City of Cincinnati Independent Monitor's Third Quarterly Report

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City of Cincinnati Independent Monitors Third Quarterly Report October 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 Wayne Eveland John Williams Kristina Maritczak Timothy Longo TABLE OF CONTENTS Page EXECUTIVE SUMMARY .......................................................................1
CHAPTER ONE. INTRODUCTION ......................................................9 CHAPTER TWO. MEMORANDUM OF AGREEMENT......................13 I. GENERAL POLICIES ..........................................................13 A. Mental Health Response Team ................................13 B. Foot Pursuits.............................................................14 II. USE OF FORCE..................................................................15 A. General Policies.........................................................15 B. Chemical Spray.........................................................16
C. Canines......................................................................19 D. Beanbag Shotguns ...................................................23 III. INCIDENT DOCUMENTATION, INVESTIGATION............23 A. Documentation..........................................................23 B. Investigation..............................................................25
C. Review of Critical Firearms ......................................27 IV. CITIZEN COMPLAINT PROCESS ......................................28 A. Openness of Complaint Process..............................28
B. Investigation of Complaints .....................................29
C. Adjudication of Complaints .....................................31 D. Investigations by the CCA .......................................32 V. MANAGEMENT AND SUPERVISION ................................34 A. Risk Management.....................................................34 B. Audit procedures......................................................37
C. Video Cameras..........................................................38
D. Police Communications Section..............................40 E. Discipline ..................................................................41 TABLE OF CONTENTS (continued) Page VI. TRAINING ...........................................................................42 A. Use of Force-Management Oversight and
Curriculum................................................................42
B. Handling Citizen Complaints ...................................44 C. Leadership/Command Accountability....................44
D. Canine Training........................................................44
E. Scenario Based Training ..........................................44 F. Revised Training Based on Review of Civil
Lawsuits Pertaining to Officer Misconduct.............45 G. Orientation to the MOA............................................45
H. FTO Program.............................................................46
I. Firearms Training .....................................................49 CHAPTER THREE. COLLABORATIVE AGREEMENT .....................50 I. Implementation of CPOP....................................................51
II. Evaluation Protocol ............................................................71 III. Pointing Firearms Complaints...........................................73
IV. Fair, Equitable and Courteous Treatment .......................73 A. Data Collection and Analysis...................................74 B. Training and Dissemination of Information...........78
C. Professional Conduct................................................79 V. CCA......................................................................................80 A. Establishment of CCA and CCA Board ...................80
B. Executive Director and Staff....................................80
C. CCA Investigations and Findings ............................80 CHAPTER FOUR. REVIEW OF SAMPLE INVESTIGATIONS..........81 I. Use of Force Investigations ................................................81
A. Firearms Discharges .................................................82 B. Use of Beanbag, Pepper-ball, and Taser .................86 TABLE OF CONTENTS (continued) Page C. Use of Canine ............................................................89 D. Physical Force ...........................................................92
E. Use of Chemical Irritant ...........................................97
F. Use of Chemical Irritant While Restrained...........102 II. Citizen Complaint Investigations....................................106 A. IIS Investigations.....................................................106
B. CCRPs ..................................................................... 117 APPENDIX 1 USE OF FORCE TABLE............................................ 125
APPENDIX 2 REVIEW OF PROBLEM SOLVING WRITE-UPS ...... 126 1 CITY OF CINCINNATI INDEPENDENT MONITORS THIRD QUARTERLY REPORT EXECUTIVE SUMMARY This is the third report of the Independent Monitor under the Memorandum of Agreement (MOA) between the City of Cincinnati
and the United States Department of Justice, and the Collaborative
Agreement (CA) among City of Cincinnati, the American Civil
Liberties Union of Ohio Foundation Inc., and the Fraternal Order of
Police. The period covered is from April through July 1, 2003,
though we also review more recent activities from July through
September 30. This report details the implementation of and level of compliance with the MOA and CA. The MOA calls for police
reforms in the areas of police use of force, citizen complaints, risk
management, and training. The CA 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 (CCA). MEMORANDUM OF AGREEMENT General Policies The MOA requires the Cincinnati Police Department (CPD) to establish a cadre of specially trained officers to respond to
incidents involving persons who are mentally ill. The CPD has
trained 90 officers as part of a Mental Health Response Team
(MHRT), and revised its policies on dealing with the mentally ill.
