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State v. City of Cincinnati Citizen Complaint Authority

Court of Appeals of Ohio, First District, Hamilton

December 27, 2019

STATE OF OHIO, Relator-Appellee,

          Civil Appeals From: Hamilton County Court of Common Pleas TRIAL NO. A-1800400

          Joseph T. Deters, Hamilton County Prosecuting Attorney, Mark C. Vollman and Andrea B. Nuewirth, Assistant Prosecuting Attorneys, for Relator-Appellee State of Ohio,

          Paula Boggs Muething, City Solicitor, and Emily E. Woerner, Chief Counsel, for Respondent-Appellant City of Cincinnati Citizen Complaint Authority,

          Gerhardstein & Branch Co., LPA, Alphonse Gerhardstein and Janaya Trotter Bratton, for Intervenor-Appellant Cincinnati Black United Front.


          Bergeron, Judge.

         {¶1} Designed to foster more trust and cooperation between the police and public than had previously prevailed, the Collaborative Agreement has played an instrumental role in this community for the better part of two decades. Consistent with the mandate of a federal lawsuit, Cincinnati's City Council approved the Collaborative Agreement and gave the Citizen Complaint Authority ("CCA") the force of law, by promulgating it into the city's Administrative Code. The CCA exists as a key check instilled by the Collaborative Agreement, as it conducts an independent investigation of (among other things) uses of force by police officers.

         {¶2} The present case stems from an effort by the state of Ohio to enjoin the investigatory work of the CCA during the pendency of any related felony criminal case. The trial court granted a permanent, and sweeping, injunction, but it did so while skipping a critical step in the injunction analysis-it never determined that the state had prevailed on its claim. A party cannot secure a permanent injunction without winning the underlying lawsuit. Equally important, the state failed to adduce clear and convincing evidence of irreparable harm on the record below. Instead, the harm posited by the state was inherently speculative because its only witness knew nothing about the factual situation surrounding the controversy that precipitated the injunction request.

         {¶3} Based on the record before us, we reverse the trial court's decision and remand for dissolution of its injunction.


         {¶4} Underlying the CCA's origins is the Collaborative Agreement, the federal class action agreement forged in the wake of the civil unrest in Cincinnati sparked by the shooting of unarmed-teenager Timothy Thomas in 2001. At its core, the Collaborative Agreement represents an attempt to improve relations between the police force and the Cincinnati communities it serves. To that end, the Collaborative Agreement brought together various stakeholders including the city, the Cincinnati Police Department ("CPD"), the ACLU, and the Cincinnati Black United Front ("CBUF"), who then negotiated the terms of the agreement. Ultimately, a federal court blessed the agreement and the city memorialized aspects of it into law in its Administrative Code.

         {¶5} Integral to its plan to improve police and community relations, the Collaborative Agreement provided for the creation of the CCA as a vehicle to create more accountability. Codified by a city ordinance, the CCA includes a director (Kim Neal), a team of investigators, and a seven-member-citizen board, and it is charged with conducting independent, administrative investigations of complaints of police misconduct and uses of force ("serious police interventions" in the parlance of the Administrative Code). Cincinnati Adm.Code Article XXVIII.

         {¶6} The CCA discharges its duties by conducting interviews with the police officers, as well as other parties involved in the incident, with the goal of determining whether the conduct at issue conformed to internal police policies. If a "serious police intervention" occurs, the CPD must "immediately" notify the CCA, and the CCA shall "immediately" dispatch its investigators to investigate. Cincinnati Adm.Code, Article XXVIII, Section 3-A After all, if the CCA does not timely conduct its investigations, much of the point is lost. For that reason, "[t]he time required to complete investigations will be a performance accountability measure." Id. After conducting relevant interviews and reviewing other pertinent evidence, the CCA interviewer generates a summary of findings and reports to the CCA director. Once the director reviews and approves the report, the case is then presented to the CCA board at its monthly meeting. The board may either agree or disagree with the director's determination on the matter. Although it has never happened in the 17-year history of the CCA (as the testimony before the trial court established), the board may also convene a hearing if it sees the need to delve further into the matter. The board ultimately renders a determination as to the director's report and shares the report with the city manager and the chief of police. A challenge to the CCA's investigatory process lies at the heart of this appeal.

