Feds Threaten To Take Over Ohio Police Department;
Could Your Town Be Next?, Darlene Hutchinson

A legal battle is now being waged in U.S. District Court in Columbus, Ohio, pitting the legal weight and limitless financial resources of the U.S. Justice Department against that town’s right to control its own police department.

At stake is no less than the fate of local agencies everywhere to control their own destinies versus an emerging pattern by the Clinton Justice Department aimed at federalizing municipal police departments, not to mention the states-rights concerns and the blurring division between the branches of government.

Unfortunately, Columbus isn’t the first victim. Already federal takeovers of departmental policy have occurred in Steubenville, Ohio, and in Pittsburgh, Penn. The police administrators in these two cities were, more or less, forced to sign consent decrees admitting their departments had participated in a pattern of civil rights violations and therefore needed the federal government to come in and run all future operations.

What sets Columbus apart, what makes them different from these other two cities which acquiesced, is that this municipality has a contract with the local police union and can’t make a deal with the devil without approval of FOP members — and thankfully they’re fighting. The city’s 30-year history of collective bargaining with rank-and-file legally forbids the city from exposing its officers to many of the changes demanded by the DOJ.

Therefore, since Columbus and the police union have decided not to sign the consent decree, the Department of Justice has filed a lawsuit against the city to recoup all federal grant money awarded over the years. Some would call this extortion.

Bill Capretta, president of the Capitol City Lodge No. 9 of the Fraternal Order of Police in Columbus, says the lawsuit is the “latest step in a Justice Department campaign to impose federal (law enforcement) standards on police departments nationwide.”

Alleging a “pattern of civil rights abuses” by the Columbus police department, DOJ attorneys filed their suit on October 21 forcing Columbus to let the federal government implement their policy changes in the city’s police department, which would include training and staffing reforms, as well as new disciplinary and reporting procedures. The suit was apparently the culmination of a two-year investigation.

The Justice Department alleges that its investigation uncovered “a pattern of abuses” by officers and that that this pattern was tolerated by city administrators.

How Can This Be?

Many have asked how the federal government could threaten to recoup grant money spent years ago by local administrators; what authority do they have to extort the local police? In fact, these powers were vested in DOJ by the 1994 Omnibus Crime Act (the far-reaching law for which LEAA was the only outspoken critic among police groups back then). Now in accordance with the authority derived from this act, the federal government has deemed the city of Columbus incapable of correcting such “wrongdoing.”

So, essentially, any department which has accepted any federal grant money, and whose actions could be construed as inappropriate by a DOJ official (often a White House appointee), and who won’t give in when faced with a “consent decree,” may have to pay back the millions of federal dollars accepted and spent over the years (which could include everything from COPS grants, to money from “violence against women” legislation, to victims funding, training money, etc.).

Incidentally, The Columbus Dispatch reports that no less than 12 other cities nationwide are the focus of similar investigations (including New York City where Hillary Clinton’s opponent for Senate is currently mayor).

There’s further irony in that Raymond C. Fisher, who was the No. 3 guy at DOJ and the overseer of the so-called 100,000 COPS program (and who’s coincidentally been running the Columbus investigation), has recently been named by Bill Clinton as a federal judge — a lifetime appointment.

The Content Of The Consent Decree

The 48-page consent decree presented to Columbus officials by the Justice Department essentially says “The city denies all allegations and enters this Decree for the exclusive purpose of avoiding the risks and burdens of litigation. . . .” It seems this is yet one more indication of a pattern of how this Administration accomplishes it goals by backing its “victims” into a corner. Much like the pressure it’s exerting on the gun industry, Clinton appointees are going after local police departments trying to impose their “style” of policing.

