Sep 15, 2015

CLEVELAND -- This was released today by the Greater Cleveland Regional Transit Authority (RTA).

Cover letter

To:
George F. Dixon III, President — GCRTA Board of Trustees
Joseph A. Calabrese, General Manager/Chief Executive Officer
Sheryl King Benford, Deputy General Manager — Legal Affairs
Janet Bumey, Deputy General Counsel
R.J. Roberto, Associate Counsel

Re: Internal Investigation of Transit Police Incident 15-1676

The Internal Audit Department completed the investigation of the July 26, 2015, Transit Police incident. We developed a multi-media presentation to share the results of the investigation.

Please find the attached Executive Summary:

  • Introduction
  • Investigation Objectives
  • Investigative Resources
  • Objectives, Findings and Conclusions
  • Additional Observations and Conclusions
  • Event Summary
  • Ohio Revised Code Violations
  • Applicable RTA General Police Orders
  • Audit Team Members

The investigation evaluates the actions of the Transit Police Officers involved in the incident to address the investigative objectives.

We prepared two digital video discs -- a full 98-minute version available upon request and a presentation version highlighting the key actions and events.

This material is the result of an exhaustive compilation of available internal and external multimedia sources, so as to guarantee transparency of the facts and analysis.

We appreciate the cooperation of Transit Police, RTA management, local law enforcement agencies and others throughout the investigation.

Sincerely,
Anthony A. Garofoli, Executive Director of Internal Audit

Executive Summary

Introduction

The President of the Board of Trustees, General Manager/CEO and General Counsel of the Greater Cleveland Regional Transit Authority requested the Internal Audit Department conduct an independent special investigation of the Transit Police incident that occurred on July 26, 2015, and to evaluate the actions of the officers involved in the incident.

Investigative Objectives

  1. Was the handling of the intoxicated child by Transit Police proper?
  2. Was the use of pepper spray proper in this situation?
  3. Was the use of pepper spray consistent with RTA Transit Police Policies and Procedures?
  4. Are the RTA Transit Police Policies and Procedures proper?
  5. Is Transit Police training appropriate?
  6. Is discipline or retraining appropriate for Sgt. Schwab, and/or others in this situation, and if so, at what level?

Objectives, Findings and Conclusions

Objective 1: Was the handling of the intoxicated child by Transit Police proper?

Findings:

  1. During a routine fare inspection, the child was discovered out of consciousness, with a partially empty bottle of alcohol in his possession.
  2. The child was partially responsive to questioning from the officer.
  3. The child was removed from the bus in accordance with police procedure for Non-Arrest.
  4. The child was held in protective custody until medically cleared and released to his mother.

Conclusion:

  1. Transit Police handling of the intoxicated child was proper.
  2. The officer validated the identity of the child's mother.
  3. The child was released to the mother safely considering the exigent circumstances.

Objective 2: Was the use of pepper spray proper in this situation?

Findings:

  1. The rioters engaged in serious criminal activity. Crimes observed included, but are not limited to, violations of the following:

OHIO REVISED CODE VIOLATIONS*
Code  Title

2909.04 Disrupting Public Services
2917.03 Riot
2917.04 Failure to Disperse
2917.11 Disorderly Conduct
2917.13 Misconduct at Emergency
2917.41 Misconduct involving public transportation system
2921.31 Obstructing official business
2921.331 Failure to Comply with Order of Police
4301.69 Underage persons offenses concerning
*No arrests were made

2. ORC 2917.05 states: "A law enforcement officer engaged in suppressing a riot or in protecting persons or property during a riot is justified in using force when and to the extent he has probable cause to believe such force is necessary to disperse rioters."

3. Oleoresin Capsicum (“O.C.” or “pepper spray”) spray was not used on lawful, peaceful bystanders. The Oleoresin Capsicum (“O.C.” or “pepper spray”) spray was applied only on the human barrier. Subjects were actively obstructing official business and were in violation of Ohio law.

Conclusion:

  1. The use of Oleoresin Capsicum (“O.C.” or “pepper spray”) spray was proper.
  2. The Transit Police incident commander’s and officers' de-escalation actions (slow the pace, wait out subjects, enter negotiations with crowd leaders) resulted in a peaceful resolution to the incident while achieving the objective of releasing the child safely to a parent / guardian.
  3. RTA Transit Police are fully prepared to deploy its trained Field Force Team, equipped with riot gear, to respond to situations involving large, unruly crowds. The incident commander and officers displayed incredible poise and restraint by choosing to de-escalate instead of mobilizing the Field Force Team.

