sprayed the suspect with chemical irritant as

the suspect was being handcuffed.

Review: The officer told the suspect he was under arrest. “The suspect attempted to flee when handcuffs were applied.” The officer deployed a two-second burst of chemical irritant to immobilize the suspect. The suspect was transported to the Justice Center.

Areas of concern:

1) There was no taped interview with this report. There is a note that the supervisor felt that the suspect was not handcuffed, therefore not restrained, so no interview was needed. However, the report indicates that handcuffs were indeed applied.

Tracking Number

Date

Time

20020729

10/31/02

1500 hrs

Investigation: Suspect was sprayed with chemical irritant while

handcuffed.

Review: The officer was placing the handcuffed suspect in the rear of his police vehicle, when the suspect started struggling with the officer and refused to get in the car. The officer sprayed the suspect with a twosecond burst of chemical irritant. The suspect complied and was put in the rear of the police car. The suspect then started kicking the rear windows of the vehicle. The suspect was told to stop kicking. He would not comply with the officer’s demands, so the officer sprayed him again

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with the chemical irritant. The rear safety bar was put across the lap of the suspect, and he was transported without further incident.

Areas of concern: The taped interviews were consistent with the investigation. The Monitor has no concerns on the handling of this incident.

Tracking Number

Date

Time

20020779

11/29/02

0045 hrs

Investigation: The suspect refused to be handcuffed, then refused to be

placed in the police vehicle.

Review: The suspect was told he was being arrested for disorderly conduct. The suspect refused to be handcuffed. The suspect was sprayed with a two-second burst of chemical irritant. The suspect was handcuffed, and the officer attempted to place the suspect in the rear of the police car. The suspect refused to get in the car, so the officer sprayed him a second time. The suspect was transported without further incident.

Areas of concern: 1) There is no indication in the report that the suspect was warned prior to being sprayed with the chemical irritant.

2) The supervisor who did both the taped interview and the investigation was involved in handcuffing of the suspect. An onscene supervisor who participates in a use of force incident or authorizes use of force should not then be the investigating officer (see MOA Paragraph 26).

Tracking Number

Date

Time

20020748

11/23/02

2157 hrs

Investigation: The suspect was handcuffed in the rear of the police car

and was sprayed with chemical irritant.

Review: The suspect was handcuffed and placed in the rear of the officer’s car. The suspect started kicking the rear windows of the police car. The officer ordered the suspect to stop kicking the windows. The suspect refused and the officer sprayed him with chemical irritant. The suspect was transported without further incident.

Areas of concern: 1) The report indicates that the officer ordered the suspect to stop kicking the window, but there was no warning that the suspect would be sprayed if he did not stop.

2) The witness listed in the report is referred to as a stranger. The taped interview indicates that she is the victim of the drunken 99

driving accident. Clearly she is a witness to the suspect’s behavior. However, her involvement in the incident should be accurately reflected so that CPD (and the Monitor) can weigh the witness’ objectivity as it relates to the incident.

II. Sample of Canine Investigations

The following is a review of the CPD police Canine bites for both the second and third quarter of 2002.

Tracking Number 20020625

Date 9/14/02

Time 0542 hrs

Review: The officer was tracking on a 30-foot lead for robbery suspects. As the track proceeded the dog came upon a subject hiding in the tall grass and bit the subject inflicting minor injuries.

Areas of concern: (1) The subject who was bitten was not involved in the robbery. He was a juvenile who had a warrant out for underage drinking. Neither the investigation by the Canine Unit nor Inspections notes this issue. In fact, this bite should be characterized as an accidental bite, since the individual bitten was not the person for whom the officers were searching. (2) The investigative reports do not mention any warnings being given by the Canine officer that the dog was going to be deployed.

Tracking Number 20020624

Date 9/12/02

Time 0114 hrs

Review: The officer was tracking on a 30-foot lead for three suspects who had just fled from a stolen car while possibly armed. The canine rounded a corner of a shed, out of site of the canine officer, and bit one of the suspects it was tracking. When the officer observed the canine engaged with the suspect the officer had the canine disengage. After the suspect was placed under arrest, the officer and canine tracked the other two suspects and effected an arrest without a bite.

Areas of concern: (1) The officer lost site of his canine while the canine was on lead; this was the time the bite took place. (2) The inspections summary of what occurred states that the officer immediately ordered the canine to disengage. The onscene supervisor’s report suggests that the order to disengage was not immediate; rather the report states the officer observed no weapon in the suspect’s hand and then issued a command to disengage. This is a slight discrepancy, but the issue of
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when the canines are called off appears to be an issue that CPD should examine. (3) There is no mention of a canine warning given before the canine was deployed.

Tracking Number 20020623

Date

Time

9/08/02 0046 hrs

Review: The canine officer responded to a call for a commercial burglary. When on the scene at the rear of the building, the officer observed the suspect in possession of a crow-bar and a bag later to be found to contain proceeds from the burglary. When the suspect observed the officer, he ran from the scene. The officer ordered the suspect to stop, but the suspect continued to run. As the suspect approached a wooded area, the officer released the dog from its lead and the dog pursued the suspect. The canine bit the suspect, and the suspect started punching the canine and “vigorously squeezing his muzzle in an attempt to escape apprehension.” After multiple warnings to the suspect to cease, the officer sprayed the suspect with a chemical irritant “which had the desired effect.” The officer then recalled the canine back to heel. The suspect was arrested.

Areas of concern: (1) The officer allowed the canine to continue to bite the suspect while the suspect attempted to get the canine to release him. The officer viewed the suspect’s actions as attempting to avoid apprehension. However, this action does not recognize the importance of the provision in CPD’s canine policy stating that the handler will call off the dog at the first safe moment, “taking into account that the average person will struggle if seized or confronted by a canine. Struggling alone will not preclude the release of the canine.” (Procedure 12.140.A.3.f) (2) The Inspections Section sent the investigation back to the onscene supervisor with recommendations to add additional information justifying the actions of the officer. The Inspections reviewer does not identify any concerns over the failure to recall the dog. (3) The Inspections Section report states that the officer’s tactics “were excellent.” The reviewer goes on to say that the officer’s use of chemical irritant was justified to “overcome violent behavior that presented an ongoing risk of injury to both the suspect, the officers in the area, and the canine.” However, it appears from the investigation that ordering the canine to disengage would likely have allowed for apprehension and avoided the need for chemical spray. (4) The Inspections report recommends training for the supervisor who did the investigation, but does not address any type of review or retraining for the canine officer.
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Tracking Number 20020546

Date 8/29/02

Time 0010 hrs

Review: The officer responded to a call for a canine deployment for an armed robbery suspect. The officer deployed the canine using a 30-foot lead. The officer tracked the suspect to an area behind some homes. As the officer was tracking along a cement wall, the canine went around the end of the wall and “immediately located the suspect who was lying on his stomach on the back side of the cement wall surrounded by high grass.” The officer turned the corner and observed the canine biting the suspect’s right upper torso area. The canine was ordered to disengage and the suspect was placed under arrest.

