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Tuesday, June 18, 2024 | Back issues
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Cleveland Police Lose|Anti-White Bias Suit

(CN) - As pressure builds in Cleveland for an indictment in the police killing of 12-year-old Tamir Rice, a federal judge upheld the city's handling of its other infamous excessive-force case.

About two years before Rice's Nov. 22, 2014, shooting, eyes were on Cleveland after 13 officers ended a 22-minute high-speed chase by firing 137 shots at the unarmed, black couple in the car, Timothy Russell and Malissa Williams.

Only one officer, Michael Brelo, has gone to trial for the Nov. 29, 2012, fatal shooting, but a judge acquitted Brelo of manslaughter charges this past May. The verdict coincided with Cleveland's settlement of federal charges over its use of force policies.

Cleveland still faced criticism over the Russell and Williams shooting, however, from an unlikely source: nine of the officers the city placed on 16 months of restricted duty, beginning that December.

Though such restrictions are typical of police policies in Cleveland and across the country after citizen casualties, the officers here claimed in a federal lawsuit that they were made to face restrictions longer than Cleveland imposes on similarly situated black officers.

Of the 13 officers who shot Russell and Williams, 12 were white and one was Hispanic. Seven of those white officers brought the lawsuit at hand, with the lone Hispanic officer.

U.S. District Judge James Gwin in Cleveland dispatched of the case Tuesday in a 32-page decision awarding the city summary judgment.

Though the officers claimed to have presented "direct evidence of discrimination," Gwin said the record demonstrates that they "misunderstand what constitutes direct evidence."

Specifically, the officers relied on a 2001 jury verdict involving a white officer who shot a black man and a 2008 case that has little to do with their own controversial and highly publicized shooting.

Trying to distract from their lack of "evidence of any direct proclamation of racial animus by whites," the officers instead "point to short excerpts from dated testimony in unrelated cases that consist of individuals giving general discussion about race and the city of Cleveland," the opinion states.

In the 2001 case, a white police officer fired 14 shots at a 12-year-old black driver, wounding him, and then received a 21-month restricted duty assignment.

The 2008 case does involve so-called "reverse discrimination" against white police officers, but the plaintiffs focused on testimony from then-Deputy Chief Timothy Hennessy regarding restrictive duty that Gwin "proves little to nothing."

"Different shooting, different justification for the shooting, different supervisors, and difference decision makers," Gwin wrote.

Further, the plaintiffs failed to identify any examples of black officers involved in shootings that received less restricted duty time than they had.

Except for saying that the officers will appeal, their attorney Jonathan Rosenbaum declined to comment on the ruling.

The Cleveland Police Department meanwhile has not returned calls seeking comment. A website for The Plain Dealer did quote a city spokesman, however, as applauding the court's ruling. "The city is pleased with Judge Gwin's decision finding that the city did not violate the rights of the police officers who claimed that the city did not treat them fairly in the aftermath of the police chase and shooting in November of 2012," that statement says.

The case hearkens back to a 62-car police chase that is thought to have stemmed from Russell's 1979 light-blue Chevy Malibu backfiring as it drove past the Cuyahoga County Justice Center.

Neither Russell nor Williams had a gun, but the officers reported that they had been shot at them, and more officers reported shots fired as the car continued to backfire during the 25-minute chase.

When the suspects drove into the dead end of a school staff parking lot, 13 officers fired a total of 137 shots at the Chevy Malibu during a span of 17.8 seconds.

Brelo, the officer who was indicted but acquitted of manslaughter, fired 49 of those 137 rounds. Nearly three seconds after his fellow officers had ceased firing, Brelo, a former Marine, launched himself onto the hood of the Chevy and fired the final 15 shots downward into the windshield.

The eight officers behind the newly dismissed lawsuit are Erin O'Donnell, Wilfredo Diaz, Christopher Ereg, Micahel Farley, Cynthia Moore, Michael Rinkus, William Salupo, Brian Sabolik, and Scott Sistek.

During restricted duty, overtime and secondary work is prohibited. Cleveland Police Department protocol says officers involved in a shooting must serve a minimum of 45 days in restricted work.

The plaintiffs returned to work in July 2013 but were returned to restricted duty that October after then-Police Chief Michael McGrath learned the officers had been placed in front-line positions.

The officers were cleared of wrongdoing in May 2014 and returned to regular duty status a month later.

In Tuesday's ruling, Gwin determined the officers failed to file federal charges with the Equal Employment Opportunities Commission quickly enough and that state discrimination charges should have been filed with the union, since police can use the collective bargaining agreement.

The officers may have a case against Cleveland in state court, however, as the police union's collective bargaining document "does not contain a clear and unmistakable agreement to arbitrate statutory claims," Gwin wrote.

Gwin saw no discrimination in keeping officers under investigation from earning overtime. "Suspension with pay and full benefits pending a timely investigation into suspected wrongdoing is not an adverse employment action," Gwin wrote, citing Sixth Circuit precedent.

With Brelo acquitted, five other officers are awaiting trial in the case. The families of Russell and Williams settled civil claims against the city last year for $1.5 million each.

When the Department of Justice released its December 2014 report on Cleveland after Williams and Russell's shooting prompted a federal investigation, the city was in the spotlight again for 12-year-old Tamir Rice's death the week before.

Grand jury proceedings remain ongoing as to whether the officers committed excessive force by killing the black child while he played alone in a park with a toy gun.

Surveillance footage shows that the officer who fired on Rice did so just one second of his partner careened their patrol car to a stop in front of the boy. For their part, the officers say Rice had reached toward his waistband for the gun.

Attorneys for the Rice family have been pushing for an independent prosecutor to take charge of the case , saying Cuyahoga County Prosecutor Timothy McGinty has demonstrated bias for the officers.

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