INVESTIGATION OF THE CLEVELAND DIVISION OF POLICE

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Notes:

1. Please note that this letter is a public document and will be posted on the Civil Rights Division’s and the United States Attorney’s Office’s websites.

2. For purposes of this letter, “less lethal force” means a force application not intended or expected to cause death or serious injury and which is commonly understood to have less potential for causing death or serious injury than conventional, more lethal police tactics. Nonetheless, use of less lethal force can result in death or serious injury.

3. The division uses the Taser brand of electronic control weapons and refers to them in its policies as “Tasers.” Throughout this report, we will refer to these electronic control weapons as Tasers.

4. See, e.g., Henry J. Gomez, Six Cleveland Police Officers Accused of Brutality Have Used Force on 39 Suspects Since 2009, Clev. Plain Dealer, May 22, 2011, available at http://blog.cleveland.com/metro/2011/05 ... accu.html; see also Gabriel Baird, Two Cleveland Police Officers Charged with Assault are Among Department’s Most Prolific Users of Force, Clev. Plain Dealer, Mar. 27, 2011, available at http://blog.cleveland.com/metro/2011/03 ... kevi.html; Gabriel Baird and Henry J. Gomez, Cleveland Police Chief McGrath Overlooked Conflicting Statements in Use of Force Investigations, Clev. Plain Dealer, June 5, 2011, available at http://blog.cleveland.com/metro/2011/06 ... ael_3.html. This material is included not because we are adopting the findings in these reports, but because they do provide appropriate background as to the community-CDP relationship.

5. Gabriel Baird and Henry J. Gomez, Cleveland Police Boast Near-Spotless Taser Record, but Experts Question Credibility of the Numbers, Clev. Plain Dealer, July 20, 2011, available at http://blog.cleveland.com/metro/2011/07 ... ar-sp.html.

6. OHIO BUREAU OF CRIMINAL IDENTIFICATION & INVESTIGATION, PROSECUTOR’S SUMMARY (Feb. 5, 2013), available at http://www.ohioattorneygeneral.gov/bcishootingreport.

7. Statement, Ohio Att’y Gen. Mike DeWine, Officer-Involved Shooting of Timothy Russell and Malissa Williams (Feb. 5, 2013), available at http://www.ohioattorneygeneral.gov/File ... d-Officer- Involved-Shooting-Investigation/Officer-Involved-Shooting-Statement-Morning-02-05.aspx. Again, these findings are not being cited because we adopt them in this letter, but because they constitute important background from another significant source that provided background for this investigation.

8. Leila Atassi, Cleveland Mayor Frank Jackson Seeks Outside Review of All Future Use of Deadly Force Cases, Clev. Plain Dealer, Dec. 27, 2012, available at http://www.cleveland.com/metro/index.ss ... son_5.html.

9. John Caniglia, Judge Approve Settlement Reached with Families of Timothy Russell, Malissa Williams Over Deadly Police Chase and Shooting, Clev. Plain Dealer, Nov. 18, 2014, available at http://www.cleveland.com/courtjustice/ index.ssf/2014/11/judge_approves_settlement_reac.html.

10. CDP refers to its patrol cars as “zone cars.”

11. Persons who are resisting arrest and are charged with that offense have almost always engaged in behavior which would be met with some use of force by the officers involved.

12. Throughout this letter, we will provide two or three examples that illustrate each of the problems that we found during our investigation. These examples are far from an exhaustive list of the incidents that we found that violate the Constitution. Indeed, these examples only comprise a small subset of the total number of incidents that we found problematic and upon which we base our conclusions.

13. We use pseudonyms for individuals who were the subject of force with CDP officers to protect against disclosing personally-identifying information. We also do not identify CDP personnel by name, as the purpose of these illustrations is not to assess individual liability but to support and illustrate the findings of a pattern or practice.

14. This incident is a perfect example of the fact that this letter is not making judgments about individual officers’ intent while using even unreasonable force. Obviously, the officer here did not intend to shoot a victim in this case. That does not change the fact, however, that under all of the circumstances of this case, firing at the victim was not reasonable and therefore violated the Constitution. In other words, simply saying that an officer’s or a Department’s actions are not criminal, does not mean that no Constitutional problem exists.

15. See OFFICE OF THE OHIO ATT’Y GEN., OHIO’S CONCEALED CARRY LAWS AND LICENSE APPLICATION, at 14 (rev. April 7, 2014), available at http://www.ohioattorneygeneral.gov/File ... s-for-Law- Enforcement/Concealed-Carry-Publications/2011-Concealed-Carry-Laws-Manual.aspx (“If a person is stopped for a law enforcement purpose and is carrying a concealed handgun as a CCW licensee . . . he shall promptly inform the law enforcement officer that he is carrying a concealed handgun.”).

