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Linthicum v. Johnson

May 26, 2006

KANDY LINTHICUM, PLAINTIFF,
v.
P.O. ROBERT JOHNSON ET AL., DEFENDANTS.



The opinion of the court was delivered by: District Judge Susan J. Dlott

OPINION ON DENIAL OF DEFENDANT CITY OF CINCINNATI'S MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court onDefendant City of Cincinnati's Motion for Summary Judgment (doc. #46). On May 23rd, 2006, the Court entered an order denying the City's Motion. (Doc. #58.) This opinion sets forth the grounds for that denial and limits the theories that Linthicum may argue at trial.

I. BACKGROUND

Plaintiff Kandy Linthicum ("Linthicum") has sued the City of Cincinnati ("City") and Cincinnati Police Officers Robert Johnson ("Johnson") and Robert Kidd ("Kidd"), alleging that Johnson and Kidd sexually assaulted her in violation of the federal constitution and Ohio tort laws. She avers that the City is liable for her constitutional injuries under 42 U.S.C. § 1983, because Johnson and Kidd relied on their status as police officers to carry out her assault and acted against a backdrop of inadequate investigation and discipline*fn1 of police who engage in similar civil rights violations. (Doc. #1.)

A. Factual Background*fn2

1. Alleged Sexual Assault (November 29th or 30th, 2001)

a. Meeting at Madonna's and Travel to Linthicum's Apartment

On the night of November 29th, 2001, Linthicum attended a meeting and then celebrated her upcoming fortieth birthday at two bars in downtown Cincinnati, the Phoenix and Madonna's. (Deposition of Kandy Linthicum, March 10th, 2005 (hereinafter "Linthicum 3/05 Dep.") at 5-6.) Linthicum drank three to six beers at the Phoenix between 7 and 9 p.m. and then moved to Madonna's, where she knew a number of the other patrons. (Id. at 61; Deposition of Kandy Linthicum, November 20, 2002 (hereinafter "Linthicum 11/02 Dep.") at 93, 109-110.) She drank an additional six to eight beers and four or five "birthday shots" of liquor at Madonna's, for an approximate total of nine to twelve beers and four to five shots.*fn3 (Linthicum 3/05 Dep. at 6-7; see also Linthicum 11/02 Dep. at 110-111.) Linthicum recalls that she had rarely, if ever, consumed as much beer on a night out. (Linthicum 11/02 Dep. at 110-111.)

Officers Kidd and Johnson went on shift at 11:00 p.m. the night of November 29th, 2001. Both officers were in full police uniform, with visible badges and holstered, partially visible guns under their uniform jackets. (Deposition of Robert Kidd, January 21, 2005 (hereinafter "Kidd 1/05 Dep.") at 18-19; Deposition of Robert Johnson, January 21, 2005 (hereinafter "Johnson 1/05 Dep.") at 19-20.) Madonna's was in the Officers' district, but not on their beat. ((Deposition of Robert Kidd, November 21, 2002 (hereinafter "Kidd 11/02 Dep.") at 96.) Kidd has testified that he and Johnson had visited the bar for lunch on 29th and were asked by an on-duty manager to return that night and check on "something [that was] going on." (Id.)

Kidd estimates that he and Johnson arrived at Madonna's sometime between 12:30 and 12:45 a.m. on November 30th and stayed ten or fifteen minutes at most. (Kidd 11/02 Dep. at 95-97.) He recalls that he and Johnson walked down the length of the bar towards the back of the room, where they spoke with the bartender and one of the managers. (Id. at 97-99.) He recalls that Linthicum briefly approached him there, touched his chest through his uniform, rubbed his head, and said something to the effect that he was "cute." (Id. at 98-100.) He initially testified that he took her for a "police groupie" of sorts. (Id. at 99.) However, Kidd has since testified that he believes it was his African-American race*fn4 rather than his position as a police officer that attracted Linthicum, recalling her later comments to the effect that she was "pretty much interested in only black guys." (Kidd 1/05 Dep. at 55-56.)

According to Kidd, as he and Johnson were leaving Madonna's, they were stopped near the door by Linthicum and a male patron. (Kidd 11/02 Dep. at 97-98, 100-101.) Kidd remembers the patron asking whether they could give Linthicum a ride home because she had had too much to drink, and himself and Johnson responding that they could. (Id. at 98, 101-102.) He recalls Linthicum describing roughly where her apartment was located, and possibly also denying that she was intoxicated. (Id. at 98, 102.) Kidd remembers that Linthicum appeared "possibly" intoxicated, but not too intoxicated or drunk that she lacked coordination or control, was otherwise "impaired," or could not have made it home on her own. (Id. at 102-104; see also Kidd 1/05 Dep. at 27-28, 32-33.) He also remembers Linthicum telling him how much she had had to drink, although he can no longer recall what exactly she said. (Kidd 1/05 Dep. at 32-33.) By contrast, Johnson has testified that he had no idea how much Linthicum had had to drink. (Johnson 1/05 Dep. at 40-42.) In any event, Kidd and Johnson both recall Linthicum was "talking clearly" and doing nothing that would lead them to believe she was too drunk to see herself home or care for herself. (Id. at 27-28, 33; Johnson 1/05 Dep. at 35-36.) Kidd has testified that it is not out of the ordinary for police officers to give courtesy rides*fn5 in such cases, and recalls giving rides to other women "more than twice" before November 29th. (Kidd 11/02 Dep. at 104.) However, Kidd has testified that Linthicum's apartment was outside his and Johnson's district, and at least suggested that it was a violation of police rules to even travel there. (See id. at 62-64.)

