city of CINCINNATI Interdepartmental Correspondence Sheet Date: August 13, 2018 To: Colonel Eliot K. Isaac, Police Chief From Lieutenant Douglas G. Snider, Acting Internal Investigations Section Commander Copies to: Subject: Use of Force Review — Donesha Gowdy (IIS #18083) Internal Investigations Section (IIS) has completed a review of an arrest involving Ms. Donesha Gowdy, which resulted in a use of force by Police Officer Kevin Brown, Badge: P614, District Two. Police Sergeant Todd Ploehs, Badge: $433, District Five, completed the Form 18F, Supervisor's Use of Force Investigation Report. IIS received the use of force review on August 8, 2018. The following reports and documents were reviewed by IIS: * CAD Computer Aided Dispatch Report CPD180806001555 + Form 527 Arrest & Investigation Report, completed for the arrest of Ms. Gowdy © Form 18F Supervisor's Use of Force Investigation Report, completed by Sergeant Ploehs + Photographs Six digital photographs of Ms. Gowdy, taken by Sergeant Ploehs * Form 301 Cincinnati Police Department Incident Report, completed by Officer Brown + TASER report Download of Officer Brown's TASER, serial #X12003NNT + AXON audit, Device Audit Trail of Officer Brown's Body Worn Camera (BWC) + Form 648 Citizen Complaint, completed by Ms. Donna Gowdy Summary of Incident On August 6, 2018, Officer Brown was working an outside employment extension of police services detail at Kroger, located at 4777 Kennard Avenue, from 1730 to 0130 hours. At approximately 2120 hours, Officer Brown was alerted by an unidentified employee of Kroger of three juvenile females attempting to shoplift items. One of the juveniles was Ms. Gowdy. Officer Brown observed Ms. Gowdy attempt to leave the Kroger store through the north doors with unpaid items in her hands; however, the north doors were locked. Note: The Kroger store policy is to restrict store access to only the south doors after 2100 hours. Ms. Gowdy and her companions loitered near the customer service desk for approximately five minutes. Ms. Gowdy bypassed the U-Scan registers and proceeded toward the south exit doorlS Case #18083, Page 2 Officer Brown asked Ms. Gowdy to stop and provide a receipt as a proof of purchase. Ms. Gowdy ignored Officer Brown and continued to exit the store. Officer Brown repeated his request for Ms. Gowdy to stop twice more. Ms. Gowdy ignored Officer Brown and continued to walk out of the store. After Ms. Gowdy entered the Kroger parking lot and continued away from Officer Brown, Officer Brown deployed his TASER from an approximate distance of ten feet. One TASER barb struck Ms. Gowdy in the center of the back while the other struck Ms. Gowdy slightly below the waist. The TASER immobilized Ms. Gowdy and cycled for five seconds. Ms. Gowdy sustained a small abrasion to her right forearm, consistent with striking the ground after falling from the TASER deployment. Upon completion of the TASER cycle, Officer Brown assisted Ms. Gowdy to a standing position, handcuffed her, and escorted her back into the Kroger store. Ms. Gowdy was in possession of a drawstring backpack, clothing, and consumable goods which included food and beverage. The value of the items totaled $53.81 U.S. currency. Ms. Gowdy was arrested for Theft, Section 2913.02 Ohio Revised Code, and Obstructing Official Business, Section 2921.31 Ohio Revised Code Personnel from the Cincinnati Fire Department responded to scene to evaluate Ms. Gowdy and remove the TASER barbs from her back. Ms. Gowdy was transported to Cincinnati Children’s Hospital by Police Officer Christopher Delraso, Badge: P244, District Five, for evaluation by Dr. Nathan Timm. Officer Delraso cited Ms. Gowdy to Hamilton County Juvenile Court. Ms. Gowdy was released to her mother, Ms. Donna Gowdy. Note: Ms. Gowdy’s case was dismissed by the Hamilton County Prosecutor on August 8, 2018 Inter ws Ms. Donesha Gowdy, Black/Female/1 1, 5252 Holland Drive, Cincinnati, Ohio 45232, Telephone: (513) 917-8344 Note: Police Sergeant Stephanie Glueck, Badge: S68, District Five, conducted the interview of Ms. Gowdy while at Cincinnati Children’s Hospital. Sergeant Glueck recorded the interview on her BWC. Ms. Gowdy stated she went to Kroger on her bicycle with friends. While in the store, Ms. Gowdy's friends began taking items. Ms. Gowdy stated she had one dollar in her possession Sergeant Glueck asked Ms. Gowdy if she took any items without paying. Ms. Gowdy