Sunday, January 27, 2002

Beanbag shooting still unresolved

Justice Dept. dropped case over doubts it could convict

By Jane Prendergast
The Cincinnati Enquirer

Jahcole Lowry, 7, was one of two children hit by beanbag shots from police April 14, 2001.
(Brandi Stafford photo)
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        The eight police officers jumped out of their cruisers, shotguns to shoulders. Seconds later, they fired 25 beanbag rounds at a dozen protesters standing in an Over-the-Rhine intersection. Less than a minute later, they jumped back in the car and sped off.

        The shooting would reinflame a city looking for calm after two days of riots and two nights of curfews. It happened at a moment city leaders faced with dread, right after the funeral of Timothy Thomas, whose shooting death by a Cincinnati police officer had sparked the week of unrest.

        Shocked protesters called the shooting a drive-by attack done for no good reason. It left two children injured and a Louisville teacher hospitalized.

Police fire beanbag projectiles at protesters at Liberty and Elm streets.
(Tom Uhlman/AP photo)
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Video of shooting
        The incident brought on a U.S. Department of Justice investigation and testimony throughout the summer before a mostly white federal grand jury. Then suddenly in November, top Justice officials announced they had stopped the proceedings. The jurors never got to vote on whether someone did something wrong.

        In the first in-depth explanation of that decision, Greg Lockhart, U.S. attorney for the Southern District of Ohio, told The Cincinnati Enquirer and WCPO-TV's I-Team that his Justice Department bosses didn't think they could win the case.

        To win, they would have had to prove beyond a reasonable doubt that the officers intended to use more force than necessary. In civil rights cases, the question is not simply whether officers used too much force, but whether they intended to do so.

        Other factors were at play, too:

        • Cincinnati juries had just acquitted three police officers of criminal charges in the deaths of two black suspects, including Mr. Thomas. The verdicts indicated local jurors were sympathetic to the police.

        • Police officers had just died in the Sept. 11 terrorist attacks, which made the climate for a conviction even tougher.

        • Justice Department officials were seven months into an investigation of the Cincinnati Police Department's patterns and practices. They wanted to be seen as cooperative, not adversarial.

        Mr. Lockhart insisted the departmental investigation did not trump the beanbag case, although the decision not to prosecute might offer “collateral benefit.”

        “I voiced to them my hope that the officers, the rank-and-file officers, the FOP people, would take this decision as a positive sign that we are in fact trying to resolve these issues with everyone,” he said.

        “The decision not to prosecute, in my opinion, was based on the likelihood of success. That is and was the decision. Is there a collateral benefit? Yes. I think there could be.”

        Mr. Lockhart said the final call was made in Washington, D.C., by Ralph Boyd, the assistant attorney general for the civil-rights division. Mr. Boyd is African-American.

        Christine Jones, the Louisville teacher who suffered a cracked rib and bruised spleen in the shooting, was appalled that the jurors were not allowed to decide whether charges were warranted.

        “What does that say, that the jurors weren't smart enough to make the decision for themselves?” she asked.

        The decision doesn't sit well with some local African-American leaders, either.

Christine Jones of Louisville is helped after she was hit by beanbag rounds April 14.
(Tim Spille/WCPO)
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Ms. Jones is not happy officers weren't punished.
(Tony Jones photo)
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        Juleana Frierson, chief of staff of the Cincinnati Black United Front, said “sometimes you pursue things just to send the right message.”

        Sheila Adams, president of the Urban League of Greater Cincinnati, said, “I think they have catered very much to the police department, really erring on the side of not hurting their feelings. Our community at this point feels that they have really gotten no justice.”

        Mr. Lockhart said there's another way to look at it.

        “Is it justice to require people to stand trial if you don't believe the evidence is there to convict?” he asked. “I would suggest to you that that is an abuse of power.”

        Still, Mr. Lockhart said the shootings should never have happened.

        “I don't believe the officers should've fired their beanbags into the crowd,” he said.

        Nevertheless, “bad judgment, a mistake, an accident — all those things are not a violation of law.”

Riot control projectiles then used by Cincinnati police: a soft rubber-tipped projectile (left) and a pellet-filled beanbag.
(Michael E. Keating photo)
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        The question of whether excessive force was used now rests with the Cincinnati Police Department, which kept its investigation on hold until the federal review ended in November. Chief Tom Streicher said he expects to see the results soon. He has never lost confidence in his officers.