Linthicum has testified that sometime after midnight -- she estimates it was 12:30 or 1:00 a.m. on November 30th -- she either asked or prepared to ask a Madonna's bartender call her a cab home. (Linthicum 3/05 Dep.; Linthicum 11/02 Dep. at 112-113.)*fn6 She recalls that either one or both of the Officers then approached her and asked why she was leaving and how she was getting home.*fn7 (Linthicum 3/05 Dep. at 11-12; Linthicum 11/02 Dep. at 113-114.) She responded that she was leaving because she had had too much to drink, and added -- "thinking that they're interrogating me, thinking that I'm driving, thinking they're being aware of my safety" -- that she was taking a taxi, or possibly a bus.*fn8 (Linthicum 3/05 Dep. at 12, 14, 36; see also Linthicum 11/02 Dep. at 112-116.) According to Linthicum, the Officers responded that they could give her a ride home instead. (Linthicum 3/05 Dep. at 12; see also Linthicum 11/02 Dep. at 116.) Linthicum reports that she was initially "shocked" by this suggestion, but agreed once the Officers explained that "we do that sometimes" and she realized that accepting the ride would spare her the cab fare. (Linthicum 3/05 Dep. at 12-14, 18; Linthicum 11/02 Dep. at 116-117.) They also indicated that it would not be a problem for Linthicum to bring along the six-pack of "carry-out" beer she had either just bought, or was about to buy, from the Madonna's bartenders. (Linthicum 3/05 Dep. at 16; Linthicum 11/02 Dep. at 116-118.)

Linthicum has testified that several other people at Madonna's, including the bartender who called her the cab, knew that she had accepted a ride from the Officers. (Linthicum 3/05 Dep. at 16-19; Linthicum 11/02 Dep. at 117.) She has testified that as she left the bar, fellow patrons expressed amazement that the police officers were taking her home, because that was "something they'd never seen before." (Linthicum 3/05 Dep. at 19.) Linthicum recalls that some patrons asked her if she was sure she was "okay," and suggested she should be careful. (Id. at 16-19, 23.) She also recalls, however, that the Officers appeared very "congenial" and interested in helping her, that they had not threatened her in any way, and that she was operating on the assumption that they sometimes assisted citizens who could not get home safely. (Id. at 18.)

Linthicum has testified that the Officers never suggested they might arrest her for public intoxication or any other reason, and that she understood she was not legally bound to accept a ride from them. (Id. at 52.) She is also sure there was no physical contact between herself and the Officers at the bar. (Linthicum 11/02 Dep. at 119.) However, she also avers that she left Madonna's with the Officers only "because they were police officers in their uniforms on duty, providing [sic] my safety." (Linthicum 3/05 Dep. at 42; see also Linthicum 11/02 Dep. at 199.) Linthicum insists she "never would have left with two complete strangers" had they not been police. (Linthicum 3/05 Dep. at 42; see also Linthicum 11/02 Dep. at 199) She has further testified that she would not have left even with police officers had she not been intoxicated and her judgment "impaired." (Linthicum 11/02 Dep. at 199-200.) She suggests that she may not have so readily concluded that Officers Kidd and Johnson were "being helpful," noting that no police officer had ever offered her a ride home before. (Id.)

Linthicum, Kidd and Johnson walked to the Officers' police cruiser, which was parked at the curb just outside the entrance to Madonna's. (Linthicum 3/05 Dep. at 14-15.) Linthicum has testified that she did not need the Officers' help walking to the cruiser or getting seated, although one of the Officers may have opened the back door for her. (Id. at 15-16; see also Linthicum 11/02 Dep. at 118.) Linthicum was also able to tell them where she lived, although she does not recall whether she gave directions. (Id. at 25.) She has testified that while in the cruiser, she and the Officers all drank from her carry-out six pack. (Id. at 28; see also Linthicum 11/02 Dep. at 120.) Linthicum says she recognizes the Officers should not have been drinking on duty, but that their behavior helped put her at ease at the time because she figured she would not be allowed to drink in the cruiser if she were actually "in trouble" with the law. (Linthicum 3/05 Dep. at 30-32.) She does not recall much conversation in the cruiser, but she thinks she and the Officers may have discussed University of Cincinnati ("U.C.") basketball. (Linthicum 11/20 Dep. at 120-21.) She does not remember any other discussions, but has speculated that she may simply not recall them because she was "impaired." (Id.)

At some point -- either en route to the apartment, outside the apartment in the cruiser, or at the door of her apartment -- Linthicum realized she had left her jacket and keys at Madonna's, and the Officers drove her back to the bar to retrieve them. (Linthicum 3/05 Dep. at 20, 26-27; Linthicum 11/02 Dep. at 120, 125; Kidd 11/02 Dep. at 92-93, 107-108; Kidd 1/05 Dep. At 34.) As the Officers waited in the cruiser, Linthicum walked into Madonna's to pick up her jacket, keys, and possibly a second six-pack of beer. (Linthicum 3/05 Dep. at 27, 29, 32, 53; Linthicum 11/02 Dep. at 125-28.) She has testified that other patrons appeared "shocked" that the Officers had brought her back to the bar -- so much so that at least one patron came outside the bar to watch Linthicum get into the cruiser for the second time. (Linthicum 3/05 Dep. at 20-21; Linthicum 11/02 Dep. at 126-27.) She recalls sensing that at least some of these patrons felt the situation was not "normal"*fn9 and demanded more caution on her part. (Linthicum 3/05 Dep. at 21-23.) Nevertheless, she says she felt she was in no danger, suggesting that her own perception may have been impaired "because I was intoxicated." (Id. at 22-23, 30-33.)

