Thursday, August 19, 1999
Most of suit vs. Hamilton thrown out
Officer's conduct still at issue
BY JANICE MORSE
The Cincinnati Enquirer
A judge has summarily dismissed all but one claim against the Hamilton Police Division in a federal civil-rights lawsuit that alleged its officers mishandled rape investigations, and that one officer showed “reckless disregard” for the safety of a woman who reported being raped.
The Hamilton woman in February 1994 reported a bartender beat and raped her while they were alone inside a local tavern — and she partly blamed a police officer who returned to the establishment four times in 90 minutes, yet didn't intervene.
In a decision filed earlier this month, U.S. District Judge Sandra S. Beckwith said there was no evidence that Officer Kevin Flannery knew the woman was being raped despite his repeated return trips to the bar, Bob's Cafe in Hamilton. Rather, evidence indicated that Mr. Flannery thought the 27-year-old bartender — a friend of his — and the 24-year-old woman were having consensual sex, the ruling says.
“There was no evidence he did anything wrong,” Ed Goldman, Mr. Flannery's lawyer, said last week. “The judge's decision was appropriate.”
The ruling dismissed most of the lawsuit, which was filed in 1996, before it went to trial.
However, the judge kept open questions about Mr. Flannery's conduct: whether he actually went inside the bar during the alleged rape, and whether he was acting “under color of law” — in his official capacity as a police officer — at the time.
These are key issues because the plaintiff in such a case must show that a person acted under color of law to deprive her of a constitutional right.
“We think (Mr. Flannery) was acting under color of law primarily because he stated that, as part of his shift, he would make regular checks on business establishments to ensure that all was well,” said Scott Thomas, a Cincinnati lawyer representing the woman who reported the rape. “He chose not to (act) in this particular case because of his friendship with the bartender who was inside the bar after hours.”
Further, Mr. Thomas said, “The concern that the officer was inside the bar and was present was originally the concern of the police chief, based upon the facts that were available to him.”
Simon Fluckiger, who was police chief at the time of the rape report but is now retired, could not be reached for comment.
Mr. Goldman called the plaintiff's claims about the officer possibly being inside the bar — and encouraging or participating in the alleged assault — “baseless” and “scurrilous.”
Parties must file more paperwork on the remaining questions by Sept. 6.
Some aspects of the case could be appealed, but Mr. Thomas said he and his client had not decided whether to appeal.
The woman who reported the rape is not being named in accordance with The Cincinnati Enquirer's policy in sexual assault cases. The name of the bartender also is being withheld because a Butler County grand jury did not indict him.
However, court records say there was some evidence supporting the woman's claim. Police found bruising and other signs of assault, and she passed a voice-stress analysis test under questioning about the case. But there were inconsistencies in her statements, prompting police to administer a polygraph test.
The woman said she was subjected to a five-hour polygraph examination by a Hamilton officer who was insensitive and seemed to disbelieve her assertions. The police attitude toward her, she said, contributed to the grand jurors declining to indict the bartender.
The woman's lawsuit claimed the police department has a “policy” of administering polygraph tests to women who allege rape, thus discriminating against them.
Hillary Miller, acting city law director, said “there is no such policy” that requires rape victims to take polygraph tests. “These are things that are offered to the victim,” she said. “They're not mandatory.”
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