Areas of concern: (1) There was no mention in any of the reports that the officer issued a warning that the canine was being deployed. (2) The officer lost sight of the canine when the bite took place. (3) There is no review of “tactics” in the Inspection’s report, which has been included in other canine bite reviews.

Tracking Number 20020571

Date

Time

9/02/02 0155 hrs

Review: The officer responded to a call to deploy his canine for a burglary suspect. The canine was deployed on a 30-foot lead; the canine tracked the suspect to a location where the suspect was partially under a vehicle and between some bushes. Before the officer realized the canine found the suspect, the canine had bitten the suspect on the right bicep in an attempt to pull the suspect from under the vehicle. The suspect tried to run from the dog and was bitten on the back side of his left leg near his buttocks. The suspect grabbed the canine’s head and mouth, the canine disengaged and bit the suspect on his left foot. The suspect grabbed the canine again by the head and mouth. The officer verbally warned the suspect several times to release the canine but he did not comply with the order. The officer placed the bottom of his left foot on the suspect’s upper thigh and pushed the suspect away in order to separate the suspect from the canine. The suspect was placed under arrest.

Areas of concern: (1) The supervisor who approved the use of the canine also completed the use of force report. (2) The report stated that the canine was on lead. If so, the officer should have been close enough to the canine to order it to disengage. (3) Instead of ordering the canine to disengage, the officer ordered the suspect to disengage.
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(4) The report from Inspections does not review tactics. (5) There is no reference to any canine warning being given.

III. Sample Force Investigations

Tracking Number

Date

Time

20020494

7/23/02

0935 hrs

Investigation: Officer struck suspect in head with PR24 baton.

Review: Two officers in the downtown area were following a suspect who was wanted on a warrant for an aggravated robbery. As one officer approached the suspect, the suspect started to run away from the officer. The officer observed the suspect glance over his shoulder several times, which the officer interpreted as being hostile actions and feared that the suspect was preparing to shoot him. The officer pursued the suspect on foot giving verbal commands to stop running. The officer caught up to the suspect; fearing the suspect was armed. The officer raised his PR24 to strike the suspect from behind on the shoulder. According to the officer, the suspect suddenly stopped and the officer missed his intended target and struck the suspect’s head. The officer then used a leg sweep taking the suspect to the ground where the officer then applied a single knee strike to gain control of the suspect’s hands after two verbal demands had been ignored.

Areas of concern: (1) The investigative reports do not identify any retraining needs to be discussed with the officer in this case. A baton strike to the head is inappropriate, and can be fatal. In this particular case, it appears not to have been intentional; however, reinforcement of the proper use of the PR24 is strongly recommended. (2) There is also a discrepancy in the investigative reports and the witness statements. The investigative reports indicate the suspect abruptly stopped and turned, when he was struck by the officer. The witness statements, from at least three witnesses who observed the officer striking the suspect, indicated that both the officer and the suspect were still running when the officer struck the suspect. Tapes of the witness interviews were not included in the investigative file sent to the Monitor, but we have requested those tapes for further review. (3) There is a discrepancy between the 18F Form and the CIS memo regarding the suspect’s injuries (critical injury versus slight head wound). In addition, both “ceased all movement” as well as “exaggerated movement” were checked on the Form 18F, as was “target glance.”

Tracking Number 20020547

Date 8/16/02
103

Time 1215 hrs

Investigation: Officer deployed three Taser devices to subdue suspect.

Review: A CPD officer attempted to arrest a suspect for aggravated burglary; the suspected resisted the officer and fled on foot. As the suspect fled he ran through a restaurant, picked up a large knife and ran into a parking lot. While in the parking lot, the suspect was confronted by several officers who issued several commands to drop the knife and surrender. The suspect refused to comply. One officer attempted to spray the suspect with a chemical irritant but was unable to make contact with the suspect. At this point the suspect started stabbing himself with the knife in the stomach and chest, advising the officers that they would have to kill him. The officer deployed three Taser darts, two which missed and the third which hit the suspect on the right side of his body. The suspect dropped the knife and fell to the ground without further incident.

Areas of concern: The Monitor has no concerns about how this incident or investigation was handled.

Tracking Number

Date

Time

20020493

7/20/02

1908 hrs

Investigation: Officers deployed several beanbag rounds, several pepper-

ball rounds, and chemical irritant to subdue a violent suspect.

Review: Officers responded to a call for domestic violence. When the officers arrived, they confronted the suspect in the front yard of the address. The officers approached the suspect, at which time the suspect ran to the rear yard of the address, picked up a two-foot long board and assumed a fighting stance. The officers ordered the suspect to drop the board, but the suspect threw the board at one of the officers striking him on the left leg. The suspect then ran into the house.

The officers waited for the arrival of additional officers and a supervisor. The supervisor arrived and issued several verbal commands to the suspect to come out of the house. The suspect refused. The supervisor broke a window and deployed a chemical irritant into the house. When the irritant was deployed, the mother of the suspect (who was the victim of the domestic violence) exited the home. She then gave permission for the CPD to enter the home. Once inside, the officers confronted the suspect again. The suspect threw another board with a nail in it at the officers and ran into a shower stall.

As the officers were attempting to follow the suspect, two large German Shepherd dogs aggressively approached the officers. The officer deployed two beanbag rounds striking each dog. The beanbags caused the dogs to retreat.

