Tuesday, October 15, 2002

Lemmie orders action on cops in Owensby case

Reports: 8 involved to varying degrees in death

By Gregory Korte
and Jane Prendergast
The Cincinnati Enquirer

Roger Owensby Jr. with his daughter, Myiesha Owensby, 9.
Family photo

City manager Valerie Lemmie orders the beginning of disciplinary action against eight officers involved in the Owensby case.
The Cincinnati Enquirer/ERNEST COLEMAN

Almost two years after Roger Owensby Jr. died in Cincinnati police custody, two investigative reports released Monday still disagree on whether police used excessive force to arrest him. Both, however, accuse eight officers of doing nothing to help the dying man.

City Manager Valerie Lemmie started disciplinary action against the eight officers Monday. Her action followed 23 months of public outcry, debate over the racially charged incident and at least four lawsuits.

Mr. Owensby's election-night death in 2000 led to the unprecedented indictment of two Cincinnati police officers on charges of assault and involuntary manslaughter, though both were largely acquitted a year ago.

To many local activists, the Owensby case became the powder keg that exploded with the police shooting of Timothy Thomas five months later and led to a U.S. Department of Justice civil rights investigation.

  Office of Municipal Investigation findings:
• Officers Hunter, Caton and Jorg did not illegally detain Mr. Owensby nor did they use excessive force in subduing and arresting him.
• Officer Jorg violated department policies when he used a "mandibular angle pressure point technique."
• Officer Caton physically abused Mr. Owensby while he was handcuffed by striking him in the back.
• Five officers (Jorg, Hunter, Caton, Sellers and Hodge) failed to report the use of force.
  Internal Investigations Section findings:
• Officers Jorg and Caton were not convicted of felonies in the death of Mr. Owensby, which would have led to automatic discipline.
• The officers did not use excessive force in the arrest.
• The eight officers "failed to provide due care to Mr. Owensby after his arrest." Officer Caton used unnecessary force by punching Mr. Owensby in the back while he was handcuffed.
• Officers Caton, Jorg, Hunter, Lawson and Sellers either used force or witnessed a use of force in the arrest and failed to report it.
• Allegations that Officers Jorg and Hunter struck Mr. Owensby in the head could not be substantiated.
• Officer Victor Spellen gave false testimony in Officer Jorg's criminal trial.
"There are two reports,'' Ms. Lemmie said. "One report does believe that there was excessive force, while the police report (an internal affairs investigation) does not. Ultimately, the decision was mine."

One report, by the Office of Municipal Investigation, recommends that Officer Patrick Caton be fired. He and Robert "Blaine" Jorg, the two officers charged and largely acquitted at trial in Mr. Owensby's death, are accused of improper use of force, improper securing of a prisoner, failure of good behavior and neglect of duty.

Roger Owensby Sr. declined to comment publicly on the reports Monday, but sent a written statement to media.

"My wife Brenda and I have read over the report issued today by the city of Cincinnati on its investigation of the murder of our son," the statement said. "We believe that this report is a self-serving document that proves the city of Cincinnati is incapable of investigating the Cincinnati Police Department."

The Owensbys repeated their call for the Justice Department to investigate their son's death.

They're also suing the city in federal court, and civil rights groups and leaders of a boycott against the city's downtown have demanded that the city settle that lawsuit.

`We kicked ass'

Officer Jorg,, who quit the force in March, was accused of using a chokehold on Mr. Owensby and kneeling on his back as the 29-year-old College Hill man was arrested at a Roselawn gas station. Officers said he had run from police before, and both investigations found that police had probable cause to stop and question him.

  Each officer will have an administrative hearing before Police Capt. Andrew Raabe. He will recommend discipline, if any, to Police Chief Thomas Streicher. The chief will add his recommendations, then forward the cases to City Hall, where officials of the human resources and law departments will comment. City Manager Valerie Lemmie has the final say. No timetable was set, but Ms. Lemmie asked the department to expedite the cases.
Officers found a small amount of marijuana on Mr. Owensby, and Officer Jorg tried to handcuff him. Mr. Owensby broke free, ran and tripped, and the struggle began.

The Hamilton County coroner found he died of mechanical asphyxiation, caused by a chokehold gone bad or a piling on of officers.

Officer Caton, accused of striking Mr. Owensby while he was handcuffed, again made headlines last week after a police cruiser video caught him using a racial slur while on patrol this month.

At the Owensby incident, Officer Caton also made profanity laced statements that included, "We kicked his ass," according to the city's Office of Municipal Investigation report.

That report recommends that Officer Caton be fired and that Officer Jorg, who left the department in March and now works in Clermont County's Pierce Township, never be rehired.

Five other officers - Brian Brazile, Jason Hodge, David Hunter, Darren Sellers and Victor Spellen - face less serious allegations. OMI recommended each be suspended for five to 10 working days.

Officer Spellen is also accused of dishonesty. Police say he gave two accounts of the chokehold Officer Jorg told him he had on Mr. Owensby, demonstrating a more aggressive chokehold immediately afterward, and a less serious one at Officer Jorg's trial.

All of the accusations could result in a range of discipline, including termination, said Lt. Kurt Byrd, department spokesman. The department has a matrix that suggests punishments, but he said Chief Thomas Streicher can veer from that set of recommendations.

Ms. Lemmie will have the final say. She has asked Chief Streicher to expedite the cases.

"I share the community's concerns regarding the need for timely hearings and a final disposition to this issue," Ms. Lemmie said in a written statement. "While it is my expectation that the hearings will be concluded in a timely manner, it is absolutely essential that the process be fair, impartial and thorough."

