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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION ----------------------------------: PAUL CARMAK, Administrator for : the Estate of David Hebert, : : Plaintiff, : : vs. : CASE NO. : 1:12CV308 ANDREW MITCHELL, et al., : : Defendants. : : -----------------------------------
Deposition of: Taken:
ANTHONY DAWSON By the Plaintiff Pursuant to Notice
Date:
May 23, 2014
Time:
Commencing at 11:20 a.m.
Place:
Hardin, Lazarus & Lewis, LLP Suite 915 30 Garfield Place Cincinnati, Ohio 45202 Patricia A. Walterman, RPR Notary Public - State of Ohio
Before:
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APPEARANCES: On behalf of the plaintiff:
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Gregory A. Napolitano, Esq. and Paul M. Laufman, Esq. of Laufman & Napolitano, LLC 4310 Hunt Road Cincinnati, Ohio 45242 Phone: (513)621-4556 Email:
[email protected] [email protected] On behalf of the defendants:
10 11 12 13 14 15 16 17 18 19
Donald E. Hardin, Esq. of Hardin, Lazarus & Lewis, LLP Suite 915 30 Garfield Place Cincinnati, Ohio 45202 Phone: (513)721-7300 Email:
[email protected] and Peter Stackpole, Esq. of City of Cincinnati Law Department Suite 214 801 Plum Street Cincinnati, Ohio 45202 Phone: (513)352-3350 Email:
[email protected]
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and 21 22 23 24 25
Charles B. Galvin, Esq. of Frost Brown Todd, LLC Suite 300 9277 Centre Pointe Drive West Chester, Ohio 45069 Phone: (513)870-8200 Email:
[email protected]
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I N D E X
2 ANTHONY DAWSON
PAGE
3 4 5 6
Cross-Examination by Mr. Napolitano Examination by Mr. Hardin Further Cross-Examination by Mr. Napolitano Further Examination by Mr. Hardin Further Cross-Examination by Mr. Napolitano
4 145 147 150 150
7 8 9 10 11 12 13 14
EXHIBITS Plaintiff's Exhibit Plaintiff's Exhibit Plaintiff's Exhibit
MARKED 1 (deemed) 45 2 63 3 (deemed) 118
REFERENCED 45 46 118
15 16 17
(Plaintiff's Exhibits 1 and 3 will be marked and copies distributed to counsel subsequent to the deposition by Mr. Napolitano.)
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- - -
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ANTHONY DAWSON
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of lawful age, a witness herein, being first duly
3
sworn as hereinafter certified, was examined and
4
deposed as follows:
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CROSS-EXAMINATION BY MR. NAPOLITANO: Q.
Good morning, Officer Dawson, my name is
8
Greg Napolitano.
9
this morning.
We met very briefly as you came in
I and my partner, Paul Laufman,
10
represent the Estate of a man by the name of David
11
Hebert in a case that's pending before the United
12
States District Court for the Southern District of
13
Ohio, and it is that case that brings us here today
14
and that has caused us to ask for the opportunity to
15
speak with you in deposition.
16
Before we get into the question and answer
17
portion, I will make an assumption, and you tell me
18
if I'm accurate, that you have been deposed before.
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Is that true?
20
A.
Yes.
21
Q.
Okay.
22 23 24 25
Just once or on more than one
occasion? A.
I think it was for -- once before for a
car crash, I believe. Q.
And were you deposed in your capacity as a
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police officer?
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A.
No.
3
Q.
Okay.
4
A.
Yes.
5
Q.
Well, I will give you a little bit of a
In a different capacity?
6
reminder or refresher of sort of the rules of the day
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if you'll permit.
8 9
Our discussion here today is unlike typical conversation, as is evidenced by the fact
10
that you're surrounded by lawyers, and at the end of
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the table is Patty, who is our court reporter.
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is diligently going to be taking down what we say,
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and as a result of that we need to be careful to do a
14
couple of different things.
15
Patty
First, I will do my part to make certain
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that I don't talk over you and permit you to answer
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the questions that I ask.
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do, please point it out and I will make certain to
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stop talking over you.
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time to time you're anticipating the end of my
21
question and you want to answer it, and if I ask you
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to please let me finish my question, I'm not trying
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to be rude or step over you, I'm just trying to make
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sure we have a clean record.
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A.
I will fail, and when I
It may be the case that from
Fair enough?
Yes, sir.
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5/23/2014 6 Q.
The other thing is, and you're doing a
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terrific job of it, is that since there's a
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transcription being taken, we need to make certain
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that the responses that you provide are verbal, they
5
are out loud, they are spoken, as opposed to
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nonverbal responses that I will understand and
7
everybody in the room will understand, such as a nod
8
of the head or an uh-huh or an huh-uh, but are
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sometimes difficult to ascertain a meaning regarding
10
when we're reviewing a transcript.
Fair enough?
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A.
Yes, sir.
12
Q.
Finally, you can take a break at whatever
13
time you wish, rest and comfort or for some other
14
reason, to speak to your counsel.
15
limitation I would place on that is if there's a
16
question pending, that the question be answered
17
before the break is taken.
The only
Fair enough?
18
A.
(Nodding head.)
19
Q.
You're nodding your head.
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A.
Yes.
21
Q.
There we go.
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A.
Ready for a break.
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Q.
With that, do you have any questions for
A.
No, sir.
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Okay.
me?
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Q.
Can I get your full name, please?
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A.
Anthony Dawson.
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Q.
And Officer Dawson, you are employed with
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the Cincinnati Police Department?
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A.
Yes, sir.
6
Q.
How old are you, sir?
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A.
Forty-six.
8
Q.
And how long have you been with the
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Cincinnati Police Department?
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A.
Fourteen years.
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Q.
How long have you been a police officer?
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A.
Since December of 1999.
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Q.
So that 14-year period you've been with
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the City of Cincinnati? A.
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Yes. MR. NAPOLITANO:
And for purposes of the
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record, I will not inquire further of
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Mr. Dawson's address or any other identifying
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information, both to protect his privacy under
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Ohio law and also in light of the fact that
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counsel has agreed to take reasonable steps to
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make him available throughout the litigation.
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Correct, counsel?
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MR. STACKPOLE: Q.
That's correct.
Let's talk a little bit about your process
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of becoming a police officer.
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the City throughout the entire period of your time as
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a police officer, can I assume you attended the
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City's academy?
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A.
Yes.
6
Q.
When did you attend the academy?
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A.
July 11th until December -- July 11th, '99
8
Since you've been with
until December of '99.
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Q.
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five-month --
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A.
Five months.
12
Q.
-- period?
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A.
Yes, sir.
14
Q.
To your understanding, is that the typical
15
And so my Xavier math tells me about a
time period for a person's enrollment in the academy?
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A.
At the time it was.
17
Q.
So you didn't finish any earlier or any
18
later than your classmates at the time?
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A.
No, sir.
20
Q.
And I'm assuming that you had a career of
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some kind prior to attending the academy; is that
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accurate?
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A.
Yes.
24
Q.
What did you do before you attended the
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police academy?
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A.
I worked for a chemical company.
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Q.
And what did you do there?
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A.
Just process different solutions and
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stuff.
5
Q.
Here in town or outside of town?
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A.
Yes, here in town.
7
Q.
Did you work there for a lengthy period of
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time or was that a short employment? A.
It was five years, approximately five
years, I believe. Q.
The approximate five years leading up to
your enrollment in the police academy?
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A.
Yes, sir.
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Q.
How about before that; do you remember
15
what you did before that?
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A.
I worked at Formica.
17
Q.
Okay.
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And you worked in their production
process out there?
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A.
Yes, sir.
20
Q.
About how long were you there?
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A.
About three years, I believe.
22
Q.
And how about before that, was there
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consistent employment before that?
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A.
It was pretty inconsistent, I believe.
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Q.
Different employers over different periods
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of time?
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A.
Yes, sir.
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Q.
Okay.
And I won't go through all the
4
details of that, but was that work -- generally, work
5
that was more akin to production-type work and less
6
like what you're doing now as a police officer?
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A.
Yes, sir.
8
Q.
Okay.
9
You attended and graduated from
high school?
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A.
Yes, sir.
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Q.
Where was that?
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A.
Moeller.
13
Q.
And that would have been somewhere in the
14
late '80s?
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A.
Yes.
Well, the mid-'80s.
16
Q.
Mid-'80s?
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A.
Yes, sir.
18
Q.
Did you attend -- other than the police
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academy, which we'll talk about that in more detail
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in a minute, did you attend any post-graduation
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education between Moeller and the police academy?
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A.
Yes, sir.
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Q.
Okay.
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A.
I went to junior college in Kansas and
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Where did you go?
then Cumberland College.
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Q.
Is that Tennessee or Kentucky?
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A.
In Kentucky.
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Q.
What did you study when you were in Kansas
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at junior college?
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A.
At the time, I believe it was -- I don't
remember.
7
Q.
And then you transferred to --
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A.
Cumberland College.
9
Q.
-- Cumberland College?
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A.
Yes, sir.
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Q.
In your second year or mid-year?
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A.
It was mid-year.
13
Q.
And what did you study at Cumberland?
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A.
I don't remember.
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Q.
Anything related to the work that you're
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engaged in now as a police officer?
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A.
It may have been psychology.
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Q.
Did you obtain any degrees from either --
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well, you wouldn't have from the junior college --
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A.
No, sir.
21
Q.
-- but from Cumberland College?
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A.
No, sir.
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Q.
Do you know approximately how many credit
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hours you achieved or were away from a degree of some
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kind?
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I believe it could have been about
40-something hours, I believe.
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Q.
40-some hours achieved?
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A.
Yes.
5
Q.
Okay.
6
I believe. And you left Cumberland College
after one year, two years, how long?
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A.
After one year.
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Q.
And then you came back to Cincinnati --
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A.
Then I attended the University of
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Cincinnati.
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Q.
Ah, okay.
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A.
One year.
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Q.
And when you gave me the 40 hours of
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How long were you at U.C.?
educational credits earned, did that include U.C.?
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A.
Yes, sir.
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Q.
Okay.
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A.
No, sir.
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Q.
Do you recall what you studied at U.C.?
20
A.
Psychology.
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Q.
And when you left U.C., is that when you
17
22
So you did not attain a degree from
U.C.?
went and sought full-time employment?
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A.
Yes, sir.
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Q.
After returning -- did you grow up in
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Cincinnati?
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A.
Yes.
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Q.
After returning to Cincinnati to attend
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U.C., have you left the City to live since then?
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A.
No.
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Q.
Let's talk about the Cincinnati Police
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Academy, at least as it existed in the -- in that
7
period of time in 1999 when you attended.
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already discussed it was a five-month program.
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We've
Can you -- and this is an always unfair
10
question, and I will preface it as such, but can you
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summarize for me, maybe in kind of large
12
understandable categories, what the academy
13
curriculum entails?
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A.
No.
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Q.
Okay.
I would assume that there's a
16
portion of the academy curriculum that deals with the
17
policies and procedures of the Cincinnati Police
18
Department; is that a correct assumption?
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A.
I don't remember.
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Q.
Okay, fair enough.
I would also assume
21
that there is a component of the police academy that
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deals with the -- the procedures that are normally
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employed in the performance of ones duties as a peace
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officer, things like how do you conduct a traffic
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stop or how do you interview a potentially interested
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person or how do you administer handcuffs if you're
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called to use them.
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practical courses that were taught to you during the
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academy?
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A.
Yes, sir.
6
Q.
Let's attack it from this angle because
Were there those kinds of
I believe so.
7
part of what I want to try to do is not get bogged
8
down in me asking you questions that you may or may
9
not remember.
Can you tell me what you do remember
10
from the academy as we sit here today?
11
exhaustive list, but give me some understanding of
12
what you recall of your training as provided through
13
the Cincinnati Police Department's academy?
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A.
Maybe not an
There was -- sir, there was a lot of
15
classes, lot of different instructors came in and a
16
lot of physical workouts, but as far as the classes
17
that they administered at the time, I don't exactly
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remember.
19
Q.
Okay.
Physical workouts, I mean, I would
20
assume you were taught hand-to-hand combat and safety
21
in that regard; is that something you recall?
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A.
Yes.
23
Q.
And I would assume also that there was
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instruction on the use of various weapons, both
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non-lethal and lethal weapons?
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A.
Yes, that we used at the time, yes, sir.
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Q.
So I don't know -- as an example, and this
3
isn't something that isn't directly involved
4
necessarily but Tasers were probably not a part of
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the curriculum at the time?
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A.
No, sir.
7
Q.
And that's something that's emerged in the
8
years since, correct?
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A.
Yes, sir.
10
Q.
But firearms were, I assume, correct?
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A.
Yes, sir.
12
Q.
And you received firearms training through
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the Cincinnati Police Academy?
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A.
Yes, sir.
15
Q.
And that training included not only how to
16
use the firearm but when it was appropriate to use a
17
firearm, is that correct?
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A.
Yeah, but it was -- there was a thing
19
where I think now it's based upon every situation is
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different, so there can't be like a win to -- not a
21
win to, but just every situation is different, sir.
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Q.
Understood.
Understood.
I've been privy
23
to discussions with officers in the past and they've
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talked about the concept of a -- what's called a
25
continuum of force.
Have you ever heard that term
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before, or something similar to it?
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A.
Yes, sir.
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Q.
Is that what you're suggesting, that there
4
are a series of factors that are going to be
5
different in each circumstance that an officer
6
encounters and the continuum of force is something
7
that an officer would look to in order to determine
8
what level of force is appropriate in a given
9
situation.
10
Is that something that you've heard
before and something that you would agree with?
11
A.
Yeah, I've heard that before.
12
Q.
Would you agree with my characterization
13
of it?
14
A.
I don't know.
15
Q.
Okay, fair enough.
Well, do you recall
16
being instructed on the continuum of force in the
17
Cincinnati Police Academy?
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A.
I don't remember that, sir.
19
Q.
Okay, fair enough.
I've seen it -- just
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maybe to perhaps refresh your recollection, I've seen
21
it -- I've seen illustrations of it in kind of a
22
pyramid fashion, and I've also seen it where they use
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colors to denote different levels of force.
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that refresh your recollection at all?
25
anything like that in the academy?
Does
Do you recall
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I heard about colors and about a -- they
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have a poster of where to strike that was colored, as
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far as like with your PR24.
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Q.
And, again, you're going to get into areas
5
very quickly where I'm truly ignorant.
6
PR24?
What's a
7
A.
It was a baton.
8
Q.
They would chart some things that would
9
show --
10
A.
It was a color chart.
11
Q.
Of a human form and where a strike would
12 13 14 15
be and what the intended effect would be? A.
I don't know about the intended effect,
but I just remember a colored chart. Q.
16
Okay, fair enough. Well, one of the things that I -- did you
17
successfully complete the academy on your first
18
attempt?
19
A.
Yes, sir.
20
Q.
And at the successful completion of the
21
academy, did you then seek OPOTA certification?
22
A.
That was during the academy.
23
Q.
So that's part of the process?
24
A.
Yes, sir.
25
Q.
Okay.
So when you emerged from the
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academy then, because you completed it successfully,
2
you were OPOTA certified?
3
A.
Yes, sir.
4
Q.
And you've maintained OPOTA certification
5
consistently throughout the period of time that
6
you've served as a peace officer, from 1999 till the
7
present day?
8
A.
Yes, sir.
9
Q.
And I understand that a component of that
10
are some state-mandated ongoing either annual or
11
semi-annual training courses that will occur; is that
12
accurate?
13
A.
Yes, sir.
14
Q.
Each year, for example, there's a course
15
that's required in the use of deadly weapons, of
16
firearms; is that accurate?
17
A.
There's firearms training.
18
Q.
Yes?
19
A.
Yes, sir.
20
Q.
You have to do that each year?
21
A.
Yes, sir.
22
Q.
When that's done as a member of the
23
Cincinnati Police Department, who instructs?
Do you
24
go back through the academy or does your particular
25
division do the instruction or do they do that in,
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you know, preshift meetings; how is that handled?
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A.
Would you repeat the question?
3
Q.
Sure.
4
rambled for a while.
5 6 7 8 9
Let me make it simpler because I
How do you get your annual firearms training with the City? A.
It's scheduled by a supervisor and then we
go out to the firearms range. Q.
And who's the -- not specifically who's
10
the instructor, but are the Cincinnati -- are members
11
of the Cincinnati Police Department doing the
12
instructing?
13
A.
Yes, sir.
14
Q.
So that's handled by the department, as
15
well as the academy?
16
A.
Yes, sir.
17
Q.
In your career, have you ever received
18
training related to the use-of-force, any
19
use-of-force, not just firearms, from a source
20
outside of the City of Cincinnati Police Department?
21
A.
I don't know.
I don't remember.
22
Q.
I know now with the availability of online
23
courses, a lot of officers will pick up credits
24
taking online courses.
25
courses?
Have you taken any online
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A.
While at work?
2
Q.
At any time, to obtain your educational
3
credits that are needed.
4
A.
I don't believe so.
5
Q.
Have you successfully completed your
6
annual deadly force certification each year that
7
you've been a member of the police department.
8
MR. HARDIN:
There will be an objection to
9
the form of that question.
10
MR. NAPOLITANO:
11
MR. HARDIN:
12 13 14
A.
Fair enough.
You may answer.
We've had firearms training that I've
attended, yes, sir. Q.
Is there a -- so once you attend -- is it
15
fair to say that once you attend, that you have
16
satisfied your obligation or is there a process that
17
is either a test or some sort of skills evaluation
18
that occurs at the end of the session?
19 20
A.
I believe there's an OPOTA-mandated
training --
21
Q.
Yes.
22
A.
-- that we have to go through.
23
Q.
And my question is, and I'm having
24
difficulty asking a coherent one.
Do you get tested
25
at the end of that training each year?
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Yes.
There is a -- it's not really
a test, it's just a qualification.
3
Q.
Explain to me what that means.
4
A.
I don't know.
I guess there's a set of
5
skills you have to do and whether or not you complete
6
them.
