Saturday, May 22, 2004

City loses Owensby decision


Federal judge: Police didn't help dying man

By Dan Horn and Gregory Korte
The Cincinnati Enquirer

Cincinnati and Golf Manor police behaved so egregiously when they arrested Roger Owensby Jr. three years ago that a trial by jury is not needed to prove they failed to help him as he lay dying in a police cruiser, a federal judge has ruled.

The ruling, filed this week in U.S. District Court, is a severe blow to the police officers and city officials who had hoped to defend themselves in court next month against a lawsuit filed by Owensby's family.

CHRONOLOGY
The death of Roger Owensby in 2000 has led to a four-year saga that has fueled the city's racial divide. A timeline:
Nov. 7, 2000: Owensby, 29, died after a foot chase and struggle with police at a Roselawn gas station. It was 8 p.m. on Election Day.
Nov. 8, 2000: The Owensby family hired lawyers John J. Helbing and Mark T. Tillar on a contingency basis.
Nov. 28, 2000: Police released evidence logs showing they found marijuana and crack cocaine with Owensby at the scene.
Dec. 4, 2000: Hamilton County Coroner Carl Parrott Jr. issued a death certificate for Owensby. The cause of death: homicide, caused by asphyxiation.
Jan. 3, 2001: A grand jury indicted Officers Robert "Blaine" Jorg and Patrick Caton in Owensby's death.
Jan. 5, 2001: Police Chief Tom Streicher stripped Caton and Jorg of their police powers.
March 14, 2001: The American Civil Liberties Union and local black activists filed a federal racial profiling lawsuit against the city alleging decades of discrimination against blacks. The Owensby family opted out of the suit.
Oct. 30, 2001: A Hamilton County jury acquitted Jorg of misdemeanor assault. It was unable to reach a verdict on a felony charge of involuntary manslaughter, resulting in a mistrial.
Nov. 2, 2001: Caton was acquitted of an assault charge in Owensby's death.
Nov. 6, 2001: The Owensby family filed a federal lawsuit claiming he was "assaulted, tortured and killed" by police.
Nov. 7, 2001: Hamilton County Prosecutor Michael K. Allen said he would not try Officer Jorg again.
March 20, 2002: Jorg resigned from the Cincinnati Police Department just before he was scheduled to face questions by city investigators. Eight days later, he went to work in Pierce Township in Clermont County.
May 28, 2002: Jorg sued the city and the coroner for $30 million, saying he was made a "scapegoat" in the death.
Sept. 12, 2002: An independent pathologist - hired by the city - concluded that Jorg killed Owensby by asphyxiation.
Sept. 23, 2002: Another pathologist - hired by Jorg - concluded that Owensby died of an adrenaline-induced heart attack.
Oct. 8, 2002: Caton, still under investigation for the Owensby incident, was suspended for using a racial slur recorded on his cruiser's mobile video recorder.
Oct. 14, 2002: Two city investigations - one civilian and one police - disagreed on whether the officers did anything wrong.
Feb. 26, 2003: The city manager fired Caton and Officer Victor Spellen, who admitted he had lied on the stand during Jorg's manslaughter trial.
May 21, 2003: Cincinnati City Council approved a $4.5 million global settlement of 16 lawsuits alleging racial profiling and excessive force by police. The Owensby family opted out of the settlement.
Jan 22, 2004: Probate Judge James Cissell approved a $35,000 settlement between the Owensby family and the owners of the Huntington Meadows apartment complex, whose guard was on the scene.
May 5, 2004: An arbitrator ruled that Caton should be reinstated - with back pay - and receive only five days suspension for the death.
May 21, 2004: U.S. District Judge S. Arthur Spiegel ruled against the city, finding officers failed to provide Owensby with medical treatment. The issue of whether officers used excessive force will be left to a jury.
June 14, 2004: Trial is scheduled to begin in U.S. District Court.
Judge S. Arthur Spiegel said a jury will not decide the medical issues in the case because the evidence so clearly shows the police officers failed to provide medical assistance, a violation of Owensby's constitutional rights.

The judge did not address the other major issue in the case - the accusation that police used excessive force - and will allow a jury to decide that dispute when the case goes to trial June 14.

Although Cincinnati police have been accused of misconduct more than a dozen times in recent years, Spiegel's ruling is the first judicial order or jury verdict against the city in such a case.

"The facts in this case are particularly egregious," Judge Spiegel wrote in his 91-page decision. "A reasonable jury, hearing all of the evidence, could only determine that (the officers) ... failed to satisfy their respective constitutional obligations to ensure Owensby was provided with the necessary medical care."

The judge's decision to grant a summary judgment in favor of Owensby's family is unusual because judges typically allow juries to decide such claims.

A judge is supposed to grant summary judgment only when the evidence is deemed overwhelming.

"This is a huge decision," said James Helmer Jr., one of the lawyers for the Owensby family. "This is something you don't see very often in law."

Helmer said the ruling means the city now faces the prospect of paying millions of dollars in damage claims to Owensby's relatives. And he said it proves the city has failed to adequately train and supervise its police force.

Any damage award would be made after the trial on the excessive force claims, when the jury will determine how much the family may be entitled to on the medical claim.

City officials vowed to appeal the ruling. "There is a sufficient amount of dispute about the facts of this case," said Cincinnati City Solicitor J. Rita McNeil. "My preference would have been to let a jury decide."

Owensby died in police custody shortly after his arrest on Nov. 7, 2000. Although there was no warrant for his arrest, he was questioned outside a convenience store and initially cooperated with police officers.

Police say Owensby attempted to run and was tackled by several officers. He was struck several times, forced to the ground and placed in handcuffs.

The coroner later determined the 29-year-old Owensby, who is African-American, died of asphyxiation.

The case was one of several to prompt complaints about police conduct with African-American suspects, including claims of racial profiling and the use of excessive force.

More than a dozen black men had died in altercations with Cincinnati police in the decade before Owensby's death.

"Perhaps this is the beginning of ... some movement toward peace," NAACP president Calvert Smith said of Spiegel's ruling.

Police have complained that some of the African-American men killed by police had shot and even killed police officers before they died. And the police union has said officers have behaved responsibly.

Spiegel's ruling triggered more criticism from the union Friday.

"The entire thing should go before the jury," said Sgt. Harry Roberts, president of the Fraternal Order of Police. "The judge has not heard any testimony. How can he make a ruling without testimony?"

While Spiegel did not hear testimony in court, he did review hundreds of pages of sworn statements from police officers, witnesses and medical experts.

He concluded the officers ignored obvious signs of physical distress and either failed to provide medical help themselves or failed to call someone who could.

The judge found that five of the seven officers involved in Owensby's arrest had failed in their duty to provide medical care, and that the cities of Cincinnati and Golf Manor had failed to adequately train the officers.

The two officers most directly involved in Owensby's arrest - Patrick Caton and Robert Blaine Jorg - were not among the five cited in Spiegel's decision.

A jury will decide whether they failed to provide medical care or used excessive force. They were charged with criminal offenses and were not convicted.

Caton was fired for failure of good behavior in Owensby's arrest, but he recently won his arbitration case and could get his job back. Jorg quit the Cincinnati police force.

Roberts said Owensby is to blame for the incident that led to his death because he ran and initiated the violence.

Mayor Charlie Luken said the family is seeking more than the $4.5 million paid out in last year's settlement. He said the city will likely go to trial.

Enquirer reporter Kevin Aldridge contributed to this article.




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