WEST PRICE HILL, Ohio (WXIX/Gray News) - A realtor and a prospective home buyer sued the city of Cincinnati and three police officers in federal court Monday night, alleging they were illegally detained after a retired Cincinnati officer called 911 to report “two black males forced the front door (of the home) open," according to the suit.
Realtor Jerry Isham and Anthony Edwards entered the residence on Morado Drive in West Price Hill Nov. 17, 2018, using the lock box on the door Isham had access to but were ordered out at gunpoint by an officer, the lawsuit alleges.
In all, at least 9 officers arrived at the scene, the lawsuit states.
Isham was handcuffed and searched and then Edwards, who protested to police, was placed in handcuffs, body camera footage provided to WXIX shows.
The 911 call placed by the retired officer, Tom Branigan, who lives in the neighborhood, was ultimately determined to be “false,” according to the suit.
But the men are now asking a judge to hold the city and police officers accountable in the hopes of preventing something like this from happening to other African-Americans.
No one, the suit alleges, asked the men who they were or why they were there - and it all unfolded with the realtor’s 9-year-old son waiting in his car outside.
“I didn’t want him to see me being arrested," Isham said Monday. “I had my hands raised and, as my hands are raised, I’m thinking about my son in the car. There’s a porch to the left of the front door and so what I’m trying to do is come out with my hands raised and then (the officer) said ‘put your hands behind your back.’ I’m not trying to step down the steps, I’m trying to stay on the porch so I that I can be handcuffed not in front of my son."
His lawyer, Chris Finney, said the police response was completely overblown and should have been avoided.
“Instead of just talking to them, investigating ‘what are you doing here, do you have a legitimate purpose?’ they immediately went to guns drawn, hands up, handcuff and then the illegal search of the pockets instead of just talking to them like normal human beings," Finney said.
Edwards said he felt like they were racially profiled.
“Basically we were guilty until proven innocent in their eyes," he said Monday. “It was all about we’re black they’re white and this retired police officer’s word is over us all and we had no defense until they found out ‘yeah, they are here looking at this house.’ And I was going to buy that house up until that point. It was a very, very nice house at a very good price.”
The retired officer admitted on a police sergeant’s body camera video “that he didn’t have a good view of the entry and may have been mistaken," a police incident detail report states.
The lawsuit names the city of Cincinnati and Officers Rose Valentino, David Knox and Dustin Peet. It alleges deprivation of civil rights, false arrest/false imprisonment and destruction of records.
The suit seeks:
We reached out to police and city officials and the retired officer for comment.
Branigan declined to talk Monday.
He retired from CPD 16 years ago after working 30 years including many as a motorcycle officer, according to his 911 call.
Branigan told us he hasn’t seen the suit and referred to us the police union’s attorney, Steve Lazarus.
Lazarus said he could not comment. He said he also hasn’t seen the suit - but told us we should check back in a few days once he’s had a chance to read it and he would comment then.
FOP President Sgt. Dan Hils told FOX19 NOW Monday he was unaware of the details of the case. He also noted he hasn’t seen the lawsuit and none of the three officers named in the suit have approached him.
“Therefore, I am unable to comment at this time,” he wrote us. “If and when they were to confer with me I may reconsider.”
A police spokesman, Sgt. Eric Franz, wrote us in an email: “The Law Department would be the appropriate department to answer your questions in regard to this request."
“The City does not comment on pending litigation,” wrote a city spokesman, Casey Weldon, in an email to FOX19 NOW.
A city lawyer, Peter Stackpole, made Finney and another lawyer involved in the case, Brian Shrive, a settlement offer in response to their pre-suit settlement demand for the incident, records obtained by FOX19 NOW show.
Stackpole offered $20,000 each for Isham and Edwards; $23,000 for legal fees and a total of $7,000 in statutory fine per incident of police public record destruction ($1,000 per each instance) related to body camera and cruiser camera footage of the encounter, according to emails from Stackpole to Finney and Shrive.