Kidd has testified that he did not observe Linthicum buy any carryout beer at Madonna's, bring any beer into the cruiser, or drink beer at any time, but suggests that beer "could have been concealed in something she carried." (Kidd 11/02 Dep. at 106-107.) Both Officers remember that Linthicum was able to walk on her own, without assistance from either Officer.*fn10 (Kidd 1/05 Dep. at 29; Johnson Dep. at 36.) Kidd has testified that Linthicum was "functioning fine" in the cruiser and that he did not regard her as "drunk" or "heavily intoxicated," although he admits he may have used the latter phrase in describing Linthicum to Internal Affairs. (Id. at 126-27.) He recalls that Linthicum was able to provide Johnson complete, turn-by-turn directions to her apartment. Johnson says that Linthicum provided her address and later pointed out her apartment, but that he was familiar enough with the route not to need directions. (Johnson 1/05 Dep. at 36-38.)

Kidd has also testified that Linthicum was able to carry on a very "clear-headed" conversation with the Officers while they were together in the cruiser. (Kidd 1/05 Dep. at 28- 30.) Specifically, Kidd remembers that he and Linthicum began discussing U.C. basketball after Linthicum mentioned that Kidd resembled a friend of hers who had played on the team, and Kidd responded that he knew and had played with Nelson. (Kidd 11/02 Dep. at 108-109, 112.) He recalls Linthicum inviting him and Johnson to call her if they ever needed U.C. tickets, and writing her phone number down on a pad or paper Kidd was carrying with him that night. (Id. at 109.) He recalls that Linthicum seemed comfortable, particularly after she found out that Kidd knew Nelson. (Id. at 112, 126.) He also remembers Linthicum commenting that it was "pretty cool" of him and Johnson to give her a ride home, saying they weren't like other officers she knew. (Id. at 112.) He recalls Linthicum attempting to show the Officers a piece of lingerie that she said she had modeled or bought at Madonna's. (Id. at 125-26; Kidd 1/05 Dep. at 33-34.) Finally, he recalls Linthicum commenting on how "cute and nice looking" she thought Kidd was their "entire time" in the cruiser. (Kidd 11/02 Dep. at 108.)

b. Sexual Encounter (Alleged Assault) at Linthicum's Apartment

After their return trip to Madonna's, the Officers drove*fn11 Linthicum back to her apartment and parked on the street, arriving -- by Linthicum's guess -- around 2:00 a.m. (Id. at 33, 37; Linthicum 11/02 Dep. at 129.) Linthicum cannot recall any conversation during this second trip, perhaps because -- by her testimony -- her intoxication was deepening. (Linthicum 11/02 Dep. at 128-29.) She remembers one of the Officers telling her they would see her in and make sure she got inside. (Id. at 129-30.) She does not recall who led the way or who used her keys to open the security door at the entrance, although she has once testified that she remembers "being assisted" on the walk. (Linthicum 3/05 Dep. at 33-34; Linthicum 11/02 Dep. at 129.) She acknowledges that she must have led the Officers to her apartment, two stories up, but contends that because she had lived in the building for three and a half years at the time, finding her way would have been virtually "automatic" even in a relatively incapacitated state. (Linthicum 3/05 Dep. at 34-35.) Linthicum has testified that she was in a sort of alcohol-induced "blackout" by this point, and -- as a result of her intoxication and the passage of time -- remembers only "bits and pieces" of the rest of the night. (Id. at 38-39.)

Linthicum does not remember who used her keys to unlock her apartment door, or whether she invited the Officers inside. (Id. at 37-38.) She does not recall that the Officers forced their entry or physically threatened her into letting them in, or otherwise indicated that it was "their official responsibility" to enter her apartment. (Id. at 38-39.) She remembers feeling the Officers were "still being helpful" and that her "best interest was still in their hands," and reasons she may have inferred at the time that the Officers were acting within their official capacity because of their earlier representations that "this is what they do, they do this sometimes, they take people home, they ensure that people get home safely." (Linthicum 3/05 Dep. at 39-40.) Linthicum says she doubts she was "even capacitated enough" at the time to form a definite opinion as to the Officers' interests, and says she now realizes that the Officers must have had other, more "personal motives" for entering her apartment. (Id. at 41-43.) She reasons, however, that either she could easily have understood the Officers' actions as somewhat official at the time, because she still "thought they [were] still providing my safety" pursuant to their earlier representations about taking people home. (Id. at 42-43.)

Kidd has testified that when the cruiser pulled into her apartment complex, Linthicum asked the Officers if they were busy and invited them to "come up for a while." (Kidd 11/02 Dep. at 112-113; see also Johnson 1/05 Dep. at 23.) Kidd recalls that at this point, he began to suspect Linthicum had motives "other than just getting a ride home" and "something was going to occur due to the innuendoes and statements [Linthicum] had made." (Id. at 70, 113; Kidd 1/05 Dep. at 13.) He also recalls debating whether to accept the invitation as he let Linthicum out of the cruiser and deciding to accept after hearing Johnson say they could go up for a minute or two. (Kidd 11/02 Dep. at 113.) Nonetheless, he has testified that sex was not discussed on the walk to Linthicum's door, and that it was not until after the Officers had entered Linthicum's apartment that he realized sex was a possibility. (Id. at 67-68, 113-114.) Johnson has testified that the Officers accompanied Linthicum inside her apartment to "make sure she was fine."*fn12

(Johnson 1/05 Dep. at 23-24.)