7
Q.
Can you give me some details as to what
8
those -- I've never been through it, and I'm not
9
playing coy, I don't know.
10
A.
Honestly, I don't know exactly what the
11
skill tests or the skills are.
12
shoot a certain -- an amount of rounds into a target.
13 14
Q.
They just tell us to
So it's the actual skill of using the
firearm that's being tested?
15
A.
Yes.
16
Q.
And have you successfully completed those
17
tests each time you've taken it?
18
A.
Yes, sir.
19
Q.
I asked you about Cincinnati Police policy
20
in the context of the academy and you said you didn't
21
remember if that was a part of it, and that's fair,
22
it's been a while ago.
23
time, and let's just talk generally about your
24
understanding of Cincinnati Police Department policy.
25
I can assume you're familiar with Cincinnati Police
But stepping away from that
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Department policies and procedures; is that accurate?
2
A.
Yes, we have them.
3
Q.
And there are departments, and I'm not
4
sure if Cincinnati is one of them, where once an
5
officer completes the academy and becomes certified,
6
there's then a -- what's sometimes referred to as an
7
FTO or field training officer program that is
8
utilized to initiate young officers into the actual
9
practice of policing.
10
Does Cincinnati have that or
did they have that when you began?
11
A.
Yes, sir.
12
Q.
And you went through the FTO process?
13
A.
Yes, sir.
14
Q.
As a part of the FTO process, it is
15
sometimes the case that the policies and procedures
16
are incorporated into various activities that the
17
officers do with their FTO.
18
experience?
19
the Cincinnati Police Department?
Was that your
Do you recall something like that with
20
A.
I don't remember that.
21
Q.
Okay.
What experience -- you said you
22
know that the City has policies and procedures.
23
experience have you had with those policies and
24
procedures?
25
academy; you don't remember it through the FTO
What
Have you -- you don't remember it in the
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1
process.
2
meetings, preshift meetings or meetings with your
3
supervisors or how have you, throughout the course of
4
your career, become aware of these policies and
5
procedures that the City has?
6
Is that something that's handled in
A.
There are regular updates to the
7
procedure.
8
updates and you read over them.
9
Q.
Not regular, but sometimes there's
How are those communicated?
And I
10
understand every situation is probably a little
11
different, but in general --
12
A.
Staff notes.
13
Q.
Staff what?
14
A.
Staff notes.
15
Q.
Staff notes?
16
A.
Yes, sir.
17
Q.
So it's a written form?
18
A.
Yes, sir.
19
Q.
Are those posted or put in a mailbox or
20 21 22 23
e-mailed; how do you get those? A.
They put them in, like, a memo that's
passed around at roll call. Q.
And probably the -- is it like the officer
24
in charge or the shift lieutenant will discuss it and
25
say hey, look you've got a new staff note here, take
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1
a look at this policy?
2
understanding this is not a specific instance.
3
just looking for a general understanding of how these
4
things are handled.
5
addressed with officers during a roll call?
6 7 8 9 10 11 12 13 14
A.
Take me through -- again, I'm
How would a staff note be
Basically, staff notes get passed around
about the weekly occurrences. Q.
Meaning situations involving Cincinnati
Police officers that highlight certain policies, or what do you mean? A.
No.
It's just -- basically, it's from the
weekly staff meeting, from the command staff. Q.
Okay.
Command staff includes higher
ranking --
15
A.
Officers.
16
Q.
-- officers?
17
A.
I don't know.
18
Q.
But they produce a document that's called
19
Lieutenants on up?
staff notes or something like that --
20
A.
Yes, sir.
21
Q.
-- and that gets distributed to the patrol
22
officers and so forth?
23
A.
Yes, sir.
24
Q.
How else?
25
That's one way you've become
familiar with the policies and procedures of the City
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1
of Cincinnati Police Department.
2
become familiar with those policies and procedures?
3 4 5 6 7 8
A.
How else have you
We're given a booklet or, like, a big
binder with all these policies or procedures. Q.
All right.
Are you instructed to do
anything with that binder? A.
I don't remember if there were any
specific instructions.
9
Q.
10
and discuss --
11
A.
No.
12
Q.
-- it with superior officers?
13
A.
No.
14
Q.
-- or sessions at roll call or anything
15
Do you bring that to meetings on occasion
like that?
16
A.
I have not, no, sir.
17
Q.
As you recall over your 14 years of
18 19 20
experience, you have not? A.
I don't remember if there was specific
instances.
21
Q.
Nothing memorable as we sit here today?
22
A.
Policies and procedures have been gone
23 24 25
over, but as far as, like, bringing a binder -Q.
You mentioned the binder, that's the only
reason I brought it up.
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1
A.
Yes.
2
Q.
But you're driving at -- what I'm trying
3
to get at, which is I'm trying to get an
4
understanding of how these policies and procedures
5
are imparted to officers such as yourself.
6
told me that you've been provided those policies and
7
procedures and you're aware of them.
8
that staff notes will sometimes deal with various
9
policies and procedures based upon what the superior
You've
You've told me
10
officers are addressing on a given day, and you've
11
mentioned that -- I don't know if I mentioned this
12
already -- but you've mentioned that you were given a
13
binder.
14
I'm trying to explore how else this
15
information is given to officers.
16
ways that these policies and procedures are imparted
17
to you or shared with you?
18
A.
Not that I can recall.
19
Q.
Fair enough.
So are there other
Well, I'm going to focus in
20
on one.
21
catch you up on it.
22
think it's going to help -- I hope it's going to help
23
frame and limit our discussion a little bit.
24 25
This is not a quiz, and I'm not trying to Let me introduce it by saying I
In the use-of-force policy in the City of Cincinnati, which is policy 12.545, as I understand
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it, there are some definitions.
2
definitions is what is identified as the serious
3
use-of-force, all right?
4
And one of the
And I'll read it for you.
In that policy, I'll represent to you, a
5
serious use-of-force is any action that involves a
6
critical firearm discharge, the use of deadly force,
7
a baton strike to the head or a use-of-force in which
8
the person is seriously injured or requires hospital
9
admission, with the exception of individuals admitted
10
for psychiatric evaluation not suffering a serious
11
injury.
12
I read that to you not -- I don't expect
13
you to be able to recite that back, but what I'm
14
hoping to do, as I say, is frame our discussion.
15
what I'd like to you ask you about is your experience
16
as an officer for the City of Cincinnati with
17
circumstances involving the serious use-of-force
18
during your career.
19
asking?
20
A.
Vaguely.
21
Q.
Okay.
Do you understand what I'm
What I don't want to do, you've
22
been an officer for 14 years -- have you been a
23
patrol officer for all those 14 years?
24
A.
Yes, sir.
25
Q.
I would imagine there are many, many
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1
instances in which some use-of-force is necessary and
2
we would be here for a long, long time if we were
3
going to try to talk about all of those.
4
want to do that.
5
narrow down our discussion to something that's not
6
that frequent an occurrence.
7
know.
8
what the City has defined as a serious use-of-force
9
we can try to get to your experience in a more
I don't
What I'm trying to do is hopefully
It may be, I don't
But my hope was that by talking only about
10
meaningful way.
You understand where I'm going, what
11
I'm trying to do at least in terms of the framing of
12
our discussion?
13
A.
Somewhat, yes, sir.
14
MR. HARDIN:
Can I ask you a question?
15
MR. NAPOLITANO:
16
MR. HARDIN:
17
serious use-of-force.
Yeah, absolutely.
You read the definition of
18
MR. NAPOLITANO:
19
MR. HARDIN:
Yes.
Down at the bottom of the
20
sheet there should be some sort of indication
21
of when that definition came out, the revision
22
date.
23
MR. NAPOLITANO:
24
MR. HARDIN:
25
MR. NAPOLITANO:
Yes.
Could you give us that? Absolutely.
It says
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1
revised 3/21/13.
Replaces 11/8/12.
And my
2
understanding is, and I probably should have
3
said that on the front end, is that this is the
4
current policy relative to the use-of-force.
5
Q.
And again, at this point what I'm trying
6
to do, I'm not -- this is not a gotcha, I'm trying --
7
my question is simple, okay?
8
circumstances during your career in which you've been
9
involved in interactions where the serious
10
use-of-force as defined by this policy has occurred?
11 12
Can you tell me about
MR. HARDIN:
I'm going to object, only
because this incident occurred before 3/21/13.
13
MR. NAPOLITANO:
Fair enough.
Is there --
14
you're far more versed in this, I would assume,
15
than I.
16
has changed substantively at all?
17
Do we have reason to believe that this
MR. HARDIN:
It changes so often that I
18
couldn't make a definitive statement about it,
19
okay?
20
definition shows a revision date of 3/21, which
21
is after the incident.
22 23
I just know that this particular
MR. NAPOLITANO: Q.
Fair enough.
Let's do it this way:
I'll just
24
deconstruct a little bit and we'll ask our questions
25
that way, and maybe that will help us avoid getting
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tied down too much to the policy.
2
Let's talk about circumstances in your
3
career with the Cincinnati Police Department where
4
you've been involved in interactions where there has
5
been a critical firearm discharge.
6
about the ones that you recall?
7
A.
Where I was involved?
8
Q.
Yes.
9
Can you tell me
Meaning -- and that's a good point
of clarification.
I'll maybe ask specifics once we
10
start talking about particular circumstances, but I
11
don't mean to insinuate that you're the person
12
discharging the firearm.
13
you could be the person discharging the firearm or
14
you could be another officer responding to that event
15
where an officer discharges a firearm.
16 17 18 19 20 21
I mean either you are --
So with that understanding, can you tell me about those circumstances that you recall. A.
I really don't remember, you know,
specifics, any specific one. Q.
Can you tell me whether -- we know, for
example --
22
A.
Except for the one that --
23
Q.
-- brings us here today?
24
A.
Right.
25
Q.
Can you recall whether you had been
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1
involved at any time prior to the event that brings
2
us here today, which was -- occurred in the early
3
morning of April 18th of 2011.
4
point prior to that time being involved in a call
5
where there was a critical firearm discharge by
6
yourself or a fellow officer?
7 8 9
A.
Me personally, no.
Can you recall at any
I just can't -- I
can't recall any specific ones, sir. Q.
I'm far from being a police officer for a
10
number of reasons, but it would seem to me that that
11
would be a fairly memorable event, even for a veteran
12
patrol officer such as yourself.
13
you don't recall it, that there haven't been other
14
circumstances in which you've been involved in calls
15
where there has been a critical firearm discharge?
16 17
A.
Can we assume if
There was one I believe I was with my FTO
at the time that I remember vaguely.
18
Q.
Tell me what you remember.
19
A.
I just remember us running out -- running
20
to our patrol car and then driving and then arriving
21
at a scene where somebody had been shot.
22
Q.
Were you present for the shooting?
23
A.
No.
24
Q.
But you arrived --
25
A.
It was --
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1
Q.
I'm sorry.
2
A.
It was across town, I believe.
3
Q.
Was it an officer that had been shot or an
4
individual had been shot by an officer?
5
A.
I believe it was an individual.
6
Q.
And you were called as part of the
7
post-shooting response, as far as you recall?
8
A.
Yes, sir.
9
Q.
What else do you recall about that
10 11 12 13
particular incident? A.
Just being on the perimeter, like a post
or something like that. Q.
For, again, a layperson like myself, does
14
that mean you were in a car blocking off a street for
15
access; what does that mean?
16
A.
I don't remember, sir.
17
responded.
18
that's one that stands out.
19 20
Q.
I just remember we
I just remember running to the car, and
Do you remember the person who was shot or
the officer who did the shooting?
21
A.
No, sir.
22
Q.
Dan Carter was the officer?
23
A.
Yes, sir, I believe so.
24
Q.
Do you know any more of the circumstances
25
I think it was Dan Carter.
as to why Officer Carter --
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1
A.
No, sir.
2
Q.
-- used his firearm?
3
A.
No, sir.
4
Q.
Other than perhaps being involved in the
5
perimeter in some way or establishing the perimeter
6
around the scene in some way, did you take any other
7
action in relation to that event?
8
A.
Like what?
9
Q.
Just -- were you called to do anything
10
else --
11
A.
No.
12
Q.
-- at the scene in relation to that event?
13
A.
No, sir.
14
Q.
You didn't escort any of the officers
15
involved or have any of those kinds of
16
responsibilities?
17
A.
18
No.
No, I wouldn't have done that.
Then there was another shooting, Mike
19
Schulte.
20
Q.
Mike Schulte is another officer?
21
A.
Yes, sir.
22
Q.
S-c-h-u-l-t-e?
23
A.
I believe so.
24
Q.
Tell me what you remember about Officer
25
Schulte's circumstances.
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Something similar, where he came over the
2
air about shots being fired by a person who struck
3
him.
4 5
Q.
or some other object?
6 7
A.
I believe he was hit by a baton, his own
baton.
8 9
Do you know whether he was hit by a fist
Q.
And did you similarly respond to that
scene after the shooting occurred?
10
A.
Yes, sir.
11
Q.
Were you on your own at that time, patrol
12
officer working on your own?
13
A.
Yes, sir.
14
Q.
And the first one you said it was
15
around -- when you were with your FTO, so probably
16
would have been around 2000, somewhere in that
17
time --
18
A.
'99, 2000, somewhere in there.
19
Q.
Do you remember when Officer Schulte's
20
event occurred?
21
A.
No, sir.
22
Q.
Closer to the '99-2000 time frame or
23
closer to present day?
24 25
A.
I think it would have been closer to the
2000.
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5/23/2014 35 Q.
And what did you do when you responded to
that call? A.
I believe something similar to the
perimeter. Q.
I didn't ask you about the Officer Carter
6
event, but for either, do you recall what resulted
7
with the individuals shot?
Did they survive?
8
A.
No, sir.
9
Q.
Both died?
10
A.
Yes, sir.
11
Q.
And repeating in some fashion my question
12
relative to the Officer Carter shooting, other than
13
setting up the perimeter, do you recall any other
14
involvement in the Officer Schulte shooting call?
15
A.
No, sir.
16
Q.
Didn't transport anyone or interview
17
anyone or do anything of that nature?
18
A.
I don't remember.
I don't believe I did.
19
Q.
And I think we got -- I think we got this,
20
but forgive me if I've asked it already, but you've
21
never discharged your firearm at someone in the
22
course of your duties as a Cincinnati Police officer,
23
is that correct?
24
A.
Correct.
25
Q.
Have we talked about all of the calls
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1
involving a critical firearm discharge as you can
2
recall, as we sit here today?
3
A.
Yes, sir.
4
Q.
The next category is any other use of
5
deadly force.
6
you've been involved, either as a participant or the
7
person using deadly force during your career with the
8
Cincinnati Police?
Can you recall another event where
9
A.
No, sir.
10
Q.
The next category is a baton strike to the
11
head.
Can you recall any circumstance in which
12
you've been involved as a Cincinnati Police officer
13
where there has been a baton strike to the head used?
14
A.
No, sir.
15
Q.
What's not included in here, and I want to
16
make that clear, I'm stepping away from policy,
17
because I think there is a separate policy entirely
18
that deals with this, but the use of Tasers, and
19
again, I don't want to go down any rabbit hole
20
relative to the use of Tasers.
21
question, have you ever been involved in a call in
22
which you've used your Taser?
But just as a broad
23
A.
Yes, sir.
24
Q.
On how many occasions?
25
A.
I don't know.
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Is it -- I don't want to say "frequent."
2
I don't want to put words in your mouth.
I'm trying
3
to understand if it's something that it occurs with
4
some frequency so it's hard to know, or whether it's
5
not memorable to you?
6
A.
It's very infrequent.
7
Q.
Would you say in your career fewer than a
8
dozen times you've used your Taser?
9
A.
Yes.
10
Q.
But you don't recall those specific
11
circumstances?
12
A.
No, sir.
13
Q.
All right.
And I would assume that there
14
have been more circumstances, although probably not a
15
great number more, in which you've been involved in a
16
call where another officer has used a Taser while you
17
were on the call, is that accurate?
18
A.
Yes, sir.
19
Q.
Would you put that as under maybe 50 times
20
in your career?
21
A.
I don't know.
22
Q.
Okay.
Would you say that it is similarly
23
infrequent for other officers to use their -- strike
24
that.
25
Do you -- we'll leave it there. The next category that they list back in
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this policy, but just in terms of a discussion point,
2
is kind of a casual, and it says the use-of-force in
3
which a person is seriously injured or requires
4
hospital admission.
5
And again, I'm sounding like a broken
6
record, but can you recall instances where you or
7
another officer were involved in a call in which
8
you've been a participant has used force in which the
9
person upon whom the force has been used is seriously
10
injured and requires hospital admission?
11
A.
No.
12
Q.
Excepting, of course, the circumstances
13
we've already talked about.
14
A.
No, sir.
15
Q.
Okay.
16
A.
Can you repeat that question?
17
Q.
Sure.
18
little unclear.
19
Because the two --
And again, sometimes we get a
Other than the shootings that we've talked
20
about, you've told me that you can't recall any baton
21
strikes to the head or any other uses of deadly
22
force.
23
situation in which there was a use-of-force in some
24
other fashion that resulted in a person being
25
seriously injured and requiring hospital admission.
And I'm asking whether you can recall a
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1
A.
I don't remember anything like that, sir.
2
Q.
Okay.
In terms of force and its
3
applicability, do you know -- do all officers -- all
4
patrol officers for the City carry the same items on
5
their person, on their belt, in terms of weapons?
6
A.
No.
7
Q.
Are the differences in terms of the type
8
of weapon or the -- strike that.
9
Does everybody carry a firearm?
10
A.
They should.
11
Q.
Now, are the firearms different?
Can some
12
officers carry a different kind of firearm than other
13
officers or are they standard issue firearms?
14
A.
Some are different.
15
Q.
But everyone should be carrying a firearm?
16
A.
They should.
17
Q.
Does every officer carry a Taser?
18
A.
I don't know.
19
Q.
Of the folks on your patrol over the
20
years, since Tasers have been in use, most officers
21
carrying Tasers?
