Court Dumps Cops' Complaint They Were Unfairly Treated After Shooting Two Unarmed Suspects 47 Times

Legal Issues

from the out-of-139-total-bullets-fired dept

In 2012, Cleveland police officers engaged in perhaps the most one-sided “shootout” ever with two suspects at the tail end of an (unauthorized) police chase. By the time it was over, officers had fired 139 bullets into a vehicle they had trapped in a school parking lot. Twenty-three of those hit the driver. Twenty-four hit the passenger. Both vehicle occupants were killed.

One officer — Michael Brelo — apparently thought he was starring in his own action film. He unloaded 49 rounds in just over 20 seconds while standing on the hood of the stopped vehicle. All told, more than 75 Cleveland PD vehicles joined the chase/shooting. At the end of a yearlong investigation, 63 officers were suspended for their participation. Six officers were charged.

The genesis of the horrific debacle was nothing more than a car backfiring. One cop mistook this for a gunshot and all hell broke loose. No weapons were recovered from the vehicle.

One of the stranger offshoots of the infamous shootings was a lawsuit filed by several Cleveland police officers who took part in the chase. In their view, they were punished more harshly than African American officers who also participated in the unauthorized pursuit.

Their original argument was more than a little depressing.

The officers – eight white officers and one Hispanic – claim the department has a history of treating non-black officers who shoot black residents “more harshly” than black officers involved in shootings, according to the lawsuit…

Apparently, the Cleveland PD shoots enough black residents that a pattern of discrimination can be discerned. And, apparently enough officers walk away unscathed from shootings that the worst thing complained about is longer suspensions, not actual firings or criminal charges.

Unless these nine officers truly believe the Supreme Court of the United States would be willing to hear their arguments (and the insane incident preceding their complaint) rehashed one more time, it’s the end of the line for this complaint — undoubtedly one of the odder post-police shooting civil rights lawsuits ever filed.

After recounting the law enforcement pursuit-turned-firing squad that led to the punishment these officers felt was unfair, the Sixth Circuit Court of Appeals gets down to business dismissing their arguments. [PDF]

Apparently, after a shooting, involved officers are sent to a place called the “Gymnasium.” There they are supposed to recuperate and get their heads together for an eventual return to the force. They are also placed on restricted duty, which prevents them picking up overtime, moonlighting at other jobs, or earning pay for court appearances. Those who have been sent to the Gymnasium refer to it as “stressful” and “demeaning.”

Some who find this to be a form of punishment perhaps shouldn’t have been punished. Others, like the suspended officers who engaged in a pursuit no supervisor had authorized, also might have felt a trip to the Gymnasium felt like punishment. That’s probably because it’s supposed to be a punishment.

These officers felt they were unfairly treated, as compared to their African American counterparts who were just as involved in the pursuit and shooting. Unfortunately for them, they failed to provide any evidence of their claims — at least nothing that held up to two courts’ scrutiny.

First, the plaintiffs felt the lower court failed to review their arguments in the light most favorable to them during the city’s motion to dismiss. Part of their claims rest on the assertion that the “sound” of a gunshot justified actions taken past that point. The Appeals Court finds that distinction doesn’t matter at the summary judgment stage. Not only that, but this assertion was made with no evidence backing it.

In its characterization of the events of November 29, 2015, the district court construed the absence of evidence to the contrary to suggest that Russell and Williams were likely unarmed and that the gunshot-type noise was likely Russell and Williams’ car backfiring. The Plaintiffs have not offered a scintilla of evidence that suggests that the noise was actually a gunshot. They also have not cited any evidence in the record that suggests that Russell and Williams were actually armed. Indeed, the evidence they cite suggests that the investigation revealed no such evidence. Thus, the district court did not err in making these two inferences.

Also offered as evidence by the plaintiffs was a spreadsheet purporting to show the difference in Gymnasium time served by African American officers and those of other races. But the spreadsheet doesn’t show what the officers claims it does.

[T]he Plaintiffs claim that the spreadsheet shows that non-African American officers who used deadly force and killed African American suspects spent an average of 239.38 days on restricted duty. However, according to the spreadsheet, that is not true. That average is skewed by the inclusion of dates for which the Plaintiffs were detailed to transitional duty assignments. At oral argument, the Plaintiffs conceded that these dates should not have been included in the calculations.

The plaintiffs also asserted that they were taken off restricted duty temporarily but sent back to the Gymnasium as a result of a “media inquiry,” implying that the orders were discriminatory because they were based on outside pressure rather than established policy. The court finds this claim empty as well.

The Plaintiffs have failed to carry their burden on this claim. The same day that the Plaintiffs were ordered to the Gymnasium for a second time, 19 Action News posted an article online about the Plaintiffs’ employment status. The Plaintiffs argue that this shows that McGrath acted based on racial tensions in the community and the media inquiry—not based on a discovered mistake. However, the news article states that it originally reported that the officers had returned to full duty in June, about four months prior McGrath’s order that they return to restricted duty. The article then states that McGrath has now decided that that decision was inappropriate. Accordingly, he ordered the Plaintiffs “off the streets until a county prosecutor decides on any criminal charges.”

Nothing in the article suggests or implies that it was as the result of a media inquiry that McGrath moved the officers to restricted duty; it only reports McGrath’s decision to assign the officers involved in the Russell/Williams shooting to restricted duty. There is also nothing in the article that indicates that McGrath’s decision was based on the Plaintiffs’ race. If anything, the article undermines those arguments. It pointedly states that it had previously reported the Plaintiffs’ status, and it explains that McGrath decided to order the Plaintiffs to be assigned to restricted duty until all investigations were complete.

Summary judgment for the defendants stands. Nothing remains of these officers’ arguments than the sense of entitlement they portrayed. The overriding concern coming out of an incident where dozens of officers cornered two unarmed people — following a chase where orders to disengage either never came or were ignored — and fired 139 bullets in 30 seconds in their direction is that the punishment they endured (but lived through) seemed unfair.

Filed Under: cleveland, police, shootout, unfair treatment