Johnson remembers that Linthicum walked up to her apartment building ahead of him, apparently unassisted, and used her key to open her apartment door. (Id. at 38, 42.) Kidd remembers Linthicum leading both Officers into her apartment, throwing down her jacket or purse, and leaving the room for a moment. (Id. at 60-61, 64, 69, 112-113.) Kidd remembers feeling nervous about being off his beat and out of his district, wondering whether Linthicum "was going to continue to come on to [him]," and thinking it would be wrong to engage in sex with Linthicum. (Id. at 62-63, 72-73.) He has testified that it was not until Linthicum emerged from the other room having changed into lingerie -- apparently without prompting from the Officers -- he "pretty much knew" they would be having sex. (Id. at 66, 68, 73; Kidd 1/05 Dep. at 23, 34; see also Johnson 1/05 Dep. at 23.)

Both Kidd and Johnson have testified that Linthicum "enticed" them into sex. (Kidd 1/05 Dep. at 23; Johnson 1/05 Dep. at 31.) The Officers have described Linthicum walking over to sit on her bed, grabbing Kidd by the waistband and pulling him over to her. (Kidd 11/02 Dep. at 73-74; see also Johnson Dep. at 31.) Kidd has testified that Linthicum then began rubbing his genitals and acting as the sexual "aggressor," and that he ultimately decided to "give in to temptation" and let her perform oral sex on him. (Kidd 11/02 Dep. at 73-75.) He remembers Linthicum attempting to remove his gun belt, apparently after he had removed his pants, and that he helped Linthicum remove the belt, laid it on the floor next to the bed, and pushed it away with his foot. (Id. at 77.) He recalls that in the course of oral sex with him, Linthicum paused to comment that she had "never been with two black guys at once" and ask whether his partner -- Johnson -- was afraid of her. (Id. at 76-79.) Johnson remembers removing his own gun belt six to eight feet from Linthicum. (Johnson 1/05 Dep. at 25.) Johnson recalls Linthicum taking off at least part of her own lingerie; Kidd is less certain as to whether or how the lingerie was removed. (Johnson 1/05 Dep. at 33, 38-39; Kidd 1/05 Dep. at 35.)

Kidd remembers Johnson approaching the bed, Linthicum rubbing Johnson's genitals, and Johnson fondling and using a sex toy*fn13 on Linthicum as Linthicum and Kidd had oral sex. (Id. at 76-78, 80-83; see also Johnson 1/05 Dep. at 32-33.) He recalls condoms being retrieved, he believes by Linthicum, Johnson removing his pants, and Linthicum beginning to perform oral sex on Johnson. (Id. at 79-84.) Kidd then recalls having vaginal intercourse with Linthicum as she continued to perform oral sex on Johnson. (Id.) Next, Kidd remembers using the restroom, dressing, and putting on his gun belt as Linthicum and Johnson had vaginal intercourse. (Id. at 80, 84-87.) Finally, he recalls standing by Linthicum's bed as Johnson used the restroom, hearing Linthicum "express some kind of enjoyment"*fn14 and interest in seeing the Officers again. (Id. at 87-88; see also Kidd 1/05 Dep. at 24-25 and Johnson 1/05 Dep. at 32.) Both Officers have testified that Linthicum may have put on another piece of clothing, variously described as a robe, large T-shirt, or sweats, after intercourse and before they left. (Kidd 1/05 Dep. at 35-36; Johnson 1/05 Dep. at 39-40.)

Kidd and Johnson left Linthicum's apartment without making any definite plans to see Linthicum again. (Kidd 11/02 Dep. at 87-88.) Johnson remembers directing Linthicum to lock the apartment door behind himself and Kidd and believes she walked behind them to the front door. (Johnson 1/05 Dep. at 40, 43.) Both Officers recall that Linthicum seemed to enjoy their sexual encounter, and neither remembers her affirmatively indicating that she wanted them to stop the sex or intercourse or "withholding" or "revoking" consent. (See, e.g., Kidd 1/05 Dep. at 24-25, 48; Johnson 1/05 Dep. at 31-35, 52-53.) The Officers have testified that they did not think Linthicum was too intoxicated to consent to sex. (Johnson 1/05 Dep. at 35-36; Kidd 1/05 Dep. at 29.) Johnson has further testified that as a matter of "common sense," if not personal experience, he would expect a woman who did not want sex to "push [him] off" or "[t]ell [him] to stop, get off of her." (Johnson 1/05 Dep. at 33-35, 49.)

Linthicum's testimony is consistent with Kidd's and Johnson's insofar as she recalls having oral sex with both Officers and intercourse with one (if not necessarily two), and also does not recall either Officer making any physical or verbal threats. Linthicum maintains, however, that she never invited or consented to sexual activity and that none would have occurred had Kidd and Johnson not been police. She has testified that it was not until after the Officers were inside her apartment that she began to suspect that they were motivated by "something different" than a desire to ensure her safe return home. (Id. at 43.) She remembers watching Kidd and Johnson remove their gunbelts and toss them onto her couch as she sat on her bed approximately five feet away, and thinking that they "were past the step of being City officials" and that "something was wrong." (Id. at 43, 45, 47-49.) She has testified that she does not recall saying anything or otherwise "reacting" to the Officers after she began "focusing on the guns lying there." (Linthicum 11/02 Dep. at 131.)

