City of Cleveland Responds to Questions on DOJ Findings

Today I will provide responses to some questions posed recently about the DOJ report by local media (NEOMG):

1: Regarding settling lawsuits against police officers, does the mayor have to sign off on each settlement?

The City’s Codified Ordinances give the Law Director authority to settle lawsuits involving the City.  As with all attorney-client relationships, the Mayor and the Law Director confer regularly about cases pending against the City.

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2: Does the city flag officers who were sued by citizens multiple times or classify them as high risk for misconduct?

The Division of Police has an Early Intervention Program.  This program relies on a number of indicators to flag an officer who may need guidance or assistance.

The indicators include:

  • Administrative charges sustained
  • Sick time abuse
  • The Office of Professional Standards (OPS) complaints
  • Use of force incidents
  • Internal affairs investigations

Use of force lawsuits are not a separate indicator because any use of force already is an indicator. Chief Williams and the Division of Police are in the process of reviewing the Early Intervention Program indicators in conjunction with a new software tracking program.

3: NEOMG asks: The mayor has said repeatedly that the findings of the U.S. Justice Department are allegations, and that the city will conduct its own investigation to determine what is factual.  But these cases, on their face, suggest a pattern over the past decade of which the mayor should have been aware.  Was he not?  If the city has the capability to investigate the claims that the DOJ has made, why wasn’t that effort made years ago – before the federal government intervened?

The assumptions in this question are false.

First, settlements do not evidence any kind of pattern or practice.  Each lawsuit filed against the City has its own specific facts.  In several of the cases, the Judge dismissed the City (the municipal corporation) as a party because the plaintiff could not show a pattern or practice that caused the particular incident or injury.

Lawsuits are settled for a variety of reasons, but a settlement does not mean that the City or the police officers are at fault or that excessive force was used.  Lawsuits may be settled because the settlement amount is cheaper than the cost to take the case to trial.  It is common for parties to settle cases – corporations, nonprofits, individuals, the Plain Dealer, NEOMG, etc.

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Just as it does not mean that the Plain Dealer engages in a pattern or practice of libel because it may have settled several libel cases, the City’s settlement of excessive force cases does not mean that the City and its police officers engage in a pattern or practice of excessive force.

Second, the Mayor has not said that the DOJ findings are allegations.  He has said that he does not agree with everything in the report.  He has said that he sees the report as an opportunity for the City to address issues that have been identified.

The City is reviewing the DOJ letter to determine the areas to be addressed in the settlement negotiation process.

Additionally, the Mayor has said that he does not believe that the DOJ report fully addresses the very complex subject of the criminal justice system and policing.  Many entities are involved in this system and have an effect on who is arrested, who is charged, and how their cases are addressed.  Those entities include arbitrators who review the City’s imposition of discipline.

Third, the suggestion that the City is just now thinking about and investigating use of force is wrong.  The Mayor was concerned about use of force before he took office as Mayor.  That is why he stated in his first press conference after being sworn in that the use of excessive force will not be tolerated.

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The following have occurred since the Mayor has been in office:

  1. He hired a special prosecutor to rule on the backlog of use of force cases pending in the City Prosecutor’s office.
  2. Under his leadership, changes were made to General Police Orders (GPO) regarding use of force, including the requirement that all officers who witness use of force must make a report.  The General Police Orders governing use of force have been revised multiple times over the past nine years.
  3. The City hired the Police Executive Research Forum (PERF) to review the City’s use of force policies and practices well before the DOJ announced its investigation.  PERF concluded in an October 19, 2012 letter:  “Overall we found the Division’s policies and procedures sound and comprehensive.  Our recommendations are aimed at enhancing them further.”  The City has addressed each of the 26 recommendations contained in the report issued by PERF.
  4. The City revised its Use of Deadly Force Investigation manual.
  5. The City changed its in-service training to focus on tactical training.
  6. The Field Training Officer program was revamped.
  7. The City instituted changes to how it evaluates candidates for promotions to supervisory positions by conducting oral interviews.
  8. The City implemented the use of Tasers.  Taser use is credited with reducing the use of deadly force and the use of less lethal force.
  9. The City implemented its Early Intervention Program.
  10. The City hired Wilson Strategies to conduct a Citizen Satisfaction Survey in 2011.
  11. Almost three years ago, the City started to investigate body-worn cameras and a body-worn camera program is near implementation.

This focus on use of force has resulted in a reduction in both use of deadly force and use of less lethal force.  The City’s published statistics show a downward trend in the use of all types of force over the past nine years.

Furthermore, the City investigates each use of force incident when it happens.

4: How does the city determine whether it will represent an officer who is sued for conduct while off duty.  Is that decision-making process governed by the provisions in the union contract or something else?

The Ohio Revised Code, case law, and the collective bargaining agreements govern the City’s obligation to defend and indemnify an officer, including an officer who took actions while off-duty.  The City is obligated to defend and indemnify an officer if that officer was acting both in good faith and not manifestly outside the scope of his or her official responsibilities.  Because off-duty officers have a duty to intervene when police intervention is needed, the courts have construed certain actions taken while off-duty to be within the scope of the officer’s official responsibilities.

The City has refused defense and representation to officers through the years, most specifically when the officer was acting for a secondary employer, as well as when the City determines that the officer was not acting in good faith and the officer’s actions were manifestly outside the scope of the officer’s responsibilities.  Many officers do not challenge this decision, but some challenges have resulted in the City being found to be responsible for the defense and indemnification of the officer.

5: Does the city have a policy on asking plaintiffs in these kinds of cases to sign agreements promising confidentiality or that the plaintiff won’t disparage the department, the city or the officer?

The City does not have such a policy.  The provisions of each settlement agreement are negotiated between the parties.  Frequently, plaintiffs will ask for a confidentiality agreement.  The City understands that the settlement agreements are a public record and informs those plaintiffs who request confidentiality.

The Bottom Line is – If you want to read more about what the mayor has said about the DOJ Report you can find the transcript of the 100 minute press conference as well as the full video version on the city’s website.

http://portal.cleveland-oh.gov/CityofCleveland/Home/Government/MayorsOffice/tv20/PressConference

About Daniel Williams

City of Cleveland, Ohio, Director of Media Relations

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