22 23 24 25
A.
It depends if it's functional.
If it's
not, then they wouldn't carry it. Q.
So sometimes they break down and they'll
leave them at the station?
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1
A.
Yes.
2
Q.
But if they've got a functional Taser, for
3
the most part, in your experience, patrol officers
4
for the City of Cincinnati are carrying Tasers?
5
A.
As far as I know.
6
Q.
Batons, does everyone carry a baton?
7
A.
No.
8
Q.
Do you carry a baton?
9
A.
No.
10
Q.
Okay.
12
A.
With me in the car.
13
Q.
How about Mace or pepper spray?
14
A.
It's available in the car.
15
Q.
Same circumstance, in the duty bag or
11
16
I keep it in my duty bag. And where do you keep your duty
bag?
somewhere in the car?
17
A.
Supposed to be in the glove box.
18
Q.
Anything else that's available to you
19
either in the -- on your belt or in the duty box or
20
in the glove box or the duty bag that would be used
21
to augment a use-of-force?
22
A.
I don't believe so.
23
Q.
Flashlight.
24
A.
Yes, sir.
25
Q.
Can that sometimes be used as a weapon if
Do you have a flashlight?
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needed?
2
A.
I don't know.
3
Q.
Have you ever been trained to use a
4
flashlight as a -- police flashlight as a weapon?
5
A.
I don't remember.
6
Q.
But you carry one for use as a flashlight?
7
A.
Yes, sir.
8
Q.
Are there times when you will change the
9
items that you have with you depending upon the
10
nature of a call, or is it usually the case that the
11
things that you have on your person stay on your
12
person and the things that are available to you in
13
your vehicle stay in your vehicle unless during the
14
call you have a need to go and get them, or -- do you
15
understand my question?
16
A.
No.
17
Q.
Let me try to ask a better one.
18
If you hear over dispatch and you are
19
responding to a call that invokes the possibility
20
that the people involved are going to be armed, are
21
you going to bring on your person different weapons
22
than you would if the call were one in which you were
23
not expecting that the participants would be armed?
24
Some traffic accident, for example, would be, I
25
think, a call that wouldn't typically imply that
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there may be someone armed at the scene.
2
So my question is, depending on the nature
3
of the call, are you going to change -- before you
4
even get out of your vehicle, are you going to change
5
what's on your person or are you always going to be
6
carrying the same items on your person?
7
A.
I always -- I always carry the same items
8
on my person --
9
Q.
Okay.
10
A.
-- but some officers that are rifle
11
trained, like you said, if there's someone with a
12
gun, they show up with a long gun.
13
Q.
I understand that.
And I'm trying to ask
14
narrow questions in a very big world.
And I
15
understand.
16
different weapons because they're trained to do
17
different things, correct?
There are officers that are trained with
18
A.
Yes, sir.
19
Q.
You mentioned rifle training, and you're
20
not that type of officer, as I understand, correct?
21
Or are you?
22
A.
Yes.
23
Q.
Oh, you are, okay.
24
your vehicle?
25
A.
Do you have rifle in
No.
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But if you were given that duty assignment
you would be trained to do that?
3
A.
Be "trained"?
4
Q.
Well, you mentioned rifle training.
Not
5
every officer is certified to be able to use a rifle
6
in the course of their duties; is that true?
7
A.
Yes, that's true.
8
Q.
Are you?
9
A.
Just recently.
10
Q.
Okay.
All right.
So as a result, given
11
the circumstances of a call, you could bring a rifle
12
and you would be trained to use it if needed?
13
A.
It depends on the availability.
14
Q.
Okay.
15
So that's something that's
apportioned out back at the station?
16
A.
Yes, sir.
17
Q.
Were you at the time -- you said "just
18
recently," were you at the time of the event that
19
brings us here today, April of 2011, rifle trained?
20
A.
No.
21
Q.
And I'm going to touch on things here and
22
there.
23
that falls apart.
24 25
I try to be as linear as I can, but sometimes
Do you recall -- you were there on the call at some point during the events of April 18th,
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1
2011, correct?
2
A.
Yes, sir.
3
Q.
Okay.
Do you recall at any time during
4
your presence on scene that night whether any of the
5
officers had a rifle available to them?
6
A.
I don't remember.
7
Q.
Did you see any officers with a rifle that
8 9
I don't know.
night, to your recollection? A.
I believe the rifle training was pretty
10
new at that time.
11
trained at all.
12
Q.
I don't know if anybody was rifle
All right, fair enough.
And I don't mean
13
to divert course, but I would quite honestly forget
14
if I didn't ask you then.
15
What I'd like to do next is we're going to
16
pivot to the reason we're here, which is the events
17
of the early morning of April 18th, 2011.
18
already told me that you were called to that scene at
19
some point in the night, correct?
20
to that scene?
21
A.
Yes, I responded.
22
Q.
And the scene -- maybe I should set it up
And you've
Yes, you responded
23
more appropriately, is an interaction in Northside in
24
which our client was ultimately shot and killed by
25
Officer Mitchell.
Do you recall the scene that I'm
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talking about, the call that I'm talking about?
2
A.
Vaguely, sir.
3
Q.
And I was searching for the address.
4
call was actually to 1833 Chase Avenue, here in
5
Cincinnati.
6
The
What I'd like to have you do and maybe
7
we'll take a quick break here to get this set up is
8
listen to a little radio traffic from that night and
9
hopefully allow you to allow me to understand it more
10
than I can.
11 12
MR. NAPOLITANO:
take a quick break and set that up.
13 14 15
So if we could, we'll
(Off the record between 12:17 and 12:37.) BY MR. NAPOLITANO: Q.
Officer, what we're going to do now is
16
play for you an audio file that has been provided to
17
us by the City, and I've placed before you a
18
transcription of what is contained on that audio file
19
that was also provided by the City.
20
MR. NAPOLITANO:
We are going to deem the
21
audio file as Exhibit 1, Plaintiff's Exhibit 1.
22
That file name in its electronic form as
23
provided to us for identification purposes is
24
04-1811-6187A, and it is a WAV file.
25
transcription, which we'll deem marked as
And the
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1
Exhibit 2, bears Bates numbers at the bottom
2
right-hand corner, and those Bates numbers are
3
04203 through 04231.
4
Q.
So Officer, what we're going to do is
5
begin playing this audio file, and then I will be --
6
and you can -- if you wouldn't mind, please follow
7
along in the transcription.
8
certain points to ask you questions about what we're
9
hearing and your understanding of those -- the vents
I will be stopping at
10
that are occurring in conjunction with what we're
11
hearing.
Okay?
12
All right.
So let us begin.
(Playing audio.)
13
Q.
I'm going to pause our recording right
14
there.
We've heard a couple quick statements, and
15
then there are periods of quiet.
16
first questions I had listening to this was -- my
17
understanding is this is on what I think is
18
identified as channel 5.
19
you?
20
Department? A.
22
the district.
23
Q.
25
Does that mean something to
What's channel 5 for the Cincinnati Police
21
24
I guess one of the
On radio it's our district, pertains to
Okay.
What does it mean, that it pertains
to the district, what does that denote? A.
It denotes the -- that channel is assigned
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to that particular district. Q.
Okay.
So channels go to districts, so
channel 4 is District 4?
4
A.
Yes, sir.
5
Q.
Okay, got it.
And when you're on patrol,
6
are you listening just to channel 5 when you're on
7
patrol for District 5?
8
A.
Yes, sir.
9
Q.
Are you listening to just channel 5?
10
A.
Yes, sir.
11
Q.
Meaning they'll roll through each of the
12
Some people scan.
districts?
13
A.
Depends on what your assignment is.
14
Q.
And I think I indicated this, but to make
15
sure I clean it up if I didn't.
16
is, from our understanding, from the early morning of
17
April the 18th of 2011, and it is radio traffic from
18
channel 5.
19
silent, is that uncommon or are there periods of
20
silence over radio traffic when you're in your patrol
21
car and you're on channel 5?
22
question?
23 24 25
A.
This radio traffic
The portions of the recording that are
Do you understand my
In between radio calls -- I mean, I
don't -- I guess not entirely. Q.
When you've got your radio on channel 5 on
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a night patrol --
2
A.
Yes, sir.
3
Q.
-- you know, a third shift patrol, are you
4
always hearing or very frequently hearing voices
5
or --
6
A.
It's infrequent.
7
Q.
-- will there be long periods of silence?
8
A.
There could be.
9
Q.
So it doesn't seem unusual to you that
10
there would be long periods of silence here in this
11
recording?
12
there have been calls redacted for one reason or
13
another, that may be that there was nothing said
14
during that long period of time?
That doesn't indicate, for example, that
15
A.
That could be, yes, sir.
16
Q.
Again, a lot of this is our trying to get
17
an understanding of what we're hearing and what we've
18
got in front of us.
19
now.
20 21 22
(Playing audio) Q.
25
All right, that's at page three, what we
just heard?
23 24
So I'm going to continue this
MR. HARDIN: Q.
All right.
But there is a portion prior to that that
we're trying to get to, and I don't -- we just heard
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a minute of silence.
2
Is it on here?
MR. LAUFMAN:
I would assume so.
I don't
3
recall specifically hearing it, but that's the
4
transcription presumably of the audio provided.
5
Both were from the City.
6
MR. NAPOLITANO:
Well, let's just work off
7
the transcription for a minute.
8
Q.
9
transcription.
Let's look at page two of the On page two, there is -- it begins
10
with -- I want to start where it says 5430 -- 5498.
11
Do you see that?
Is that a unit number?
12
A.
I believe so.
13
Q.
Is that referring to a vehicle or an
14
officer?
15
A.
Should pertain to an officer.
16
Q.
And so, I mean, in terms of just walking
17
us through this, I think I wrote down at one point in
18
reviewing some things, your officer number is 5424,
19
at least it was at the time, is that right?
20
A.
I don't know.
21
Q.
Does that change shift to shift or does
22
that stay --
23
A.
Sometimes, yes, sir.
24
Q.
Okay.
25
sit here today?
So what's your officer number as we
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1
A.
5334.
2
Q.
And do you know, for example, on the night
3
of -- or the early morning of April 11th of -- I'm
4
sorry, April 18th of 2011 who 5498 was, who officer
5
5498 was?
6
A.
No, sir.
7
Q.
Maybe as we go through this we'll be able
8
to figure that out.
9
Advise -- then it says, this next portion
10
talks about advise the supervisor we've got a report
11
of a cutting.
12
side of the building at 4352 Virginia.
13
it all, but do you see where I am in the transcript?
It's a basement apartment on the left I won't read
14
A.
Yes.
15
Q.
There's a couple things I want to point
16
out.
It says they're armed with a sword and a
17
suspect for number one is Bones, a male white in his
18
'40s, 5'9", 5'10", 190, black clothing.
19
subject, female, white in her 20s, about 120.
20
doesn't know what she was wearing.
21
weapon with them in an unknown direction from 4352
22
Virginia.
23
morning of April 18th, 2011?
The other He
They took the
Do you recall hearing that traffic on the
24
A.
No, sir.
25
Q.
Do you recall responding to that or a
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similar call on that morning?
2
A.
I don't remember.
3
Q.
We then see discussion of more officers at
4
5350, copy, and then 5350 responds that he is
5
en route.
6
night?
Do you know who Officer 5350 was on that
7
A.
No, sir.
8
Q.
I then see turning the page signal 30.
9
What does signal 30 mean?
10
A.
A warrant.
11
Q.
So in looking at this transcript, does
12
that mean that somebody has a warrant, somebody they
13
were going to be looking for had a warrant?
14
A.
I don't know if they were looking for him.
15
Q.
Well, I just read you that description.
16
Does the signal 30 relate to the description of one
17
or either of the individuals, the "Bones" person or
18
the female?
19
A.
Not necessarily.
20
Q.
So this could just be other traffic that's
21
occurring?
22
A.
It could have been, sir.
23
Q.
And then it says you can add his control
24
number to the file, and there's a control number
25
given.
What's a control number?
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It's something that's assigned by the
2
county to anybody that's been stopped and receives a
3
citation or arrested in Hamilton County.
4
Q.
Okay.
5
A.
It's like an alternate I.D. number.
6
Q.
So that would go along with the signal 30,
7
that would be more information relative to the signal
8
30?
9
A.
Yes.
10
Q.
Then we see 33, were they possibly in a
11
van maybe.
12
also reading further down that's been quite a while
13
though.
14
that were being discussed in the call?
15
conversations about those potential suspects?
16 17
A.
I think 75 had someone stop him.
I see
Does that traffic relate to the individuals
It doesn't appear to be.
Are these
It appears to be
something totally different.
18
Q.
Okay.
Reading down further, you see
19
wasn't related to what 33's on.
20
What is 33?
33 is another unit?
21
A.
That appears to be another car.
22
Q.
Okay.
And so what we have here appears to
23
be some moving back and forth between officer numbers
24
and unit numbers; is that's what's going on.
25
5350.
I'm 35.
I see
So that's officer 5350 saying they're
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car 35; do I understand that correctly?
2
A.
No.
3
Q.
What does that mean?
4
A.
It means that he's on scene.
5
Q.
Okay.
So 5350 saying I'm 35 means that
6
he's on scene, presumably responding to the call
7
regarding the male and the female.
8
your interpretation of this?
9
A.
I don't know.
Would that be
There's some different
10
stuff going on here, District 1, McMicken, they don't
11
seem to correlate.
12 13 14 15
Q.
Where do you see something to sug -- oh,
the District 1 statement? A.
I saw something.
I think I saw something
earlier that said McMicken.
16
Q.
And that's in District 1?
17
A.
Part of it runs in District 5.
18 19 20
It runs
between District 5 and District 1. Q.
So you can't tell whether 5350's on at
this event or some other event?
21
A.
Right now, no.
22
Q.
Then I see 5442, you can make me 26 assist
23
on this and also send me the cut person.
24
interpret that for me?
25
A.
Can you
What does that mean?
I guess 5442 was on a different call for
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1
service, and when he says make me 26 assist, that he
2
assisted another officer on a call for service and
3
then he wants to be sent to the cut person.
4
Q.
And I'll represent to you later, I think
5
that cut person is an individual by the name of Jason
6
Weller, who was contacted by the police that evening
7
and then later interviewed.
8
interaction with Jason Weller?
Have you had any
9
A.
I don't know who that is, no, sir.
10
Q.
Okay, fair enough.
And did you ever
11
respond to the cut person, the person that was cut on
12
this evening or allegedly cut on this evening?
13
A.
I don't think I did, sir.
14
Q.
I'm going to try and go back to the audio
15
and see if we can pick it up.
16 17
(Playing audio.) Q.
That 42 copy, I believe, is right at the
18
bottom of page three, so right now we're audio and
19
paper are the same.
20
A.
Okay.
21
Q.
When she's saying 42, I have been informed
22
by a potentially knowledgeable party that what we
23
might have going on here is some shorthand; that when
24
we look at these numbers for example, 5342 or 5342,
25
that that's a combination of some other information.
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1
So the 5 is District 5.
The 4 would perhaps be a
2
shift, and then the last two digits, 42 in this
3
instance, would be the particular officer.
4
that right?
Do I have
5
A.
Yes, sir.
6
Q.
My source is a reliable one, at least on
7
this topic.
8 9
So when we start seeing 42, 36, 35, those are shorthand designations for particular officers
10
responding.
So when we see now 42 copy, do you know
11
who 42 was on this morning?
12
A.
No.
13
Q.
I'm going to play the audio again.
14 15 16
(Playing audio.) Q. issued 98.
I'm pausing it there.
We just heard 42 is
Is 98 another officer?
17
A.
Yes, sir.
18
Q.
And when she's asking is that your unit,
19
what does she mean by that?
20
find out?
What is she trying to
21
A.
I don't know.
22
Q.
Because unit would usually refer to the
23
vehicle, right?
24
A.
To the person.
25
Q.
Maybe she couldn't hear who was coming
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1
across on the radio perhaps.
2
continue.
3 4 5
All right, we'll
(Playing audio.) Q.
Do you recognize the voice that we just
heard?
6
A.
Yes.
7
Q.
Whose voice is that?
8
A.
Sounded like Sergeant Mitchell.
9
Q.
So at the point in the transcript we're
10
talking about is 5350.
It's certainly going to be
11
non-life-threatening.
This is the first sentence.
12
And that at least in the transcript is identified to
13
5350, so we can assume that the voice of 5350 is that
14
of Sergeant Mitchell?
15
A.
It appears to be.
16
Q.
Is it the case that sergeant's numbers end
17
in zero?
18
A.
Sometimes, yes, sir.
19
Q.
All right, going to continue with the
20
audio now.
21 22
(Playing audio.) Q.
That portion that we just heard, the
23
transcript begins 5350, it's going to be a male
24
white, female white suspect and continues from there.
25
Is that also Officer Mitchell's voice?
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1
A.
Yes, sir.
2
Q.
Sergeant Mitchell, I apologize.
3
A.
It appears to be, yes, sir.
4
Q.
And he's giving a description here of the
5
two suspects; would you agree?
6
A.
Yes, sir.
7
Q.
We'll continue.
8 9
Yes?
(Playing audio.) Q.
I'm going to pause that.
It says 94, I
10
got them, Chase and Florida.
Does that mean that
11
unit 94 has the two suspects in his sight or custody
12
at streets between Chase and Florida?
13
A.
It appears to be in his sight, yes, sir.
14
Q.
And do you know whose voice that was?
15
A.
Sounded like Kneller.
16
Q.
All right, continue.
17 18
(Playing audio.) Q.
Okay.
That voice again, 5350 on the
19
transcript, be advised, they might be in possession
20
of about a foot-long Bowie knife.
21
Mitchell?
Is that Sergeant
22
A.
Yes, sir.
23
Q.
And he is putting that out on channel 5,
24
correct?
25
A.
Yes, sir.
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And so any of the officers who are
2
listening to channel 5 should be hearing what
3
Sergeant Mitchell just said, is that correct?
4
A.