`Enormous undertaking'

Mayor Charlie Luken, Ms. Lemmie and City Solicitor Rita McNeil spoke with the Owensby family by conference call Monday morning to tell them about the reports.

  This is the full text of Roger Owensby Sr.'s statement released Monday:
  My wife Brenda and I have read over the report issued today by the City of Cincinnati on its investigation of the murder of our son Roger Owensby Jr. by the Cincinnati Police Department.
  We believe that this report is a self-serving document that proves that the City of Cincinnati is incapable of investigating the Cincinnati Police Department. We believe that the article written by Leslie Blade and published in City Beat is a more honest retelling of the events of the night of November 7, 2000.
  Now more than ever it is necessary for the Department of Justice to investigate the murder of our son and the prosecution of officers Jorg and Caton. We believe that several officers violated our son's civil rights. Again we are pleading with Attorney General John Ashcroft to make this case a priority with him.
  Last week we wrote the members of the United States Senate Judicial Committee and the United States House of Representative Judicial Committee asking them to assist us in asking Attorney General John Ashcroft to make this case a priority.
  We now are asking all concerned citizens to write both Committees and tell them of the need to have the Department of Justice investigate those responsible for our son's death.
  Signed by Roger Owensby Sr., Oct. 14, 2002
"The allegations and conclusions of OMI are extremely serious. That's the only way you can characterize them,'' said Mr. Luken. "What I read in this report is that Cincinnati police officers not only contributed to injuries that eventually killed somebody, but after that they refused to come to his aid."

He said the reports would undoubtedly increase pressure on the city to settle the Owensbys' lawsuits. "Those things also take time, and the question is, at what price?" he said. "I will say this: If these reports are correct, there is some significant exposure to the city."

Mayor Luken said he was disappointed in how long the city's review took, but the final product shows that the investigation was "an enormous undertaking." OMI Director Mark Gissiner has called it the single most complicated case in the agency's history.

The reports released Monday show that the OMI report has been on Ms. Lemmie's desk since Oct. 2, and a separate internal affairs report is dated Sept. 24. It's not uncommon for the city manager to take several weeks to review a case - especially one as complicated as Mr. Owensby's - before deciding on action.

But after revelations last week that Officer Caton used a racial slur in his cruiser, frustrated City Council members demanded answers about why the 2-year-old investigation was taking so long.

Neither Fraternal Order of Police President Roger Webster nor Vice President Keith Fangman returned calls or pages seeking comment Monday. Neither did Chief Streicher.

None of the eight officers involved returned calls.

OMI: Jorg bears responsibility

All officers will get administrative hearings. Capt. Andrew Raabe, District 3 commander, will conduct them.

Cases go to captains on a rotating basis, Lt. Byrd said; Capt. Raabe, a 21-year veteran, was simply next in line.

The reports give mixed reviews of Officer Jorg's culpability in Mr. Owensby's death. Of the two reports, the 79-page OMI report is more detailed and more critical.

"While OMI recognizes that Mr. Owensby's death was accidental, Officer Jorg was the primary cause of death and must bear some responsibility," the report said. "The actions by Officer Jorg were paramount and consistent with causing the mechanical asphyxia."

The internal affairs report, on the other hand, was less inclined to point fingers. While medical experts can argue that Officer Jorg's actions may have led to Mr. Owensby's death, that doesn't mean that Mr. Jorg's actions were "unreasonable or excessive," the 31-page police report said.

"This incident was a tragic, unintentional death, which resulted from a combination of factors, and the evidence is insufficient to render a conclusion regarding the propriety of the police use of force," it said.

Officer Jorg's lawyer, former city safety director William Gustavson, found the internal affairs report more credible. Officer Jorg is suing the city, the Hamilton County coroner and the Cincinnati Black United Front for making him a "scapegoat."

"It's important to my client that the truth finally comes out," Mr. Gustavson said. "Isn't it a shame for the city to take two years to find that my client wasn't involved in Mr. Owensby's death? ... It's a darn shame they didn't find that out two years ago, and it's a darn shame they didn't find that out before they indicted him and ruined his life."

Indeed, each side in the two-year debate over Mr. Owensby's death is likely to find some evidence in the reports to bolster their arguments that police did or did not cause his death.

Councilman Paul Booth said the reports were so confusing it's unlikely the city will ever know the truth.

"As I read the reports, I found them not only conflicting and confusing, but it was difficult for me to figure out what the real bottom line was," he said.

Reports demoralizing

Ms. Lemmie's announcement comes just days after U.S. District Judge Susan Dlott appointed Alan Kalmanoff, a Berkeley, Calif., lawyer who has overseen investigations of police in 13 other cities, as a monitor to oversee reforms in Cincinnati's police department.

The monitor is the result of two separate actions: the settlement, known as the "collaborative agreement" in a racial profiling lawsuit that followed Mr. Owensby's death, and a "pattern and practices" investigation by the Justice Department after the shooting of Mr. Thomas in Over-the-Rhine in April 2001, which sparked four days of riots.

Ms. Lemmie said the city has acknowledged there have been problems in the department.

She said plans are being developed to change the way police train, recruit and respond to situations on the street.

Ms. Lemmie agrees the reports are demoralizing to the department, but said they provide some closure.

In the meantime, Officer Caton remains on desk duty pending discipline for using the "n-word" while stuck in traffic and alone in his cruiser. Officer Spellen is also off the streets for his role in the Owensby case. The other officers all retain their regular duties.

Marie McCain, Robert Anglen and Kevin Aldridge contributed to this report. E-mail gkorte@enquirer.com and jprendergast@enquirer.com

Background on officers: All on force 6 years or less

Lemmie orders action on cops in Owensby case
Background on officers: All on force 6 years or less
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