replied, “mmhm.” Sergeant Glueck asked Ms. Gowdy where she had the items. Ms. Gowdy replied, “In a bag.” Ms Gowdy was also carrying some items in her hands.HIS Case #18083 Page 3 When Officer Brown told Ms. Gowdy to stop she continued walking. Officer Brown told Ms. Gowdy to stop three times. After the third request, Ms. Gowdy was preparing to run from Officer. Brown, Ms. Gowdy fell to the blacktop when Officer Brown deployed the TASER. Officer Brown did not warm Ms. Gowdy of a potential TASER deployment if she refused to stop running. Police Officer Kevin Brown, Badge: P614, ict Two On August 6, 2018, Officer Brown was working an outside employment extension of police services detail at Kroger, located at 4777 Kennard Avenue, from 1730 to 0130 hours. Officer Brown worked his normal tour of duty in District Two from 0600 to 1600 hours. Officer Brown did not work any other outside employment extension of police services details that day. Officer Brown’s duties at Kroger included general store security and processing theft reports and arrests. Officer Brown has also worked at other Kroger locations, such as 1 West Corry Street. Officer Brown's duties have been consistent at varying Kroger locations. Prior to a Cincinnati Police officers’ arrival at the Kroger store at 1730 hours, store security is maintained by hited private security officers. Al approximately 2120 hours, Officer Brown was standing at the south entrance near the U-Scan registers. A Kroger employee alerted Officer Brown to three juvenile females, which included Ms. Gowidy, who were observed picking up items, placing them into a bag, and attempting to exit the north entrance; however, the entrance was locked by Kroger at 2100 hours. After the unsuccessful attempt to exit the store, Ms. Gowdy and her companions proceeded to the south entrance. Upon observing Officer Brown, Ms. Gowdy and the other juveniles lingered near the customer service desk. Officer Brown observed Ms. Gowdy wearing a backpack and holding a bag of potato chips and a beverage in her hands. Approximately five to ten minutes later, Ms. Gowdy attempted to exit the Kroger store through the South door. Officer Brown asked Ms. Gowdy for a receipt for the items she possessed. Ms- Gowdy ignored Officer Brown and continued walking. Officer Brown began walking toward Ms, Gowdy and asked a second time for a receipt. Ms. Gowdy continued ignoring Officer Brown. Officer Brown ordered Ms. Gowdy to stop and reached out to grasp Ms.Gowdy, at which time Ms. Gowdy began running from Officer Brown Officer Brown removed his TASER from its holster and deployed it at Ms. Gowdy, striking her in the back near her shoulders and waist. The TASER took full effect and immobilized Ms. Gowdy. Officer Brown deployed his TASER approximately five to ten feet from the south exterior door. Officer Brown searched Ms. Gowdy's backpack, which contained consumable items such as candy and beef jerky, as well as infant clothing. The backpack itself was also Kroger property which was not paid for.IIS Case #18083, Page 4 Officer Brown did not provide a warning to Ms. Gowdy of a potential TASER deployment. Officer Brown did not believe warming Ms. Gowdy of a TASER deployment would have ceased her flight but acknowledged Department policy and training requires a warning of TASER usage absent exigent circumstances. Officer Brown believed utilizing his TASER would allow him to control Ms. Gowdy while also [ocating and detaining the other two juvenile suspects. Officer Brown decided against continuing to pursue Ms. Gowdy because of the risk that Ms. Gowdy would be struck by a vehicle if she had continued fleeing through the parking lot. Officer Brown acknowledged that he would have eventually caught Ms. Gowdy if he had continued to pursue her. Officer Brown believed it was his duty to apprehend Ms. Gowdy based on the investigation of a theft Officer Brown acknowledged Ms. Gowdy did not appear to be a threat to himself or others. Ms. Gowidy’s age, gender, and body size did not influence Officer Brown's decision to deploy his TASER at Ms. Gowdy. Officer Brown observed that Ms. Gowdy was older than seven years old ‘and younger than 70 years old. Kroger did not provide Officer Brown with a specific policy on how theft suspects should be handled beyond state law. Officer Brown believed Kroger would be disappointed if he allowed a theft suspect to successfully flee. Officer Brown's BWC was in the