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The officers issued several commands for the suspect to exit the shower stall. The suspect refused. The supervisor then fired twenty pepper-ball rounds against a wall behind the shower stall in an attempt to force the suspect out of the stall. The pepper-balls had little effect. The supervisor ordered an officer to deploy a canister of Clear Out gas into the shower stall. The suspect threw the canister of Clear Out back into the room. The officers were affected by the Clear Out and had to exit the house. The suspect then ran out of the house into the rear yard.
As the suspect entered the rear yard, he was confronted by two officers who ordered the suspect to the ground. The suspect refused to comply and charged the officers. One of the officers fired a beanbag round at the suspect striking him in the stomach. The suspect fell to the ground and then started to get back up. Another officer, seeing that the suspect was still not complying, fired another beanbag round at the suspect striking him in the left side of his back. The suspect remained on the ground while the officers attempted to handcuff him. While being handcuffed, the suspect became violent and resistant, and an officer attempting to handcuff the suspect struck him twice with his fist in the arm to get the suspect to comply with the handcuffing. The suspect did not comply.
The supervisor verbally warned the suspect that if he did not comply, he would deploy the pepper-ball gun. The suspect still resisted. The supervisor fired seven rounds into the suspect’s back, which had little effect. The supervisor warned the suspect again to comply or additional pepper-ball rounds would be fired. The suspect ignored the orders. The supervisor fired seven additional pepper-ball rounds to the right side of the suspect’s back. Again the rounds had little effect.
The supervisor warned the suspect to submit to the handcuffing or he would be shot with a beanbag round. The suspect refused to comply and the supervisor fired one beanbag round striking the suspect in the right shoulder. The suspect was taken into custody without further incident.
Areas of concern: (1) The use of the pepper-ball gun as a pain compliance tool while the suspect was on the ground is not the intended use of the pepper ball gun. In particular, after the first volley of pepper ball rounds had no effect, a second round seems questionable. (2) The Monitor would note that the review by the District Commander in this case was particularly thoughtful and addressed each use of force, tactics and training issues.
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APPENDIX 1
Monitor Team
Saul Green, Primary Monitor. Saul Green is Senior Counsel of Miller, Canfield, Paddock and Stone, and is the director of its Minority Business Practice Group. From March 1994 to May 2001, he served as the United States Attorney for the Eastern District of Michigan. Prior to that, he was Corporation Counsel for Wayne County, Michigan from 1989 to 1993. Mr. Green was the Chair of Advocates and Leaders for Police and Community Trust (ALPACT), a coalition of more than 30 law enforcement, civil rights, and community organizations in Michigan working together to address racial profiling, and he was co-chair of the Michigan Alliance against Hate Crimes (MIAAHC) from 1988 to 2001. As U.S. Attorney, Mr. Green initiated and supervised “pattern or practice” investigations for his office of the Detroit Police Department and the East Pointe, MI, Police Department. In 2002, he also served as the co-chair of the Mayor’s transition team for the Detroit Police Department. He is an adjunct professor at the University of Michigan Law School where he teaches a seminar on racial profiling.
Richard Jerome, Deputy Monitor. From 1995 to January, 2001, Richard Jerome coordinated the Department of Justice’s efforts to promote police reform, including the Department’s publication of “Principles for Promoting Police Integrity.” He served as Deputy Associate Attorney General from 1997-2001, during which time he oversaw the work of the Civil Rights Division and the Community Relations Service. As Counsel to the Assistant Attorney General for Civil Rights, he coordinated the efforts of the National Church Arson Task Force. Mr. Jerome is currently a consulting expert to the cities of Oakland and Detroit, and has recently completed a review of the City of Albuquerque’s police oversight system. Mr. Jerome has an extensive background in civil rights litigation and law enforcement practices.
Joseph Brann (Training). Joseph Brann is the founder and President of Joseph Brann & Associates, LLC – a consulting firm specializing in public safety issues, organizational development and improving police managerial performance and accountability. Among other activities, Mr. Brann serves as the Monitor providing oversight of the Riverside, CA, police reform efforts on behalf of the California Attorney General. From 1994 to 1999, Mr. Brann served as the Director of the Office of Community Oriented Policing Services (COPS Office) with the U. S. Department of Justice. Mr. Brann built the new federal agency with the needs of local law enforcement in mind, resulting in a national reputation for delivering quality customer service in federal government. From 1989 to 1995, Mr. Brann was Chief of Police in Hayward, CA, where he successfully integrated community policing and problem
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solving concepts into police operations. He also served with the Santa Ana, CA, Police Department for 21 years
Rana Sampson (CPOP) is the founder of Community Policing Associates, a consulting company which has provided technical assistance and training in implementing community and problem-oriented policing to several hundred police departments and communities in the United States, Canada and the UK. Ms. Sampson is the former director of public safety for the University of San Diego. She was previously a White House Fellow; National Institute of Justice Fellow; senior researcher and trainer at the Police Executive Research Forum; attorney; and patrol officer, undercover narcotics officer and patrol sergeant with the New York City Police Department, where she was awarded several commendations of merit and won the National Improvement of Justice Award. She is the author of problem solving guides for police in the area of drug dealing in privately owned apartment complexes, false burglar alarms, school bullying, acquaintance rape of college students, and 911 abuse and misuse. She is the coauthor (with Michael Scott) of Tackling Crime and Other Public-Safety Problems: Case Studies in Problem solving, which documents high-quality crime control efforts from around the United States, Canada and Europe. She is a judge for the Herman Goldstein Award for Excellence in Problem-Oriented Policing, and for the James Q. Wilson Community Policing Award. She is also a commissioner with California’s Commission on Peace Officer Standards and Training.
Nancy McPherson is the Director of Services for the Portland Police Bureau, serving as a civilian executive at the assistant chief level. Her portfolio in Portland includes Training, Police Corp, Personnel, Information Technology, Records, Fiscal, Alarm Administration, and Management Services. In 1988, Ms. McPherson was hired by the Police Executive Research Forum (PERF) to develop and implement a new approach to policing, Problem Oriented Policing, in the San Diego Police Department. In 1990, she was asked to continue this work as the Manager of Neighborhood Policing for the San Diego Police Department, reporting directly to the City Manager and the Police Chief. In 1994, she was hired by the Seattle Police Department as the first civilian assistant chief. She worked in Seattle until 2000, when she began her work for Portland. Ms. McPherson is a nationally recognized expert in community policing and problem oriented policing, who consults nationally with cities and police executives.
Tim Boyle (Use of Force). Tim Boyle is a Vice President at PSComm, LLC. Mr. Boyle is a nationally recognized authority on information and communications technology. He is the Chairman of the Washington Metropolitan Council of Government's Police Technology Committee and a member of the Montgomery County (MD) Criminal Justice Coordinating Commission. Mr. Boyle was a founding principal of Mobile Data
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Technologies, LLC. Mr. Boyle retired from the Maryland-National Capital Park Police (MNCPP) Department, where he most recently was the Acting Assistant Chief for the Management and Technology Services Branch. Prior to that role, Mr. Boyle served as the MNCPP's Acting Assistant Chief for the Field Operations Branch, (Lieutenant) Commander of Patrol and Special Operations, (Lieutenant) Region Commander, and (Sergeant) Community Relations Section staff. Mr. Boyle was also a member of the Baltimore Police Department.
Wayne Eveland (Risk Management System) is Vice President and Chief Information Officer of PSComm, LLC. He oversees all information technology initiatives relative to corporate infrastructure, technology partnerships, product development, and consultation with corporate and public sector clients. Since January 2003, he has been involved in strategic development and homeland security in major cities such as Los Angeles and Detroit. Prior to joining PSComm, Mr. Eveland was a sworn member of the New Jersey State Police, retiring after 25 years of service at the rank of Captain. He held the positions of Chief Information Officer and Chief Technology Officer and served for over 16 years in the information technology arena. He was responsible for all information technology initiatives within the New Jersey State Police. As an active member of the FBI’s Security and Access Committee, Mr. Eveland helped develop national policy for the CJIS system through the FBI’s Advisory Policy Board. He has been actively involved in U.S. Justice Department sponsored Global Justice Information System projects while serving as a member of the New Jersey CJIS Policy Board. He also was a member of the State of New Jersey’s Executive Committee in response to the Justice Department consent decree on racial profiling. He attended the Northwestern University School of Police Staff and Command and was the recipient of the Franklin M. Kreml Leadership Award.
John Williams (Local Counsel). John Williams is the managing partner of the Cincinnati office of Gonzalez, Saggio & Harlan, LLP. Gonzalez, Saggio & Harlan is the fifth largest minority-owned law firm in the country and has offices in Cincinnati, Milwaukee, Chicago, Indianapolis and West Des Moines. From 1989 to 1992, John served as an Assistant Prosecutor for the Solicitors Office City of Cincinnati. From 1992 until 2000, he served as an Assistant City Solicitor. He is actively involved in the community, serving as a board member of the Alcohol and Drug Addiction Services Board of Hamilton County, chair of the community service committee of the Cincinnati Bar Foundation, and a trustee of the Cincinnati Bar Association. He also serves on the advisory board of the University of Cincinnati College of Law.