Under the proposed consent decree in Columbus, a supervising lieutenant is required to review and/or discipline an officer who has “used force” five times in a one-year period. And the DOJ’s consent decree defines “use of force” as follows: An effort by a Columbus officer to compel compliance from a civilian which elicits more than minimal resistance, including use of chemical spray, and aiming a firearm at a civilian. (It excludes mere presence of a police officer or police canines, police issuance of verbal commands, handcuffing with minimal or no resistance, a come-along grasp when the civilian is offering minimal or no resistance, the display or brandishing of a firearm, and aiming a firearm at a civilian when a supervisor orders guns drawn for purposes of a tactical entry.) Obviously with such scrutiny, officers will be reluctant to act and use force when necessary, which could have a significant impact on the officers-killed and officers-injured rate which has decreased over the years.

Officer Jim Gilbert reports that “after five uses-of-force in one year, officers may be counseled by a lieutenant and be retrained and possibly reprimanded or fired. This is unbelievable. I know for a fact in my precinct, I go on anywhere from 5 to 20 gun-runs or shots-fired calls in a week. The street officers here are just amazed and keep saying to ourselves, surely they wouldn’t restrict or hamper something as important as officer safety, however, they are trying to do so.”

Another item within the proposed “consent decree” is the creation of an “independent monitor.” This independent monitor will report to a federal judge on whether the city is properly implementing the consent decree, and the IM can re-open any misconduct investigation or firearms-discharge investigation. Further, there is no time limit to file a complaint if the complainant alleges criminal behavior, excessive force, false arrest, unreasonable search/seizure, or discrimination.

The hiring of civilian auditors is also required, and the public will have input on crowd control policies if the provisions of this far-reaching consent decree are ever implemented.

Also, the consent decree requires that internal affairs investigators must follow-up on every complaint against officers, even anonymous ones. This way of thinking falls right in line with the initiatives the NAACP has been calling for the Administration to implement — a year ago the organization asked Clinton and Reno to start withholding federal law enforcement dollars from departments with an unusually high number of excessive-force complaints (even before the complaints are proven!).

The Side Effects

There’s an array of reasons why such federalization is unwise. First and foremost, it’s bad for officer safety when bureaucrats play Monday morning quarterback with no real knowledge of the pressures on the street. Recently we’ve seen criticism of cops in Seattle and at Columbine who “didn’t act quickly enough.” In contrast, the four NYPD officers who were pursuing a rapist when they encountered Amadou Diallo were charged with second-degree murder for responding too quickly when they opened fire on him after he suddenly reached for his waistband. Obviously, society is looking for infallible geniuses who will always make flawless split-second, life-and-death decisions in tough environments. Yet we pay surgeons 10 or 20 times as much as police to operate in pristine, controlled conditions.

With “independent monitors,” civilian review boards and out-of-touch administrators scrutinizing their every move, morale among police officers is bound to plummet, which is exactly what has happened in Pittsburgh, after officials in that city signed a similar consent decree in 1997, allowing a federal takeover. Under these conditions, apathy is a certain by-product.

Officer Chuck Bosetti, of the Pittsburgh FOP, says “proactive policing” is discouraged under the DOJ consent decree. As a result, disorderly conduct arrests have dropped in that city 60 percent since the consent decree was signed in 1997, and gun-related arrests have dropped 22 percent. Obviously cops are becoming reluctant to enforce laws, and Bosetti points to complacency. “We’re not the ones who are suffering,” he says. “We’re doing less and getting paid the same. It’s the public who’s affected.” Smokey Hynes, FOP president in Pittsburgh, predicted in 1997 when the consent decree was signed that police would refuse to “take that extra step” when investigating suspected criminal activity out of fear of lawsuits and baseless allegations.

Conversely, Pittsburgh Police Chief Robert McNeilly seems happy to be operating under the feds’ consent decree since he’s been able to implement changes he had already envisioned for the police department when he was hired, but now he’s having to hasten his reforms under DOJ’s watchful eye. Incidentally, Pittsburgh must operate two full years at 100 percent compliance before the restrictions are lifted (and even after two and a half years, they still have not reached 100 percent compliance).

