Police Accountability is Central to A Just Society

Al Gerhardstein and Iris Roley, Opinion contributors

Cincinnati police arrest a protester as they disperse a crowd after the 9 pm curfew outside the Hamilton County Courthouse in Cincinnati on Sunday, May 31, 2020. This marked the third day of protests over the death of George Floyd in Minneapolis at the hands of police.  (Photo: Albert Cesare / The Enquirer)

We have been working constructively on police reform in Cincinnati since before the unrest of 2001. The Cincinnati Black United Front (CBUF) recently conducted a community perception survey as part of the collaborative refresh, and the distrust of police within the local black community is deep, spanning all ages.  Protests on our own streets these past few days verify that fact. 

We offer these concrete observations to help channel the protests triggered by the death of George Floyd in Minneapolis into actions that will be transformative for our community. These suggestions only address police accountability. CBUF seeks reforms that address affordable housing, income disparities, health disparities and other forms of injustice. But we cannot get that work done unless vulnerable people are treated fairly by those in power.

The challenge of police accountability

Cincinnati police arrest a man during wide-spread protests in Cincinnati. People have been outraged by the death of George Floyd in Minneapolis at the hands of police. Sunday was the the third day of protests in downtown Cincinnati.  (Photo: Liz Dufour/The Enquirer)

On July 19, 2015, UC police officer Ray Tensing shot Sam DuBose in the head after ordering him to exit his car. Tensing was tried twice for murder. Twice the jury deadlocked without a conviction. The DuBose family asked the U.S. Department of Justice to review the case. The federal investigation remains open.

Criminal charges are the most dramatic means to hold an officer accountable.  Nationally, from 2013-2019, officers have only been criminally charged in 1% of the instances where they killed suspects. Very few of those result end in convictions. 

The officer can also be sued for damages under federal civil rights law and state law.  Federal and state claims must overcome the very high bar of immunity. Civil rights lawyers have several cases pending the U.S. Supreme Court seeking to eliminate qualified immunity since it in effect gives every officer one free pass at oppression.  Under Ohio state law, the officer will not be liable unless he acted recklessly, wantonly, in bad faith or with malice. Civil verdicts against police for use of force are very rare. 

An officer can also be disciplined and even fired for using excessive force. This requires a finding that the officer violated the agency use of force policy and/or his use of force training. Most police departments have an internal affairs department that conducts these investigations. Some, like Cincinnati, also have a Civilian Complaint Authority which does an investigation independent of the police department. 

Many officers like those in Cincinnati and in Minneapolis belong to a union. They can grieve and ultimately seek arbitration of any discipline regarding use of force. Arbitrators generally have labor law backgrounds and are not accountable to the public. Officers fare very well in arbitration. In fact, the University of Cincinnati was so reluctant to go to arbitration against Tensing that they settled his labor grievance and paid him over $340,000. The DuBose family and many in the community were outraged and discouraged.

In Cincinnati, we must act now to improve police accountability against these odds.

Cincinnati SWAT arrives on the scene as protesters gather at Washington Park in the Over-the-Rhine neighborhood of Cincinnati on Saturday, May 30, 2020. Hundreds of demonstrators took to the streets of Over-the-Rhine and downtown in solidarity with protesters in other US cities, speaking out against police brutality.  (Photo: Sam Greene/The Enquirer)

The response we need in Cincinnati

Here are a few ways to make that happen:

• Fully staff the Citizens Complaint Authority and stop blocking investigations. In Cincinnati, unless the officer interview has not yet been concluded, the police chief generally releases video footage of use of force and holds a press conference within 24 hours of the event. That is very important to reducing rumors and sharing basic facts of each event. By ordinance and under the Collaborative Agreement, the CCA has 90 days to complete its independent professional review of each use of force. In recent months, the CCA has been understaffed and it has failed to meet this deadline. This is disturbing because discipline is supposed to be delayed until the CCA recommendation is completed. It is also troubling because CCA is supposed to study trends and propose changes in policies and training where systems have broken down. That work is not getting done. In recent months, Hamilton County Prosecutor Joe Deters has not cooperated with the CCA and blocked officer interviews in many cases. The city and the Cincinnati Black United Front challenged that tactic and prevailed in the Ohio Supreme Court, so now the officers should be interviewed in a timely fashion again. Citizens should demand full funding and full staffing for CCA and make sure that it gets all its work done in a timely fashion.
• Reduced arrests means less force. Under the Collaborative, problem solving is the primary strategy for promoting public safety. This means that problems like open-air drug dealing will be first addressed through stakeholder teams that draw from neighbors, social service agencies and various city departments to develop solutions that address the root of the problem. This strategy has reduced arrests and, therefore, reduced use of force. But problem-solving needs advocates from the community and in recent years it has not been promoted widely. That is a major goal of the refresh, but the collaborative refresh is stalled.  We need to recommit to problem solving.
• Eliminate racial bias. Training is the third key to reducing excessive force.  Cincinnati recently amended the use of force policy to require deescalation as part of the toolbox when suspects are approached. Cincinnati has also deployed body cams to make interactions subject to review.  Scenario training that engages members of vulnerable populations, such as the mentally ill, help ground that training in the reality on the street. These arrests will not have community support, however, if they are imposed on blacks in a disparate manner. This has been the case for years and the Collaborative required tracking by race and by officer. These efforts were disbanded by the city over the objection from the Black United Front and others. Vigorous training must proceed and robust and accurate tracking of arrests by race must resume now to build any community trust in police.