Kristina Maritczak is an associate with Miller, Canfield, Paddock and Stone. From September 1995 to October 2000, she was an Assistant Prosecuting Attorney with the Oakland County Prosecutor’s Office. While at the prosecutor’s office, she served as an instructor to many of the
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police agencies in Oakland County. Also, Kristina served as a consultant to the government of Ukraine and worked with their law enforcement and police agencies, amongst others, in their democratization efforts. David McDonald is the Director of Consulting Services for PSComm, LLC and is responsible for managing all of the various projects and contracts of the company. Mr. McDonald retired as a Commander from the Metropolitan Police Department, Washington, D.C. (MPDC) after more than 20 years of service. While working with the MPDC, Mr. McDonald was responsible for implementing and overseeing many technology projects, including: computer assisted dispatch systems, records management systems, wireless communications and mobile computers, automated fingerprint systems, wide-area computer networks, and voice and data communications systems. Mr. McDonald also was responsible for implementing community policing initiatives in various patrol areas for which he was responsible.
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APPENDIX 2
Cincinnati Monitoring Project Saul Green – Monitor
Communications Plan
The purpose of this draft communications plan is to help establish effective and smooth working relationships between the Monitor team and the Parties to the Agreements. The team is committed to an inclusive and open process, with regular communications between the monitor team and the Parties to discuss progress in meeting the objectives and provisions of the Agreements.
1. Organization of team. Saul Green is the Monitor for the Agreements and Richard Jerome is the Deputy Monitor. In addition, we will designate certain team members as the lead individuals for the following aspects of the project: training, use of force, misconduct/CCA, CPOP, risk management system, racial profiling/community relations. The team leaders will make assignments for the team in coordination with the Monitor and Deputy Monitor. A contact list for the members of the Monitor team is attached.
2. Contacting the Parties. Prior to the first on-site visit at the end of January, contacts with the Parties will be made by Saul Green and Richard Jerome. After the site visit, follow-up contacts may be made by the team leaders, but all contacts will be documented and forwarded to the Monitor and Deputy Monitor.
As stated in the Collaborative Agreement, each party shall designate a liaison, or point person, for communications with the Monitor team. At the initial stages of implementing and monitoring the Agreements, contacts with the Parties will principally be through the designated liaison. We anticipate, however, that as implementation moves forward, the Parties will designate additional individuals with whom Monitor team members will interact. This will be especially true with the CPD. For example, the team leader responsible for monitoring training will establish a relationship with the Director of the Police Academy, to coordinate site visits and training review. Similarly, the team member responsible for monitoring provisions relating to misconduct investigations and the CCA will communicate with the Executive Director of the CCA and the head of IIS. However, these communications and relationships will initially be coordinated through the City’s liaison, the Compliance Coordinator, and through the Chief of Police.
In several agencies that have implemented significant reforms (through both settlements and otherwise), the Chief has designated an
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internal task force or team, reporting directly to Chief, to manage and ensure implementation. This task force would work in conjunction with the city’s Compliance Coordinator. We recommend that Chief Streicher consider this approach, if he has not already done so. Such a team can also serve as a liaison with the monitor team.
The Monitor commits to courteous and respectful communications with all stakeholders in Cincinnati. As noted in our bid, we anticipate communicating and gathering information in a variety of ways, including monthly meetings, on-site visits, document reviews, audits, correspondence and e-mails, and telephone calls. Communications with the Monitor may at times be shared with other Parties, unless there is a specific need or request for confidentiality. The monthly meetings will give the Monitor team an opportunity to share with the Parties our observations from our previous activities and provide the Parties with notice of the anticipated activities for the next month.
3. Requests for Documents and other Information. We recognize that the amount of file review and document copying and production in an effort such as this monitoring project can be extensive. We will endeavor to undertake our review and our document requests in a way that will effectively accomplish our responsibilities, but will minimize to the extent possible the burden on the CPD and the Parties. For this reason we will coordinate our information requests among the team members, including the timing of our requests. Wherever possible, electronic versions of documents (on disk, or sent by e-mail) are preferred, and will allow the monitor team to share documents easily among team members.
Prior to our first site visit at the end of January, all information requests will come from the Monitor. After January, the team leaders will coordinate with and provide notice to the Monitor of any information requests they make to the Parties. Monitor team members will keep a log of all documents and other information they receive from the Parties. When we request documents, we will also request that the documents be provided within a specified, reasonable time period.
We will also work with the City to establish an efficient process for copying and sending to the Monitor team investigative files for review offsite. This is especially important in light of paragraph 102 of the MOA which provides for reopening certain investigations for further investigation.
Under the Agreements, the Monitor team shall have full and unrestricted access to City and CPD staff, facilities and documents. We look forward to working with CPD personnel and anticipate an open and cooperative relationship. To the extent that the city claims a privilege for
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any document, the provisions of the Agreements governing such claims shall apply.
4. Protocol for Site Visits. The Monitor team will provide the Parties with the earliest practicable notice of on-site visits to Cincinnati, and a list of the team members coming to Cincinnati. We will also provide a request for any materials we believe would be useful to review in advance of the visit. For example, prior to a visit during which we will be observing training, we may request that the CPD provide us with curricula and lesson plans before we come out to Cincinnati. In addition, prior to each visit, we will provide the affected party’s liaison with a list of the individuals with whom we would like to meet, the files to be reviewed, the documents we wish to have copied, and the activities we would like to observe. It should be noted, however, that during a site visit, the team may identify additional information it needs or additional individuals with whom to meet.
5. Press Contacts. As stated in the Agreements, the Monitor “shall not issue statements or make findings” regarding the actions of any party except as required by the Agreements, such as through the Monitor’s quarterly reports. Therefore, the Monitor team’s contacts with the media will be minimal. Team members will refer media requests to the Monitor, who will respond as appropriate.
6. Communications with the Community. There are several ways the Monitor team will communicate with members of the public. To start, our quarterly reports will be public documents. We would request that the City post the reports on its website, as well as on the CPD’s website. During the course of our duties, we also anticipate meeting with representatives of community groups, neighborhood associations, faith organizations and others in gathering information for our monitoring, and in obtaining input from the community.
In addition, we believe it advisable for the Parties to include information about the Monitor in information it disseminates pursuant to the communications plan required by paragraph 29(h). We will include an address, phone number and e-mail address in that information, as well as information for filing a citizen complaint. We shall state that the Monitor does not handle citizen complaints regarding allegations of specific police misconduct, but that they will be referred to the CCA and the CPD.
We also request that CPD consider providing an office for the Monitor. In addition, the Monitor team will establish a dedicated phone line for the public. This will enhance communications with the public and with CPD.
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7. Feedback. The Monitor team would like to establish an ongoing dialogue regarding the work under the Agreements and the evolving blueprint for implementing positive change in Cincinnati. Feedback from the Parties on their views of the outcomes of this effort will be helpful. Therefore, we welcome your input on our monitoring efforts and look forward to working with you on this important endeavor.
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APPENDIX 3
MONITOR ACTIVITIES
The following is an outline of the Monitor Team activities from January 1, 2003, through April 1, 2003. This outline is not comprehensive, but it does provide an overview of our work so far.
Organizational meeting of Monitor Team: January 2-3, 2003 Introduction of Monitor Team, and initial meetings with Parties:
January 9-10, 2003 Site Visits to Cincinnati: January 28-31, 2003; February 19-20, 2003 All Party Meetings – January, February, March
Meetings with City Officials Mayor City Manager City Solicitor
Meetings with Cincinnati Police Department: Chief of Police Command Staff Compliance Coordinator Internal Investigations Section Inspections Section Canine Unit Police Academy Police Communications Section Information Technology Crime Analysis Section Planning Section Vice Unit Criminal Investigations Section Street Narcotics Unit
Meetings With: CCA CCAN Police Partnering Center FOP Executive Committee Plaintiffs and representatives Business Leaders Community Leaders RCPI
Reviewed Documents and Other Materials: CPD Procedures, SOPs, Staff Notes, Memoranda Complaint Investigation Files
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Use of Force Investigation Files chemical sprays, canine bites, beanbag shotgun, baton and taser use, physical force
RFP’s and RFP responses for information technology systems Training curricula, lesson plans, presentations Performance evaluations CPD strategic plan Community Council request form CPD community policing evaluation CPD and City of Cincinnati websites Crime analysis documents Crime clearance rates CCAN documents CCA Materials Observed training in Canine Unit, Cadet Graduation
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City of Cincinnati