During this quarter, CPD began tracking the number of MHRT
officers deployed in each district and on each shift, and tracking
whether MHRT officers were dispatched to calls involving mentally
ill persons. Most MHRT calls did result in a response by an MHRT
officer. Continued compliance will depend on the availability and
deployment of MHRT officers to incidents involving mentally ill
individuals. 2 The CPD foot pursuit policy also complies with the MOA. Our review of investigations of incidents in which there was a foot
pursuit showed that supervisors in some cases have evaluated the
tactical soundness of the foot pursuit, while in others, there
appeared to be no review of the foot pursuit. Use of Force Policies CPDs current Use of Force policy is in compliance with the MOA. With respect to implementation of that policy, the Monitor
Team reviewed a sample of chemical spray reports from the second
quarter of 2003. In a number of cases, it was unclear whether or
not subjects were warned, as required by the MOA, that chemical
spray would be used if they did not comply with the officers
commands. Supervisors must include this information in their
investigations and their Use of Force Reports. A second issue
raised by our review is whether it is appropriate for an officer to use
chemical spray on a restrained individual because that individual
spit on the officer. While such a use of chemical spray might be
justified as necessary to protect the officer given concerns
associated with communication of infectious diseases, it would only
be justifiable if other means not involving the use of force were
ineffective. Moreover, a warning of chemical spray must be given
before use. The Monitor Team continued its review of CPDs use of canines for locating and apprehending suspects. During the
second quarter of 2003, there were five canine bites. None of the
investigations of these bites was completed before September 2003,
however, so the Monitor was unable to review the incidents for this
Report. Without reviewing these investigations, we are unable to
assess compliance with the Canine provisions for this quarter. The
Monitor Team did meet with the Canine Unit this quarter. The
focus of our discussions was the dynamics of canine tracks and
running apprehensions, and whether officers have opportunities
either to maintain closer control of their dogs, or intervene before
the dog has engaged once the suspect is located. We observed
several training exercises and were impressed with the rigor of the
training program. 3 Incident Documentation, Investigation, and Review On June 1, 2003, CPD began implementing its new Use of Force policy worked out with the Department of Justice. Under
this policy, officers self-report certain uses of force involving hard
hands and takedowns on a new Non-Compliant Suspect form
(Form 18NC). Supervisors review these forms to assess the
appropriateness of the officers use of force and tactics, but they do
not need to respond to the scene to conduct a use of force
investigation. For other types of force, such as chemical spray,
takedowns with injuries, physical strikes, taser, beanbag or
pepper-bag deployments, supervisors continue to respond to the
scene and complete a Use of Force investigation and report (Form
18). The Monitor Team reviewed a sample of use of force investigations to gauge implementation of CPDs policies. We found
that officers and supervisors generally are complying with the
requirements of the MOA. Supervisors are responding to the scene
and conducting investigations, including taped interviews with
officers, witnesses and the subject of the use of force. One issue
consistently raised by CPD supervisors is whether, in situations
that led to physical strikes or take downs, chemical spray might
have been a preferable tactic, with smaller risk of injury for the
officer and the subject. Where appropriate, officers have been
counseled on sound tactics. CPD completed the review of three firearms discharges from the first quarter of 2003. Two of these discharges were accidental
and the third involved a fatal officer-involved shooting in February,
2003. These were the first firearms discharges since the signing of
the MOA and CA. Pursuant to the MOA, all three of the discharges
were reviewed by a CPD Firearms Discharge Board (FDB). The FDB
reports were consistent with the MOA requirements regarding
firearms discharge investigations and FDB reports. Citizen Complaint Process CPD revised the routing and review of complaints stemming from supervisors use of force investigations. The Internal
Investigation Section (IIS) will now review the investigation after it
has gone through the Patrol Bureau, and conduct additional 4 investigation if necessary. The IIS investigations of citizen
complaints we reviewed in this quarter revealed mixed results, from
thorough investigations that met MOA provisions to investigations
involving leading questions and lack of rigor. Therefore, the City
only is in partial compliance with the MOA provisions relating to
investigations of citizen complaints. Management and Supervision CPD is on track in its development of the risk management system required under the MOA. The Citys contractor has
installed the servers for the Employee Tracking Solution (ETS) as
well as some of the software and other components of the system.