Linthicum recalls only fragments of what happened next. (Id. at 53; see also Linthicum 11/02 Dep. at 35, 37-38, 132.) She primarily remembers "just complying, just being there," "pretty much incapacitated," "feeling like I was a third person, like I was just viewing what was going on," and speculates that "whatever I was told to do, I just did." (Linthicum 3/05 Dep. at 51, 53-55, 60-61; see also Linthicum 11/02 Dep. at 131-32, 140.) She recalls one of the Officers undressing and helping or telling her to partially undress,*fn15 and then performing oral sex on that Officer as she lay on her bed and he stood and leaned over her. (Linthicum 11/02 Dep. at 131-36; see also Linthicum 3/05 Dep. at 61.) She remembers the second Officer pacing back and forth*fn16 and looking out her front window, apparently to check on the cruiser, as she engaged in oral sex with the first Officer.*fn17 (Linthicum 11/20 Dep. at 37, 130, 134; Linthicum 3/05 Dep at 61.) She remembers the first Officer asking her for condoms, calling the second Officer over to "participate," and directing the second Officer to place his penis in her mouth. (Linthicum 11/02 Dep. at 139-140, 148; Linthicum 3/05 Dep. at 51, 53, 61.) She then remembers the first Officer penetrating her vaginally as the second Officer engaged in oral sex with her. (Linthicum 11/02 Dep. at 37, 140; Linthicum 3/05 Dep. at 61.) Linthicum has testified that she remembers the Officers receiving a call on their radio and saying they had to go, but also that she does not remember their actual departure. (Linthicum 11/20 Dep. at 36-37; Linthicum 3/05 Dep. at 54, 62.) Her next clear recollection is of waking up the next morning to find her clothes on the floor and her front door ajar. (Linthicum 11/20 Dep. at 40; Linthicum 3/05 Dep. at 54.)

Linthicum has testified that she does not recall ever asking the Officers to leave her apartment, crying in front of them, refusing or asking them to stop their sexual advantages, or otherwise struggling with them on the night of her alleged assault. (Linthicum 3/05 Dep. at 49, 52-54; Linthicum 11/02 Dep. at 35, 41-44, 132.) She has further testified that the sex and intercourse were "not physically against my will," and that she could walk unaided and speak despite what she describes as her extreme intoxication. (Linthicum 11/02 Dep. at 41-42, 133, 198.) Linthicum contends, however, that she could not have invited the Officers to have sex with her, because it would be inconsistent with her nature or "makeup" to do so.*fn18 (Linthicum 3/05 Dep. at 54-56; Linthicum 11/02 Dep. at 197.) She has testified that she believed the Officers primarily intended "to have fun," with her and is "not sure where that would have went if [she] had not cooperated." (Linthicum 11/02 Dep. at 211.) But she maintains that she did not actively participate or cooperate in the sex or intercourse, noting that she was not "fondling" the Officers or otherwise "provoking" or "encouraging" them. (Id. at 41-44, 197.) Linthicum does not remember the Officers verbally demanding oral sex or intercourse, but also recalls that at least the Officer who had both oral sex and intercourse with her "just did it," apparently without asking her permission. (Id. at 149.)

Linthicum says she understood at the time that the Officers' sexual contact with her was inconsistent with official "policy," or at least not "what police officers normally [or] stereotypically do." (Linthicum 3/05 Dep. at 45-46.) However, she insists Kidd and Johnson "were still police officers to me" because of what she characterizes as their "intimidation actions." (Id. at 46.) She says although Kidd and Johnson did not tell her they were going to have sex with her "because they had the power of police officers," let alone threaten to arrest or physically harm her for resisting, the fact that they "took their gunbelts off [and] threw them on the couch" -- thus calling her attention to weapons that would previously have been partially concealed by their uniform jackets -- constituted "serious mental intimidation." (Id. at 46-48; see also Linthicum 11/02 Dep. at 44, 133-34.) She has testified that she felt she had no "choice" or "say" in the intercourse. (Linthicum 11/02 Dep. at 134.) Linthicum acknowledges that the Officers never removed the guns from their holsters or verbally referred to them, and presumes that they removed the belts in order to have sex with her. (Linthicum 3/05 Dep. at 48-49.) She further avers, however, that the fact that Kidd and Johnson "were uniformed police officers" was intimidating in itself. (Id. at 51-52.) She has also testified that she told or otherwise indicated to the Officers, "many times," that she was uncomfortable with or intimidated by the presence of their guns. (Linthicum 11/02 Dep. at 131.)

As noted above, Officers Kidd and Johnson were in full police uniform the night of November 29th, with badges and partially visible guns. (Kidd 1/05 Dep. at 18-19; Johnson 1/05 Dep. at 18-20.) They maintain, however, that they never used their powers as police officers to influence Linthicum. (Kidd 1/05 Dep. at 16-17; Johnson 1/05 Dep. at 18-19, 33.) Kidd has testified that he was "definitely acting in my private interest," and did not regard the sex as a means of carrying out his police duties or City or community business. (Kidd 1/05 Dep. at 19-20.) He recalls that he never raised his voice to Linthicum, placed his hand on his gun or referred to his gun, badge, or handcuffs in her presence, threatened to arrest or investigate her, or did anything else to force her will in the course of the night. (Id. at 17-19, 23, 35-36.) Johnson's testimony on these points largely echoes Kidd's. (Johnson 1/05 Dep. at 18-21, 24-26.)