APPENDIX 4

Date 1-23-03

To

Colonel Thomas H. Streicher, Jr., Police Chief

From

Captain Gene A. Hamann, Inspections Section Commander

Copies to

Subject

Use of Force Comparative Analysis

Inspections Section conducted a comparative analysis of the
Department's Use of Force incidents during the year 2001 and 2002. For the purpose of this analysis, Use of Force incidents include the Department's reporting of the following categories: Use of Force, Injury to Prisoner, Chemical Irritant, Canine Bites, and Taser, Beanbag, 40MM, and Pepperball (T/B/40MM/P) deployment

Use of Force Incidents: Use of Force Injury to Prisoner
Chemical Irritant Canine Bites T/B/40MM/P Total

2001*
55 300 589
29 142 1,115

2002
144 266 366
12 23 811

Increase/Decrease
+161.8% -11.3% -37.9% -58.6% -83.8% -27.3%

Arrests Service Calls Citizen Complaints Excessive Force Complaints

41,922 299,544
609 50

42,478 304,530
781 782

+1.3% +1.7% +28.2% +44%

* Includes incidents from the civil unrest of April 2001.

Comparison

2001

2002

Use of Force v. Service Calls

1115/299,554 (.3%)

811/304,530 (.2%)

Use of Force v. Arrest Citizen Complaint v. Service Calls

1115/41,922 (2.6/%)
609/299,554 (.2%)

811/42,478 (1.9%)
781/304,530 (.2%)

Excessive Force Complaints v. Arrests

50/41,922 (.12%)

74/42,478 (.16%)

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117

Analysis: The Cincinnati Police Department has experienced a decrease in Use of Force incidents as it relates to service calls and arrests. The 2001 data was negatively affected by the civil unrest of April 2001. The 2002 data reflects four months (September - December) of revised criteria for reporting Use of Force incidents as indicated in the Collaborative Agreement. Information utilized in the analysis was obtained from the annual Executive Information Summary. GAH/tat
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APPENDIX 5
Response to Risk Management System RFP
CRISNet response
“Requirements marked “Satisfied” indicate existing functionality found in the CRISNet Administrative module or CRISNet NetRMS – which are to be used in the proposed solution.
Requirements marked “Satisfied with Modification” indicate items to be furnished with custom programming using the same components, methods and approach as used in CRISNet Administrative Modules, NetRMS and other CRISNet products.” The CRISNet solution response calculates as follows:
• 3.1 Data Collection o 65 items satisfied with modification o 7 satisfied
• 3.2 Activities and Events o 15 items satisfied with modification o 7 satisfied
• 3.3 Training o 18 items satisfied with modification o 4 satisfied
• 3.4 Chemical Spray Canister Utilization o 5 items satisfied with modification o 0 satisfied
• 3.5 Performance Analysis o 9 items satisfied with modification o 2 satisfied
• 3.6 General Requirements o 5 items satisfied with modification o 22 satisfied
• 3.7 Work Flow Management o 5 items satisfied with modification o 3 satisfied
• 3.8 Document Management o 1 items satisfied with modification o 8 satisfied
• 3.9 System Interfaces and Conversions o 8 items satisfied with modification o 0 satisfied o Data conversion costs not covered - $200.00 hourly rate
• 3.10 Technical Requirements o 0 items satisfied with modification o 10 satisfied
119

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRIT OF OHIO WESTERN DISTRICT