        “I know these people,” he said. “I knew that they were not the type of people to hurt someone intentionally.”

        You have to understand, he said, all that was going on.

Cops edgy on funeral day

        It's about 4 p.m. on April 14. Hundreds of people are leaving the funeral at New Prospect Baptist Church in Over-the-Rhine, where local and state dignitaries, with national civil-rights leaders, called for something good to come from Timothy Thomas' death.

Map & timetable
        It has been almost three days since the worst rioting ended and police are afraid about violence after the church service. All week, they've heard the New Black Panthers would be there and be armed. Officers want to maintain a low profile, so they take positions blocks away.

        Overhead, a helicopter helps track the path of the Panthers.

        • 4:02 p.m.: Fifteen are headed south on Vine.

        • 4:06: They're marching single-file.

        • 4:07: They're passing the Warehouse bar where, a week earlier, police started the foot chase that ended in Mr. Thomas' death.

        • 4:09: A dispatcher reports 12 protesters blocking Elm Street at Liberty, seven blocks away from the Panthers.

        Field Force 3, a special riot unit, responds and heads to the scene. Inside the four cars are eight officers. Two are Ohio State Highway Patrol troopers: Bradley Bishop and Sgt. Kevin Knapp. The other six belong to Cincinnati's SWAT team: Sgts. Eric Hall and Arthur Schultz; Spec. Todd Bruner; and Officers Jennifer Ventre, John Mercado and Tim Pappas.

        When they reach the intersection, they see a group of people standing in the street. Police are on alert because earlier that week, rioters had blocked traffic and pulled at least two drivers from their cars, beating them.

        The protesters are “shouting profanities about law enforcement, (carrying) signs against the police and making profane hand gestures,” Trooper Bishop says later in a written statement.

        He and Sgt. Knapp are the first whose stories would become public because the state patrol would conclude its investigation in December. The other officers, still facing civil lawsuits from victims, aren't talking publicly about what happened.

        The eight officers get out of their cars and Spec. Bruner tells the crowd to move, Trooper Bishop says in the statement. “"He also raised his weapon and told them they would be fired upon if they did not leave the area.”

        Within seconds, shots ring out. Six officers fire 25 beanbag rounds, small cloth bags filled with metal pellets. The ammunition is designed to incapacitate someone from a distance and is less lethal than other firearms, but still can cause significant injury.

        One trooper, whose shotgun is loaded with more painful “stinger” rounds, says later that he didn't fire because he saw too many kids around. Sgt. Schultz also doesn't fire because he says he doesn't have a clear shot.

        “They just basically stood up and started shooting,” says Tom Uhlman, a white freelance photographer who was taking pictures for the Associated Press.

        The officers continue to fire as they walk toward the crosswalk, he says. No warning was given.

        “I was two lanes of traffic away from them, and I heard absolutely nothing. And I don't think any of the rest of the crowd heard it either,” Mr. Uhlman says.

Heidi Bruins and Doreen Cudnik at Liberty and Elm, where they witnessed the beanbag shootings.
(Glenn Hartong photo)
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        Doreen Cudnik and Heidi Bruins, two white women there to show support, stand in shock.

        “I remember this incredible feeling,” Ms. Cudnik says. “We stood there with our mouths open thinking, "Wow, now we understand what they're talking about because this was not necessary.'”

        From the clock in his digital camera, Mr. Uhlman calculates that the officers fire for about eight seconds. When they stop, they walk backwards to their cars, jump in and leave.

        Lying in an alley, Ms. Jones, 35, begs someone to find her medical help. Nearby, Jahcole Lowry, 7, cries in her mother's arms about being hit in the leg. Her sister, LaSha Simpson, 11, is also hit.

        Anger builds as word of the shooting spreads back down Elm Street. At 4:14 p.m., a man on his cell phone calls 911: “There's a riot outside the church.”

        A minute later, the first 911 call comes in for an ambulance at the shooting scene. “We need them right away,” a frantic woman says.

  The Enquirer and WCPO-TV's I-Team reported this story together. Tune in to Channel 9's 11 p.m. newscast today for the I-team report.
        Gary Fitzpatrick, a Cincinnati Metropolitan Housing Authority supervisor, calls, too. A little girl is shot, he says. “This is outrageous.”

        At least seven more calls for help would come. The last caller — 26 minutes later — is Greg Baker, the city's acting safety director.

