Police: Case of sergeant firing weapon during chase remains under review 2 years later

Police: Case of sergeant firing weapon during chase remains under review 2 years later
Ali Gervacio (Provided by the Hamilton County Sheriff's Office)
Ali Gervacio (Provided by the Hamilton County Sheriff's Office)
Cincinnati Police Sgt. Andre Smith in 2017 (Facebook)
Cincinnati Police Sgt. Andre Smith in 2017 (Facebook)

CINCINNATI, OH (FOX19) - More than two years after a Cincinnati police sergeant fired his gun during a chase, Cincinnati police are still reviewing their records related to it and have yet to publicly say whether it is an appropriate use of force.

A police spokesman made the revelation this week after we asked for all records related to the the incident but only received a few.

We are still waiting for several key documents, including a use of force form, Firearm Discharge Board report and copies of the criminal and/or internal investigation file.

"The requested information is still under review," wrote Lt. Steve Saunders in an email Monday.

"We will release the associated records when they come available. Please direct any further questions regarding this records request to Mrs. Christine Zimmer at the Law Department."

Zimmer wrote in an email to us on Tuesday she is following up on our request for more information and records and will get back to us when she has more information.

"I don't have the particulars on that case and could not tell you why it's still going on," said Sgt. Dan Hils, police union president.

District 2 Sgt. Andre Smith, 53 was patrolling Mount Lookout in the early morning hours of Feb. 14., 2016, when he tried to pull over Ali Gervacio, 23, court records show.

Smith reported at the time that Gervacio was driving recklessly, according to police.

The driver refused to pull over, leading Sgt. Smith on a high speed chase that resulted in Gervacio crashing into a parked car, court records show.

Gervacio was intoxicated at the time, according to a criminal complaint, and caused serious physical harm to his passenger, who was taken to the hospital in critical condition.

Gervacio, meanwhile, bailed from the vehicle and ran off.

That's when the sergeant fired one round from his gun, according to police.

At the time, police officials said Smith stated Gervacio reached into his coat and produced what appeared to be a weapon.

Gervacio was not hit and immediately stopped running.

He was taken into custody and transported to the hospital for treatment of minor injuries. He was charged with aggravated vehicular assault, vehicular assault, failure to comply with an order or signal of a police officer and failure to stop after an accident, court records show.

The charges of aggravated vehicular assault and failure to stop after an accident were dismissed, court records show. Gervaci was later convicted of charges of vehicular assault and failure to comply and sentenced to community control.

No weapon was found, and Gervacio was not charged with a weapons offense.

He could not be reached for comment for this story.

Saunders said Cincinnati police would not do interviews. We still reached out to Smith anyway, but he has not responded yet to messages for comment.

The Sentinel Police Association, a group of African-American Cincinnati police officers, also did not respond to a request for an interview.

On Thursday, a spokeswoman for the Hamilton County Prosecutor's Office released a letter Prosecutor Joe Deters wrote Cincinnati police in June 2016 that found the shooting justified.

"Based upon our review of the information provided it is the opinion of this office that Police Sergeant Andre Smith was justified in his actions and that he did not violate any criminal statues," Prosecutor Joseph Deters wrote Homicide Unit Lt. David Johnson. "If any substantial new evidence should come to light that would necessitate further review, please contact Mark Piepmeier, Chief of the Criminal Division."

Smith remained on the job immediately following the incident and continues to work at District 2 today.

He received a written reprimand in March 2016 for not activating his digital video recorder inside his police car during the traffic portion of the pursuit and for pursuing a vehicle wanted for traffic offenses only.

Vehicle pursuits initiated for traffic offenses only are not permitted, his reprimand states.

We are still seeking key documents such as a basic use of force form and reports from CPD's Firearms Discharge Board and internal investigation and/or criminal investigation sections.

The Firearms Discharge Board, a peer review panel adopted by CPD as part of the historic 2002 Collaborative Agreement that is now undergoing an update, or "refresh," examines firearm discharges, ideally within about 90 days of the end of all criminal reviews of the incident, city records show.

The board prepares a report that includes a description of the incident, a summary and analysis of all relevant evidence, proposed findings and analysis.

They indicate whether the uses of force were consistent with CPD policy and training; whether the officer used proper tactics and whether lesser force alternatives reasonably were available, city records show. The FDB is to include at least a member of CPD command staff, a Training Academy representative, the affected Bureau Commander and an attorney from the solicitor's office.

Smith has been a Cincinnati police officer since November 1987 and is the fourth senior police sergeant in the department, according to his personnel file.

He has been assigned to District 2 since 2015. He also has worked in Districts 4, 3 and 5 in addition to the Impound Unit and Telephone Crime Reporting Unit, which he supervised.

He was promoted to sergeant in July 1994.

The chase and shooting is not the firm time Smith has made headlines.

In 2012, he was caught intoxicated on duty when he failed an unscheduled breathalyzer test, his personnel file shows.

When he arrived to take the test, he was driving his marked cruiser, police said at the time.

No criminal charges were filed, police explained, because there was not probable cause to give the test, and it was not voluntary.

He met standards on his most recent job performance evaluation and is widely praised by supervisors.

"Sergeant Smith completes his assigned duties in a timely manner," wrote Lt. Michael Fern. "He makes sound decisions related to Departmental issues. He works well with his fellow peers. Sergeant Smith is always willing to lend a helping hand to others when needed. I appreciate all he does and brings to the First Relief in District Two – Thanks Andre."

The commander of District 2 at the time of the evaluation agreed.

"Andre makes the difficult easy and inspires loyalty from his officers," wrote Captain Jim Gramke. "Sgt. Smith is always willing to help and cares about his community. He has been a public servant for almost thirty years and the city is a better place because of what Sgt. Smith brings to work everyday."

He also has received several commendations in his personnel file.

"Thank you for taking the kids to the Reds game," then-Mayor Charlie Luken wrote in May 2002.

"Commended for your investigative skills, exceptional courage and dedication to duty in the very successful 'drug sweep' in Evanston and Madisonville," then-Assistant Police Chief Richard Janke wrote in February 2002.

Copyright 2018 WXIX. All rights reserved.