In re Cincinnati Policing

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Case No. C-1-99-3170

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Judge Dlott

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REPORT TO THE CONCILIATOR SPECIAL MASTER/INDEPENDENT MONITOR

INDEPENDENT MONITOR/SPECIAL MASTER TEAM Saul Green
Independent Monitor Richard Jerome Deputy Monitor Joseph Brann Rana Sampson
Nancy McPherson John Williams Timothy Longo
David McDonald Raven Sword
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CITY OF CINCINNATI SPECIAL MASTER REPORT TO THE CONCILIATOR
I. Introduction
This Report is based on the Monitor’s determination that the City of Cincinnati is not complying with the Collaborative Agreement (CA) and Memorandum of Agreement (MOA) provisions requiring the City of Cincinnati and the Cincinnati Police Department (CPD) to provide access to any and all documents, staff, and facilities necessary for monitoring the Agreements. The City’s non-compliance with the CA is a material breach of the Agreement. CPD’s actions and positions are contrary to the Value Statement and purposes of the CA, as well as the specific operative provisions of the CA.
There have been several events in the last four weeks that lead us to this conclusion, including one of the members of the Monitor Team being denied permission to go on a ride-along with a CPD Commander that had been scheduled, and that was part of the Monitor Team member’s responsibilities. These events are described below.
The Monitor and the Monitor Team members in this matter were designated Special Masters by the Federal District Court in In Re Cincinnati Policing, Case No. C-199-317, Order Regarding Masters, December 22, 2002 (Doc. No. 104). Pursuant to the Federal Rules of Civil Procedure, Rule 53(c), a special master “has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master's duties under the order.” To carry out the duties of Monitor and Special Master, the Monitor has prepared this Report for and filed it with the Conciliator in the Collaborative Agreement, and with the Parties.1 This Report has been filed with the Conciliator also because the Conciliator has before him and is considering the Plaintiffs’ Motion for Order Directing Compliance with Collaborative Agreement., and the actions of the City cited in that Motion (e.g., denial of permission for plaintiffs to go on ride-alongs or attend training session; exclusion of the Department of Justice to participate in an ETS demonstration or obtain files and documents) are similar to the City’s actions described here. Based on the facts observed by the Monitor, the Monitor has determined that the City’s actions cited in the Plaintiffs’ Motion also violate the provisions of the CA and the MOA.
II. The Collaborative Agreement and its Requirements
A. The Mission and Purpose of the Collaborative Agreement
As noted in the Value Statement of the CA in paragraph 2 of the CA, problem oriented policing “frames the overall philosophy and practices” at the core of the CA. Among the purposes of the CA listed in paragraph 10 are to resolve social conflict, improve police-community relations, reduce crime and disorder, and foster mutual respect and trust among community members, including the police. The CA itself states
1 This Report is different than the quarterly reports required by paragraphs 107 of the CA and the MOA. The Monitor’s Eight Quarterly Report will be issued on January 14, 2004.
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very explicitly that “this Agreement is outcome oriented, putting great emphasis on objective measures of police-citizen relations and police effectiveness.” ¶13.
The CA also states that the Parties (including the City) “shall adopt problem solving as the principal strategy for addressing crime and disorder problems. Initiatives to address crime and disorder will be preceded by careful problem definition, analysis and an examination of a broad range of solutions.” ¶16.2 As a central part of this strategy, “the City of Cincinnati is committed to community problem-oriented policing (CPOP) as a means to reduce crime and improve the quality of life for its citizens.” Id. Paragraph 17 notes that “[c]urrent research and case studies from around the world indicate that the problem-solving process known as SARA (Scanning, Analysis, Response, and Assessment) effectively addresses crime, disorder, and fear of crime in communities.” Paragraphs 20-28 include an explanation of CPOP, and specifically note the importance of problem definitions (including repeat patterns of offending, victimization, or locations), analysis, a broad search for solutions based on that analysis, and evaluation or assessment of the problem-solving efforts.
Analysis is key to the type of approach adopted under the CA: “The second principle guiding community problem-oriented policing is that problems are carefully analyzed prior to developing a solution. Community problem-oriented policing is an information intensive strategy that places a premium on data, intelligence, community input, and analysis. The analysis is designed to reveal critical aspects of the problem that can be altered to effect a reduction in the problem.” ¶21. In addition, the City is responsible for evaluating problem-solving efforts put in place: “The City of Cincinnati will routinely evaluate implemented solutions to crime and disorder problems, regardless of the agency leading the problem-solving effort.” ¶16. Paragraph 29 of the CA lists and describes the Parties’ responsibilities for numerous aspects of CPOP implementation.
B. The Monitor’s Role
The Monitor’s role in the CA is to “review and report on the Parties’ implementation of, and assist with the Parties’ compliance with, this Agreement.” ¶91.
Paragraph 100 of the CA states:
The City and the CPD shall provide the Monitor with full and unrestricted access to all CPD and City staff, facilities, and documents (including databases) necessary to carry out the duties assigned to the City and the CPD by this Agreement, provided, however, that the Monitor shall not have access to any material protected from disclosure by the attorney-client privilege and/or work product doctrine. Any materials or information claimed to be protected by the
2 The term “problem-solving” used in the Agreement is drawn from “Problem-Oriented Policing,” an approach to policing proposed by Professor Herman Goldstein among others, and it includes problem identification, problem analysis, review of a range of solutions, solutions application, and evaluation of impact, as opposed to the more familiar everyday use of the term problem-solving that tends to imply just creative solution-finding.
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attorney-client or work product privilege shall be logged with information including the author, date, nature of the material, reason for the claim of privilege, and persons to whom the material was disseminated. The Monitor shall cooperate with the City to access people and facilities in a reasonable manner that, consistent with the Monitor’s duties, minimizes interference with daily operations.
In addition to conducting compliance reviews (¶103), issuing quarterly public reports detailing the Parties’ compliance with and implementation of the Agreement (¶107), and offering technical assistance (¶99), the Monitor also plays an integral role in evaluating the outcomes of the Agreement. Under paragraphs 30 and 31, the Parties are to develop “a system of evaluation to track the attainment of the goals agreed to between the Parties” and an Evaluation Protocol to accomplish the system of evaluation, “under the supervision of the Monitor” (emphasis added).
III. Recent Actions
A. December 1, 2004, Visit to Police Academy to Observe Management Training
During the week of November 29, 2004 to December 3, 2004, three members of the Monitor Team – Rana Sampson, Joe Brann and Nancy McPherson - were in Cincinnati for a site visit to observe, review and monitor CPOP activities by the CPD, the Police-Community Partnering Center and members of the community.
On December 1, 2004, two of the three members (Ms. McPherson and Mr. Brann) visited the Police Academy at 8:00 am, with the intent to observe the first two hours of management training for CPD supervisors. The first section of the training was to be a “State of the Department” presentation by Chief Thomas Streicher. The Team members met Chief Streicher and Lt. Howard Rahtz in the front office of the Academy and informed the Chief that they were there to observe the training. The Chief responded that he would rather that the Team members not attend, as he believed the discussion would be inhibited by the presence of non-CPD members. This was the second occasion on which the Chief requested members of the Monitor Team not to observe him addressing Department members.
C. December 1, 2004, Meeting with Lt. Col. Richard Janke
At 10:00 am, December 1, 2004, the three Team members arrived at Police Headquarters to meet with Lt. Col. Richard Janke. Gregory Baker, CPD’s Executive Manager of Police Relations, also attended. The meeting was intended to discuss with Lt. Col. Janke the CA and CPOP. When Joe Brann asked Lt. Col Janke for his comments about progress on the CA during the last quarter, Lt. Col. Janke responded by stating that the question was so general, he could not even respond. He also stated that the question was the stupidest question he had ever heard. Several questions were asked by the Monitor Team members, but Lt. Col. Janke elaborated on his disdain for the questions.
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Lt. Col. Janke also criticized the competence of the members of the Monitor Team, stating that they did not know anything about policing, and he questioned the relevance of the Monitor’s Reports. He stated on several occasions that “these meetings are a waste of time” and complained about the “redundancies” he and others encountered in having to respond to questions from the Monitor Team.
Throughout the meeting, Lt. Col. Janke became increasingly animated and heated, and focused his attention and criticism on Rana Sampson, the Monitor Team’s principal CPOP expert. (Ms. Sampson’s expertise and experience is reflected in the resume and bio attached as Appendix 1 to this Report.) He challenged her competence regarding CPOP. He also complained about the reporting requirements of the CA, especially the Monitor Teams’ interest in and evaluation of “outcomes,” stating “what are we paying RAND for?”3 Lt. Col. Janke also criticized the cost of the monitoring work, stating that the Monitor Team should spend more time in Cincinnati observing the police department than in writing reports. Although the meeting was scheduled for two hours from 10:0012:00 am, Lt. Col. Janke stated that the Team members could get up and walk out if they wanted to. At 11:00 am, Nancy McPherson noted the time and the Team members agreed that it was time to end the meeting.
B. December 3, 2004, Scheduled Ride-Along for Monitor Team Member Rana Sampson
On December 3, 2004 at 10:00 am, Rana Sampson was scheduled to meet with Captain Vince Demasi to talk about the Street Corner Narcotics Unit, and to go on a ridealong with Captain Demasi to see what CPD was doing at different drug markets.
At 10:15 am, Ms. Sampson was escorted to a conference room at Police headquarters, with Chief Thomas Streicher, Lt. Col. Richard Janke, Capt. Paul Humphreys (Vice), and Capt. Demasi. Gregory Baker shortly joined the meeting. Ms. Sampson was provided a two-page paper providing a brief description of different CPD programs. Ms. Sampson stated that she would like to focus on narcotics complaints, how they were received and addressed by CPD. Capt. Humphreys gave a good description. Ms. Sampson asked about the CPD’s narcotics complaint tracking system and how far the data went back, and Capts. Demasi and Humphries responded to the question. Ms. Sampson also asked about repeat locations, and Capt. Demasi described CPD’s list of approximately 20 locations where there were multiple complaints (five or six, or more). They also continued to describe some of the new programs and efforts that have worked well, such as landlord training, court watch, drug house abatement, and some that have not worked that well, such as stay-away orders on drug dealers as a probation condition.
3 This objection to the Monitor’s review and evaluation of “outcomes” is similar to statements made by other CPD and City officials. In an earlier meeting, a City official stated that the Monitor Team should focus on “systems and processes” and not on outcomes or changes that may be needed in the future. It was also suggested that the CA is “touchy-feely” and has become a “to-do list where the City is the doer and everyone else is an observer.”