It's possible, yes, sir.
5
Q.
It's going to be broadcast over channel 5,
6
correct?
7
A.
Yes, sir.
8
Q.
And in your experience, officers who are
9 10
on patrol on channel 5 are listening to channel 5 or at least scanning --
11
A.
Yes.
12
Q.
-- and including channel 5?
13
A.
Yes, sir.
14
Q.
Dispatch then says 94 copy, which means --
15
what does that mean?
16
unit 94 something there?
17 18 19 20
A.
She's talking to 94 and telling
It appears to be that she's asking him if
he understood what he just said. Q.
Right, that the people that are in his
sights may have a Bowie knife.
21
A.
Correct.
22
Q.
And what we hear in response to that is --
23
I'll play the audio.
24 25
(Playing audio.) Q.
We then hear a different voice that says
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1
98, I'm with him, we copy.
First of all, do you
2
recognize the voice who identifies himself as 98?
3
A.
Not right now.
4
Q.
But what I think this means is, I'm
5
starting to learn, is officer 98 is with officer 94
6
and is acknowledging that both of them heard what
7
Sergeant Mitchell said, that these two folks may be
8
in the possession of a foot-long Bowie knife.
9
you agree with that?
Would
10
A.
It appears to be.
11
Q.
Do you recall hearing this that night?
12
A.
No.
13
Q.
Do you recall knowing when you
14
responded -- and I'm jumping ahead a little bit --
15
that the call involved suspicion of somebody being in
16
possession of about a foot-long Bowie knife?
17
A.
No, sir, not right now, no.
18
Q.
All right.
19
Fair enough.
Let's just take
a step back from the audio for a minute.
20
Obviously, when you're in your vehicle
21
you're hearing this over the radio, is that right,
22
that's in the car?
23
A.
Yes, sir.
24
Q.
Do you also have the ability to hear that
25
when you get out of the car?
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1
A.
Yes.
2
Q.
Is it on your uniform somewhere?
3
Is it on
your radio up by your shoulder?
4
A.
Yes, sir.
5
Q.
And is it -- is it the procedure of the
6
Cincinnati Police Department that you have that radio
7
on at all times when you exit your vehicle?
8
A.
I don't know what the procedure is.
9
Q.
Is that how you've been instructed or
10
trained as to what to do when you get out of your
11
vehicle, you have your radio on?
12
A.
As far as I know, it's always on.
13
Q.
You've always had it on?
14
A.
Yes, sir.
15
Q.
All the officers you've been around have
16
always had it on?
17
A.
I hope so.
18
Q.
So it doesn't matter whether they're
19
inside their vehicle or outside their vehicle,
20
they're still going to hear this channel 5 traffic,
21
is that correct?
22
A.
They should, yes.
23
Q.
Continue to play the audio.
24 25
(Playing audio.) Q.
We hear another voice that identifies as
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1
50, and 50 says I'm also 35, which I now understand
2
to be on scene with the suspects.
3
that voice?
Did you recognize
4
A.
Yes.
5
Q.
Whose voice was that?
6
A.
It appeared to be Sergeant Mitchell.
7
Q.
So Mitchell has now arrived with 94 and
8
98, at least according to the radio traffic; is that
9
accurate?
10
A.
11 12
It appears to be, yes, sir. (Mr. Laufman left the conference room.)
Q.
As we talked about before, as we're
13
listening to this audio, there are -- there are times
14
when there are short pauses and then there are times
15
when there are longer pauses, but this is -- as far
16
as you can tell, occurring in real time, meaning that
17
the time between these statements is the actual
18
amount of time between the statements on the night
19
these events happened?
20
A.
I don't know.
21
Q.
Okay.
Well, would your recollection be
22
that there would be any reason for the time to be any
23
different in the recording of the radio traffic
24
versus how the radio traffic came across on the night
25
of the incident?
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1
A.
2
interpretation.
3
Q.
Okay.
4
A.
Somebody's interpretation that put it on
5 6
In my opinion, I believe it's open to
What do you mean?
paper and then the recording. Q.
Understood.
I'm asking more about just
7
the timing.
We hear the statements being made one
8
after the other, sometimes there's a longer period of
9
time between them, sometimes there's a shorter period
10
of time in between them; do you have any reason to
11
think that that's not how it happened on the night in
12
question?
13 14 15 16 17 18
A.
Right now I don't, no, sir. MR. HARDIN:
Could we hold you to your
promise that we take a 15-minute break? MR. NAPOLITANO: in time?
Absolutely.
I apologize.
MR. HARDIN:
Where are we
Yes, let's do that.
It doesn't sound like we're
19
going to complete -- we're going to get into
20
another deposition today.
21
MR. NAPOLITANO:
No, it doesn't.
This is
22
a good stopping point if that meets everybody's
23
schedule.
24
here.
25
Let's go ahead and take our break
(A recess was taken from 1:15 until 2:00.)
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1
(Plaintiff's Exhibit 2 was marked for
2
identification.)
3 4
BY MR. NAPOLITANO: Q.
We are back after taking a short lunch
5
break.
Officer, I'm going to pick up where we were
6
with the recording just to refresh recollections.
7
are in the transcript portion.
8
of page 4, and we have just concluded with the line,
9
98, I'm with him, we copy, and dispatch has responded
We're at the bottom
10
with okay.
11
also 35 with the suspects is where we concluded.
12
we're just ending the bottom of page four.
13
And I think also 50, I'm also with -- I'm
thing, which is at the top of page 5, so I'll go
15
ahead and start the audio again.
16
(Playing audio.) Q.
18
something.
19
that out.
20
A.
21
That was really fast; I know.
It's 42 and
The transcriptionist wasn't able to make Were you able to make it out at all? No, sir. (Playing audio.)
22
Q.
Stopping there.
23
A.
Um-hmm.
24
Q.
-- agreed?
25
So
And I think we're going to hear the next
14
17
We
5436 is another unit?
It seems to me in hearing this, this is
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1
somebody that is back at the scene of the person that
2
claimed to have been cut, advising that the
3
individual, the victim, wanted the fire squad to come
4
look at the wounds.
5
correctly?
Am I understanding that
6
A.
That's what it sounds like.
7
Q.
Okay.
8
A.
Not right off.
9
Q.
Could that have potentially been officer
10
Stavale.
11
you?
Do you know who that voice is 5436?
Does that sound like Officer Stavale to
12
A.
Can you play it again?
13
Q.
Sure, I can try.
14
(Playing audio.)
15
Q.
Able to make it out that time?
16
A.
No, sir.
17
Q.
Okay.
18
We're going to start
the audio again.
19 20
Fair enough.
(Playing audio.) Q.
5350, we've got shots fired, 1833 Chase.
21
That was Officer Mitchell advising dispatch that he
22
had fired shots; is that accurate?
23
A.
No.
24
Q.
Okay.
25
A.
He just said shots fired.
What's wrong?
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5/23/2014 65 Q.
That someone fired shots, I apologize.
He's advising that somebody fired shots; yes?
3
A.
It appears to be, yes, sir.
4
Q.
Do you recall hearing that?
I mean, I'm
5
assuming -- not even assuming anymore -- it's not
6
something that happens every day given your testimony
7
earlier, so do you recall hearing that over your
8
radio that night?
9
A.
I probably did.
10
Q.
Do you know, were you responding to the
11
scene at the point that that came across?
12
A.
I don't exactly remember what I was doing.
13
Q.
There were -- you had other folks ask you
14
about this before, shortly after the event happened,
15
and there's a summary that I'm reading from.
16
couple of the CPD investigative specialists who were
17
looking at the matter shortly after the shooting
18
happened through the homicide division and they
19
summarized your interview with them, and one of the
20
things they say in that summary is, upon arriving on
21
Chase Avenue, Officer Dawson heard the sound of two
22
shots being fired.
23
recall hearing the shots?
Do you recall that?
24
A.
I believe so, yes, sir.
25
Q.
Okay.
A
Do you
So you were in, presumably then,
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1
en route and getting very close to the scene at the
2
time the shots were fired?
3
A.
Sounds like it.
4
Q.
What were you responding -- because I
5
didn't -- we've played the radio traffic up to that
6
point, and we haven't heard your voice.
7
A.
Um-hmm.
8
Q.
And it seems that the other officers that
9
are responding to the scene are telling dispatch that
10
they're en route or that they're responding, but you
11
didn't.
Can you explain why that is?
12
A.
I don't know.
13
Q.
Okay.
Is it required that you tell
14
dispatch when you're going to be responding to a
15
scene or only if you're the first or second on the
16
scene?
17 18 19
A.
If you're dispatched, I believe you're
required to respond. Q.
But if you're not dispatched and you head
20
to a call, you're not required to let dispatch know
21
that you're on your way?
22
A.
To my knowledge, no.
23
Q.
Well, let's talk about that.
You don't
24
have to remember everything, but can you tell me in
25
relation to the ultimate scene where Mr. Hebert was
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1
shot, do you know where you were at the time the
2
shots were fired?
3 4 5
A.
Were you on Chase?
I don't know.
I'm assuming I should have
been -- sounds like I was pretty close. Q.
Did you see any of the event occur?
Did
6
you see the rifle fire -- I'm sorry, the pistol fire
7
or anything like that?
8
A.
I don't remember.
9
Q.
Did you see Mr. Hebert at all before he
10
was shot?
11
A.
I don't think so.
12
Q.
You told the investigating detectives
13
that you believe that you were still in your car when
14
the shots were fired.
15
was parking and I was going to get out with them,
16
meaning, I assume, the other officers.
17
square with your recollection today?
18
A.
And you told them, I think I
Does that
I don't remember exactly that
19
conversation, but if that's what was said immediately
20
after, probably.
21
Q.
But I mean, you know, if your recollection
22
has changed at all, this is certainly not a "gotcha."
23
If you remember something differently or more
24
vividly, that's fine.
25
A.
I don't remember anything differently.
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Okay.
Do you recall what you were going
2
to do before the shots were fired?
3
intention upon heading to the scene?
4
MR. HARDIN:
What was your
I'm going to object to the
5
form of the question, but you can go ahead and
6
answer if you know.
7
A.
No, I don't know.
8
Q.
Let me try a better question.
9
You were responding to the scene, you were
10
either on Chase or close by at the time the shots
11
were fired, so we can be reasonably certain that you
12
were not responding because shots were fired,
13
correct?
14
A.
Correct.
15
Q.
You then would have been responding to the
16
prior call of the two individuals, one of whom was
17
suspected to be carrying a knife, correct?
18
A.
Correct.
19
Q.
Do you have any recollection of what your
20
purpose was for responding to that call?
21
A.
No.
22
Q.
I have not heard that you were dispatched
23
to respond to that call in any of the audio that
24
we've listened to, and to your recollection you were
25
not dispatched to respond to that call, correct?
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1
A.
I don't remember.
2
Q.
Would there have potentially been a
3
different way of dispatching you or would it have
4
come over channel 5?
5
A.
6
the car.
7
Q.
Tell me about that.
8
A.
There's a button that you can push that
9
Sometimes you hit an acknowledgement in
acknowledged the call for service without making it
10
audible.
11
Q.
Is it on the MDT?
12
A.
Yes, sir.
13
Q.
Okay.
14 15 16 17
So when the call comes in over the
audio, it also posts on the MDT? A.
For other cars.
For the cars that were
dispatched. Q.
I see.
And then you, if you're available
18
and in the area, can indicate by somehow interfacing
19
with the MDT that you also are going to be heading
20
that way?
21
A.
Yes, that's possible.
22
Q.
Okay, got it.
23
This was not the first time, I would
24
assume, that you had ever responded to a call in
25
which there was a potential that an individual was
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armed with a weapon; is that accurate?
2
A.
Yes, sir.
3
Q.
Okay.
And I want to talk a little bit
4
about how you are -- how you were trained to respond
5
to such an event or in your experience had responded
6
to such an event in prior circumstances.
7
When you were previously called to a scene
8
in which someone was suspected of having a knife, has
9
that ever happened or had that ever happened at the
10
time?
11
A.
I'm sure it has.
12
Q.
Okay.
What would your protocol be?
Would
13
you approach the individual with a weapon drawn or
14
would you approach the individual as you would any
15
other individual, with due caution?
16 17 18
A.
I don't know because each situation is
different. Q.
Okay.
Well just take me through this one.
19
And again, I'm not trying to get you to indicate what
20
you would have done on this night, but I'm trying to
21
get a sense as a police officer with several years'
22
experience at the time, you know, what you would do
23
or what you would expect to do under these
24
circumstances.
25
You know, you arrive on the scene, you see
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1
individuals matching the description of suspects, one
2
of whom is alleged to have a knife.
3
out of the car with your weapon drawn?
4
A.
I don't know.
5
Q.
Okay.
Would you get
Would you approach the individuals
6
on your own or would you wait for other officers to
7
arrive?
8 9 10
A.
I don't know.
It depends on the
situation. Q.
Okay.
Well, assume the facts as I give
11
them to you, okay, and let's work through that
12
situation.
13
You are arriving on the scene where there
14
has been a dispatch that there are two individuals,
15
one of whom may have a fairly sizeable knife.
16
are first to arrive on scene.
You
Okay, are you with me?
17
A.
Yes, sir.
18
Q.
Do you get out of your car if you are the
19
only officer on scene.
Yes?
20
A.
Yes.
21
Q.
Do you radio for backup?
22
A.
I don't know if anybody else has been
23
dispatched or not.
24
Q.
Assume that they have not.
25
A.
Yes.
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1
Q.
Do you wait for backup to arrive before
2
you approach?
3
A.
I don't know.
4
Q.
If you approach, do you approach with your
5
weapon drawn?
6
approach with your firearm drawn?
And by "weapon," let me be -- do you
7
A.
It depends on the distance I'm already at.
8
I don't know.
9
what I would do on that particular one -- set of
Each run is different, so I don't know
10
circumstances.
11
Q.
You're within 20 feet of the individuals.
12
A.
Um-hmm.
13
Q.
There's a male and a female, one of them
14
is seated on the ground, the other is standing and
15
has a dog.
16
A.
Um-hmm.
17
Q.
Would you approach with a weapon drawn?
18
A.
I don't know.
19
Q.
Okay.
20
A.
I don't know what facts are missing.
21 22
Why not?
What facts are missing? Just
individually how you would handle the situation. Q.
So can we safely assume that it is not a
23
situation in which you would absolutely approach with
24
a weapon being drawn?
25
A.
There's nothing routine.
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If the individual, as you get closer,
2
remains on the ground, would you engage the person in
3
conversation at that point or would you take other
4
measures before engaging them in conversation?
5
A.
I don't know what that situation was.
6
Q.
Okay.
7
Are you familiar with what I refer
to as a Terry pat or a Terry stop and frisk?
8
A.
Yes, sir.
9
Q.
What does that mean to you?
10
A.
If you have reasonable suspicion that a
11
crime has been committed or about to be committed and
12
you have probable cause to assume that that person
13
may have a weapon on their person, according to the
14
situation, you can check them for weapons.
15
Q.
And how -- and I understand every
16
situation's a little different, but how would you
17
check a person for weapons under those circumstances?
18
A.
I don't know.
It depends if -- depends on
19
that person, depends on their demeanor, and who's
20
with me, who's not with me.
21
Q.
Well, assume that you are -- you are on
22
your own, you have encountered the individuals as
23
I've described them, and you believe that one of them
24
has a knife, would you initiate a Terry frisk without
25
other officers on the scene?
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1
A.
I don't know.
2
Q.
Well, what would be a reason that you
3 4 5 6 7
would do so? A.
That you would do so.
I don't know.
I don't -- it depends on
the set of circumstances of that particular event. Q.
I understand.
But I'm asking you to
assume certain circumstances.
8
A.
I can't make that assumption, sir.
9
Q.
Well, this is where depositions are
10
different than real life.
For today's purposes, I'll
11
submit to you that you can, okay?
12
bound by the circumstances as I've defined them for
13
you --
I am going to be
14
A.
Yes, sir.
15
Q.
-- but if you would please just assume
16
that this is what you know, okay?
17
So what you know is you're the first on
18
the scene; you're the only person on the scene; you
19
have the call as we've described it, an individual
20
potentially having a substantially large knife; you
21
have one person, the male on the ground; you have the
22
female standing and she has a dog.
23
assuming that that is what you know, would you
24
initiate a Terry stop and frisk?
25
A.
I don't know.
All right,
It sounds like I wouldn't.
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5/23/2014 75 Q.
Why wouldn't you, or understanding you
2
equivocated a little bit, what would be your reason
3
that you would not?
4
A.
I don't -- I just would -- I would feel
5
more comfortable doing a Terry stop on somebody with
6
other officers present.
7
Q.
Okay.
Now, I'm going to change the facts
8
a little bit, and I'm going to give you another
9
officer there with you.
10
Okay?
In fact, I'm going to
give you two other officers that are there with you.
11
So you and two fellow officers have
12
responded to the call as I've described it.
13
now within a reasonable distance of these people,
14
within let's say ten feet, you and the other two
15
officers.
16
stop and frisk?
17
A.
I don't know.
18
Q.
Why not?
19
A.
I don't know who's contact cover.
20
Q.
Let's assume you're contact cover.
21 22
Would you at that point initiate a Terry
Would
you initiate a stop and frisk? MR. HARDIN:
23
objection.
24
saying.
25
You are
There's going to be an
I think you misunderstand what he's
MR. NAPOLITANO:
Oh, I apologize.
I
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1
probably do.
2
Q.
What's a contact cover?
3
A.
It depends on who's having the contact
4
with the person and who's actually --
5
Q.
In the cover position?
6
A.
-- and the other officer would be
7 8 9
covering, you know, watching over everything else. Q.
Okay.
differently.
Well, let me ask the question
You've got three officers; you're one
10
of them.
11
You have one officer who's the contact, one officer
12
who's the cover, and the third officer is performing
13
the other role that you identified.
14
would one of those three, and I'm not going to ask
15
you to identify it for the point of this question,
16
which of the three, but would one of those three
17
initiate the stop and frisk?
