CINCINNATI, OH (FOX19) - Cincinnati police officials are taking a closer look at a case involving one of their sergeants firing a gun during a chase more than two years ago after FOX19 NOW investigated.
The Hamilton County Prosecutor's Office long ago determined Sgt. Andre Smith's action were justified and he did not break any law when he fired a shot from his weapon during a pursuit in Mt. Lookout on Feb. 14, 2016.
At the time, Smith said he thought the man he was chasing had a weapon, police records show. The suspect was not hit, and no weapon was found.
Police can use deadly force when they reasonably believe their lives or other lives are in danger, not whether the shooting victim actually posed a threat, the Supreme Court has determined.
"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 in June 2016. "If any substantial new evidence should come to light that would necessitate further review, please contact Mark Piepmeier, Chief of the Criminal Division."
But the Cincinnati Police Department's administrative review of the incident remains unresolved. That determines if Smith's actions are in line with to police policies and procedures. If not, the incident is referred for discipline and/or training. The police chief has final say.
Last fall, a police peer review panel called the Firearm Discharge Board determined Smith violated the department's use of force policy.
"The FDB determined the use of force was not consistent with Department policy and training based on the lack of specificity in Sgt. Smith's interview concerning what, if any, threat he perceived prior to firing his weapon, his conduct after the shooting and the physical evidence at the scene," the report states.
The board, made up of veteran police officials and the chief city prosecutor, recommended the case be referred to the Internal Investigation Section for "for necessary action for the identified violations."
They also wanted the police department's training and development section to review the incident and continue to incorporate best practices into in-service training.
The second-in-command at the police department at that time, the recently-ousted Executive Assistant Police Chief David Bailey, recommended a "Department Level Hearing," or administrative hearing, be held to resolve the case.
That was back on Oct. 5, 2017.
The Firearm Discharge Board's report went to the Internal Investigations Section for review in "February 2018," a May 10 memo from Internal Investigations Commander Captain Kimberly Williams shows.
No hearing was ever held or scheduled - until we started asking nearly two months ago for all the records related to the incident.
Now, Police Chief Eliot Isaac is calling for one.
That decision came May 10, the same day we were finally given records we repeatedly requested from the department over the past two months - ones we only received with the assistance of the city solicitor's office.
We are still waiting for the radio traffic, use of force report and photos from the scene.
Smith, 53, has not responded to requests for comment.
He has been a Cincinnati police officer since 1987.
Cincinnati police would not comment on the case.
Neither would the police union president, Sgt. Dan Hils, and Officer Lou Arnold, the leader of the Sentinel Police Association, an organization of African-American Cincinnati police officers.
Arnold said he had no information on the latest developments and needed time to review them.
A police watchdog agency, Cincinnati Citizen Complaint Authority, is still investigating the incident, a city spokesman said.
CCA received the complaint from CPD about the incident on Feb. 16, 2016, two days after it occurred, a copy of the complaint shows.
We asked a city spokesman why the CCA investigation also is open after all this time.
Casey Weldon responded: "CCA hopes to complete its investigation into this matter as soon as all investigatory documents have been received from the Police Department. At that point, CCA's recommended findings will go to the CCA Board for review of its completeness, and then to the City Manager for final approval. Upon final approval, the investigation is closed."
Smith already has received a written reprimand for violating police policy related to the chase. It was issued in March 2016.
He was reprimanded 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, records in his personnel file show.
Smith reported at the time of the chase he tried to stop Ali Hernandez-Gervacio's silver 2010 Kia Forte after spotting it driving recklessly on northbound Delta Avenue, police records show.
The driver refused to pull over, leading the sergeant on a high speed chase that resulted in the Kia crashing into a parked car, court records show.
Hernandez-Gervacio, 23, was intoxicated, according to a criminal complaint, and caused serious physical harm to his passenger, who was taken to the hospital in critical condition.
Hernandez-Gervacio bailed from the vehicle and ran off.
Smith said he saw him reach into his jacket and then raise his hands while holding a black object, the Firearm Discharge Board's report states.
That led Smith to believe the suspect was armed, resulting in Smith drawing his gun from its holster.
"An officer is authorized to withdraw his Department issued firearm from his holster when he perceives a serious threat to himself or other person," the report reads. "Sgt. Smith's threat assessment was appropriate."
'''I saw something black, I felt it was a weapon. I fired once,' Smith said when he was interviewed after the incident, according to the report.
Hernandez-Gervacio was not hit.