16. On June 10, 2014, the City of Cleveland settled a lawsuit Brian filed alleging that CDP resorted to excessive force in this incident. We note that certain of the lawsuits that the City has settled involving allegations of excessive force were settled on confidential terms. The use of this practice, which diminishes transparency, merits serious review in such cases going forward.

17. CDP General Police Order (“GPO”) 2.1.01, Use of Force, §VI.D.5 (rev. March 22, 2013) and §IV.E (rev. May 7, 2007).

18. CDP retained PERF to conduct a review of the Division’s policies and some of its practices related to its use of force. PERF’s assessment included a review of CDP’s training, supervision and management, less lethal force reporting, early intervention system, and post-traumatic stress aftercare. At the conclusion of that study, in August 2013, PERF issued a report that described its conclusion and made recommendations regarding managing the use of force in CDP, most of which CDP agreed to implement.

19. On August 23, 2013, CDP issued Divisional Notice 13-342, which revised its Use of Force policy in accordance with PERF’s recommendations.

20. PERF, USE OF FORCE POLICY AND PRACTICES STUDY FOR CLEVELAND DIVISION OF POLICE, at 6 (August 2013) [hereinafter “2013 PERF Report”].

21. GPO 2.1.01, Use of Force, §VI.D (rev. Aug. 8, 2014).

22. David filed a lawsuit against the officer alleging, among other things, excessive force and false arrest in violation of the Fourth Amendment of the U.S. Constitution. On Feb. 13, 2013, the court denied the officer’s motion for summary judgment in regards to these claims and in regards to the officer’s qualified immunity claim, noting that the officer offered “improbable testimony” that the vehicle pushed against the officer and that the officer “never explain[ed] how the [vehicle] moved sideways into him. . . .” CA No. 1:12-CV-01920 (02/13/13 Opinion & Order, dkt. # 16, at 11. The case settled on March 1, 2013.

23. CDP’s Use of Force policy in place at the time, dated May 7, 2007, stated, “Officers shall NOT fire at a vehicle that is no longer an imminent threat.” CDP’s current policy prohibits officers from discharging their firearms at a moving vehicle unless deadly force is being used against the officer or another person by means other than the vehicle.

24. GPO 2.1.01, Use of Force (rev. Aug. 8, 2014), at 2 (defining deadly force as “any action likely to cause death or serious physical injury” including “head strikes with any hard object”); GPO 2.1.01, Use of Force (rev. March 22, 2013), at 2 (also defining deadly force as “any action likely to cause death or serious physical injury,” including “head strikes with . . . any hard object.”); GPO 2.1.01, Use of Force (rev. May 7, 2007), at 2 (“Deadly force includes . . . head strikes with an ASP baton or any hard object.”).

25. PERF & Community Oriented Policing Services (“COPS”), 2011 Electronic Control Weapon Guidelines, at 14 (March 2011) [hereinafter “2011 ECW Guidelines”].

26. 2013 PERF Report, at 9.

27. As the PERF guidelines on Tasers note, “there is a higher risk of sudden death in subjects under the influence of drugs and/or exhibiting symptoms associated with excited delirium.” The guidelines also note that multiple applications of a Taser or simultaneous applications by more than one Taser may result in fatal or other serious outcomes. Indeed, the PERF guidelines go on to state that “exposure to the Taser for longer than 15 seconds (whether due to multiple applications or continuous cycling) may increase the risk of death or serious injury.”

28. GPO 2.1.01, Use of Force, §VI.D.4 (rev. March 22, 2013).

29. In City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), the Supreme Court held a municipality liable for failing to adequately train its law enforcement officers, recognizing that a law enforcement agency’s practices and decision-making can cause constitutional harm. Id. at 387.

30. The most recent Use of Force policy, made effective in August 2014, states that supervisors investigating force incidents must require all officers at the scene of an incident to complete a narrative describing “any actions of the member and what the member observed and heard.” GPO 2.1.01, Use of Force (rev. Aug. 8, 2014), at 10. We commend the Division for making this change after our informal discussions with CDP’s leadership. As discussed later in this letter, however, it is not yet clear that this policy revision has been adequately implemented.

31. This form formerly was called a “Use of Non-Deadly Force Report.” The division’s decision to change the name of this form is consistent with best practices and we commend the division for having made this change.

32. Although we have been advised that four officers involved in this incident spent some time on administrative leave without pay, they were not formally disciplined. In addition, CDP did not discipline an additional half dozen officers who witnessed the use of force but failed to report it and failed to identify which officers kicked Mr. Henderson. The City, nevertheless, paid a substantial settlement in a civil suit brought based on this incident.

