By Jane Prendergast
And Kevin Aldridge
The Cincinnati Enquirer
A fired Cincinnati police officer could get his job back after an arbitrator decided he didn't use excessive force in a suspect's high-profile asphyxiation death.
Officer Patrick Caton, fired 15 months ago for failure of good behavior and neglect of duty in the 2000 death of Roger Owensby Jr., should have been given five days' suspension, according to the arbitrator's ruling the city received Wednesday.
Now city officials are considering whether they should appeal in the Court of Common Pleas. They have until August to decide.
The arbitrator's ruling - which would grant back pay to Caton dating to his firing in February 2003 and no loss of seniority - continues the city's years-long losing streak in arbitrations related to the firing of police officers.
Mayor Charlie Luken said the city's failure to keep fired officers off the force continues to be a key problem in improving police-community relations.
"I can't consider this anything other than bad news," Luken said. "Many citizens think this is a game, something we orchestrate for appearances. But we have made efforts to change the culture in our police department and improve police-community relations.''
Vice Mayor Alicia Reece called the arbitrator's ruling "a slap in the face" to citizens and the city.
"It creates a tremendous amount of frustration when you can't get rid of the bad apples," she said. "We need to examine this more to get a clear understanding of why we are losing at arbitration."
Councilman David Pepper, chairman of council's Law and Public Safety committee, said he will schedule a hearing in the next month to discuss the arbitration process. Arbitration is a legally binding program meant to give officers a place to appeal discipline.
Lawyers for the city and the union both chose arbitrators from a national list. After City Council members grew concerned in 2001 about the city's ongoing arbitration losses, they started hiring outside attorneys to argue the city's position during arbitration, thinking that might improve the results. The department also instituted disciplinary measures intended to standardize punishments after several arbitrators cited uneven disciplinary decisions.
In negotiations with the police union last year, the city was happy with a new system where arbitrators are chosen from a fixed panel of nine, some of whom are from Cincinnati.
So far, all of the lost arbitrations occurred under the old system, so officials are looking forward to the new selection system possibly increasing their odds of winning, Pepper said.
Caton, on the force since 1997, failed to give first aid to Owensby, arbitrator Linda DeLeone Klein wrote, and failed to notify a supervisor of the use of force that night. But evidence was contradictory and insufficient to prove the other allegations, which included failing to provide adequate medical care after a Maceing incident, leaving Owensby unattended in a patrol car, and excessive force, she wrote.
"Mr. Owensby's actions contributed to his death, and unfortunately Pat Caton was made a scapegoat for that incident,'' said Keith Fangman, vice president of the Fraternal Order of Police, whose lawyers handled the arbitration hearing for Caton. "He shouldn't have been terminated in the first place.''
Other officers recently rehired after arbitration rulings: Victor Spellen, who admitted he lied during the Owensby investigation; Robert Kidd and Robert Johnson, who admitted having sex with a woman while on duty; and Joshua Phillips, who got involved in a pursuit while he was off duty and in his own vehicle.
Chief Tom Streicher was out of town Wednesday, but has said rehiring fired officers concerns him, particularly when an officer has been found by internal affairs investigators to have lied. He said he fears that a reinstated officer could be called to testify in a criminal case and the officer's credibility destroyed and possibly the case lost because a defense attorney points out that his own department labeled him a liar.
Fangman had to go back eight years to think of an officer who remained fired after arbitration.
"There may be others,'' he said, "I just can't remember any.''
Caton was also suspended in October 2002 for using a racial slur, while the internal investigation into the Owensby case continued. Caton said the racial slur came while he was sitting in traffic, said then-FOP president Roger Webster. No one heard it directly, but it was caught on his cruiser's recorder and brought to the attention of officials several days later.
In the Owensby case, both Caton and Blaine Jorg, the other officer directly involved in the death, were acquitted of criminal charges in 2001. Caton's attorney argued that the officer couldn't be accused of assaulting Owensby because he was already dead when Caton hit him.
Owensby's parents, Roger Sr. and Brenda, are suing the city and the village of Golf Manor. Golf Manor is part of that suit because one of its police officers answered Cincinnati's request for help in the Owensby case and was there when he died. Among the questions raised in the suit is why none of the officers did anything to help him, even though some later admitted that Owensby didn't appear well. The case is set for trial June 14.
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