CPD also is in the process of upgrading its desktop computers so
that all of the work stations in the Department will have access to
the ETS system. CPD also prepared a protocol for the system,
describing the system and how it will be used. The Monitor Team
reviewed a draft of the protocol and made suggestions for additional
detail regarding the reports that the system will produce and the
thresholds and comparisons that will be used by CPD to trigger a
review of officer or unit performance. The protocol has now been
submitted to the Department of Justice for its review and approval. Training
The Monitor Team observed police recruit training and found that it is consistent with the requirements of the MOA. The
Monitor Team also discussed scenario-based training activities with
training staff and reviewed examples of the scenarios being used.
The scenarios include a mix of incidents involving CPD officers and
incidents from other agencies, and they depict a wide range of
situations involving tactical, ethical and legal considerations. CPD
also made commendable progress in improving the FTO program.
CPD launched a formal review process that helped identify existing
FTOs who did not appear well suited for that role. Ten FTOs were
deactivated following reviews of their performance. 5 COLLABORATIVE AGREEMENT CPOP In this quarter, the Parties continued to develop the process by which the Police Department and the community will engage in
CPOP efforts. The challenge will be moving from theory to action. The pilot problem-solving teams in Madisonville, Evanston, Walnut Hills, Over-the-Rhine, Avondale and the West End that
were initiated by Cincinnati Community Action Now (CCAN)
continued their efforts, with assistance from CPD personnel and
the interim staff at the Community Partnering Center. CPD also
provided training to eight additional neighborhood groups this
summer. The training centered on the SARA problem-solving
process, 1 as the Parties have not yet agreed upon a joint CPOP curriculum for community members and CPOP teams. The Monitor Team believes that timely agreement on a joint CPOP training curriculum is critical. Since 14 neighborhoods have
begun problem solving, it is incumbent upon the Parties
themselves (even without a Community Partnering Center executive
director) to ensure that the problem-solving teams are moving in
the right direction. Otherwise, approaches and dynamics will
become set and difficult to change as time passes. To facilitate this
process, the Monitor has recommended a roundtable among the
Parties to work on the content of the CPOP training, and on the
SARA problem solving process to be used by the CPOP teams. In the meantime, the Partnering Center has begun a search for a permanent executive director, who will then be able to hire
permanent staff so that the Partnering Center can expand its
efforts to additional neighborhoods in the City. We received the Parties Annual CPOP Report in early September. As we requested, the annual report catalogued efforts
from prior years, as well as efforts since the CA has been in effect,
so that the Parties have a baseline for comparing measures taken
after the approval of the CA. The report describes CPDs early
community policing efforts, including assignment of a 1 SARA stands for Scanning, Analysis, Response and Assessment. 6 neighborhood officer to each of the Citys 52 neighborhoods, a
Citizen and Student Police Academy, Citizens on Patrol, training of
officers in community policing, and adoption (although not
implementation) of a community policing strategic plan. With
respect to work undertaken since August 2002, the report
describes the efforts of the pilot CPOP teams, as well as several
recent City/CPD initiatives, such as the draft CPOP website,
Community Response Teams (undercover and uniformed two-day
deployments in selected neighborhoods), the Code Enforcement
Response Team, the Drug House Task Force, partnership with the
Cincinnati Human Relations Commission, and the Youth
Lighthouse. This quarter, CPD began using the draft CPOP website, starting with write-ups of eight problem solving teams. We
reviewed these eight reports and found that they lacked sufficient
detail regarding problem-solving activities for us to judge
compliance. Nonetheless, we recognize that these first efforts to
populate the website are just a sample of what the system is able to
convey. In our Report, we suggest modifications that will enhance
the websites usefulness as a reporting system, problem tracking
device, and a resource to others in the community, the City, and
other cities. We also look forward to receiving problem-solving
reports from District Commanders and Unit and Section
Commanders, as required by the CA. The Monitor Team also reviewed CPDs personnel evaluation system. As part of the CPDs transition to CPOP, the Department
needs to develop job descriptions, performance measures, and a
performance appraisal system that reinforce the organizations
values and commitment to community policing and problem
solving. In addition, there are steps that can be readily taken to
improve the quality of the existing performance evaluations. Evaluation Protocol Four bids were received in response to the Citys RFP for a contractor to perform the tasks in the Evaluation Protocol. An
Evaluation Committee, with representatives of each of the Parties,
met to discuss the bids, along with the Deputy Monitor and the
Parties consultant on the selection process. Each Party had scored
the bids based on an agreed-upon scoring grid. Further 7 discussions among the Evaluation Committee are anticipated in