2. Later Contact*fn19 Between Linthicum and the Officers*fn20

While the sexual assault allegations in Linthicum's complaint pertain only to the night of November 29th to 30th, 2001, Linthicum and Johnson*fn21 both recall a later sexual encounter that Linthicum has also described as non-consensual. (See Linthicum 11/20 Dep. at 34.) On or around December 12, 2001, approximately two weeks after Kidd and Johnson's alleged assault of Linthicum, Johnson again visited Linthicum's apartment, and he and Linthicum again had oral sex. (Linthicum 3/05 Dep. at 63-65, 72-73; Linthicum 11/20 Dep. at 34.) Linthicum had just returned from a bar where she estimates she drank six beers and possibly hard liquor and recalls being very intoxicated, but Johnson has testified he was unaware of whether Linthicum had had anything to drink that night. (Linthicum 11/02 Dep. at 175-76, 184; Linthicum 3/05 Dep. at 63, 74-75; Johnson 1/05 Dep. at 41-42.) It appears that Johnson called*fn22 sometime at or after midnight to tell her he was outside and ask to come upstairs, although Linthicum's testimony on this point is somewhat conflicted. (Johnson 1/05 Dep. at 30-31; Linthicum 11/02 Dep. at 174-75, 179-81, 194; Linthicum 3/05 Dep. at 64-65, 73-75.) Linthicum is fairly certain that he arrived uniformed, in a police cruiser. (Linthicum 3/05 Dep. at 75, 78; Linthicum 11/02 Dep. at 180.)

Linthicum let Johnson into her building, probably by throwing her keys down from the window or balcony as she often did to avoid going downstairs to admit visitors, and then either opening or allowing him to unlock her apartment door. (Linthicum 3/05 Dep. at 73-74; Linthicum 11/02 Dep. at 182, 184-85; see also Johnson 1/05 Dep. at 31, 42-43.) Linthicum recalls that Johnson took off his gun belt and undressed in her living/bedroom area, then had her perform oral sex on him. (Linchium 11/02 Dep. at 186-90; Linthicum 3/05 Dep. at 63, 66, 75.) She has testified that Johnson did not verbally demand oral sex and does not recall whether she ever asked Johnson to leave her apartment or indicate that she didn't want him there. (Linthicum 11/02 Dep. at 195-96.) She recalls feeling nervous, unresponsive, and detached. (Id. at 187, 196.) After the sex, she remembers Johnson telling her he had to "get the car back," telling her he "would come back," and grabbing her keys. (Id. at 190-92.) Linthicum recalls telling Johnson she would let him back in without any intention of doing so, apparently to dissuade him from taking her keys with him. (Id. at 190-91.)

Linthicum has testified that -- as during her first sexual encounter with Kidd and Johnson -- she was not threatened with violence or arrest. (Id. at 75-77.) She does remember worrying that Johnson might have found out that she had called someone at the police district about the earlier encounter and come to confront her, and thinking that she did not want to see him. (Part I.A.3.a, infra; Linthicum 11/02 Dep. at 171-73, 178-80, 192-95.) She remembers worrying that there might be "repercussions," from her conduct, that she might no longer be able to rely on the police for assistance, and that her safety was threatened.*fn23 (Id. at 185-86.)

Linthicum has acknowledged that she could have called 911 from her home or cell phone instead of letting Johnson into her apartment, but did not do so. (Linthicum 3/05 Dep. at 77-78.) She has explained that she wanted to know what Johnson wanted to discuss and "where my -- my standing was." (Linthicum 11/02 Dep. at 185, 191.) Nevertheless, Linthicum has testified that she and Johnson ultimately did not discuss her call to the district or related issues that night, explaining that "he didn't mention it, so I didn't." (Id. at 91.) With respect to the oral sex, Linthicum recalls feeling she "[had] no choice" but to submit, because she was "stuck in [a] cycle" of "mental intimidation" that began with Johnson and Kidd's alleged assault and was affected by Johnson's "being a police officer." (Id. at 63-65, 75-78; see also Linthicum 11/02 Dep. at 196-97.) She has testified that she may actually have felt more intimidated during this second encounter, because she was bothered by Johnson's familiar manner and the fact that he had apparently felt "comfortable" enough to return to her apartment after the alleged assault. (Linthicum 11/02 Dep. at 196-97.)

Linthicum reported her alleged November 29th to 30th assault to the Cincinnati police Internal Investigation Unit ("Internal Affairs") around the time of her second encounter with Johnson, and did not see either Officer Johnson or Officer Kidd again. (See id. at 64-67 and Part I.A.3.a, infra.) She avers that one or both of the Officers*fn24 called her repeatedly after the alleged assault, although her testimony on the precise number and content of calls or messages she received before Internal Affairs tapped her phone is somewhat inconclusive. (See, e.g., Linthicum 3/05 Dep. at 67; Linthicum 11/02 Dep. at 17-19, 163-68; see also Part I.A.3.b, infra.) Linthicum recalls that one caller said he'd heard a rumor that Linthicum was accusing him of rape, and that she denied the rumor. (Linthicum 3/05 Dep. at 68; see also Linthicum 11/02 Dep. at 17-22, 107-108.) She has also testified to receiving voicemail messages asking her to call back or "meet up" again. (Id. at 69-70, 79.) Kidd has testified that he called Linthicum "a handful of times" and spoke with her once or twice, but never threatened her or suggested she should not follow through with the investigation. (Kidd 1/05 Dep. at 36.) Similarly, Johnson has testified that he called Linthicum a few times and left one message, but never threatened her. (Johnson 1/05 Dep. at 44-45.) He does not recall any "negative" discussion of their past sexual encounters. (Id. at 45.)