“CPD records admitted failing to link two additional (body worn camera) videos that should have been produced to you,” Stackpole wrote the men on April 18. “Those videos were deleted from the AXON storage according to the 90-day retention schedule for BWC footage. Regrettably, I have recently learned that when (motor vehicle footage) was produced to your office in January, you were only provided with the primary responding officer’s cruiser footage."
His email later states in closing: “We will address these issues internally, through training and other means, so that this type of problem does not occur in the future.”
Stackpole sent the men another email, on June 19, in which he wrote: “Please extend my personal regret to your clients that this incident happened. It should not have.
"I’m enormously disappointed in the retired police officer who mistakenly reported this incident as a forced breaking and entering. Had he not mistakenly (giving the benefit of the doubt) reported this incident, none of this would have happened. That said, I am grateful that no one was injured, the detention didn’t last long, and no one was transported to the Justice Center.
“Your clients should know that I intend to bring the facts of this case to CPD administration for action," his email continued. “I want the officers to understand the ways in which this was poorly handled.”
The retired officer was not named as a defendant in the lawsuit, Finney said, because there is immunity to reporting crimes for private citizens in the state of Ohio. He said the law does not want to second guess citizens for calling the police. They want to encourage people to call the police, so the law protects them as long as they do not knowingly file a false report.
The dispatcher asked the retired officer if a realtor was with the men he reported seeing force the door open, according to a recording of the call.
Branigan responded “No. No, no, no," the recording shows.
The call taker reported to responding officers the call as being “forced entry into the front door” with “no weapons seen” and “home is for sale, owner is not home” and “complainant (the retired officer) is armed with a gun."
The suit also alleges Valentino did not pat Isham down but instead “immediately started to conduct a warrantless search” of Isham’s jacket pockets, “clearly hoping to find contraband (which was not present).” At this same time, she acknowledged to Officer Knox that Isham had identification and realtor business cards on him.
Even though no weapons were located on the men and they made no furtive moves or otherwise attempted to flee, Isham and Edwards continued to be handcuffed while Knox and a fourth officer proceeded into the residence to conduct a search, the suit states.
Upon entering the residence and inspecting the front door, Knox declared “According to the (retired officer), they forced in here. But it doesn’t look like it to me," the suit reads.
The suit also alleges two of the officers, Peet and Valentino, appear to have deactivated their body worn cameras.
According to Cincinnati Police policies and procedures, “Officers will use BWC equipment to record all calls for service and self-initiated activities.... The BWC must be activated when the officer arrives on-scene or announces he/she is on-scene in the area and must be recorded in its entirety.”
This includes while responding for calls for service in emergency mode, primary or backup officers.
“Officers will deactivate the BWC system only at the conclusion of the event or with supervisor approval,” the policy states.
“Officers who fail to use the equipment as required or fail to report damage to the equipment are in violation of the Manual of Rules and Regulations and are subject to the disciplinary process for the CPD. Uniformed officers below the rank of captain, trained in the use of BWC systems, are required to operate the equipment.”
Isham said Monday the encounter made him feel “dehumanized."
"My father is passed away, but as a youth he always told me dealing with the police and it’s a court issue. It’s not something you do in the street and to see that lesson come in front of me that day was like wow, full circle, because he told me at a time when I really had no clarity about what he was talking about.
“I was born and raised in the West End and I avoided all the pitfalls and obstacles to have a 9-year-old son see me handcuffed in a house in Covedale. That ain’t who I am. That ain’t who I am.”
Isham is the first vice president of the Ohio Realist Association, a group of black real estate professionals who started their own trade organization in 1974. They called themselves “realists," he said, because decades ago they were not able to join the industry’s main trade group, the National Association of Realtors.
"I know some mistakes (have) been made and that’s why you know to say 'hey, there’s a mistake that’s been made and whatever we can do to correct it so nobody, I don’t think nobody black should go through - professional Realtor or Realtist members, a professional – in these properties and go through what I went through.”
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