on position but was not activated until after the TASER deployment on Ms. Gowdy. Officer Brown remarked to Ms. Gowdy, “You know what sweetheart, this is why there's no grocery stores in the black community, because of all this going on.” Officer Brown was referencing the closing of @ number of Kroger stores in black communities, which he believed resulted from large amounts of theft losses. Officer Brown believed the statement was supported by statistics and was not biased, Ms. Ashley Givens, Black/Female, 112 Topridge Place, Apartment #4, Cincinnati, Ohio 45232, Telephone: (513) 915-4975 Note: Ms. Givens was interviewed by Sergeant Ploehs and Sergeant Glueck at the Kroger store. Sergeant Glueck recorded the interview on her Body Worn Camera (BWC) Ms, Givens was parked and seated in her motor vehicle immediately in front of the Kroger store. Ms. Givens observed Officer Brown run after Ms. Gowdy and ordered Ms. Gowdy to stop one time, Ms, Gowdy stopped and turned toward Officer Brown. Officer Brown deployed his TASER, Striking Ms. Gowdy in the chest. Ms. Givens did not observe any events which occurred inside the Kroger store Note: Ms. Givens account of Ms. Gowdy being struck in the chest with TASER barbs is inaccurate. Photographs clearly show Ms, Gowdy was struck in the back.lS Case #18083, Page 5 Surveillance Video Footage IIS reviewed surveillance video footage provided by Kroger. The footage does not contain audio. The camera view is positioned above the south exterior door and focused on the south inner door At approximately 2127 hours and 47 seconds, Ms. Gowdy comes into view walking outside of the U:Scan approaching the south inner door. After Ms. Gowdy walks through the south inner door, Officer Brown appears into view from the left. Officer Brown walks through the south inner door following Ms. Gowdy. Ms. Gowdy looks over her right shoulder at Officer Brown. Officer Brown removes his TASER from its holster and holds it in his right hand. Ms. Gowdy looks over her left shoulder at Officer Brown and appears to increase her pace. As Ms. Gowdy exits the camera's view, Officer Brown begins running and reaches out with his left hand just before leaving the camera's view. Immediately after Officer Brown leaves the camera's view, two female blacks run through the south inner door and leave the camera's view in the same direction as Ms. Gowdy and Officer Brown Ms. Gowdy and Officer Brown are captured on the camera for eight seconds. Note: There was a visible camera on a light pole in the parking; however, the camera not functioning. There is no camera footage from Kroger which captured any portion of the incident outside of the Kroger store. Body Worn Camera (BWC) Footage IIS reviewed BWC footage from Incident CPD180806001555, Officer Brown's BWC footage begins with Ms. Gowdy standing in the parking lot near the parking spaces closest to the south exterior door of the Kroger store Ms. Gowdy asks if she can call her mother. Officer Brown states he will call Ms. Gowdy’'s mother. Officer Brown escorts Ms. Gowdy back to the south exterior door and handcuffs Ms. Gowdy. Ms Gowdy retrieves her slip-on sandals that were lying in the parking lot. A Kroger employee retrieves a bag of Grippos brand potato chips and remarks that she does not know where the other two juveniles went. Officer Brown uses his police radio to request a police Supervisor respond to his location because of the TASER deployment. Officer Brown escorts Ms. Gowdy back into the lobby of the Kroger store. Officer Brown remarks {0 a Kroger employee that he had hoped an employee would have detained the other two juveniles, Officer Brown asks Ms. Gowdy if she knows the other two juveniles. Ms. Gowdy replies that one is her sister and the other is her best friend.IIS Case #18083 Page 6 Officer Brown escorts Ms. Gowdy into a manager's office. Officer Brown remarks to Ms. Gowdy, “I didn't want to do this but y'all knew what you were doing.” Officer Brown requests personnel from the Cincinnati Fire Department respond to remove the TASER barbs from Ms. Gowdy. Using his police radio, Officer Brown relays information about the two other juveniles to responding officers, Officer Brown asks Ms. Gowdy what she took from the store. Ms Gowdy replies that she took a ackpack but the two other juveniles placed items in the bag. Officer Brown, sorts through items in the bag and remarks that Ms. Gowdy is responsible for leaving