October. The Parties are also likely to consider changes in the
scope of the Evaluation Protocol contract that will still deliver the
essential evaluation components, but reduce the cost of the
contract. While there has been progress in selecting an Evaluator,
it will take some time before a selection is made, a contract with
the Evaluator is negotiated, and actual work is begun on the
Evaluation Protocol. The Parties are not in compliance with the
Evaluation provisions at this time Pointing Firearms Complaints The investigations of complaints of improper pointing of firearms from March 2000 to November 2003 have been forwarded
to the Conciliator, Judge Michael Merz. The Parties have also
submitted supplemental materials to Judge Merz for his review in
making his decision under Paragraph 48. Fair, Equitable and Courteous Treatment The CA calls for the City to report on its efforts pursuant to Ordinance 88-2001 to measure whether there is racial disparity in
motor vehicle stops by CPD. Professors from the University of
Cincinnati were selected to analyze traffic-stop data for the period
May 1, 2001 to December 1, 2001. The study of this data will be
complete by September 30, 2003. The Parties have met with the
Monitor regarding the release of this data for public review. With respect to collecting data on traffic stops and pedestrian stops since December 2001, CPD continues to collect the
information on Contact Cards and manually enter the data into a
database. Although efforts have been made to increase the
accuracy of the data input into the system, the Parties remain out
of compliance with the data collection and analysis provisions of
the CA. This is in great measure because the outside contractor
under the Evaluation Protocol has not yet been selected. Moreover,
despite adding personnel to the data entry effort, there remains a
significant backlog of Contact Cards to be entered into the CPD
database. Third, CPD has not put in place procedures ensuring
that officers will collect data on pedestrian stops. Last, the Parties
have not participated in ongoing training regarding the Bias-Free
Policing training program. 8 Citizens Complaint Authority The resignation of Nate Ford, the executive director of the CCA, has in some respects hampered CCAs progress and the good
start on which we reported in our prior Quarterly Reports. A
search for a new executive director is underway. CPD has put in place new procedures for promptly referring complaints of excessive force to the CCA. The new procedures
address the concern we raised in our Second Quarterly Report.
The Monitor will review IIS and CCRP referrals to the CCA in the
next quarter to determine whether CCA is getting prompt notice of
citizen complaints. We will also review a sample of CCA
investigations to evaluate the quality of investigations and
compliance with provisions of the Agreements. 9 CITY OF CINCINNATI INDEPENDENT MONITORS THIRD QUARTERLY REPORT CHAPTER ONE. INTRODUCTION In our First Quarterly Report, we emphasized the need for commitment to the Agreements from all of the Parties, particularly
the City and the Cincinnati Police Department (CPD). We also
noted disagreements between the Department of Justice and CPD,
tensions among the parties to the Collaborative Agreement (CA),
and noncompliance with important provisions of the Agreements. In our Second Quarterly Report, we reported significant progress in compliance with the Memorandum of Agreement (MOA)
and in implementing the CA. There were also efforts to overcome
the distrust among the parties. But we also described holes that
needed to be filled, both in implementation of the Agreements and
with respect to participation by the parties. In this, our Third Quarterly Report, we are pleased to report continued progress in filling gaps in implementation. Policies and
procedures required by the Agreements are, for the most part, in
place, and implementation of MOA provisions are becoming
operational. But the process of change takes time, and the
transformation of an organization and its relations with the
community involves many steps. Work by the Parties needs to
continue toward a common understanding of the essential
elements of CPOP. As described in this Report, there is still
significant work to be done. Participation of the Parties. In our Second Quarterly Report, we raised concerns regarding what we saw as a decline in the participation of the FOP and the
Plaintiffs. During this quarter, the Monitor Team met with
representatives of the Plaintiffs on this issue, and also met with
several members of the Advisory Panel that the ACLU has
established. We were impressed with the backgrounds and
knowledge of the Advisory Board members with whom we met, and
also with their dedication to and interest in the collaborative 10 process. It is our hope that they will take an active role in
implementing the Agreements. We also understand that the
Plaintiffs look to the permanent staff of the Community Partnering
Center, once selected, to engage the community in community
problem solving and undertake many of the CPOP tasks. We also met with members of the Executive Committee of the FOP. They expressed dissatisfaction that certain provisions of the
Agreement, which they see as critical, have not yet been
implemented. They also reiterated the position taken by FOP
members seeking to withdraw from the CA. As we stated in those
meetings, we believe that rank and file officers are an essential
element in the reform of police-community relations in Cincinnati.