Linthicum has testified that she was confused by the personal tone of some messages she apparently received from the Officers, which she recalls "sounded like we were almost dating.*fn25 "

(Linthicum 03/05 Dep. at 70, 78.) She remembers answering at least one call during which the caller identified himself as one of the people who had brought her home from the bar. She recalls that the caller mentioned that she had been intoxicated, and said something to the effect that she didn't "remember and . . . didn't have a good time like they did." (Id. at 79; 11/02 Linthicum Dep. at 15-17.) Kidd has testified that he called Linthicum on December 17th and identified himself as "Rob," one of the Officers who had brought her home, and that Linthicum seemed not to remember him at first but later indicated that she did. (Kidd 11/02 Dep. at 105; see also Kidd 1/05 Dep. at 36-37.) He has testified that he may have been interested in more sex or another "date" with Linthicum, but was primarily trying to get U.C. basketball tickets. (Kidd 11/02 Dep. at 115-116; see also Kidd 1/05 Dep. at 37-38.) In any event, he remembers telling Linthicum that he and perhaps also Johnson would like to see her again. (Kidd 11/02 Dep. at 115-116.)

Linthicum also recalls receiving at least one message from a "Rob," asking her to call him at a cell number. (Linthicum 11/02 Dep. at 14-16.) Linthicum has testified that she was "intimidated" by the repeated calls, and at least once she matched the numbers on her caller ID to numbers provided by Internal Affairs and confirmed "it was them calling me over and over." (Linthicum 3/05 Dep. at 68-69; Linthicum 11/02 Dep. at 20-21.)

3. Reporting and Investigation

a. Linthicum

In the ten days after her alleged assault on the night of November 29th to 30th, Linthicum did not report the incident to the police, but did discuss elements of it with a few friends and a counselor. (See, e.g., Linthicum 3/05 Dep. at 56-58; Linthicum 11/02 Dep. at 22-25, 33, 98-100, 149-151.) She also returned to Madonna's and spoke with the bartender, apparently in an effort to identify the Officers. (Linthicum 11/02 Dep. at 108-09.) Finally, shortly before contacting the police, she placed an anonymous call to a local television station to seek "advice" on what to do next. (Id. at 151-52, 200-203.) In at least some of these initial conversations, Linthicum did not describe her sex with the Officers as assault or "rape." (Id. at 23-26, 203-207.) She attributes this omission to her shame about the incident and her initial, mistaken feeling that she was at fault for what had happened. (Id.)

Linthicum says she hesitated to report her alleged assault to the police because she was not sure she would have any "recourse," and did so only after mustering the courage and realizing the incident was "weighing too heavy" [sic] on her. (Id. at 149-151.) Around the time of her second encounter with Officer Johnson, Linthicum called the police department to say that on-duty officers had come to her house and had sex with her. (Id. at 149-151, 171-75, 178-79, 192-93; see also Linthicum 3/05 Dep. at 64-65.) Linthicum apparently did not describe the November 29th to 30th incident as "rape" during this call, although she does not recall her exact wording. (Id. at 22-23, 198; Linthicum 3/05 Dep. at 82.) She has testified that she was still confused as to what had happened on the night of November 29th to 30th, 2001, and unsure about whether it satisfied the formal definition of rape. (Linthicum 11/02 Dep. at 22-23, Linthicum 3/05 Dep at 65-66.)

b. Initiation of Internal Affairs Investigation

Linthicum recalls that when she called the police to report the November 29th to 30th incident, the sergeant she reached indicated that she would pass on the information and also asked to come speak to Linthicum in person that evening. (Id. at 171-73.) Linthicum initially agreed to the visit but later called back to cancel it, she says because she did not want to be involved in an investigation and feared for her safety. (Id. at 172-74.) Despite her attempted cancellation, sometime the following day -- also the day after Linthicum's second encounter with Officer Johnson -- Internal Affairs representatives arrived at Linthicum's residence. (Id. at 178-79, 192-93; Linthicum 3/05 Dep. at 66-67, 104-05.) Linthicum was questioned and taken to the emergency room for a physical examination. (Linthicum 3/05 Dep. at 66-67, 103-108.) Internal Affairs also dusted Linthicum's apartment for prints, took some items as evidence, and -- some time later, after Linthicum called to complain about receiving intimidating phone calls -- tapped Linthicum's phone and gave her the Officers' phone numbers. (See, e.g., id. at 53, 59-60, 68-69.)

Linthicum broke off contact with Internal Affairs sometime in the spring or summer of 2002. (Linthicum 11/02 Dep. at 102-106.) She recalls losing faith in the investigation after being told, only shortly before an official press release, that the Officers had been cleared of criminal wrongdoing and that the incident would likely be mentioned on the news.*fn26 (Id.) However, Internal Affairs continued investigating Linthicum's case until August 2002, when it issued a report on the Officers' misconduct. (See Part I.A.5.a, infra).

c. Officers Kidd's and Johnson's Initial Failure to Report and Denials of Contact with Linthicum

Officers Kidd and Johnson did not make a "signal 39" call, indicating that they were transporting someone in their cruiser, before driving Linthicum to her apartment on the night of November 29th to 30th. (Kidd 11/02 Dep. at 91.) They also did not note the run to Linthicum's apartment on the night's time sheets. (See, e.g., id. at 88-90, 114.) Kidd has testified, however, that he and Johnson did not always make signal 39 calls or otherwise report trips out of their district, so long as those trips were reasonably short. (Id. at 91-92.) He does not recall any discussion about not reporting the incident on his and Johnson's time sheet. (Id. at 90.) Both Officers have testified that they did not discuss the incident with anyone on the force, other than each other, until being contacted by Internal Affairs. (Johnson 1/05 Dep. at 28-29; Kidd 1/05 Dep. at 21.)