the store with the unpaid items. Officer Brown remarks, “Sweetheart, the last thing | want to do is tase you like that. When | say Stop, you stop. You know you're caught. Just stop. That hurt my heart to do that to you.” As Officer Brown sorts through the backpack, he asks Ms. Gowdy if she took infant clothing. Ms. Gowdy replies, “That's my friend's. She put that in my book bag because she gota little brother.” Officer Brown replies, "You know what sweetheart, this is why there's no grocery stores in the black community, because of all this going on.” Four additional officers enter the manager's office. Officer Brown asks a Kroger employee to scan the items found on Ms. Gowdy in order to determine a total value Officer Brown asks another Kroger employee if he saw the juveniles putting items in their bag. The Kroger employee replies, "No. I just seen them with items in thelr hand and they opened this and were eating them.” The Kroger employee was referencing a container of candy the juveniles opened and began eating from Officer Brown begins briefing the other four officers of a vehicle that Possibly picked up the other {wo juveniles. Personnel from the Cincinnati Fire Department arrive and begin evaluating Ms Gowdy and preparing to remove the TASER barbs. Sergeant Plochs arrives and photographs Ms. Gowdy. The TASER barbs are successfully removed by personnel from the Cincinnati Fire Department. Officer Brown remarks to Officer Frank Boggio, Badge: P300, District Five, that he observed Ms. Gowdy as she crossed the threshold of the inner door and told her to stop. Officer Brown observed Ms. Gowdy was about to run and deployed his TASER. Me Gowdy was immobilized and Officer Brown lost view of the other two juveniles. The remainder of the video does not contain any significant events or statements. The total time of Officer Brown's BWC footage is 26 minutes 9 seconds,lS Case #18083, Page 7 Additional Information US reviewed the Device Audit Trail of Officer Brown's BWC. The audit shows Officer Brown's BWC was powered on using the power switch at 2118 hours and 24 seconds, At 2125 hours and 26 seconds, the event bution was pressed twice. The BWC began recording immediately afterward, The BWC video file was created and the event button was held at 2181 hours and 4 seconds which stopped the recording The Device Audit Trail does not show evidence that Officer Brown attempted to record with his BWC prior to his TASER deployment. IIS consulted with the Law Department and Police Captain Aaron Jones, Badge: C1, Department Legal Liaison, regarding the investigation, Conclusion On August 6, 2018, Officer Brown was working an outside employment extension of police Services detail at Kroger, located at 4777 Kennard Avenue, from 1730 to 0130 hours At approximately 2120 hours, Officer Brown was alerted by an unidentified employee of Kroger of three juvenile females attempting to shoplift items. One of the juveniles was Ms. Gowdy. Approximately five minutes later, Officer Brown attempted to detain Ms Gowdy fora theft allegation. Despite having ample time to do so, Officer Brown did not activate his BWC. Officer Brown's actions are in violation of Rule 2.18 of the Manual of Rules and Regulations and Disciplinary Process for the Cincinnati Police Department, which states: 2.18 Members of the Department shall not fail to activate their Body Worn Camera (Bwc) System except for good cause. In such instances, they shall notify their superior officer as soon as possible Based aSusrane 'IS investigation, IIS recommends this portion of the investigation be closgd SUSTAINED, word ogg Officer Brown ordered Ms. Gowdy to stop three times. Ms. Gowdy ignored Officer Brown's commands and continued walking out of the Kroger store. Officer Brown deployed his TASER at Ms. Gowdy from an estimated distance of ten feel, striking her in the back. Officer Brown did not warn Ms. Gowdy of the impending TASER use. Officer Brown's actions are in violation of Rule 1.018 of the Manual of Rules and Regulations and Disciplinary Process for the Cincinnati Police Department, which states: 1.01 Members shall not commit any acts or omit any acts, which constitute a violation of any of the rules, regulations, procedures, directives, or orders of the Department.IS Case #18083, Page 8 B. _ Anegligent violation which may lead to risk of physical injury to another or financial loss to the City. To wit: Procedure 12.545 Use of Force (in part): A. Use of the TASER 2. Use the TASER for self-defense or to control subjects that are actively resisting arrest. When possible, give the subject a verbal warning the TASER will be deployed unless exigent circumstances exist that would make it imprudent to do so. Based on as and IIS investigation, IIS recommends this portion of the investigation be closef SUSTAINED. 