18
All the facts are as I've described them.
MR. HARDIN:
Would it --
There's going to be an
19
objection, calling for speculation, but go
20
ahead and answer if you know.
21
A.
I don't know.
22
Q.
If you were -- well, in that circumstance,
23
we've got -- let's deconstruct these three officers.
24
We've got contact, that's the one engaging in
25
conversation or communication with the suspect?
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1
A.
Yes, sir.
2
Q.
Is it traditionally the contact officer
3 4
who would be doing a stop and frisk in an encounter? A.
No.
I mean, I don't know.
Like I said,
5
each situation's different in how that situation is
6
dictated by the alleged suspect and the officer.
7
Q.
At some point during the interaction,
8
would you expect that a Terry stop and frisk would be
9
performed in the situation where you understand the
10 11 12 13
call to involve the possession of a knife? A.
I don't know.
It depends on the
situation. Q.
Based on your 14 years of experience, have
14
you ever been involved in a call where there has been
15
a suspicion of an individual in possession of a
16
weapon where there has not been a stop and frisk
17
performed at some point during the encounter?
18
(Mr. Laufman entered the conference room.)
19
A.
I don't remember.
20
Q.
Can you remember circumstances where there
21
have been stop and frisks performed under those type
22
circumstances?
23
A.
Not specifically, no, sir.
24
Q.
So you can't tell me and you can't
25
remember any situation in your 14 years where there's
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1
been an individual suspected of possessing a weapon
2
and you've been involved in the call and there's been
3
a stop and frisk performed; am I understanding that
4
correctly?
5 6 7 8 9 10 11
A.
I'm sure there has been, but I can't
remember specifics. Q.
In fact, there probably has been in most
occasions, is that accurate? A.
I don't know if "most" would apply, but
I'm sure there would be situations that would apply. Q.
Would you give me many, in many encounters
12
like that where you have been dispatched to a call or
13
you are responding to a call with an individual with
14
a weapon that a Terry stop and frisk is involved?
15
A.
Can you repeat the question again?
16
Q.
Sure.
Is it your experience that in many
17
of these circumstances in which you have been
18
involved where there is a call that indicates there
19
is a suspicion that one of the individuals is in
20
possession of a weapon, that during that encounter a
21
Terry stop and frisk of the individual is performed?
22
A.
I'm sure it has.
23
Q.
Okay.
You mentioned before the cover, the
24
contact, and what's the third position in that
25
scenario that you mentioned?
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1
A.
I don't believe I mentioned a third one.
2
Q.
You said whatever the third one is doing,
3
and I don't know what you meant by that.
4
A.
I don't remember that.
5
Q.
If you have an encounter such as I've
6
described it, and you have three officers on scene,
7
one would be the cover, one would be the contact; is
8
that accurate?
9
A.
Yes, sir.
10
Q.
And what would the third one be?
11
A.
He would be cover also.
12
Q.
And so help me understand that.
The first
13
officer is covering -- the first cover is covering
14
the contact?
15 16 17
A.
Somebody would be contact, and then
anybody else would be cover. Q.
I see.
Okay.
Is there ever a situation
18
in which it's appropriate to have two contact
19
officers in a three-officer scenario?
20
A.
Would it be appropriate to have --
21
Q.
Two contact officers in a three-officer
22
encounter?
23
A.
I don't know.
24
Q.
Have you ever been involved in a situation
25
where you've got a three-officer encounter with a
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individual and two contacts?
2
A.
I'm sure there's been multiple officers,
3
but there's different individuals that you're dealing
4
with and I'm sure then there would be another officer
5
contact -- in contact with another individual.
6 7
Q.
Okay.
So you can have a contact for each
of the individuals involved in the encounter?
8
A.
That's possible, yes, sir.
9
Q.
Okay, makes sense.
But is it accurate to
10
say that it is inappropriate or not part of training
11
to have more than one contact for one individual at a
12
time?
13
A.
You said a part of training?
14
Q.
Training or your experience or how you
15
perform your duties as a Cincinnati Police officer.
16
A.
It wouldn't be uncommon.
17
Q.
So it would not be uncommon for City
18
police officers to act as dual contacts with respect
19
to a single individual in a call?
20
A.
That's possible.
21
Q.
Possible, yes.
22
A.
I would say it's not uncommon.
23
Q.
What's the -- help me understand, what is
Uncommon or not uncommon?
24
the purpose of having an officer designated as the
25
contact?
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1
A.
There's no real designation.
2
Q.
Well, you certainly understand those
3
designations --
4
A.
Yes.
5
Q.
-- and I assume that's part of your
6
training as a peace officer to understand those.
7
What is that role; what is the function of the
8
contact officer?
9
A.
Just speaking to the individual and
10
possibly to have physical contact, such as a Terry
11
search or something like that or frisk.
12
Q.
But if anybody can do it, why designate
13
one officer as the contact?
14
purpose, doesn't it?
It seems to defeat the
15
A.
No.
16
Q.
Well, help me understand why.
17 18
Where am I
going wrong here? A.
There's no real right or wrong.
It's just
19
that sometimes they can depend on who had contact
20
first --
21
Q.
Sure --
22
A.
-- with them, and then they assume the
23 24 25
contact officer. Q.
Can there be a risk of confusion to the
individual that's being interacted with if there's
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1
more than one officer that's asking them questions
2
and giving them commands?
3
A.
No.
Because another officer may have
4
knowledge or facts of something else that the other
5
officer may not have that they bring to the
6
situation.
7
Q.
So your understanding, is it fair to say,
8
that there isn't consideration in designating a
9
single officer as a contact officer in order to
10
ensure that the individual with whom the officers are
11
interacting understands to whom he or she should be
12
responding?
13
A.
Can you repeat that?
14
Q.
Is that what you're telling me?
15
Sure.
Are you telling me that there is
16
not a consideration that a single officer be
17
designated as a contact person in order to prevent
18
confusion on the part of the person who is being
19
contacted as to who they should be responding to,
20
whose orders they should be following?
21
part of the consideration?
22 23
A.
I think that the consideration lies within
the scope of that event.
24 25
Is that not
Q.
Okay.
Explain to me what you mean by
that.
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It could be changing.
3
Q.
Well, the contact officer can change,
4
correct?
5
A.
Yes.
6
Q.
Okay.
7
A.
But I'm talking about even with the person
2
You know, I don't
know.
8
who they're talking to, you know, they can say or do
9
something that could change that situation also.
10
Q.
Okay.
Would you at least allow that there
11
should really be only one officer at a time giving
12
instruction to an individual during contact?
13 14
A.
I don't know.
It depends on that event,
Q.
Let's get back to the night in question.
sir.
15 16
Let's get back to the audio.
17
where the shots fired, shots took effect call goes
18
out.
19
that that was Sergeant Mitchell's voice that you
20
heard on the recording?
I can replay it for you, but do you recognize
21
A.
I believe it was.
22
Q.
Okay.
23
I'll go ahead and restart the
recording.
24 25
We are at the point
(Playing audio.) Q.
Two shots fired took effect.
What does
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"took effect" mean?
2
A.
They had an effect to stop a threat.
3
Q.
And then start fire, what does that mean?
4
A.
Start the fire department.
5
Q.
For what purpose?
6
A.
To administer some type of medical aid.
7
Q.
Based on your experience as a Cincinnati
8
officer, when is it appropriate to dispatch or start
9
fire, when is it appropriate to have a squad called
10
to a scene, under what circumstances?
11
A.
It could be under any circumstance, sir.
12
Q.
Okay.
13
A.
Somebody requests it or if you feel like
14
there's a need for somebody to be assisted by the
15
fire department or emergency medical technician, you
16
know.
17
Q.
Okay.
And so here we have shots being
18
fired, they've taken effect, and the officer is
19
calling because there's an anticipated medical need;
20
is that fair?
21
A.
22 23
Yes, sir. (Playing audio.)
Q.
Now, that's Officer Mitchell -- I'm sorry,
24
I keep saying officer -- Sergeant Mitchell again
25
saying have fire, rescue unit.
What's a rescue unit?
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Rescue unit, to my knowledge, are the more
advanced medical technicians.
3
Q.
Have you ever called for a rescue unit?
4
A.
I'm sure I have.
5
Q.
Can you give me an example of a situation
6
where you would call a rescue unit as opposed to a
7
standard fire call?
8
A.
Something life-threatening.
9
Q.
Implicit in this is some threat to
10
somebody's life and they need that level of care
11
dispatched?
12
A.
It's possible, yes, sir.
13
Q.
Well, I mean, that would be your
14 15
understanding from having heard this radio traffic? A.
16 17 18
Yes, sir, according to the transcript. (Playing audio.)
Q.
I'm going to hazard a guess that you know
who that is?
19
A.
Sounds like me.
20
Q.
Okay.
21
So I guess we can assume that
you're 24 on that night?
22
A.
Okay.
23
Q.
And it sounds like what you're doing is
24
setting up the perimeter for lack of a better term;
25
is that fair?
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1
A.
Well, just no cars coming through.
2
Q.
So you don't want pedestrian traffic
3
coming through?
4
A.
Or vehicle traffic at that time.
5
Q.
Because we know there's been shots fired
6
in the area?
7
A.
Yes, sir.
8
Q.
Can you tell or do you recall from hearing
9
that whether you were in your vehicle at the time
10
that you made that call or whether you were out on
11
your mobile mic?
12
A.
I believe I was outside the car.
13
Q.
Do you know whether your radio and your
14
audio for the recording devices in the car, the
15
camera and the audio, are they the same microphone --
16
A.
No.
17
Q.
-- do you know?
18
They're different
microphones?
19
A.
Yes, sir.
20
Q.
Do you know whether you had your video and
21
audio engaged at the time you made that call?
22
A.
I don't remember.
23
Q.
We have your video here that we'll show in
24 25
a little bit but it doesn't have any audio on it. A.
Okay.
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5/23/2014 87 Q.
And one of the things I'm trying to figure
2
out is whether there's a separate audio we need to
3
try and get our hands on.
4
Have you reviewed cruiser video in your
5
experience, not from this night, but from any night
6
in the past?
7
A.
Yes, sir.
8
Q.
When you review that video, does it have
9
audio along with it?
10
A.
Sometimes.
11
Q.
Do you know when it would and when it
12
wouldn't?
13
A.
These cars malfunction all the time, so
14
sometimes you might have audio and video and
15
sometimes you might have audio without the video.
16
Q.
Is it -- am I accurate that the recording
17
is one recording, that there is not a video recording
18
and an audio recording but they're one recording, but
19
sometimes the audio doesn't work; is that what you're
20
telling me?
21
A.
Yeah, the cameras malfunction all the
23
Q.
But let me --
24
A.
You're right, there should be just one
22
25
time.
single recording.
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One single recording that should be, if
everything is working --
3
A.
As far as I know.
4
Q.
So you don't have the ability to just turn
5
on video and not audio, correct?
6 7
A.
then it automatically turns on.
8 9 10
When you engage the lights on the car,
Q.
And if everything is working
appropriately, to your knowledge, it should be recording video and audio simultaneously?
11
A.
It should.
12
Q.
So as far as you know, if video's engaged
13
and audio is not recording, it's not because of
14
something the officer has done, it is a malfunction
15
of some kind?
16
A.
17
I don't know.
Like, I know the mics are
in a holder above -- next to the camera.
18
Q.
Okay.
19
A.
Inside the car charging.
20
Q.
And you have to take them with you as you
22
A.
Yes, if it -- depends on the call for
23
service.
24
Q.
21
25
Inside the vehicle?
exit?
So if you've got audio -- if you've got
video running but you don't pull the microphone,
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1
you're going to get the video and you're going to get
2
whatever audio is in the car?
3
A.
Sometimes.
Sometimes it will work without
4
it being disengaged and sometimes, you know, like I
5
say, they work and you'll never know.
6
coin toss.
7 8
Q.
It's like a
But it's certainly not going to go with
you unless you take it?
9
A.
Correct.
10
Q.
Okay.
So if you're going out of your car
11
and it's a traffic stop and you're doing a DUI check
12
and you're trying to figure out if somebody's been
13
drinking and you've got your video on, if you don't
14
grab that microphone, then that microphone's not
15
going to pick up your conversation out at the other
16
car?
17
going to be picking up whatever it can hear inside
18
the vehicle where it's located?
Am I understanding that correctly?
It's only
19
A.
Sometimes.
Sometimes it picks up outside.
20
Q.
Depending on how loud it is outside?
21
A.
Yes, sir.
22
Q.
Okay.
Do you recall whether you grabbed
23
the microphone when you eventually exited your
24
vehicle on the night of this event?
25
A.
I don't recall that, sir.
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You said it depends on the situation.
2
What's the situation when you are typically going to
3
bring your audio microphone with you?
4
call would that be?
Give me an example.
5
A.
Traffic stop.
6
Q.
So I picked a good example.
7 8 9
What kind of a
Any others that are fairly common where you would bring your microphone with you? A.
As you stated before, like OVI, and
10
depends if you want to get something on microphone, I
11
mean, if you want to record something, something
12
specific.
13 14 15 16 17
Q.
On a call like this, would you have taken
your microphone with you if you got out to respond? A.
I don't know.
It's just a -- it depends
on how fast something occurs, if you have time. Q.
Well, let's assume, again -- that's the
18
beauty of what we're doing here.
19
had time, is this the kind of call, suspects
20
potentially having a knife, suspected in an
21
aggravated assault, would you have brought your
22
microphone with you when you went to interact with
23
those individuals?
24
A.
Probably not.
25
Q.
Why not?
Let's assume you
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It just didn't seem -- probably not deemed
necessary. Q.
Okay.
Is there -- you used the term
4
"necessary," I guess, for your own purposes or is
5
there a point at which having a recording is
6
necessary?
7
A.
8
their rights.
9
Q.
10
I like to record like somebody being read
So if you were going to take somebody into
custody, at that point you might --
11
A.
Yes, sir.
12
Q.
-- go and get the microphone or bring them
13
close to the microphone and make sure there's a
14
record of you providing them with their Miranda
15
rights?
16
A.
Yes, sir.
17
Q.
Understood.
But for just an initial
18
interaction, other than something like an OVI
19
suspicion or traffic stop, you wouldn't commonly
20
bring your microphone?
21
A.
Probably not.
22
Q.
Even in a situation where a potentially
23 24 25
violent felony was committed? A.
I don't know.
It depends on that
individual officer, what he perceives.
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Okay.
Does it change if you're one of
2
many officers and there are other officers who are
3
already on scene, would you be more or less likely to
4
be recording if you're responding officer in a
5
supporting role?
6
A.
I don't know.
7
Q.
Do you know of any training or protocol
8
given by the City of Cincinnati as to the recording
9
of events in circumstances where there are more than
10 11 12 13
two or three officers on a scene? A.
I'm sure it's occurred, but I don't know
of any specifics. Q.
You don't know of any procedure where, you
14
know, the additional responding officers have a
15
responsibility to record an event because they're not
16
going to be taking a primary role in the ongoing
17
interaction; there's nothing like that that you're
18
aware of?
19
A.
I don't know.
20
Q.
Okay.
21
All right.
Let's go back to our
audio.
22 23
I can't recall it.
(Playing audio.) Q.
Okay.
We just heard the line that said
24
5424 if you send me two more I'll need a standby car
25
from each district.
That's you again?
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1
A.
Yes, sir.
2
Q.
What does a standby car do?
3
trying to get here?
4 5
A.
Sounds like just to get some cars there,
assistance.
6 7
Q.
For what purpose?
What were you
interested in making sure you have --
8
A.
I don't remember.
9
Q.
What is the each district?
10
What were you
Why does it
matter that it's from different districts?
11
A.
They have people that are assigned as
12
standby car to help out in case of different
13
circumstances, to help out -- to help other districts
14
out.
15 16 17
Q.
So you're saying you need two of them, so
you're saying give me one from each? A.
I don't know.
That's what it says here,
18
but I don't remember what the understanding was or
19
my -- why I said it.
20
Q.
And, again, what would a standby car do?
21
You just didn't really know, you just knew there
22
might be a need for other officers?
23
A.
Yes, sir.
24
Q.
So if there were roles to be filled, you
25
wanted other officers to be on the scene to fill
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them?
2
A.
Yes.
3
Q.
We hear a siren in the back of it, did you
4
hear it?
5
A.
I believe I did.
6
Q.
Can you tell if that's a police siren or
7
squad?
8
A.
I don't know.
9
Q.
If I play it again, can you tell the
10 11
difference? A.
12 13
No. (Playing audio.)
Q.
We heard 5300 and 35, that means someone
14
else is on the scene.
15
double zero would be?
Do you know who, I guess,
16
A.
That's the lieutenant.
17
Q.
And my understanding is Lieutenant -- I
18
think it's Milek, is that how he pronounces it?
19
A.
Yes, I believe so.
20
Q.
My understanding is Lieutenant Milek is on
21
the scene that night.
22
Lieutenant Milek's voice?
23 24 25
A.
Could you tell if that was
Not right now I can't.
If I could hear it
again. Q.
I think he speaks again coming up.
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1
(Playing audio.)
2
Q.
Is 14 dispatch?
3
A.
14 is another car, another police car.
4
Q.
I'm sorry.
5 6
He's saying I'm 14 and I'm
en route, whoever 14 is? A.
7
Correct. (Playing audio.)
8
Q.
I'm going to stop there.
9
going on there.
10
now make it out?
There's a lot
That's double zero again.
Can you
Is that Lieutenant Milek's voice?
11
A.
Sounds like it, yes, sir.
12
Q.
Let's go through what he's talking about.
13
He says essentially we've got the streets blocked
14
off and they're going to put some crime scene tape
15
up; I can understand that much.
16
a log of visitors.
17
A.
We're going to take
Explain to me what that means.
There's a sheet where you take a -- you
18
take down every officer's name that enters the crime
19
scene.
20
Q.
Okay.
So from that point forward, anybody
21
who's coming into that area, until that area is
22
cleared is going to be written down on a sheet, any
23
officer?