As the representative of these officers, the FOP voice at the table is
needed, and its withdrawal would be a loss both for the officers and
the community at large. The collaborative process has much to
gain from their participation and we urge the FOP membership to
remain a vital partner. Concern also remains that communication among the Parties, an essential element of collaboration, remains, at times, strained
and ineffective. Also, participation by all of the Parties in the
development of the vision of CPOP and its implementation has been
inconsistent. Improvement in these important areas will be
essential to the efficient accomplishment of the goals and
requirements of the Agreements. Format of Report In this Report, as in our previous two reports, we examine the requirements of the Agreements, the status of the Citys and the
Parties efforts to implement the provisions, and our assessment of
compliance. We focus on areas where there has been progress in
implementation, a significant lack of progress, or noncompliance.
Provisions that are not covered in this Report will be addressed in
future quarters and future quarterly reports. Where relevant, we also describe the standards we are using to assess and measure compliance. For some provisions, there is a
quantifiable way of measuring implementation of the Agreements.
For others, our assessment is more qualitative, and necessarily
involves judgment calls regarding the Parties efforts. Wherever 11 possible, we attempt to provide the Parties with benchmarks
against which their efforts can be measured, and our expectations
for the steps to be taken in future quarters. The Evaluation
Protocol, once it is implemented, will provide additional tools by
which to measure the success of the Agreements; i.e., has
implementation of these provisions accomplished the goals set out
in the Agreements. It is our view that we should not monitor the Agreements mechanistically, and assess only whether required procedures have
been put in place, without looking at the success or failure of the
procedures to achieve the aims for which they were designed. At
the same time, we know that compliance with the Agreements
cannot be measured simplistically by looking at whether the crime
rate has risen or fallen, or whether confidence in the police has
gone up or down (as measured, for example, by citizen surveys).
These ultimate outcomes are affected by a multitude of factors,
many of which are outside the scope of the Agreements. Our
assessment will be a mix of the above approaches, informed by the
expertise of our team members and by best practices in the
policing profession. Acknowledgments During this quarter, the Monitor Team came to Cincinnati for an extended site visit. Members of the Monitor Team participated
in ride-alongs with CPD officers and supervisors, observed training,
and reviewed CPD documents and files. We also met with
members of the FOP executive committee, members of the ACLU
advisory panel, and the interim staff of the Partnering Center,
among others. We would like to take this opportunity to thank all
of those with whom we met for their openness and candor, but
especially the CPD members with whom we rode. In the cover letter to the CPOP annual report, the representatives for each of the Parties wrote: [I]t is clear that the dedication of our citizens and police has
the potential to make Cincinnati a model in police-community
relations. This partnership will lead to a future where all
citizens can be assured that police in collaboration with 12 community stakeholders are diligently working to enhance
the quality of life for all citizens. We share this assessment. We believe that each of the Parties has
been working in good faith to implement the Agreements. However,
success is not assured. Continued energy and dedication will be
necessary for the partnership envisioned by these Agreements to
take a lasting hold and produce the kind of results all of the
citizens of Cincinnati deserve. 13 CHAPTER TWO. MEMORANDUM OF AGREEMENT I. General Policies A. Mental Health Response Team [MOA

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