        Another Field Force is sent to investigate the growing crowd at the intersection. By now, the Rev. Damon Lynch III, who presided over Mr. Thomas' funeral, is talking with witnesses.

        At 4:28, officers trying to respond to the scene radio Capt. Jim Whalen that they can't get in; the crowd's too big. The captain tells them to wait.

        The Rev. Mr. Lynch, leader of the Black United Front civil-rights advocacy group, leads the crowd toward police headquarters to ask why police shot on a day of mourning.

        Chief Streicher doesn't yet know about the shooting. Two of the officers involved, overhearing the minister's concerns, step in and tell the chief what happened.

        “We implemented (the internal investigation) right there in the intersection,” the chief says.

        “This is an unfortunate situation that occurred here. We have trained for years for riots. But until you actually experience it, it's difficult to prepare for.”

        Two days later, the Justice Department says it will investigate, too.

Witnesses recall grand jury questions

        The federal investigation lasted seven months. Officials will not reveal who testified to the grand jury, how many testified, when it convened at the federal courthouse in downtown Cincinnati or when it ended.

        Witnesses, however, said the jury met weekly throughout the spring and summer. They reviewed news photographs and asked lots of questions. Some witnesses said they saw no minority faces in the jury box; others recall one or two.

        Ms. Cudnik, former executive director of the gay rights group Stonewall Cincinnati who now works at the Contact Center in the neighborhood, said she thinks the jurors might have thought the agitated faces they saw in the photographs were from before the shooting, rather than after. She doesn't think she convinced them the crowd had been peaceful.

        One of the jurors wanted to know what a white woman was doing there.

        “I just got the sense,” Ms. Cudnik said, “that the last thing they wanted to be talking about was police and racism in Over-the-Rhine.”

        Heidi Bruins, a Procter & Gamble employee, remembered a female juror asking scornfully: “Are you an activist?”

        “It was like she was trying to figure out if she should believe me or not,” Ms. Bruins said.

        Ms. Jones said prosecutor David Allred told her he presented the best case he could before his bosses made their decision to end it. He told her it was out of his hands, she said.

        Had the officers made disparaging or aggressive comments that day, prosecutors might have been able to prove intent, Mr. Lockhart said. Or if they had previous records of using excessive force. Neither was the case, he said.

        “This concept of justice,” Mr. Lockhart said, “we struggle with it all the time.”

Chief: "We have learned something'

               Two civil lawsuits are pending against the officers and the city. Attorney Robert Newman said that even in civil court, the case might be hard to win.

        Although he has to prove only that the officers were reckless, to win he has to know who shot whom. The officers are now listed as John Does.

        To win against the city, Mr. Newman has to show the department “engaged in a policy of excessive force for reasons of keeping a lid on the community temper.”

        Chief Streicher won't comment about the pending suits or the internal review. He said, however, “we have learned something from this.”

        He promised more training and new types of non-lethal ammunition he says are more accurate. He said he doesn't believe the children were ever the intended targets.

        He also offered a possible explanation about why the officers' warnings were not heard. They wore riot helmets with clear plastic shields that covered their faces.

        However, a photograph Mr. Uhlman took during the incident shows three of the officers had their face shields flipped up. It is not clear whether Spec. Bruner, who reportedly issued the warnings, is depicted in the photograph.

        The department bought beanbags in 1997 after an officer killed an escaped mental patient. Officials agreed more less-than-lethal options were needed. Before the beanbag incident, the department's policy on use of the ammunition applied only to firing at one unruly subject.

        Weeks after this shooting, officials changed the policy to allow the beanbags to be fired for crowd control — to ensure public safety, prevent property damage or stop the escalation of civil unrest.

        Still, the chief said, no policy can fit every situation.

        The standing order for police that day was to approach high-risk situations with lights flashing and sirens sounding, Chief Streicher said. If that did not work, officers were told to shout a warning. If they deemed necessary, they could fire beanbags.

        When Justice officials decided not to prosecute, they suggested the department review its policies and training. Those same issues are emerging in the larger federal investigation of the police department.

        Ms. Cudnik, who worked with Chief Streicher, former City Councilman Charlie Winburn, former FOP President Keith Fangman and others last year as part of a round table to improve police-community relations, suggested another policy that needs review: the flow of public information.

        “I think the community deserves all the information, especially in this time of racial dialogue we're trying to have,” she said. “There has never been a comment from the police saying, "Here's why our officers responded the way they did.'”

        Few officers prosecuted

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