24
A.
They should be.
25
Q.
Assuming they follow protocol and don't
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1
just come in --
2
A.
Well, there could be people coming in from
3
different angles and other sides that might not make
4
it, but ideally it should.
5 6
Q. car 14.
Understood.
All the officers are okay per
Do you know who car 14 was that night?
7
A.
No, sir.
8
Q.
But somebody said the officers on scene
9
were unharmed following the shooting, right?
10
A.
Is that what it says here?
11
Q.
It says um, all the officers are okay per
12
car 14.
That's how I read that.
13
A.
Okay.
14
Q.
Have fire notify us they can come in now.
15
Yes.
Does that mean that fire had been staged?
16
A.
I don't know.
17
Q.
I didn't see any indication or hear any
18
indication that they had staged fire.
19
call for fire; we had talked about that.
20
didn't -- there wasn't any indication that they'd
21
been staged.
22
I heard the But it
So I guess my question to you is in a
23
situation like this, is it just automatic that
24
they're going to stage until they're allowed to come
25
in?
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5/23/2014 97 A.
In a situation like this, I don't know if
we called for them. Q.
I don't know.
Do you have any reason to know why they
were then being given the all clear to come in? A.
That could have been something somebody's
just used to saying. Q.
And then notify 14.
Will let the
8
situational occurrence notification list.
9
understand that at all.
I don't
What does that mean?
10
A.
I don't know.
11
Q.
What's the situational occurrence
12 13 14 15 16 17 18 19 20
notification list? A.
I don't know.
I think there's a protocol
set in place for what the supervisors do. Q.
Okay.
Meaning in a situation where
there's an officer-involved shooting? A.
I'm sure there is.
Yeah, I think there
is, but I don't know exactly what that would be. Q.
Because you haven't been involved in that
that often?
21
A.
No.
22
Q.
And is 14 -- do we know who 14 is?
We
23
know he's en route, but for some reason they're
24
notifying 14 of that.
25
A.
If it's car 14, if it's just a double
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1
digit, then it might be the -- at the time, I think
2
they call it the night chief.
I'm not sure.
3
Q.
Like the officer in charge kind of thing?
4
A.
Overall.
5
Q.
The night chief, you said?
6
A.
Yes.
7
Q.
So the highest ranking officer on shift?
8
A.
I don't know about -- it depends.
9 10 11
could be a lieutenant also.
It
So I don't know about
highest ranking, but -Q.
All right.
Somebody charged with the
12
responsibility to be the head honcho on shift
13
regardless of rank?
14
A.
Over the whole department at that time.
15
Q.
All districts?
16
A.
Yes.
17
Q.
Got it.
18
So there's a potential that the
night chief is en route?
19
A.
Potentially, yes.
20
Q.
Do you know who the night chief was on
21
this night?
22
A.
No, sir.
23
Q.
Or this morning?
24
A.
No, sir.
25
(Playing audio.)
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5/23/2014 99 Q.
I'm going to stop there.
Lieutenant Milek
2
asks dispatch, do you have a canine working.
3
what would they need a canine for?
4
A.
I don't know.
5
Q.
What do canine officers do?
Why --
I mean, I
6
know they search for drugs, they search for -- it's a
7
search dog, correct?
8
A.
Correct.
9
Q.
Okay.
With all due respect to the officer
10
with the dog, it's the dog that matters in this
11
situation, right?
12
A.
Yes, sir.
13
Q.
That's what they're looking for is the
15
A.
I don't know.
16
Q.
We have a discharge of -- what I'm trying
14
dog?
17
to understand is, is there a ballistics need for the
18
canine or would this be a search dog?
19
A.
I don't know.
20
Q.
In the other situations in which you've
21
been involved where there's been a shooting of any
22
kind, not just officer, just, you know, shots being
23
fired, is it common to have a canine arrive on the
24
scene?
25
A.
I don't know.
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5/23/2014 100 Q.
Have you ever seen canines in situations
where there's been shootings?
3
A.
I don't remember if there was.
4
Q.
Do you remember a canine on scene --
5
because there was a different canine -- do you
6
remember a canine officer on scene the night of this
7
event?
8
A.
I don't remember, sir.
9
Q.
Go ahead and continue playing.
10 11 12
I don't remember.
(Playing audio.) Q.
Now, they're explaining they need it for
an article search.
What's an article search?
13
A.
It could be property or weapons.
14
Q.
Okay.
So in this case, they need the
15
canine to look for probably either property or more
16
likely weapons, right?
17
A.
18 19 20
Contraband, yes, sir. (Playing audio.)
Q.
I've stopped it for a second.
is the canine unit.
I think 07
Would you read it that way?
21
A.
Yes, sir.
22
Q.
Do you know who that canine officer is?
23
A.
It sounds like Ader.
24
Q.
Ader?
25
A.
I think.
I can't remember.
I don't know.
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1
(Playing audio.)
2
Q.
Just so that I can show you how much I've
3
learned.
4
understand it, now saying that they're a district 3
5
unit, they have switched over to channel 5 and
6
they're asking where they're needed.
7
that right?
That's unit 42 -- or officer 42, as I
8
A.
Yes, sir.
9
Q.
Okay.
Am I getting
Because as I understand it,
10
normally they would have been on channel 3, but now
11
they're on 5 and they're listening in and they're
12
ready to be dispatched, correct?
13
A.
Correct.
14
Q.
Got it.
15
Thanks.
(Playing audio.)
16
Q.
Okay, Lieutenant Milek says we've got
17
everything locked down.
18
that?
19
A.
Do you know what he means by
I'm assuming he said have crime scene tape
20
put up, and then I guess as the cars were put in
21
place on the street in the immediate vicinity, things
22
were -- I don't know.
23
Q.
Okay.
I guess that was my interpretation
24
but I wanted to make sure it wasn't like a term of
25
art in there.
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1
It seems he's suggesting we've got what we
2
need right now, things are secure, and then he's
3
directing the things that they can do outside the
4
immediate scene; is that a reasonable interpretation?
5
A.
Yes, sir.
6
Q.
He references by name Sergeant Moore.
7
Who
is Sergeant Moore?
8
A.
I don't know.
9
Q.
And he says he's the district -- he can be
10
the district OIC right now.
11
charge?
OIC is officer in
12
A.
Yes, sir.
13
Q.
Is that maybe the night chief; this
14
Sergeant Moore can be the night chief while I'm busy
15
here?
16
A.
No.
17
Q.
Can't make out what that means?
18
A.
Well, he runs district operations.
19 20 21
The
night chief job would be for departmental operations. Q.
Smaller group, got it.
Okay.
So is it -- I guess is what he's saying
22
here is, I'm busy at this scene, I, Lieutenant Milek,
23
am going to be busy at the scene, Sergeant Moore will
24
be taking on the responsibility as the, essentially,
25
district chief --
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1
A.
Taking his place.
2
Q.
-- taking Lieutenant Milek's place?
3
A.
District commander, yes, sir.
4 5
(Playing audio.) Q.
Okay.
I want to focus in on that last
6
part there.
7
traffic.
8
are we looking for anybody else.
9 10
Car 14 says hold all non-emergency
Where can I meet 5300, who is Milek, and
Does that help you at all identify who car 14 would be?
11
A.
It sounds like Captain Butler at the time.
12
Q.
This designation, or I'm sorry, this
13
instruction to hold all non-emergency traffic, is
14
that something in addition to -- it seems to me
15
that's already been done.
16
There's two possibilities as I see it;
17
either he just wasn't aware that that had already
18
been done or that's something else in addition to
19
what's already been done.
20
is or can you tell me what he means by that?
21
A.
Can you tell me which it
Sometimes they'll hold non-emergency
22
traffic to get out the pertinent information for that
23
event.
24
Q.
Got it.
We're talking radio traffic?
25
A.
Radio traffic.
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1
Q.
Not car and pedestrian traffic?
2
A.
Right, just radio traffic.
3
Q.
So he's issuing an instruction, hey, we're
4
going to go only emergency traffic on this radio
5
channel until further notice?
6 7 8
A.
Particularly radio traffic that deals only
with that event. Q.
9
That call.
Got it.
Thank you.
(Playing audio.)
10
Q.
PCS.
11
A.
Police communications section.
12
Q.
What would they be called for?
13
they be called?
14
A.
I don't know.
15
Q.
Are they the part of the police department
16 17 18
What is PCS?
that communicates with media and so forth? A.
That's the dispatchers.
Those are the
dispatchers, the call takers.
19
Q.
PCS?
20
A.
Yes, sir.
21
Q.
Okay.
22
Why would
So why would the lieutenant be
asked to call PCS?
Like, what would they --
23
A.
I don't know.
24
Q.
We've spoken to others, with other police
25
agencies, and they'll have phone lines that are
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1
unrecorded, off the radio, if there are conversations
2
that are for whatever reason necessary to be off of a
3
recorded lines.
4
that in Cincinnati?
Are you familiar with anything like
5
A.
No.
6
Q.
For example, there was a police agency
7
that had what they call a channel 2, which was
8
actually a radio channel that was an unmonitored,
9
unrecorded radio channel.
10
Is there such a thing for
Cincinnati?
11
A.
There's something that is C on the radio
12
if you can switch to that.
13
recorded, though.
14
the public.
15
Q.
I think it's all
It's just not broadcast open to
Maybe that's what I meant.
16
yes.
17
pick it up on your scanner and so forth.
18
I misspoke.
It's not --
A.
It's a non-broadcast.
You can't
I believe that's the assumption, but I
19
think anything through the air waves can be picked
20
up.
21
Q.
Is subject --
22
A.
Yeah.
23
Q.
Are there times when, because of that,
24 25
telephone calls will be made? A.
I don't know.
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5/23/2014 106 Q.
Have you ever called PCS, for example,
2
instead of making radio communication while you're on
3
shift?
4
A.
Me, personally, I don't believe so.
5
Q.
Have you ever -- I don't need specifics,
6
but have you ever been aware of other officers doing
7
that?
8 9 10 11
A.
I've heard them ask for a supervisor to
call, yes. Q.
And that's a way of communicating that's
not over the air, it's in some other --
12
A.
Land line.
13
Q.
Land line, telephone line?
14
A.
Yes, sir.
15
Q.
Okay.
16
again.
17 18
I'm going to play the recording
(Playing audio.) Q.
Colonel Whalen's been notified.
At the
19
time, what role did Colonel Whalen have with the
20
police department?
21
A.
22 23 24 25
I believe he was an assistant chief. (Playing audio.)
Q.
So Lieutenant Milek asks that a car meet
him at the White Castle, I guess? A.
That's not Lieutenant Milek.
That's the
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sergeant. Q.
Sergeant Mitchell asks that
somebody meet at the White Castle.
4 5
I'm sorry.
Is there a White Castle right close to the scene?
6
A.
No, that's not Sergeant Mitchell.
7
Q.
I've gotten my numbers mixed up.
8
is 50.
I'm sorry.
Mitchell
Who's 30?
9
A.
Sounds like Sergeant Woellert.
10
Q.
Is he connected to this or is he just
11
obeying the emergency radio traffic-only edict?
12
A.
I don't know.
13
Q.
To your recollection, was there a White
14
Castle's anywhere near this scene?
15
A.
There's one not that far.
16
Q.
Do you have any idea why a sergeant would
17
need somebody to meet him there?
18
A.
No.
19
Q.
Who did you say you thought that sounded
20
like, understanding you're not sure?
21
A.
Sergeant Woellert.
22
Q.
W-o-l-l-e-r-t?
23
A.
I think it's W-o-e-l-l-e-r-t.
24
Q.
Thank you.
25
Do you know anything about anything
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occurring at White Castle that night? A.
3 4
No.
I don't recall anything, sir.
(Playing audio.) Q.
He's asking for a supervisor from a
5
different district, and he specifically asks for the
6
supervisor from District 2.
7
night supervisor from District 2 was at that time?
8 9 10
A.
Do you know who the
He's saying dispatch me two, as in, I'm
assuming, 2. Q.
Oh, two additional supervisors from two
11
districts, two different districts, as opposed from
12
District 2?
13
A.
14 15
I believe so. THE WITNESS:
Is it all right if I take a
break and use the restroom?
16
MR. NAPOLITANO:
17
(A recess was taken from 3:12 until 3:24.)
18 19
Sure.
BY MR. NAPOLITANO: Q.
I'm going to actually stop our audio
20
there.
It sounds like we've got other district
21
officers arriving on scene and being told to stand
22
by, and actually, the transcript and the audio
23
portion would conclude with some discussion of
24
setting up a media staging area.
25
the end of the transcription on page 10?
Do you see that, at
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1
A.
Oh, yes.
2
Q.
And do you recall, was media on scene that
3
night?
4
A.
I don't remember, but I'm sure they
5
probably were.
6
Q.
7
did you?
8
A.
No, sir.
9
Q.
And let's -- we can put this aside now.
You didn't speak to anybody in the media,
I don't believe so.
10
I'm not going to have you go through it anymore.
11
Thank you for indulging -- this helped me speak more
12
cogently about things.
13
Let's return to your recollection of the
14
events at the scene.
15
you make the requests that we've discussed for
16
vehicles being placed at the end of certain roads.
17
You get out of your car at some point.
18
You arrive, you hear the shots,
What do you do when you get out of your
19
car?
What do you remember, the first thing you did
20
when you got out of your vehicle?
21
A.
I believe I sought cover.
22
Q.
When you say "sought cover," I want to
23
make sure I'm understanding, cover for your own
24
safety or to cover other officers?
25
A.
My own safety.
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Because you weren't sure whether there was
still going to be active fire going on?
3
A.
Possibly, yes, sir.
4
Q.
Okay.
At some point, I assume you were
5
either privy to the radio traffic or reasonably
6
convinced that it was clear to leave cover.
7
you do after you left cover?
8
A.
I don't remember.
9
Q.
Well, let's do this:
What did
Tell me the first
10
thing you remember after leaving cover, first thing
11
that you're doing on scene.
12
A.
I don't remember.
13
Q.
My understanding is, at some point there
14
was a search conducted for the knife that was
15
ultimately taken into evidence.
16
that?
17 18
A.
Are you aware of
I'm not aware of any search that was
conducted.
19
Q.
20
correct?
21
A.
I don't believe so.
22
Q.
Did you witness anyone conducting a search
23
for the knife?
24
A.
25
So you weren't a part of any search,
I don't think I was.
I don't remember anybody conducting a
search for the knife.
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5/23/2014 111 Q.
Do you remember there being a knife on the
scene?
3
A.
I remember being told about a Bowie knife.
4
Q.
From what we heard on the radio traffic?
5
A.
Yes, sir.
6
Q.
Did you ever see a knife on the scene that
7
night or at any point since then?
8
A.
I don't remember seeing one.
9
Q.
Do you recall anybody having discussed a
10
knife beyond the radio traffic about the Bowie knife
11
while you were on scene that night or that morning?
12 13
A.
I believe I heard somebody mention it was
a big knife.
14
Q.
Anything else?
15
A.
No, sir.
16
Q.
Did you discuss the shooting with anybody
17
on the scene?
18
A.
I don't believe so.
19
Q.
Did you overhear any discussions among
20
anyone on scene about the shooting, what happened,
21
how it happened, anything like that?
22
A.
No, sir, I don't remember.
23
Q.
What is an MVR?
24
A.
That's the tape, the video.
25
Q.
How long were you on scene; do you recall?
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1
A.
No, sir.
2
Q.
How did it come -- how did it come to be
3
that you left the scene?
4
somewhere else or did you decide to leave on your
5
own; how did that happen?
6 7
A.
Did somebody send you
I remember going down to CIS, but I don't
remember how I got down there.
8
Q.
And for the record, CIS is what?
9
A.
Criminal investigative section, I believe.
10
At 824 Broadway.
11
Q.
And was that where you were interviewed?
12
A.
Yes, sir.
13
Q.
Were you asked to go down to CIS by
14
someone?
15
A.
I'm sure I probably was.
16
Q.
Do you remember who that was?
17
A.
No, sir.
18
Q.
Would it have been a ranking officer of
19
some kind?
20
A.
Yes, sir.
21
Q.
Do you remember talking to anyone on the
22
scene that night?
23
A.
No, I don't remember, sir.
24
Q.
Did you see Mr. Hebert that night, the man
25
that was shot?
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1
A.
I believe I did.
2
Q.
Did you walk over to where he was?
3
A.
Yes.
4
Q.
Tell me what you remember seeing.
5
A.
I just remember somebody laying out on the
6
sidewalk, but not in detail.
7
detail about it.
8 9 10 11 12 13
Q.
I can't remember in
Did he appear to be a live at the point
that you saw him, or was he dead? A.
To my recollection, I believe he was dead,
appeared to be dead. Q.
Were emergency personnel there at the time
that you saw him?
14
A.
I don't remember.
15
Q.
Was anybody tending to him at the time you
16
saw him?
17
A.
I don't remember, sir.
18
Q.
Did you offer him any assistance?
19
A.
I don't remember doing so.
20
Q.
Do you remember anybody else being around
21
him, maybe within a five-foot radius at the time that
22
you were within a five-foot radius of him?
23
A.
I don't remember.
24
Q.
All right.
25
Did you see the female that
was on scene at any point that night?
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1
A.
No.
I don't remember her at all.
2
Q.
Did you see the dog that was with them?
3
A.
I don't believe so.
4
Q.
Other than -- when you went to see or went
5
over by Mr. Hebert, were you on the street; were you
6
on the sidewalk; were you on the grass in between the
7
street and the sidewalk; or were you somewhere else?
8
A.
I don't remember.
9
Q.
Why did you go over there?
10
A.
I don't remember why.
11
Q.
Was anybody asking you to go over there?
12
A.
I don't remember.
13
Q.
Did you have any intention of doing
14
anything once you got there?
15
A.
I don't remember.
16
Q.
Did you take an active role in the scene
17
in any way, other than as we've discussed to this
18
point?
19
A.
Only from what's on the transcript and the
20
tape about, you know, requesting cars to shut down
21
streets.
