Monday, May 5, 2003

Police risk lawsuit over force reporting

Justice seeks policy change

By Gregory Korte
The Cincinnati Enquirer

The U.S. Justice Department and the city of Cincinnati are on the brink of a federal lawsuit over the Cincinnati Police Department's reporting of use-of-force incidents, city officials said.

At issue: whether the use of "hard hands" by police in breaking up a fight or in making an arrest is a use of force that would require a detailed investigation by a supervisor, complete with on-scene interviews and tape-recorded statements by officers.

"Hard hands" is a category of police tactics that can include anything from arm-twisting to tackling a suspect to the ground. The current city policy is for an officer to call a supervisor and provide a short written report.

After months of behind-the-scenes arguing over that issue and others, the Justice Department gave the city until March 31 to fix the policy or risk a lawsuit. Now, the city seems to have been given a second "last chance" to change the policy.

• Cincinnati Mayor Charlie Luken asked the Justice Department to conduct a "patterns and practices" investigation of the Cincinnati Police Department in the aftermath of the April 7, 2001, police shooting in Over-the-Rhine that led to four days of rioting.

• A year later, the city signed an out-of-court agreement with the Justice Department, restricting the use of excessive force against suspects. It includes a wide range of reforms, including changes in policies on foot pursuits, police dogs, chemical irritants and beanbag rounds.

• The Justice Department agreement is a companion to the "Collaborative Agreement" on police-community relations, which settled a federal class-action lawsuit on racial profiling.

• Civil rights leaders have complained that Cincinnati police often use more force than necessary, especially in dealing with African-American suspects. The reporting requirements in both agreements are an attempt to prove or disprove that allegation and, if necessary, correct it.

Cincinnati Solicitor J. Rita McNeil said there are many issues that the city has been willing to negotiate on, but the "hard hands" policy seems particularly unreasonable.

"Either they're going to get what they want, or they're going to sue," she said. "I think any reasonable judge would say, 'DOJ, you're off the reservation.'"

The Justice Department's last letter to the city, dated April 9, listed five areas in which the city's policy was deficient. They included the use of chemical spray and beanbag rounds, both against individuals and crowds, the definition of "active resistance" by a suspect, and the "hard hands" reporting.

"While the Cincinnati Police Department's revised policy is an improvement over the previous version, it still violates significant provisions of the Memorandum of Agreement," wrote Justice Department lawyer Jim Eichner in an e-mail.

Nevertheless, the Justice Department gave the city another two weeks to correct the policy. On April 23, the city sent a new policy that made all the suggested changes except the "hard hands" reporting. The Justice Department has not responded, leading some city officials to believe a lawsuit is imminent.

Is agreement unraveling?

Cincinnati's showdown with the Justice Department comes as the Collaborative Agreement seems to be slowly unraveling. The Cincinnati Black United Front, an original plaintiff in the lawsuit that led to the agreement, has withdrawn, and the Fraternal Order of Police said last week that it wants out, too.

Luken said last week that he's committed to the Collaborative. But he said he's tired of dealing with the lawyers in the Justice Department's Civil Rights Division, and wants any further federal directives to come from Attorney General John Ashcroft himself.

"I think it's very important that the Bush Administration make clear to law enforcement - here and throughout the country - what the rules are. At some point, you have to ask if the Justice Department has a national policy. I can't just let them rough up Cincinnati."

When Ashcroft came to Cincinnati on April 12, 2002, to sign the agreement, the attorney general showed deference to law enforcement - eliminating, for example, a provision in the agreement insisting that an officer fill out a report every time he removes his gun from his holster.

"The Justice Department doesn't come to Cincinnati knowing all the answers," Ashcroft said at the signing ceremony. "It is not only our duty, but it's our happy privilege to yield to the wisdom of those who will live with the responses."

Scott Greenwood, a lawyer for the American Civil Liberties Union of Ohio and a member of the Collaborative Agreement, said the mayor is counting on a rift in the Justice Department between the Civil Rights Division and the Office of the Attorney General - a rift that may not exist.

"I think Ashcroft has got his own people running the Civil Rights Division now," he said. "I don't see him telling his own people to back down from an agreement that he himself signed."

Cincinnati's use-of-force policy doesn't necessarily create a precedent, Greenwood said.

"That agreement is not a baseline for all police departments nationwide," he said. "It's a corrective measure for a police department that didn't have it right yet."

But Roger Webster, president of the Fraternal Order of Police Queen City Lodge No. 69, said the Justice Department is failing to grasp the practical implications of such a strict policy.

"It's ridiculous," he said. "If I grab you by the arm and you pull back and go, 'Ow!' - that's a use of force. That means tape-recorded interviews. That means two hours of a supervisor's time. And for what? They signed this damned agreement, and now they're changing the rules. What do they want? I agree with the mayor and the chief. Bring John Ashcroft in here, and let's hear it from him."


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