Objective 3: Was the use of Oleoresin Capsicum (“O.C.” or “pepper spray”) spray consistent with RTA Transit Police Policies and Procedures?

Conclusion:

  1. Use of Oleoresin Capsicum (“O.C.” or “pepper spray”) spray on subjects in the crowd is found to be in compliance with GPO 10-002, GPO 08-017, and ORC 2917.05.
  2. The officers exhausted every effort, using repeated verbal commands and lower levels of force (soft empty hand control) prior to using Oleoresin Capsicum (“O.C.” or “pepper spray”) spray on subjects.
  3. The utilization of trained crowd control tactics were used in a reasonable manner under the direct leadership of an experienced incident commander.

Objective 4: Are the Transit Police policies and procedures proper?

Findings:

  1.  We compared Transit Police Policies and Procedures with legislative standards and peer law enforcement agencies, including the Ohio Revised Code, International Association of Chiefs of Police model policies and the Department of Justice Consent Decree Agreement with the City of Cleveland.
  2. We also compared them with four of the largest cities in Cuyahoga County, including Cleveland, Euclid, Cleveland Heights and Lakewood.

Conclusion:

  1. RTA GPOs are compliant with state and local laws.
  2. RTA GPOs that address Use of Force and Oleoresin Capsicum (“O.C.” or “pepper spray”) Spray Use are equivalent to peer law enforcement agencies.

Objective 5: Is Transit Police training appropriate?

Findings: All RTA Transit Police officers:

  1. Are OPOTA (Ohio Peace Officer Training Academy) certified
  2. Receive annual Use of Force training
  3. Receive Annual certification in the use of Oleoresin Capsicum (“O.C.” or “pepper spray”) spray
  4. Receive 40 hours of annual in-service training
  5. Receive 4+ months of in-service training for new officers
  6. Training requirements include technical and practical use of OC spray
  7. Officers must be certified in Oleoresin Capsicum (“O.C.” or “pepper spray”) spray before carrying on duty
  8. Officers may only carry standard issue Oleoresin Capsicum (“O.C.” or “pepper spray”) spray

Conclusion:
Transit Police training is appropriate. Training is found to be thorough, frequent and comprehensive.

Objective 6: Is discipline or retraining appropriate for Sgt. Schwab, and/or others in this situation, and if so, at what level?

Findings:

  1. Sgt. Schwab and the other officers conducted themselves in compliance with GPO 08-017 and GPO 10-002 in the Use of force and Oleoresin Capsicum (“O.C.” or “pepper spray”) spray.
  2. Sgt. Schwab has almost 25 years of experience as an officer and incident commander. He is a trainer at Cleveland Heights Police Academy and experienced in the proper use of force and pepper spray.
  3. RTA recently purchased a judgmental training simulator. It is modern technology that provides virtual interactive training which stresses an officer's decision making skills in applying the appropriate level of force.
  4. The judgmental training simulator will be used for annual training, post-incident and random selection training. This training is in addition to the existing curriculum.

Conclusion:

  1. The actions of Sgt. Schwab and the officers do not warrant discipline.
  2. Incident command training should be incorporated into the training program to prepare newer officers.
  3. The child was safely released to his mother despite the unforeseen riot. Through Sgt. Schwab's leadership, the officers successfully adhered to applicable policies.

Additional Observations and Conclusions

  • Transit Police encounter intoxicated juveniles in the course of daily duty. Each incident is to be handled in accordance with police procedure, which includes securing the child, transporting them to Police Headquarters, contacting the parent/guardian and releasing the child.
  • In this instance, the riotous activities delayed the normal Police procedure by over an hour.
  • No arrests were made, although virtually every law violated subjected the participants to arrest and incarceration, not merely a citation.
  • The utilization of trained crowd control tactics were used in a reasonable manner under the direct leadership of an experienced incident commander.
  • The RTA Transit Police are fully equipped with a trained Field Force Team to address riot and crowd control situations, when called upon. Transit Police leadership chose not to mobilize the Field Force Team.