22
Q.
That's what I was referencing.
23
A.
Outside of that?
24
Q.
Yes.
25
A.
That's my recollection --
Is there any --
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1
Q.
-- role that you took on at the scene?
2
A.
Outside of that, that's my recollection.
3 4
I don't remember. Q.
The understanding of the circumstances was
5
that there were four officers that were engaged with
6
Mr. Hebert at the time of the shooting.
7
my word.
8
Kneller, Officer Johnson and Officer Stavale.
9 10
"Engaged" is
That would be Officer Mitchell, Officer
Did you interact with any of those individuals in any way on the night of the event?
11
A.
I don't remember doing so.
12
Q.
Have you had any interaction about this
13
event with any of those individuals since the night
14
that it happened?
15
A.
Yes.
16
Q.
Could you tell me that, about each
17
circumstance?
18
A.
Pertaining to that event?
19
Q.
Pertaining to that event, yes.
20
interacting with them.
21 22
Not just
You've had lots of interaction with them, right?
23
A.
Yes.
24
Q.
They're patrol officers on your same
25
shift?
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1
A.
Yes, sir.
2
Q.
But since the night of this event, have
3
you had any interaction with those four -- any of
4
those four officers pertaining to the event?
5
I mean, discussions or communications in any other
6
way.
By that
7
A.
Not that I can recall.
8
Q.
You've not had any casual conversations
9
with any of them about -- this is a fairly
10
significant event; there haven't been any
11
conversations about hey, how you doing?
12 13
A.
Yeah, I'm sure that probably happened,
hey, how you doing.
14
Q.
Tell me what you remember.
15
A.
I don't.
16
Q.
Okay.
Has anyone told you what happened
17
in the moments leading up to the shooting of David
18
Hebert?
19 20 21
A.
Outside of what I've read in this
transcript, no, sir. Q.
So at no point, other than having read
22
materials that have been put before you today, were
23
you told of the events leading up to the shooting of
24
David Hebert; is that accurate?
25
A.
Not that I can remember, sir.
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Did you read about it in the newspaper or
hear about it on the television?
3
A.
I probably did.
4
Q.
Was there a briefing or some kind of
5
formal acknowledgement of the circumstances at any
6
point by any of your superiors?
7
A.
Not that I remember, sir.
8
Q.
Nothing was covered in a roll call or some
9
similar kind of event after it happened?
10 11
A.
Something formal, I don't believe so.
If
it was -- I don't remember anything formal.
12
Q.
Other than the interview that we talked
13
about previously that apparently occurred that
14
morning and was conducted by Specialist Hilbert and
15
Specialist Goering, were you interviewed at any other
16
time regarding the incident, the call that brings us
17
here today?
18
A.
I don't believe so.
19
Q.
And other than any discussions you may
20
have had with legal counsel, have you had any
21
discussions about the incident that brings us here
22
today, other than with the two officers that I just
23
mentioned, Specialist Hilbert and Specialist Goering?
24 25
A. did.
I don't believe so, sir.
I don't remember any.
I don't think I
I think that was the
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most formal interview. Q.
I'm going to have you look at one more
3
thing here.
4
Exhibit 3, and this is what has been --
5
(Off the record.)
6
Q.
We've got what will be marked as
Deemed marked as Exhibit 3, but this is a
7
video clip, and this is a very, very long number.
8
is 06328-20110418-03-08-37-00-2.
9 10
MR. NAPOLITANO:
Go off the record for a
second.
11 12
(Playing video.) Q.
We'll pause it.
We see on the screen what
13
I'll call telemetry, some information.
14
right-hand corner appears to be a time signature,
15
3:08:33 a.m., I presume?
Top
16
A.
Um-hmm.
17
Q.
Is that time consistent with -- sorry.
18
that time consistent with your recollection of the
19
time you were responding to this event?
20 21
It
A.
I don't remember.
Is
Sometimes those cameras
are off by hours.
22
Q.
Okay.
It was early in the morning,
23
correct?
24
A.
I don't remember about what time it was.
25
Q.
It was 4/18/11, the date?
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1
A.
That's what I've been told.
2
Q.
You don't recall that as we sit here?
3
A.
No, sir.
4
Q.
Okay.
5
We see CPD06328; is that your car
number?
6
A.
That's the vehicle equipment number.
7
Q.
I see.
8
A.
For that car, particular vehicle, yes,
Q.
And you were not assigned a single car,
9
sir.
10 11
Meaning this camera?
you take different cars on different nights?
12
A.
13
Yes, sir. (Playing video.)
14
Q.
Now, here, we see what appears to be --
15
and what I'm going to do to try and help us in the
16
future is we're looking at the transcript in
17
conjunction with what this video is.
18
I'm not going to refer to -- yes, I will.
19
going to utilize the time signature on the screen,
20
okay?
At the very -We're
21
A.
Okay.
22
Q.
Recognizing that it may or may not
23
represent the actual time --
24
A.
Yes, sir.
25
Q.
-- okay?
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1 2
But just for purposes of identification as we look at this months from now.
3
I've paused it at 03:08:35 in the morning,
4
so 3:00 a.m., 8 minutes, 35 seconds.
5
at the scene at this point?
Have we arrived
Can you tell?
6
A.
It appears so.
7
Q.
I see a vehicle parked in the -- across
8
the street that does not appear to be a police
9
vehicle and a tree and both of those things are
10
referenced in many of the statements, and then I see
11
a police vehicle to the right side of the screen.
12
you know whose police vehicle that is directly sort
13
of in front of the camera?
14
A.
No, sir.
15
Q.
I see what appears to be at least one
Do
16
officer in white standing in between the two vehicles
17
and near the tree.
18
make him out just from where I have it paused.
19
that accurate; you can't tell who it is?
I'm assuming you won't be able to Is
20
A.
Correct.
21
Q.
I'm going to play the video and ask if you
22
can tell me at some point who that individual is.
23
(Playing video.)
24 25
Q. on.
The individual has just turned his light
Can you tell who that is yet, that officer?
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1
A.
No, sir.
2
Q.
It looks like he's illuminating another
3
individual over here, and I'm circling him right now
4
with my cursor, but it's near the non-police vehicle.
5
Can you tell who that individual is?
6
A.
No.
7
Q.
Early on in the video, as you arrive on
8
scene, it appears you move the camera to place these
9
people in view.
10
A.
Um-hmm.
11
Q.
Did you see that?
12
A.
Um-hmm.
13
Q.
Do you recall doing that?
14
A.
No.
15
Q.
But the cameras don't move automatically,
16
do they?
17
A.
No, sir.
18
Q.
So you would agree the camera moved, so we
19
can assume you moved it, right?
20
A.
Yes, sir.
21
Q.
Can we also assume that you moved it
22
because you wanted the camera to record whatever was
23
going on in the direction of where you moved it?
24
A.
Possibly, yes, sir.
25
Q.
Now, I don't think your lights are on, at
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1
least I'm not seeing any evidence that your lights
2
are on, but you're recording?
3
A.
Um-hmm.
4
Q.
How is that possible?
5
A.
I don't know.
You can -- if you flash
6
your lights, blow your horn, the lights might come
7
on, and then sometimes you can reach up and hit the
8
actual record button.
9 10
Q.
And so you did one of those things in
order to make it start recording?
11
A.
Something.
12
Q.
And so can we also assume you thought this
13
was significant enough to record it?
14
A.
Possibly, yes, sir.
15
Q.
Well, if it's just a possibility, why else
16
would you have recorded it if it wasn't something
17
that you deemed significant enough to record it?
18
A.
I don't know.
Sometimes you just -- as
19
you asked earlier, it depends on the situation why
20
you might want to record -- turn on your recorder,
21
your audiovisual.
22
Q.
But at some point we know there have been
23
shots fired --
24
A.
Um-hmm.
25
Q.
-- right?
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1 2
MR. HARDIN:
Excuse me.
You have to say
yes or no.
3
THE WITNESS:
Okay.
4
MR. NAPOLITANO:
I apologize.
5
A.
Yes.
6
Q.
So that would probably be a good reason to
7 8
record; would you agree? A.
9
I'm going to continue to play the video.
10 11
Could be, yes, sir.
(Playing video.) Q.
I'm stopping right in here at 3:09, and it
12
appears -- I'm hearing audio in the background, kind
13
of like a metronome sound; do you hear that?
14
A.
Yes, sir.
15
Q.
It almost sounds like windshield wipers,
16
although I'm not seeing any windshield wipers.
17
you have the audio recording as well?
18
A.
19 20 21 22
25
It appears to be. (Playing video.)
Q.
I paused it again at 09:08.
continuing. A.
23 24
Did
That sound is
Do you have any idea what that sound is?
No, sir. (Playing video.)
Q.
We're at 09:17.
The officer in the middle
of the frame is holding a flashlight and he appears
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1
to now have it pointed down toward the ground.
2
you make out who that officer is?
Can
3
A.
No, sir.
4
Q.
Do you have any idea what he's pointing it
5
down at the ground looking for?
6
A.
No.
7
Q.
Do you know whether at this point you're
8
still in your vehicle or are you outside of your
9
vehicle?
10
A.
I don't know.
11
Q.
Incidentally, have you looked at this
12
video in preparation for your testimony here today?
13
A.
No.
14
Q.
Have you seen this video at all at any
15 16
time before today? A.
17 18
If I have, I don't remember. (Playing video.)
Q.
The officer moved to the middle of the
19
frame a little more -- I've stopped at 9:29 -- and
20
has now turned off his flashlight.
21
him at this point?
22
A.
23 24 25
Can we identify
No, sir. (Playing video.)
Q.
At 9:35 I've stopped the video.
It
appears he has -- the officer has grabbed a dog and
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1
is attempting to take the dog somewhere.
2
what you've seen?
Is that
3
A.
He appears to be reaching for the dog.
4
Q.
Does that help you identify the officer?
5
A.
No.
6 7
(Playing video.) Q.
At 9:46 we see another -- what appears to
8
be a portion of the background lit up by a
9
flashlight.
Do you see that?
See it right here?
10
A.
I see an illuminated area.
11
Q.
Can you tell where that's coming from or
12 13
who's doing that? A.
14
No, sir. (Playing video.)
15
Q.
At 10:00 even, two other individuals have
16
come into view.
17
I can clearly see his cap.
18
background can't make out as clearly, but it looks
19
like a person who has a white shirt on.
One appears to be a police officer. The other in the
20
A.
Um-hmm.
21
Q.
Do you know who either of those
22 23
individuals are? A.
24 25
I can't tell. (Playing video.)
Q.
They have stopped.
We're at 10:05.
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1
appear to be in the area where the first individual
2
was standing earlier.
3
that generally the area where Mr. Hebert was?
From your recollection, is
4
A.
I don't remember.
5
Q.
And by that, I'm looking at an area that
6
appears to be in the frame of the video to the right
7
of the tree that we can see here?
8
A.
Um-hmm.
9
Q.
And you don't recall where Mr. Hebert was?
10
A.
No, sir.
11 12
(Playing video.) Q.
At 10:11, we've just seen an officer
13
walking with another individual from the direction of
14
the tree toward the police vehicle that's parked in
15
the middle of the road.
16
either of those two individuals?
Can you identify any of --
17
A.
Not on that particular frame, sir.
18
Q.
Could you at any point prior to that?
19
A.
No.
20
Q.
And here's what we'll do, so I don't ask
21
you the same questions over and over again.
I'll
22
probably still pause it to ask you questions, but at
23
any point if you can identify anybody, would you let
24
me know?
25
A.
Okay.
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5/23/2014 127 Q.
2
Thanks. (Playing video.)
3
Q.
Again, I'm at 10:19, I see two officers
4
standing in that same area, kind of in the middle
5
frame of the video looking down.
6
little more of the video, does that refresh your
7
recollection at all as to where Mr. Hebert was on the
8
night that you saw him?
9
A.
10
Having seen a
No, sir. (Playing video.)
11
Q.
We're at 10:35.
There's an individual in
12
darker clothing that has come into the frame from the
13
left.
Can you tell who that individual is?
14
A.
Not yet.
15
Q.
Okay.
16 17
I'll let it play some more.
(Playing video.) Q.
The individual in dark clothing has made
18
it all the way to the area where the other officers
19
are standing at 10:41.
20
that individual at all?
Were you able to identify
21
A.
No, sir.
22
Q.
There's now at 10:41 another individual in
23
the frame and it looks a whole lot like you.
24
A.
Yeah, that appears to be me.
25
Q.
So now you've exited your vehicle and are
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heading away from it, correct?
2
A.
Yes, sir.
3
Q.
And by the way, I won't tell anyone
4 5
that you don't have your cap on? A.
6 7
Why not? (Playing video.)
Q.
Okay.
At 10:52, it appears you walked
8
over close to the police vehicle that we see.
9
were you going; what were you doing; trying to
10
Where
determine over there?
11
A.
I don't know.
12
Q.
Did anybody say anything to you when you
13
got over there?
14
A.
15 16
I don't remember if they did. (Playing video.)
Q.
At 10:56 you began to head back toward
17
your cruiser and then abruptly turned back around to
18
the other cruiser.
Can you recall why you did that?
19
A.
No, sir.
20
Q.
Did anybody holler at you or ask you to do
21 22
anything that caused you to come back? A.
23 24 25
I don't remember, sir. (Playing video.)
Q.
You picked up your step a little at 10:59.
You just kind of jogged out of the screen.
Do you
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know what you were doing?
2
A.
3
No. (Playing video.)
4
Q.
You appear to have gone over to the other
5
side of the patrol car, and it looks like one of the
6
officers -- I'm at 11:08.
7
appears to have just placed somebody in the back of
8
this patrol car.
9
that?
10
One of the officers
Do you remember anything about
A.
No.
12
Q.
Oh, sure.
13
A.
Yes, sir.
14
Q.
Do you need me to go back and replay
11
15
Can you tilt the screen down just
a -That better?
anything?
16
A.
No.
17
Q.
You don't recall what was going on with
18
this patrol car or if anybody was placed back there
19
or why?
20
A.
21 22
No, sir. (Playing video.)
Q.
At 11:18 you have come back into the frame
23
again on the extreme right-hand side.
24
agree?
25
A.
Would you
It appears so.
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5/23/2014 130 Q.
Are you talking to somebody; are you doing
anything?
3
A.
I don't know.
4
Q.
We're not hearing any audio.
Does that
5
mean that you have left your microphone in the
6
vehicle?
7
A.
8
I don't know.
The "M" indicates that the
microphone is on.
9
Q.
This "M" right next to the 031118?
10
A.
Yes, sir.
11
Q.
So it could be a malfunction that the
12 13
microphone is on, it's just not picking up? A.
14 15
That's possible. (Playing video.)
Q.
It seems like -- we're at 11:35.
There
16
are officers who are remaining in the same vicinity
17
as we had discussed before, just to the right side of
18
the tree from our vantage point.
19
this, do you have any recollection as to what these
20
officers in that general area were doing at the time?
Having reviewed
21
A.
No, sir.
22
Q.
It looks to me like they're doing a whole
23
lot of nothing.
24
with their flashlights, occasionally looking down,
25
but they don't seem to be terribly engaged in
They're just sort of standing there
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1
anything.
2
officer, so I'm willing to allow that maybe there's a
3
lot going on that I just don't recognize.
4
Now, I'm a layperson, I'm not a police
MR. HARDIN:
There's going to be an
5
objection to the comment.
6
Q.
As a police officer looking at this, can
7
you discern any police activity that's occurring
8
among these officers that we're seeing in the video?
9
A.
Looks like a lot of police activity.
10
Q.
Can you tell me what they're doing?
11
A.
But I don't know individually what they're
12 13 14
doing, sir. Q.
This gentleman with the flashlight, what
would he be doing with the flashlight?
15
A.
I don't know.
16
Q.
Do you know whether Mr. Hebert is on the
17
ground here?
18
A.
I don't know.
19
Q.
Have you seen anybody rendering any aid or
20
assistance to him at any point in this video?
21
A.
I can't see him, so I don't know.
22
Q.
Any of the individuals that you've seen,
23
any of the officers, have you seen them up to this
24
point -- we're at 3:11:35 -- have you seen any of the
25
individual officers to be taking any actions that
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1
appear to be the rendering of aid or assistance?
2 3
A.
Looking at this video, I can't see
anything other than what's in front of me.
4 5
5/23/2014 132
Q.
Okay.
And what's in front of you are some
officers, correct?
6
A.
I see one officer.
7
Q.
And I think there's another here?
8
A.
Yeah, there's another one, appears to be.
9
Q.
Do they appear to be providing aid or
10
assistance to anyone?
11 12 13 14
A.
I don't know what they're doing there,
Q.
Okay.
sir.
rendering aid or assistance?
15 16 17
But they do or do not appear to be
MR. HARDIN: A.
Objection.
I don't know.
I can't -- I don't know
what their role is there.
18
Q.
I'm not asking you if you know what their
19
role is.
I'm asking you as a police officer of some
20
experience, watching the activities of these
21
officers, can you tell me whether those activities
22
appear to be the rendering or assistance of anyone?
23 24 25
MR. HARDIN:
I'm going to object on the
basis of the quality of the videotape. MR. NAPOLITANO:
Fair enough.
You can
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1
answer.
2
A.
I can't tell according to this tape, sir.
3
Q.
I'm going to continue playing.
4
(Playing video.)
5
Q.
6
now at 11:48.
7
whether there's been any officer engaging in any
8
activity that appears to be the rendering of aid or
9
assistance to anyone?
10
A.
11
I've played another few seconds.
We're
Again, can you tell from the video
According to this video, I can't tell. (Playing video.)
12
Q.
I've stopped the video at 3:12:11.
It
13
looks to me as if someone has bent down just to the
14
right of the vehicle that is not a police vehicle.
15
It appears to be behind that vehicle on the grassy
16
area.
17
do you see that individual?
But just for purposes of a frame of reference,
18
A.
I see -- I saw somebody.
19
Q.
I'm going to back the video up a little
20
bit just so we can see that action again.