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Lt. Col. Janke then asked what the purpose of the meeting was, and stated that it was a waste of time. Chief Streicher asked “What are we doing here?” and repeated the question several times, and asked “what are you accomplishing, and don’t tell me that ‘we signed the Collaborative.’” Ms. Sampson stated that she was trying to understand CPD’s processes for the purpose of monitoring, and then to go on a ride-along with Capt. Demasi to see some of the drug markets and how CPD is handling them. Chief Streicher asked Ms. Sampson “What do you understand, so I know you understand it?” Ms. Sampson did not respond to the question, as she believed that simply repeating the information provided by Capts. Demasi and Humphries would not be productive. Chief Streicher repeated the question several times. At that point, Ms. Sampson stated that she would like to go on the ride-along. Lt. Col. Janke asked what part of the CA specifically refers to drug markets and what is CPD supposed to do at them. Ms. Sampson responded that the CA is highly specific regarding addressing repeat problems.
At that point, Chief Streicher stated that he did not understand what Ms. Sampson was doing in Cincinnati and at CPD. He repeated the question “What are you doing here?” several times. Ms. Sampson began to state that she did not work for the Chief and the Chief repeated his question “What are you doing here?” Ms. Sampson stated that she “would like to go on the ride-along now.” Chief Streicher responded that there was a “language problem” and that what Ms. Sampson defined as a drug market was different than CPD’s definition. He asked “What is a drug market?” and repeated the question several times. Ms Sampson responded that a drug market is different in different places, and she was asked to describe one of those places. Ms. Sampson stated that in Camden, NJ, it is often one or two people standing on a corner or in an intersection selling drugs, but in some cities it is mostly inside a house or apartment building or complex; in other places there is a lookout on the street, and some there is a visible “steerer.” After stating that the definition depends on the location, Ms. Sampson once again asked to go on the ride-along.
After the above exchange and one more request to go on the ride-along, Chief Streicher asked “To see what? You’re going to look at a building, a street?” Ms. Sampson stated that she would like to start with the repeat addresses (discussed earlier). Lt. Col. Janke asked what that had to do with the CA. Ms. Sampson stated that the CA is quite specific that repeat, chronic crime locations should be analyzed, tailored solutions applied, and then the results measured for their impact and success.
Chief Streicher then stated “Tell me your advice on what we should do at drug markets.” He asked this question several times, with some vehemence when Ms. Sampson did not respond, and asked Ms. Sampson “You came here and refuse to answer my question?” When Ms. Sampson repeated again that she would like to go on the ridealong, Chief Streicher again asked whether Ms. Sampson was going to answer his question, “yes or no.” Ms. Sampson stated that she did not think that the Chief really was looking for an answer. After another exchange, Ms. Sampson stated that each market is different, and stated that she “would like to go on the ride-along now.” In response to the
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Chief’s question of what she would look at, Ms. Sampson stated that she would look at whether there was analysis, response and assessment.4
After another question of what Ms. Sampson was “doing here?” Ms. Sampson stated that she would like to look at repeat narcotics locations, starting with some of the 20 locations being tracked. She also stated she thought the meeting had been completed, and that she was ready to go on the ride-along, with the Chief’s permission. Chief Streicher stated that she did not have his permission, that he would not allow her to go on a ride-along or meet at police headquarters, and that she could “leave the building now.”
Ms. Sampson then walked back to the hotel where she was staying.
On the morning of December 6, 2004, Monitor Saul Green placed a telephone call to Chief Thomas Streicher to discuss the December 3, 2004, meeting. Several hours later, after not getting a return phone call, the Monitor sent the following e-mail to Chief Streicher:
-----Original Message----From: Green, Saul A. Sent: Monday, December 06, 2004 3:11 PM To: 'thomas.streicher@rcc.org' Subject: December 3, 2004 meeting with Rana Sampson Chief Streicher,
It's my understanding that prior to Rana Sampson's scheduled December 3 ride-along with Captain Demasi she was taken into a meeting with you, Col. Janke, Captain Demasi, Vice Captain Humphreys and Greg Baker where she was questioned, among other things, regarding the purpose of the monitoring, what is being accomplished, what is a drug market and where the CA refers to drug markets? Rana responded, and then eventually asked to be allowed to proceed with the scheduled ride-along. It is my understanding you told her she could not go on the ride along.
I need to know why Rana was denied the opportunity to go on the scheduled ride along, and what your decision to deny her access to the ride-along means in terms of future ride-alongs by the monitor team and future monitoring activities.
Saul
As of December 27, Chief Streicher has not returned the Monitor’s phone calls or email.5
IV. Monitor’s Assessment and Determination of Non-Compliance
4 These are among the key elements of problem solving known as SARA -- Scan, Analysis, Response, and Assessment, which is both a nationally researched ‘problem-oriented policing’ approach, and part of the CPOP approach that CPD has adopted and is required to implement. 5 It should also be noted that CPD’s Communications Section (PCS) expressed interest in having Monitor Team member David McDonald participate in three vendor demonstrations of CAD/RMS systems in January 2005, to provide technical assistance. On December 20, 2004, Mr. McDonald was informed by CPD leadership in an e-mail that his “assistance will not be needed for the demos.”
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A. Non-Compliance with Paragraph 100, Monitor Team’s Access
Based on the facts as described above, the Monitor has determined that the City and the CPD is not complying with paragraph 100, and its obligation to provide “full and unrestricted access” to all CPD and City staff, facilities and documents.
As an example, Rana Sampson’s scheduled ride-along with Capt. Demasi was requested on November 22, 2004 and arranged more than a week before December 3, 2004.6 CPD had requested that Monitor Team members evaluating CPOP community activities contact and coordinate with CPD District Commanders, which the Team members did. CPD also requested that we coordinate our monitoring activities with Gregory Baker and Lt. Broxterman, (the Executive Manager of Police Relations and MOA Compliance Coordinator), which we also have done. Certainly, Mr. Baker was aware of the scheduled December 3, 2004, ride-along, and of the meeting that the CPD conducted, as he was informed of the ride-along and participated in the meeting.
The Sampson ride-along is entirely consistent with the duties of the Monitor Team, as problem-solving (including problem definition, analysis, examination of a range of responses, and assessment) is central to the purpose and operative provisions of the CA, and is the “principal strategy for addressing crime and disorder problems.” ¶16. It certainly cannot be argued that narcotics and drug markets are not a crime and disorder problem.
We also note that the December 6, 2004, CA Status Report, states that “CPD commends the Monitoring Team’s efforts to ‘see and feel’ problem-solving face-to-face and encourages the Team to make more site visits to witness the good work that is being accomplished.” The Sampson ride-along was exactly the kind of effort that the CPD encouraged and stated it wished to see. However, as noted above, Chief Streicher denied permission for Ms. Sampson to go on the ride-along that had been earlier scheduled, and that was a specific part of her responsibilities as a member of the Monitor Team. Moreover, Ms. Sampson has met with Capt. Demasi in prior quarters, has gone on
6 The following is the e-mail correspondence between Ms. Sampson and Capt. Demasi. The initial correspondence to Capt. Demasi from Ms. Sampson also was sent with a cc to Gregory Baker: Nov. 22: Ms. Sampson to Capt. Demasi: I hope all is well. Some members of the Monitoring Team will
be in Cincinnati the week of November 29th for a site visit and I was wondering if I would be able to meet with you to see how progress is coming on some of the drug sites the community identified to your Street Corner Narcotics Unit. If possible, I would also like to see some of the sites that your Unit has participated in addressing. Is there some time that you would be available to meet on Tuesday, Nov. 30th or Friday, December 3rd? Nov. 23: Capt. Demasi to Ms. Sampson: Dec. 3rd is good we look forward to seeing you. Nov. 23 Ms. Sampson to Capt. Demasi: Excellent. What time on Friday, December 3rd works for you? In a message dated 11/23/2004 6:13:24 AM Pacific Standard Time, Vince.Demasi@cincinnatioh.gov writes: Ms. Sampson: You name it I will accommodate your schedule.
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previous CPD ride-alongs, and has also met with the commanders of Vice and the captain overseeing Management Crime Analysis, among others.
It is therefore clear that the Monitor and Monitor Team has cooperated with the City to access people and facilities, “in a reasonable manner that, consistent with the Monitor’s duties, minimizes interference with daily operations.” ¶100. Despite that reasonable effort, CPD has denied the Monitor and the Monitor Team access to staff and facilities that are necessary to carry out our duties.
B. The Monitor’s Role includes a Review and Evaluation of Outcomes
A very central part of the Monitor’s role as the monitor for the CA is to review, assess and evaluate whether the City, the CPD, and the other Parties have successfully implemented the provisions of the CA, including the implementation and adoption of CPOP. Implementation of the CA is not limited to the creation of policies and procedures. Indeed, while “systems and processes” are tremendously important, the CA states very clearly that “achieving mutually agreeable solutions to the above mentioned goals [those listed in ¶10] described by the citizens of Cincinnati is the criteria for success. Consequently, this Agreement is outcome oriented, putting great emphasis on objective measures of police-citizen relations and police effectiveness.” ¶13 (emphasis added). This outcome-oriented approach applies both to problem solving and to the Evaluation Protocol (or “mutual accountability plan” as described in ¶30). For problem solving, or CPOP, the CA states that “the fourth principle [of CPOP] is that problem-solving efforts are evaluated to determine if the problem has been reduced.” ¶23. For the Evaluation Protocol, outcomes are why it is included in the CA: to evaluate, measure and track the attainment of the goals of the CA.
The Monitor and the Monitor Team have duties and responsibilities both in assessing the outcomes of CPOP and in implementing and monitoring the Evaluation Protocol. Our role is not limited to reviewing policies and procedures. Indeed, under the CA, the system of evaluation is to be developed “under the supervision of the Monitor” and the Monitor is supposed to supervise the evaluation oversight. ¶30. Thus, the selection by the Parties of RAND to be the evaluator does not diminish or contradict the role of the Monitor in assessing and reviewing outcomes.
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C. The City of Cincinnati’s Non-compliance is a Material Breach of the Collaborative Agreement
The City’s non-compliance with the CA is a material breach of the Agreement. CPD’s actions and positions are contrary to the Value Statement and purposes of the CA, as well as the specific operative provisions of the CA. Therefore, the Conciliator should forward his findings and conclusions to the Court, for a finding that the City has engaged in a material breach of the Agreement.
Respectfully Submitted,