         {¶7} In early 2018, the CCA notified two Cincinnati police officers to appear for investigatory interviews related to a report of shots fired. The underlying incident involved officers responding to a domestic violence complaint, which escalated into a shootout between two police officers and an individual named Damion McRae. Mr. McRae shot and seriously wounded one of the responding officers and was criminally charged.

         {¶8} In this particular case, the two officers also happened to be state's witnesses in the looming criminal prosecution of Mr. McRae. Fearing interference with the criminal prosecution, the state, through the Hamilton County Prosecutor's Office, commenced this action and moved for a temporary restraining order, seeking to halt the CCA's scheduled interviews with the two police officers. Though the CCA initially agreed to postpone the interviews, the dispute persisted and culminated in a hearing before the trial court. By that point, the state sought to permanently enjoin the CCA from not only conducting interviews in the McRae case, but in all cases involving police officers who were also witnesses in a felony criminal prosecution.

         {¶9} At the hearing on the permanent injunction, only two witnesses testified. Seth Tieger, an assistant prosecuting attorney for Hamilton County, appeared for the state and CCA Director Kim Neal testified on behalf of the CCA. To support the grant of the permanent injunction, Mr. Tieger opined that the state would suffer irreparable harm by potential inadvertent disclosures by police of information that might be shared with them by the prosecutor's office, including the prosecutor's confidential work product or the identity of confidential informants. Mr. Tieger posited that this information could then be a part of CCA investigative materials, which a criminal defendant could possibly obtain through a public records request in contravention of the Ohio Rules of Criminal Procedure. Admittedly though, Mr. Tieger did not know how the CCA interviews were conducted, as he had never attended one and was unfamiliar with its procedures. He also was unaware of whether information from investigations was redacted, and admitted to speculating on the threat of harm: "[i]t would be speculation, but I don't know how remote that speculation would be."

         {¶10} Although speculative, the harm that Mr. Tieger articulated, time and again throughout his testimony, was twofold: (1) a police officer might have access to the prosecutor's work product and trial strategy, and inadvertently disclose that to the CCA, which could then be "devastating" to the state's criminal prosecution; and (2) a police officer might divulge the identity of a witness or confidential informant, and that person could be killed. That harm formed the underpinning of the state's entire pitch for injunctive relief-criminal defendants could secure access to this information and create litigation turmoil or kill witnesses. But Mr. Tieger could not (nor did he attempt to) connect either of these harms to the McRae case because he did not "know any of the specifics" about that case. The state thus adduced no evidence that any prosecutor had shared confidential work product or trial strategy with either of the two officers who the CCA wished to interview, nor that they possessed any information about a confidential informant or related witness in the case (because there were none). Likewise, in the 17-year history of the CCA, Mr. Tieger could offer no examples where the type of harm he envisioned actually came to pass.

         {¶11} For her part, Ms. Neal provided context to CCA hearings and how they work in practice. She explained that CCA investigators were trained to avoid case-specific inquiries, including never asking a police officer whether they met with a criminal prosecutor in a given case or, for that matter, about any criminal prosecution matters. Ms. Neal also confirmed that interviewers would never ask a police officer about the order of witnesses in a criminal prosecution, nor about a prosecutor's personal thoughts or tactics related to a criminal prosecution, and she confirmed that the CCA investigator would never ask about the identity of confidential informants. She also emphasized that the purpose of the CCA interviews is to "conduct an administrative investigation on the officer's use of his firearm" and that the CCA previously "never had a problem with the prosecutor's office. * * * [W]e have had hundreds, probably over a thousand cases where a complainant is being prosecuted. * * * And we've never been asked to hold off on administrative investigations because they are in fact administrative."

         {¶12} Indeed, the CCA investigation mirrors the internal investigation conducted by the CPD in the wake of any discharge of a weapon by an officer. Both the CCA investigations and CPD internal investigations include conducting interviews with the officers involved, questioning other witnesses, and generating reports regarding the investigation's findings. Moreover, the materials generated from the police department's internal investigations are then shared with the CCA. The only notable difference between the two investigative processes is that the CPD may also conduct criminal investigations in these matters, whereas the CCA's investigation is purely administrative. Notably, the state did not seek to enjoin the parallel CPD investigations that cover the same terrain.

         {¶13} As Ms. Neal testified, the McRae case arose by operation of the administrative code because it implicated an officer-involved shooting. According to Ms. Neal, officer-involved shootings follow a different process than a citizen complaint. Whenever shots are fired by a police officer, CCA receives a call from the 911 center, and a CCA investigator automatically responds to the scene. The investigator observes the scene as well as the subsequent interviews of the officers and witnesses conducted by CPD at its office.