Investigation Resources

  • CCTV footage
  • CSU Body cameras
  • RTA Dispatch radio traffic
  • Social media videos and photos
  • Interviews with RTA responding officers and dispatch
  • Officer statements re: incident
  • RTA General Police Orders (GPOs)
  • Ohio Revised Code
  • DOJ Consent Decree
  • Use of Force training materials
  • GPOs and training plans for Cleveland, Euclid, Cleveland Heights and Lakewood
  • Model policies from the International Association of Chiefs of Police
  • Cleveland Police Dispatch records
  • Training and personnel files
  • Media articles
  • Further relevant resources

#  Event Summary Standard

  1. Two TP officers performing routine fare enforcement duties encounter an adult fare evader and an intoxicated child in possession of alcohol. ORC 4301.69
  2. Both subjects are escorted off vehicle at E. 24th St. station; concurrently, a nearby conference ends GPO 08-019
  3. Officers secure the child in handcuffs; they are responsible for the child’s safety until release to parent / guardian TP Juvenile Non-arrest procedure .GPO 98-005
  4. Crowd of conference attendees confront officers and demand child’s release. Officers explain to crowd that intoxicated child needs to be medically checked and released only to parent / guardian. Crowd members do not agree and get increasingly vocal in protest. GPO 08-017
  5. Officers escort the child to a police vehicle away from the crowd. The crowd forms in front of the vehicle. ORC 2909.04, ORC 2917.03, ORC 2917.04, ORC 2917.11, ORC 2917.13, ORC 2917.41, ORC 2921.31, ORC 2921.33, GPO 08-017
  6. Upon his arrival, Sergeant Schwab announces on Public Address loudspeaker that the crowd is forming an “illegal assembly, move now or face arrest”
  7. Officers on street issue verbal commands to crowd to disperse; crowd does not comply. Crowd commits actions of a riot. Needing to move child to safe location, officers start using soft empty hand techniques. Officers shove the rioters to clear a path for police vehicle. As riot members are physically relocated, other rioters fill in empty spaces and continue to obstruct vehicle’s movement.
  8. Rioters form human barrier behind police vehicle, obstructing its movement. In response, rioters are warned pepper spray will be used if they continue to block the police vehicle.
  9. Pepper spray was used in attempt to clear pathway to move police vehicle containing the child. Human barrier disperses in response. GPO 08-017, GPO 10-002,ORC 2917.05.
  10. A new human barrier forms behind the car; after another warning, this line of rioters was sprayed with pepper spray. Again, the line disperses but re-forms with more riot members. GPO 08-017, GPO 10-002, ORC 2917.05.
  11. Officers are now facing a hostile crowd, with chants of threats and disparaging remarks. Officers take de-escalation steps, including verbal communication, creating space between the crowd and officers / vehicles, slow down the pace of the incident, and wait out the crowd. GPO 08-017, Department of Justice Consent Decree.
  12. EMS arrives on scene; officers form a protective convoy around the child and transport him to the EMS vehicle; child enters custody of the EMS during medical examination TP Juvenile Non-arrest procedure, GPO 98-005.
  13. Rioters form a human barrier around the EMS vehicle, preventing its movement; officers form a protective perimeter around EMS for child’s safety ORC 2917.13
  14. Once EMS medically clears the child, TP release the child to his mother at the scene. Once mother and child leave, crowd disperses. TP Juvenile Non-arrest procedure. GPO 98-005

OHIO REVISED CODE VIOLATIONS*
Code Title

2909.04 Disrupting Public Services
2917.03 Riot
2917.04 Failure to Disperse
2917.11 Disorderly Conduct
2917.13 Misconduct at Emergency
2917.41 Misconduct involving public transportation system
2921.31 Obstructing official business
2921.331 Failure to Comply with Order of Police
4301.69 Underage persons offenses concerning
*No arrests were made

APPLICABLE RTA GENERAL POLICE ORDERS
GPO Number Title
98-005 Juvenile arrest procedure
08-017 Use of force policy
08-019 Fare Enforcement
10-002 Oleoresin capsicum spray

Audit Team:
Jose Feliciano, Jr.
Edward Gaio
Anthony Ghanem
Emilly Mokora
Maria Shurik
Kari Solomon
Maria Tejada
Bonson Yee
Steven Zimmerman

Anthony A. Garofoli, RTA Executive Director of Internal Audit

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