Court Upholds Limited-Duty Assignment Of Cleveland Officers Involved In High-Profile Shooting

In November 2012, thirteen police officers engaged in a high-speed car chase in Cleveland, Ohio. When the car finally came to a stop, the officers fired 139 bullets into the vehicle, killing the two African-American suspects inside.

The media started reporting the story, framing it as twelve Caucasian officers and one Hispanic officer shooting and killing two unarmed African-American suspects after a high-speed car chase. The community response was significant, and several people sought Chief of Police Michael McGrath’s and Director of Public Safety Martin Flask’s resignation, as well as those of the officers involved.

After the shooting, the officers were subject to the City of Cleveland’s Police Department policy entitled Post Traumatic Incident Protocol. The Protocol requires officers involved in deadly force incidents to be assigned to restricted duty status, which is colloquially referred to as being assigned to the “Gymnasium.” Officers are assigned to the Gymnasium for a period of forty-five days by default to “facilitate return to full duty as healthy, productive employees.”

Being assigned to restricted duty limits an officer’s contact with the public and prevents him from earning overtime pay, earning pay for court appearances, and engaging in outside employment. It also can cause stress and has been characterized as a “demeaning process,” as “an officer who entered law enforcement to provide a service to the citizens of a community is given a do-nothing assignment that provides no value to the citizens who the officers took an oath to serve.”

In May 2014, a state grand jury declined to issue criminal charges against any of the officers, and on June 13, 2014, the new Police Chief, Calvin Williams, ordered the officers to return to full duty. Nine of the officers sued, alleging that the City relegated them to the Gymnasium and/or restricted duty for a longer period of time than established in policy because they were Caucasian officers involved in a traumatic event with African American suspects, which caused political problems for the mayor, the safety director, and the Chief of Police.

When their lawsuit was dismissed, the officers appealed to the federal Sixth Circuit Court of Appeals. The Court upheld the trial court’s order that the lawsuit be dismissed.

The key to the Court’s decision was whether the officers could show that comparably-situated non-Caucasian officers were treated differently in the wake of critical incidents. The officers pointed to a spreadsheet they created of prior incidents, and argued that it showed African-American officers had been assigned to the “Gymnasium” for shorter periods of time. The appeals court rejected the argument, pointing to flaws in the spreadsheet’s underlying assumptions:

“We find that the Plaintiffs’ proffered spreadsheet has serious infirmities that greatly undermine its credibility. First, it does not address all of the relevant aspects of the Plaintiffs’ employment situation. The spreadsheet contains the following columns: the date of the traumatic incident; the UDF report number; the officer involved; the level of the suspect’s injury; the race, sex, and age of the suspect; the date the officer was assigned to the Gymnasium; and the date the officer left restricted duty.

“Critically, the spreadsheet does not include information regarding, for example, who the officers’ supervisor was; what type of investigation followed; a comparison of time spent on transitional duty; whether an officer requested to stay in the Gymnasium; or whether an officer was required to stay in the Gymnasium by medical officials. It further fails to demonstrate whether the Gymnasium assignment was pending the length of the subsequent investigation. Without these additional considerations, the probative value of this spreadsheet is greatly undermined.”

O’Donnell v. City of Cleveland, 2016 WL 5335031 (6th Cir. 2016).