One of the biggest arguments by officers in Pittsburgh is the requirement that all complaints against personnel are investigated, even anonymous ones, which encourages bogus and unfounded accusations. Further, unproven complaints are left in an officer’s file for three years after he leaves the force, and if an officer receives five similar complaints (even if all are anonymous), he may be counseled, transferred or sent for retraining. But the Pittsburgh chief doesn’t seem to understand the officers’ frustration and explains that investigating anonymous complaints against officers (even though it could be perceived as denying due process), reflects the model policies suggested by the International Association of Chiefs of Police. (Now it becomes clearer whose side the chief is on.)

Giving Cops A Voice

Ironically, the Clinton Administration, that openly acknowledged support by labor unions in securing the White House during the 1996 re-election campaign and continually claims to be supportive of law enforcement, is the force behind this effort that effectively crushes police collective-bargaining.

For instance, the consent decree’s “independent monitor” could make decisions in Columbus which would supersede and negate the present collective-bargaining process. What’s worse is that the city and DOJ were negotiating for more than a year about the proposed consent decree, more or less behind closed doors, and the FOP was barred from attending or commenting on those proceedings. Just this past summer, the police union and its officer-members were notified that the federal takeover of the department was underway.

Further proof of the Justice Department’s arrogant and dismissive attitude toward officers’ participation in determining their own fate was evident in the request made by DOJ to the presiding court to postpone deliberation on the suit until December 20, 1999. Police observers believe that date was selected as a blatant move to deny officers a role in the court proceedings since it came one week after the expiration of the FOP contract with the city of Columbus, and therefore the union could have been precluded from having a say in the matter.

Nonetheless, officers in Columbus are demanding to be heard. Shortly after the DOJ filed suit against the city (when the city failed to concede), the FOP filed a 19-page motion asking U.S. Judge John D. Holschuh to include the organization as a defendant in the DOJ lawsuit. FOP President Capretta claimed in the motion that the union is best able to defend itself and rank-and-file officers against the federal claims and protect their reputations, because the city has its own separate interests to look out for. Moreover, James E. Phillips, an attorney for the FOP, has demanded that the Justice Department divulge the specifics behind the alleged widespread abuse of civil rights by Columbus police, and if the FOP is approved as a defendant in the case, they can compel the DOJ to divulge evidence and specifics. “There are only three cases we’ve heard about,” says Phillips.

Three cases? Another source cites a dozen incidents of wrongdoing since 1993. This is amazing considering the literally millions of contacts between police and the public, and is hardly indicative of a “pattern.” Columbus officer James Scanlon said it best in a September 1999 letter-to-the-editor: “I want police officers held to a higher standard. Nothing is worse than a dirty cop. Let’s continue to bust them on a case-by-case basis and let their guilt or innocence be determined by facts instead of innuendo.”

But as this saga unfolds, at issue will be the definition of “pattern or practice” as given in the 1994 Omnibus Crime Bill. Two years ago, the U.S. Supreme Court interpreted the same phrase as used in the 1964 Civil Rights Act, saying that the matter at hand had to be the “standard operating procedure — the regular, rather than unusual practice. . . . [That] isolated or accidental or sporadic discriminatory acts” do not fall under the “pattern or practice” term. The three cases the FOP has been told about hardly falls under this definition.

As you can imagine, litigation for Columbus’ police officers and their union will be costly. Therefore, the FOP asked its 3,500 local members to raise their dues by $25 a month for the next four years to pay the legal fees which are expected to run near $2.5 million (or an increase of $10 for non-Columbus officers in the suburbs). Solidarity was obvious when the members approved the increase by 81 percent in November. After the vote was taken, the FOP chapter president said he hoped the results would send a message to Washington that Columbus would not go quietly.

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"Bill Capretta, president of the Capitol City Lodge No. 9 of the Fraternal Order of Police in Columbus, says the lawsuit is the “latest step in a Justice Department campaign to impose federal (law enforcement) standards on police departments nationwide.”