Kidd has testified that once he and Johnson learned about the pending investigation, they agreed to testify that they had never had sex with Linthicum. (Kidd 11/02 Dep. at 116-117.) On May 6, 2002, both Officers were interviewed by Internal Affairs. (See, e.g., doc.#51, Ex. 2 (City Brief to Kidd Arbitrator) at 12-13.) Internal Affairs first interviewed Kidd, who denied knowing Linthicum, being in her apartment, or engaging in sexual activity with her. (Id.; see also doc. #51, Ex. 7 (Kidd Arb.) at 23-33.) Internal Affairs then interviewed Johnson, who initially denied and later confessed to his and Kidd's sexual activity with Linthicum. (See doc #51, Ex. 3 (Johnson Arb.) at 4-5; see also doc.#51, Ex. 2 at 12-13.) Kidd was then given the opportunity to sit for a second interview, in which he also confessed to the sexual activity. (See Kidd Arb at 12-13; doc.#51, Ex. 2 at 12-13; Kidd 11/02 Dep. at 116-120.)

4. The Cincinnati Police Disciplinary Code and Investigative Process*fn27

The written disciplinary rules applicable to Cincinnati police officers are codified in the City's Manual of Rules and Regulations and Disciplinary Process for the Cincinnati Police Division*fn28 (hereinafter "disciplinary code").*fn29 (See Affidavit of Cincinnati Police Chief Thomas Streicher (hereinafter "Streicher Aff."), doc. #47, at 1 ¶ 2.) The code contains a series of sections outlining disciplinary rules in various subject areas. (Id., Ex. A at 9-16.*fn30 ) It also contains two separate sections addressing penalties for violations of these rules. Section Thirteenprovides in relevant part that officers may be dismissed if "proven guilty of" "incompetency," "dishonesty," "drunkenness," "insubordination," "immoral conduct," "neglect of duty," "failure of good behavior," or "discourteous treatment of the public." (Id. at 1-2 ¶ 5 and Ex. A at 22.) Section Fifteen, added in 2000, establishes a detailed matrix outlining specific penalties for an officer's first, second, third or fourth violation of each disciplinary rule within a specified period.*fn31 (Id. at 1 ¶ 3 and Ex. A at 22-25.*fn32 ) Cincinnati Police Chief Thomas Streicher ("Chief") has averred that the matrix was added to the code "in an effort to address concerns regarding the uniformity, fairness, and consistency" of police discipline. (Id. at 1 ¶ 3.) However, he also contends that the matrix should not be interpreted to preclude dismissals under Section Thirteen. (Id. at 1-2 ¶¶ 5, discretion and is not bound solely by [the] matrix . . . ." (Deposition of Cincinnati Police Chief Thomas Streicher, January 7, 2005 (hereinafter "Streicher Dep.") at 16.)

The disciplinary code also outlines the internal department procedures for investigating suspected rule violations and disciplining violating officers. (Id., Ex. A at 16-20.) Where misconduct is alleged, the Internal Affairs section prepares an investigation report for the Chief describing the charges and recommending action or case closure. (Id. at 17; Streicher Dep. at 5, 62-65.) Wherever the Chief determines that there is sufficient evidence to support a finding of a violation, the offending officer is given a pre-disciplinary hearing on the charges before another officer -- typically a captain -- appointed by the Chief. (Streicher Dep. at 62-65; see also Streicher Aff., Ex. A at 17-18.) The hearing officer decides whether to sustain the charges and submits a report with this recommendation, and any proposed "disciplinary action" and/or "corrective measures," to the Chief. (Streicher Aff., Ex. A at 19; see also Streicher Dep. at 62-65.) While the text of the disciplinary code suggests that the Chief may then take "final" action, the Chief has testified that the City Manager reviews the recommendations and makes the "ultimate decision" about what discipline to impose. (Streicher Dep. at 65-66; see also id. at 6, 7, 12, 62-63 and doc. #51, Ex. 2 (City Brief to Kidd Arbitrator) at 5, 20.)

The primary disciplinary options for police officers, referenced at Sections Thirteen and Fifteen of the disciplinary code, are written reprimand, suspension, demotion, and dismissal.*fn33

(Id. at 19-20.) Officers may appeal suspensions, demotions and dismissals for hearing and arbitration, pursuant to a collective bargaining agreement between the City and the Fraternal Order of Police, the police officers' union ("Union"). (Streicher Dep. at 7-8, 17, 61.) Officers also have the option of requesting a hearing before the Civil Service Commission, although the Chief has testified that officers generally select arbitration rather than Commission appeals.*fn34

(Streicher Dep. at 24-25.) He has further testified that in his experience, "100 percent" of disciplinary terminations are appealed to arbitration. (Id. at 56.) According to the Chief, the City and Union select arbitrators by alternately striking names ...


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