Cincinnati Considers Options For Those Charged With Curfew Violations

People arrested by Cincinnati Police for violating the city's recent curfew will not have the charges against them dismissed. But they could soon have options to avoid prosecution.

City Council's Law and Public Safety Committee approved a motion Tuesday recommending how the city solicitor should proceed with those cases. However, Solicitor Paula Boggs Muething is not bound by that motion and she can prosecute the cases as she sees fit.

The full council will consider the item Wednesday.

To avoid prosecution, those arrested for curfew-only violations, or "misconduct at an emergency," would have the following options on a case-by-case basis:

1. The city could dismiss charges "if they execute a waiver of civil liability." That means they could not file a lawsuit against the city in exchange for charges being dismissed.
2. The city could reduce the charge to disorderly conduct, which is a minor misdemeanor. The city would waive any fines and ask the clerk of courts to waive court costs.  The city would also not object to immediate expungement of the charges from criminal records, but judges would make those decisions.
3. The city could offer a reconciliation process that's still being developed. Individuals and police officers could sit down to discuss what happened.
4. The city would offer diversion for those charged. The charges would be dismissed once the program is completed and there are no additional charges for a 30-day period.

Council members Christopher Smitherman, Jan-Michele Lemon Kearney, Wendell Young and Jeff Pastor had signed a motion asking that those charged only with curfew violations have those charges dismissed. But that was modified during a lengthy debate on the issue.

Smitherman related his arrest for a peaceful protest in 2010 at the construction site of a building being constructed for Cincinnati Public Schools.  He was protesting the lack of African American contractors working on school projects.

"We have to do something because what I don't want to have happen is what happened to me," Smitherman said. "Meaning aggressive prosecution at the time. And then no expungement which continued to cost me thousands of dollars because I had to hire an attorney every time I was trying to do business in another state, and they were doing criminal background checks."

Police Chief Eliot Isaac was against full dismissal along with the city's law department and a couple council members. They expressed concerns about the impact dismissal would have on compliance with curfews in the future. The law department was concerned blanket dismissal could expose the city to civil lawsuits.

Council Member Betsy Sundermann voted against the ordinance. She said it was improper for council to tell the solicitor how to do her cases.

"This will set a precedent where we can have any curfews in the future because everyone will just assume that City Council will dismiss the charges," Sundermann said. "We can't do that."

She also said it would open the city to massive liability and even suggested it could lead to a class action lawsuit against the city for those who were arrested for curfew violations and had the charges potentially dismissed.

A deputy city solicitor told the committee it was never the law department's plan to "throw the book" at peaceful protestors who were arrested for violating the curfew.

Mayor John Cranley declared a curfew on May 31, and it remained in place until Monday morning. He took the action after some criminal damaging and looting in Downtown, Over-the-Rhine and CUF during protests concerning the death of George Floyd in Minneapolis who died while in police custody in Minneapolis on May 25.

Isaac told the committee there had been 513 arrests during the protests and demonstrations. He said 61% of those charged were male and 39% were female; 57% were white, 40% African American and 3% other ethnicities.

Isaac also denied claims that officers deployed pepper spray and tear gas on peaceful protestors. 

"It simply did not happen," Isaac said. "I witnessed many of the occasions where we did have to deploy gas, or take some other action, and in each and every one of those occasions it was after our officers were being assaulted."

Isaac said it is possible that the gas did impact peaceful protestors who happened to be close to a group of people who were not being peaceful when officers responded.

There was some discussion Tuesday about making changes to the police department and its policies.  Several council members have introduced proposals based on demands from protestors.

Council Member Greg Landsman said his goal for the police department, and all city departments, is to be the "best at getting better." He said that will be important to achieve two outcomes in his mind.

"Keep everyone safe, make sure no one is denied that basic fundamental civil right of safety," Landsman said. "And two, that no one's denied the basic fundamental civil right as it relates to justice. That's the push moving forward."

Council Member Smitherman responded that any city department could do better.

"Any suggestion that this department has not made a revolutionary change over the 17 or 18 years, with the many people that were involved in those changes, is just not factual," Smitherman said.

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