But the police peer panel didn't think Smith didn't need to fire his gun, the police peer panel found.
"There are some issues with Sgt. Smith's response to his perceived threat," they wrote in their report.
"Sgt. Smith was attempting to stop Mr. Hernandez-Gervacio for a traffic violation. There were no pre-existing conditions that would lead Sgt. Smith to believe the driver was armed....he had not committed any act of violence. Obviously when he refuses to stop it raises the threat level. The threat level is raised even further when Mr. Hernandez-Gervacio flees the car on foot."
After the shot was fired, Smith saw that Hernandez-Gervacio's hands were empty and ordered him to the ground, the board's report states. He complied, and Smith handcuffed him.
"At no time does Sgt. Smith ask (Hernandez-Gervacio) where the gun is, nor does he ask him what the object was that he was holding," the report reads.
"Sgt. Smith observes an unidentified black object lying on the ground a short distance away from (Hernandez-Gervacio) and stated it could have been what (Hernandez-Geracio) was holding. This object does not resemble a firearm nor has it been identified what it is. There is no plausible reason for (Hernandez-Gervacio) to be carrying it inside the jacket nor is there any reason for (Hernandez-Gervacio) to even be holding it.
The round that Smith fired struck the ground just a few feet in front of him, the panel notes.
"It appears that Sgt. Smith discharged his firearm while the gun was pointed almost straight down at the ground. In most cases, when someone discharges their firearm in a sharp downward angle, it is the result of an accidental discharge.
"Regardless of whether Sgt. Smith deliberately fired his weapon intentionally or accidentally, Sgt. Smith did not see (Hernandez-Gervacio) in possession of a firearm. He never questions (Hernandez-Gervacio) about a gun or the object he was holding that led Sgt. Smith to believe (Hernandez-Gervacio) was armed with a gun. It would seem this is a logical question to ask after having fired your gun at someone. There were no pre-existing conditions that would lead Sgt. Smith to believe that (Hernandez-Gervacio) was armed.
"Based on the facts described above, Sgt. Smith's response to the threat was not appropriate."
The head of the police department's Internal Investigation Section is seeking more information from the board to understand how they reached their decision.
"I respectfully request that (the Firearm Discharge Board) clarify how the Threat assessment was appropriate but the use of force was not appropriate," the captain wrote.
At the top of her memo, the chief wrote a short note indicating he wanted the matter resolved in an administrative hearing. He initialed and dated his comments. The date on the memo, May 9, is the day before it was written, May 10.
Our legal analyst agrees with the internal investigations commander. The panel's report, while thorough, comes to a perplexing conclusion, Allen said.
"It's kind of close call, I think, and it is somewhat confusing the way it was written," he said after reviewing the report.
"I think what Internal is asking for is 'Gee, well, if he properly accessed that threat, why was he not permitted then to take action?' She's a got a point there, although it's really kind of a close call and you could call it either way.
"I guess what I don't understand," Allen continued, "the assistant chief said months before 'let's have an administrative hearing on this.' I don't understand why that didn't happen. Seems to me that might have cleared the matter up."
The Firearm Discharge Board, he noted, is "a who's who of the best of the upper echelon of the Cincinnati Police Department."
The board is made up of several police officials and a representative of the city solicitor's office.
Members included: Assistant Chief Paul Neudigate, who oversees the patrol bureau; Inspections Section Lt. Barbara Young, Training Unit Commander Captain Russ Neville, Captain Jim Gramke (he was District 2's commander at the time of the incident), SWAT Tactical Coordination Unit Commander Lt. Mark Vennemeier, Chief City Prosecutor Natalia Harris and Captain Jeff Butler, who was commander of the Inspections Section when the report was issued.
"These are officers with years of experience, field experience," Allen said. "I know most of them. I know of all of them and, frankly, it doesn't get any better than that to be in a position where they would judge these things and make a determination whether the policy was broken."
Hernandez-Gervacio, meanwhile, was charged at the time of the chase 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 later dismissed.
Hernandez-Gervacio was convicted of charges of vehicular assault and failure to comply and sentenced to community control.
He is in this country illegally and has been locked up on a federal immigration hold at the Butler County Jail since Jan. 24, 2107, jail officials confirmed.
He has been fighting deportation ever since, according to his wife, Marielena Guel of Hamilton.
She said her husband couldn't really remember much about the chase "because he was intoxicated at the time."
"We haven't really talked about it," she said.
The chase is not the first 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 was widely praised by supervisors.
He also has received several commendations in his personnel file.