/s/ Saul A. Green Saul A. Green Monitor

/s/ Richard B. Jerome Richard B. Jerome Deputy Monitor

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Appendix 1
Rana Sampson Bio
Rana Sampson is an international community policing and problem-oriented policing consultant, and the former Director of Public Safety for the University of San Diego. She was previously a Commissioner on the California Police Officer Standards and Training; a White House Fellow; a National Institute of Justice Fellow; a senior researcher and trainer at the Police Executive Research Forum; an attorney; and a patrol officer, undercover narcotics officer and patrol sergeant with the New York City Police Department (NYPD). At the NYPD she was awarded several commendations of merit and won the National Improvement of Justice Award.
Rana Sampson is author of a number of crime reduction publications, including five separate problem-solving guidebooks for police: Drug Dealing in Privately Owned Apartment Complexes; False Burglar Alarms; School Bullying; Acquaintance Rape of College Students; and 911 Abuse and Misuse. She is the coauthor (with Michael Scott) of Tackling Crime and Other Public-Safety Problems: Case Studies in Problem-Solving, which documents high-quality crime control efforts from around the United States, Canada and Europe. She is also the author of “Advancing Problem-Oriented Policing: Lessons from Dealing with Drug Markets” (2003), in J. Knutsson (ed.), ProblemOriented Policing: From Innovation to Mainstream, Crime Prevention Studies.
Rana Sampson has worked with police agencies across the United States and internationally, assisting them in implementing community and problem-oriented policing. She is a frequent speaker on crime reduction, community policing and problemoriented policing at national and international conferences. She is a judge for the Herman Goldstein Award for Excellence in Problem-Oriented Policing, a former judge for the James Q. Wilson Community Oriented Policing Award and the police Fulbright awards, and was a founding member of the Center for Problem-Oriented Policing, a U.S. Department of Justice funded center advancing knowledge of crime and other public safety problems. Ms. Sampson holds a law degree from Harvard and a bachelor's degree from Barnard College, Columbia University.
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