33. See, e.g., OFFICE OF PROFESSIONAL STANDARDS, DEPARTMENT OF PUBLIC SAFETY, PROCEDURAL MANUAL, at 1.3 (undated) [hereinafter “OPS Manual”]; STANDARD OPERATING PROCEDURE MANUAL: THE USE OF DEADLY FORCE INVESTIGATION TEAM, at 13 (rev. March 27, 2013) [hereinafter “UDFIT Manual”].

34. Garrity v. New Jersey, 385 U.S. 493 (1967), prohibits a police department from compelling an employee, through the threat of termination, to provide incriminating statements and then subsequently using those statements in a criminal prosecution.

35. GPO 1.3.16, Integrity Control Section Call-Up Teams, §I.D (rev. October 14, 2009).

36. See UDFIT manual.

37. UDFIT Manual at 14.

38. Charter of the City of Cleveland, § 115-4, Investigation and Disposition of Complaints.

39. GPO 1.3.15, Investigations of Police Misconduct, at 1 rev. September 10, 2007).

40. OPS Manual §8.0.

41. See OFFICE OF PROFESSIONAL STANDARDS/CIVILIAN POLICE REVIEW BOARD, ANNUAL REPORT, at 13 (2011) [hereinafter “2011 OPS Annual Report”].

42. OPS Manual §8.0

43. GPO 1.3.15, Investigations of Police Misconduct, §IV (rev. September 10, 2007).

44. Letter from the Chief of the Special Litigation Section to the Director of the City of Cleveland Law Department, at 8 (July 23, 2002) [hereinafter “2002 DOJ letter”).

45 See GPO 1.3.15, Investigations of Police Misconduct, §I.C; Office of Professional Standards, Department of Public Safety Procedure Manual 3.4.

45. GPO 1.3.15, Investigation of Police Misconduct, § III.A; Office of Professional Standards, Department of Public Safety Procedure Manual 3.4.

46. See Collective Bargaining Agreement between the City of Cleveland and the Cleveland Police Patrolmen’s Association, Article VIII Bill of Rights, 12(m).

47. Charter of the City of Cleveland, ch. 25, § 115-3, Powers and Duties of Board.

48. OPS Manual §4.1-4.3.

49. OPS Manual §4.4.

50. UDFIT Manual at 13.

51. 2011 OPS Annual Report.

52. GPO 1.1.20, Early Intervention Program (EIP), (January 28, 2014 draft).

53. GPO 1.1.20, Early Intervention Program (EIP), at 1 (January 28, 2014 draft).

54. ROBERT CHAPMAN &MATTHEW SCHEIDER, COPS, COMMUNITY POLICING FOR MAYORS: A MUNICIPAL SERVICE MODEL FOR POLICING AND BEYOND, at 1 (undated); GAYLE FISHERSTEWART, COPS, COMMUNITY POLICING EXPLAINED: A GUIDE FOR LOCAL GOVERNMENTS, at 6 (undated).

55. We note as an example that the field reports and other documents associated with the incident involving Paul did not cite any justification for the pat-down of individual the officers suspected of urinating in public. To justify a pat-down of an individual, an officer must have “reason to believe that he is dealing with an armed and dangerous individual.” Terry v. Ohio, 392 U.S. 1, 27 (1968); Bennett v. City of Eastpointe, 410 F.3d 810, 822-823 (6th Cir. 2005) (“A lawful stop does not necessarily carry with it the authority to conduct a pat-down search.”). If there was such a justification, it should have been in the officer’s report, a failure that is far too common in the records that we reviewed.

56. COPS, COMMUNITY POLICING DEFINED, at 1 (undated); DREW DIAMOND & DEIRDRE MEID WEISS, ADVANCING COMMUNITY POLICING THROUGH COMMUNITY GOVERNANCE: A FRAMEWORK DOCUMENT, at 4 (2009).

57. STANCE is part of a comprehensive prevention, reentry and enforcement effort to help prevent gang problems across the nation. See http://www.safercleveland.org/stance.html.

58. CDP Inter-office correspondence, Anticipated Assignment to the Community Services Unit (undated); CDP Intra-District Assignment Posing, Anticipated Assignment Community Services Unit (December 1, 2011).

59. GPO 1.2.01, Organizational Structure, §IV. (Rev. Dec. 30, 2011).

60. GPO 3.2.17, Crisis Intervention Officers, at 1 (effective October 27, 2004).

61. Id.

62. GPO 6.1.01, Crisis Intervention Report, at 1 (effective March 1, 2002).

63. We recognize that using civilians in these positions has been a sensitive issue in the past, resulting in litigation and a settlement agreement. Nevertheless, a comprehensive review of CDP’s staffing plan should consider the advantages of using civilians in some jobs through the process outlined in that settlement agreement.