21
little bit easier to see it leading in.
22
start the video again at 3:12:02.
23 24 25
MR. NAPOLITANO:
It's a
I'm going to
Patty, would you tell me
what was the last time signature I had. (The record was read.)
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1
(Playing video.)
2
Q.
3
3:12:17.
4
down?
Okay.
I played it again.
We're now at
Did you see the individual sort of bend
5
A.
Um-hmm.
6
Q.
Is that a yes?
7
A.
Yes.
8
Q.
Can you determine what that individual is
9
Sorry.
doing?
10
A.
No.
11
Q.
There appear to be other individuals
12
standing around that individual; can you tell what
13
they're doing?
14
A.
No.
15
Q.
Do any of these individuals appear to be
16
rendering aid or assistance?
17
MR. HARDIN:
Objection for the same reason
18
as before.
19
Q.
You can answer.
20
A.
I can't tell what they're doing, sir.
21 22
(Playing video.) Q.
At 3:12:37, we have another officer that
23
has entered the video scene from the left and is in
24
the middle of the video.
25
officer is?
Can you tell who that
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1
A.
Not right now.
2
Q.
He's about to leave the scene.
3
Were you
able to identify him at any point?
4
A.
5
No, sir. (Playing video.)
6
Q.
I'm stopping at 3:12:49.
Direct your
7
attention to the area just below the indication of
8
CPD06328 on the video.
9
officer in the vicinity of the building.
There appears to be an Do you see
10
that officer?
11
A.
Yes.
12
Q.
Can you tell who that officer is?
13
A.
No, sir.
14
Q.
Can you determine what that officer is
15
doing?
16
A.
17
No, sir. (Playing video.)
18
Q.
At 3:13:01, we have an officer back down
19
on the roadway in the middle who appears to be
20
pointing in the direction of the building.
21
make out what's occurring there or who the people
22
are?
23
A.
24 25
Can you
No, sir. (Playing video.)
Q.
I'll pause it here at 13:09.
Those two
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individuals have walked toward the camera, seem to be
2
at the closest point.
3
identify if you're going to be able to.
4
them out?
5
A.
No.
Probably your best chance to Can you make
The one appears to be a supervisor or
6
specialist just by -- appears to have a silver or
7
gold band on his hat.
8 9
Q.
So the individual with the hat is the
individual you're talking about?
10
A.
Yes.
11
Q.
And the other is sort of shrouded in
12
darkness?
13 14
A.
17
I can't make out who the individuals
are.
15 16
Yes.
(Playing video.) Q.
At 13:12 you appear to have walked back in
the screen.
Is that you?
18
A.
I don't know.
19
Q.
I can't tell if that's you.
20
(Playing video.)
21
Q.
At 13:15 I've stopped it, is that you?
22
A.
I don't -- I can't tell.
23 24 25
(Playing video.) Q.
And the video ends, so presumably somebody
turned off the video.
Do you remember turning off
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the video? A.
3
Are you saying is that my car I was
4
driving?
5
Q.
6
No, sir.
Yes.
Would anybody else have been able to
turn off your video?
7
A.
Yes.
8
Q.
Do you remember anybody turning off your
9
video?
10
A.
No.
11
Q.
Could it be, having reviewed that,
12
that you walked back to your car and turned off the
13
video?
14
A.
I don't know.
15
Q.
Do you want me to play it again for you?
16
A.
Sure.
17
Q.
Started it back up at 13:04.
18
(Playing video.)
19
Q.
20
someone else?
21
A.
22 23
You can't make out whether that's you or
I don't know if that's me or someone else. (Playing video.)
Q.
You would agree with me that the person
24
that was just in the frame, that I asked if it was
25
you, has walked out of the frame to the left of the
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video, right?
2
A.
3 4
Yes, sir. (Playing video.)
Q.
And now in a few minutes -- few seconds,
5
I'm sorry, the video is going to turn off.
6
recall at any point being aware that night that your
7
video had turned off?
8 9 10
A.
Do you
I'm sure at some point it probably was,
but I don't remember doing it. Q.
That looks a whole lot like you walking to
11
your car and turning the video off.
12
me you don't have any recollection of doing that?
13 14
A.
You're telling
No, that doesn't appear like I walked back
to the car and turned the video off.
15
Q.
That did not?
16
A.
Appears somebody walked by the car.
17
Q.
Okay.
18
And then a few seconds later the
video turns off?
19
A.
Yes, sir.
20
Q.
Can you turn off your video remotely?
21
A.
To my knowledge, no.
22
Q.
So somebody would have to go to the car to
23 24 25
turn it off? A.
Not necessarily.
Those cameras
malfunction, and it could easily stop by themselves.
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5/23/2014 139 Q.
All right.
I'm going to go back at one
2
more point and get to those two individuals that
3
walked by.
4 5
(Playing video.) Q.
We know at some point from reviewing
6
documents in the case that Sergeant Milek --
7
Lieutenant Milek, I apologize -- escorts Officer or
8
Captain -- Sergeant Miller.
9
me back up.
10
I'm all confused.
Let
We know from records that at some point
11
Lieutenant Milek escorts Sergeant Mitchell away from
12
the scene.
13
these two individuals again and tell me if you can
14
recognize them as either Lieutenant Milek or Sergeant
15
Mitchell, okay?
16
A.
17
With that in mind, I want you to look at
Yes, sir. (Playing video.)
18
Q.
Any luck?
19
A.
No, sir.
20
Q.
And the individual that I thought looked a
21
whole lot like you walked back in their direction.
22
Do you recall going with the other two at any point?
23
Were you with Lieutenant Milek or Sergeant Mitchell
24
at any point that night?
25
A.
I don't remember, sir.
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5/23/2014 140 Q.
What happens with the video at the end of
2
the shift; how does it become preserved?
3
take --
4 5 6
A.
I don't know.
Do you
That's outside of my scope
of duties. Q.
Do you take any steps at the end of a
7
shift to preserve a video for posterity?
8
you given any instruction?
I mean, are
9
A.
No, sir.
10
Q.
Do you have to take a -- you know, some
11
kind of -- whether it be a thumb drive or some other
12
digital device and give it to anyone?
13 14
A.
No, sir.
Anything like that would be
outside of my scope of duties.
15
Q.
Who does that, do you know?
16
A.
That would be a supervisor.
17
Q.
So --
18
A.
Sergeant or above.
19
Q.
On any night, not just this night?
Any
20
night you end your shift, who gets possession of the
21
video?
22
A.
Nobody.
23
Q.
How does it go from the car to being
24 25
It stays in the car.
stored for longer periods of time? A.
I don't know the process, but I know
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somehow it ends up downloaded into like a mainframe
2
or something like that.
3
Q.
You don't take any steps to do that?
4
A.
No, sir.
5
Q.
Are you required to review your video from
6
the evening?
7
A.
No.
8
Q.
Do you review your video from an evening?
9
A.
It depends.
10
Q.
Depends on what?
11
A.
What the situation is.
12
Q.
Did you review this video on that morning,
13
I suppose?
14
A.
I don't remember doing so.
15
Q.
Would there have been any reason for you
16
to turn off your video at the time your video goes
17
off, as we just watched it?
18
A.
To my recollection, no.
19
Q.
If you could have caused it to remain on,
20
would that have been something that you would have
21
done?
22
A.
I don't know.
23
Q.
But for malfunction, if that's what the
24 25
cause was, it would have kept recording, correct? A.
I don't know.
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Q.
Well, what do you mean?
2
A.
I don't know if somebody intervened or if
3
it was a malfunction.
4
because I don't know.
5
Q.
I couldn't -- I can't tell you
Wouldn't it be highly unusual for some
6
other officer to intervene and turn off your camera?
7
Can they do that?
8 9 10 11 12
A.
I don't know.
situation. Q.
Well, how would you feel about that if
another officer came in and turned off your camera? A.
I don't know if it was taken out or it was
13
used or turned off.
14
have done that for.
15 16
It depends on the
Q.
I don't know what somebody would
I mean, I'd be hopping mad if somebody
turned off my camera.
17
A.
Why?
18
Q.
Because it's my camera.
Apparently I've
19
got responsibility and I've made the decision to
20
point it on something I thought was important.
21
MR. HARDIN:
22
MR. NAPOLITANO:
23
Q.
24
same feeling.
25
A.
Objection, argumentative. I'm not trying to argue.
I'm just wondering if you would have the
It's not my camera.
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It's the camera assigned to you on that
evening, is it not? A.
It's the car -- I don't know if that's the
4
car I had on that night, but that was the camera in
5
that car.
6
Q.
You made the decision to record these
7
events at least insofar as they were recorded, is
8
that right?
9
A.
That's what it appears.
10
Q.
All appearances are also that the
11
recording stopped functioning either by malfunction
12
or somebody's hand, correct?
13
A.
Somebody or something.
I don't know.
14
Q.
And you're telling me, as we sit here
15
today, that you have no recollection of taking any
16
steps to turn off your camera on this night; is that
17
accurate?
18
A.
I don't remember doing so.
19
Q.
So if it was turned off, someone else
20
would have done it, not you, correct?
21
A.
I don't know.
22
Q.
Well, there are only two possibilities in
23
my question, you or someone else.
24
A.
Or you.
25
Q.
Or me?
You think I turned off your video?
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A.
You could have edited that video.
2
Q.
Oh, okay.
Well, I'll ask you to assume
3
that when your counsel provided this video to us, it
4
is in the exact form that it was provided.
5
being the case, there are two possibilities, the
6
video malfunctioned or someone turned it off; would
7
you agree?
And that
8
A.
I don't know.
9
Q.
Why would you not know the answer to that
10
question?
11
A.
Because I don't know.
12
Q.
Well, can you think of any other
13
possibility where the video would end?
14
A.
I can't think of any.
15
Q.
Okay.
So being that you can't think of
16
any other possibilities then, let's agree that there
17
are two, the video malfunctioned or someone turned it
18
off.
19
off, you are telling me it was not you, correct?
What I want to know is, if someone turned it
20
A.
I don't know.
21
Q.
Now, we're getting into that territory
22
where I'm just trying to get a straight answer.
23
don't know or you don't remember?
24
A.
I don't remember doing it.
25
Q.
So it's possible that you could have
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turned the video off?
2
A.
I don't know.
4
Q.
You have the ability to turn it off?
5
A.
Yes.
6
Q.
But you don't have a recollection of
7
turning it off?
8
A.
3
9 10 11 12
I don't remember turning it
off.
No, sir. MR. LAUFMAN:
Want to take a two-minute
break? MR. NAPOLITANO:
Yes, let's take a quick
break.
13
(A recess was taken from 4:27 until 4:29.)
14
(Mr. Galvin left the conference room.)
15
MR. NAPOLITANO:
Officer, mercifully, we
16
have finished.
17
questions for you.
18
here today, putting up with the questions that
19
I did have, especially coming off a long shift
20
and going back on one in a few short hours.
21
don't have any other questions.
22 23 24 25
We don't have any further
MR. HARDIN:
I do appreciate your being
I have a couple of areas I
need to cover here. MR. NAPOLITANO:
Great, have at it.
EXAMINATION
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BY MR. HARDIN:
2
Q.
3
Officer, you turned your camera on of your
own volition in your car, is that correct?
4
A.
Yes, I did.
5
Q.
Were you required to do that?
6
A.
No.
7
Q.
Was the camera turned on facing the scene
8
for the purpose of hiding what was going on?
9
A.
No, sir.
10
Q.
Would you have had any reason to hide what
11
was going on at the scene?
12
A.
No, sir.
13
Q.
And I notice that just before the video
14
goes off you were questioned about whether that was
15
you walking back to the car by the police officer,
16
and I noticed that the police officer that was
17
walking back to the car just before the video went
18
off was wearing a hat, is that correct?
19
A.
Yes, sir.
20
Q.
And I think counsel for the plaintiff made
21
a big point about the fact that you weren't wearing
22
your hat when you arrived.
23
A.
Yes, sir.
24
Q.
And I didn't see you on that tape, maybe
25
I'm wrong, walk back to the car to get your hat, is
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that correct?
2
A.
That's correct.
3
MR. HARDIN:
4
MR. NAPOLITANO:
5
FURTHER CROSS-EXAMINATION BY MR. NAPOLITANO:
8 9
I have a couple
follow-ups.
6 7
No further questions.
Q.
Did you turn off the camera for the
purpose of hiding what was at the scene?
10
A.
No, sir.
11
the camera off.
12
Q.
I don't even remember turning
Do you know whether anyone turned the
13
camera off for the purpose of hiding what was on the
14
scene?
15 16 17
A.
I don't know of anybody turning the camera
Q.
Would you agree with me that the camera
off.
18
going off had the effect of hiding what happened on
19
the scene?
20
MR. HARDIN:
Objection.
21
Q.
You can answer.
22
A.
No.
23
Q.
Okay.
Would you agree with me that the
24
camera being turned off had the effect of at least
25
avoiding the continuing recording of the scene by
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this machine?
2
MR. HARDIN:
Objection.
3
A.
Can you repeat the question?
4
Q.
Sure.
Would you agree with me that the
5
camera being turned off avoided the continuing
6
recording of the scene by this machine?
7
A.
I would not agree.
8
Q.
Why not?
9
A.
Because it doesn't appear that that was
10
the issue or the case, I mean, or the fact of the
11
matter.
12
Q.
That the camera turned of?
13
A.
The camera did -- the video stopped, but I
14
don't know what was the reason for it stopping.
15
Q.
Reason aside, it stopped us from being
16
able to see anything else that happened in front of
17
that camera on that night; would you agree?
18
A.
The video stopped, but I don't know if it
19
stopped the continuation of what you were able to
20
see.
21 22
Q.
It's -- it is part of your responsibility
to wear your hat on the scene?
Yes?
23
A.
Depends on the scene, on the event.
24
Q.
At this scene, should you have been
25
wearing a hat?
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A.
I don't know.
2
Q.
Well, if you were required to wear a hat,
3
you would be wearing one, right?
4
A.
If I was required to wear it.
5
Q.
And I saw other officers with hats on, so
6
at least there were some with hats on in the video;
7
would you agree?
8 9 10
A.
There were other officers with hats on,
yes, sir. Q.
And if you were required to wear a hat,
11
you certainly wouldn't get out of your car without
12
your hat, correct?
13
A.
It depends on the event.
14
Q.
But you wouldn't do so in violation of any
15
order or policy, right?
16
A.
Not on purpose.
17
Q.
So assuming that it wasn't an oversight,
18
we can agree that you would have either had your hat
19
with you or had it on your head, correct?
20
A.
21
me, yes, sir.
22
Q.
23
The hat was probably in the car or with
It could have been with you and you could
have put it on, right?
24
A.
I don't know.
25
Q.
You would agree that if you had it in your
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hand, it was possible for you to put it on? A.
3 4
If it was in my hand, yes. MR. NAPOLITANO:
No further
questions.
5
FURTHER EXAMINATION
6
BY MR. HARDIN:
7
Q.
8
Okay.
Officer, do you know who the Chief of
Police was at the time of this incident?
9
A.
It appears to have been maybe Streicher.
10
Q.
What makes you think that?
11
A.
Because of the white shirts and the hats.
12
Q.
And the hats, right.
But there was a
13
time, wasn't there when a new chief came in and
14
issued a procedure that said you could wear your hats
15
or not as you saw fit?
16
A.
That's correct.
17
Q.
But you don't know whether or not Chief
18 19
Craig, who was the chief, was in place at that time? A.
I don't know.
20
exactly was the chief.
21
MR. HARDIN:
22 23 24 25
Yes, I don't remember who
All right.
FURTHER CROSS-EXAMINATION BY MR. NAPOLITANO: Q.
Now I'm intrigued by this individual.
We've got to figure out who this individual is.
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Of the people that we've talked about this
2
evening, the people that -- we reviewed the radio
3
logs, right?
4
A.
Yes, sir.
5
Q.
Okay.
And reviewing all those radio logs,
6
it appears to me, having -- I mean, can you tell, is
7
this individual an African-American individual?
8
A.
Yes, sir, it appears to be.
9
Q.
Were there any other African-American
10
officers on scene at the time you were on the scene
11
this night?
12
A.
I don't remember.
13
Q.
Well, of the officers that we've
14
discussed, are any of those other officers
15
African-Americans?
16
A.
I don't remember.
17
Q.
We can go through them all.
I mean,
18
literally, I want to get out of here as much as I'm
19
sure you do.
20
any of the people we've talked about
21
African-Americans?
We know who we've talked about.
22
A.
I don't believe so.
23
Q.
Okay.
24 25
Are
Do you have any recollection of any
other African-Americans on the scene this night? A.
I don't remember.
I don't believe so,
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other than myself. MR. NAPOLITANO:
Thank you.
No further
questions.
4 5 6 7 8 9
_____________________________ ANTHONY DAWSON
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- - -
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DEPOSITION CONCLUDED AT 4:36 P.M.
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- - -
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1 2 3 4
C E R T I F I C A T E STATE OF OHIO COUNTY OF HAMILTON
: : :
SS
I, Patricia A. Walterman, RPR, the
5
undersigned, a duly qualified and commissioned notary
6
public within and for the State of Ohio, do hereby
7
certify that before the giving of his aforesaid
8
deposition, ANTHONY DAWSON was by me first duly sworn
9
to depose the truth, the whole truth and nothing but
10
the truth; that the foregoing is the deposition given
11
at said time and place by ANTHONY DAWSON; that said
12
deposition was taken in all respects pursuant to
13
stipulations of counsel; that I am neither a relative
14
of nor employee of any of the parties or their
15
counsel, and have no interest whatever in the result
16
of the action; that I am not, nor is the court
17
reporting firm with which I am affiliated, under a
18
contract as defined in Civil Rule 28(d).
19
In witness whereof, I hereunto set my hand and
20
official seal of office at Cincinnati, Ohio, this
21
____ day of ___________________, 2014.
22 23 24
My Commission Expires: June 18, 2017.
_____________________________ S/Patricia A. Walterman, RPR Notary Public - State of Ohio
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