2 iaocuh a th Officer Brown remarked to Ms. Gowdy regarding the alleged theft, “You know what sweetheart, this is why there's no grocery stores in the black community, because of all this going on.” Officer Brown's actions are in violation of Rule 1.06C of the Manual of Rules and Regulations and Disciplinary Process for the Cincinnati Police Department, which states: 7.08C. Members of the Department shall not express any prejudice concerning race, sex, religion, national origin, life-style, or similar personal characteristics, Based on thi BB nteryiews.and US investigation, IIS recommends this portion of the investigation be closed SUSTAINED. *CSUSTAINE! cn Officer Brown deployed his TASER at Ms. Gowdy for a theft offense after following her for a short distance and providing no warning of an impending TASER deployment. Cincinnati Police Department Procedure 12.545, Use of Force, states in part: Policy: “Before any force option is employed by an officer to effect an arrest, its proper application requires careful attention to the facts and circumstances of each particular case, including: 4. The severity of the crime at issue; 2. Whether the suspect poses an immediate threat to the safety of the officer or others: 3. Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.”IIS Case #18083 Page 9 \n the circumstance of Officer Brown's use of a TASER on Ms. Gowdy: 1. The severity of the crime at issue — Ms. Gowdy is 11 years old, taking food and clothing items from a grocery store. Cincinnati Police Department Procedure 12.900, Processing Juvenile Offenders states: “When dealing with juvenile offenders, it is Department policy to employ the least coercive of the enforcement directives available to properly address the situation.” Additionally: “Approval from a supervisor is required to place juveniles under 12 years of age in detention.” Absent supervisor approval, Ms. Gowdy would have been issued either a Form 314, Notice to Appear ~ Closed Referral, or a Form 314, Notice to Appear Juvenile Court (When Notified), and released to a parent or legal guardian. 2. Whether the suspect poses an immediate threat to the safety of the officer or others — Officer Brown acknowledged in his IIS interview that Ms. Gowdy was not a threat to himself or others and no reason existed to believe Ms. Gowdy had a weapon. 3. Whether the suspect is actively resisting arrest or attempting to evade arrest by flight — Cincinnati Police Department Procedure 12.545, Use of Force, states “The TASER is designed for self-defense or to temporarily immobilize a subject who is actively resisting arrest.” Procedure 12.545, Use of Force, defines: Actively Resisting Arrest: When the subject is making physically evasive movements to defeat the officer's attempt at control, including fleeing, bracing, tensing, pushing, or verbally signaling an intention to avoid or prevent being taken into or retained in custody. Officer Brown made statements on his BWC and during his IIS interview that Ms. Gowdy appeared she was about to run. Officer Brown acknowledged in his IIS interview that he would have eventually caught Ms. Gowdy if he had continued to pursue her. These facts imply that Ms. Gowdy's fleeing was minimal. Only once these three policy criteria are satisfied, in accordance with Graham v. Connor, does the restriction of using a TASER on individuals between the age of 7 and 70 become relevant. Based upon these facts, IIS has determined Officer Brown's deployment of a TASER was not reasonably necessary to apprehend Ms. Gowdy.lS Case #18083, Page 10 Officer Brown's actions are in violation of Rule 1.238 of the Manual of Rules and Regulations and Disciplinary Process for the Cincinnati Police Department, which states 1.238 Members shall not use more force in any situation than is reasonably necessary under the circumstances. Members shall use force in accordance with law and Department procedure Based on. intervie\ ind IIS investigation, IIS recommends this Portion of the investigation be closeff SUSTAINED. 3 Oe THs if DGS / das