         {¶14} CCA then awaits the conclusion of the CPD investigation before proceeding with its own investigation. CPD sends a copy of its investigatory report to CCA, which includes all available videotaped footage, the report of the internal investigation regarding the use of force, and a copy of all recorded interviews. Because CCA is not permitted to investigate criminal matters, CCA must receive a "letter of declination" from the prosecutor's office before continuing its administrative review. The letter confirms that the officer who discharged his or her firearm will not be criminally prosecuted. In this case, CCA received the letter regarding the McRae shooting in August 2017.

         {¶15} When the state initially commenced the underlying lawsuit in this case, it believed that Mr. McRae had initiated the complaint against the two officers. Based on that erroneous belief, the state expressed legitimate, although ultimately inapplicable, concerns that Mr. McRae was attempting to subvert the discovery rules and obtain information that he would not otherwise be entitled to receive. As Mr. Tieger admitted, his testimony focused on theoretical possibilities regarding information that could potentially be disclosed during the CCA investigative process.

          {¶16} After hearing testimony from both witnesses, the court ultimately granted a permanent injunction against the CCA, which enjoined "conducting interviews or hearings involving police officers who are State's witnesses in a related and ongoing criminal proceeding until after the rendering of a verdict in a criminal trial, or earlier disposition of the case."

         {¶17} Shortly thereafter, the CBUF moved to intervene and sought a new trial. CBUF professed to be unaware that the parties broadened the scope of the temporary restraining order to a permanent injunction and from the McRae case to all cases. It maintained that the CCA did not adequately represent its interests in the prior proceeding. The court ultimately denied the motion, deeming it untimely and finding that CBUF's interests aligned with the CCAs.

         {¶18} Both the CCA and CBUF now appeal. The CCA raises a single assignment of error, challenging the propriety of the grant of the permanent injunction. CBUF presents two assignments of error, which concern the grant of the permanent injunction and the denial of its motion to intervene and for a new trial.



         {¶19} The grant of a permanent injunction is an" 'extraordinary remedy in equity where there is no adequate remedy available at law.'" City of Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 15, quoting Garono v. State, 37 Ohio St.3d 171, 173, 524 N.E.2d 496 (1988). Therefore, "its issuance may not be demanded as a matter of strict right[.]" Vontz v. Miller, 2016-Ohio-8477, 111 N.E.3d 452, ¶ 54 (1st Dist), quoting Perkins v. Village of Quaker City, 165 Ohio St. 120, 125, 133 N.E.2d 595 (1956). And parties seeking injunctive relief bear a "substantial burden" to demonstrate their entitlement to equitable intervention. Connor Group v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, ¶ 17.

         {¶20} Because the grant of a permanent injunction is not an interim remedy, a court may only issue it after a hearing in which the moving party demonstrated success on the merits of its underlying claim, i.e., "a right to relief under the applicable substantive law." Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267, 747 N.E.2d 268 (1st Dist.2000); W. Branch Local School Dist. Bd. of Edn. v. W. Branch Edn. Assn., 2015-Ohio-2753, 35 N.E.3d 551, ¶ 15 (7th Dist.) ("Or in other words, the moving party must prove that he has prevailed on the merits."). The party seeking a permanent injunction must also demonstrate that the injunction is necessary to prevent irreparable harm and that no adequate remedy at law is available. Stoneham at 267. Speculative harm will not suffice. See Camp Washington Community Bd., Inc. v. Rece, 104 Ohio App.3d 750, 754, 663 N.E.2d 373 (1st Dist.1995) ("Equity will not interfere where the anticipated injury is doubtful or speculative * * * .").

         {¶21} While we review the grant or denial of a permanent injunction for an abuse of discretion, Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist,73 Ohio St.3d 590, 604, 653 N.E.2d 646 (1995), a party must prove that entitlement to the requested relief by clear and convincing evidence. Stoneham at 268. "Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). We also review legal issues decided within the injunction framework under a de novo standard. Vontz at ¶ 26; City of Cleveland v. State, Slip Opinion No. 2019-Ohio-3820, ΒΆ 15 ("The determination whether a statute or ordinance is constitutional is a question of law that we review de novo."). Equally important, we must respect the Ohio Supreme Court's admonition "that a ...

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