Cincinnati officers who said ‘N-word,’ city head to mediation instead of second trial in racial discrimination lawsuit

CINCINNATI, Ohio (FOX19) - A jury recently could not decide whether the city of Cincinnati and the now-former police chief intentionally discriminated against two officers based on their race when the officers said the same racial slur on duty but received very different discipline.

Saying the jury was “hopelessly deadlocked,” U.S. District Court Judge Susan Dlott declared a mistrial in the case on July 22 and scheduled a second trial on Aug. 16.

That court date came and went this week without one, however.

Instead, a “status conference” was held between lawyers for the city and officers. “ Settlement matters” were discussed and “the Court will arrange for a mediation,” the latest case filings show.

FOX19 NOW is attempting to reach lawyers for all parties for comments. We will update this story.

The officers - Donte Hill who is black and Dennis Barnette, who is white - sued the city and former Police Chief Eliot Issac for initially disciplining them differently when they both said the N-word on duty in separate encounters with citizens months apart in 2018..

The city lost a request to have Isaac dismissed from this litigation based on qualified immunity, court records show.

The lawsuit asks for judgments against the city and Isaac for general, compensatory, special and punitive damage in excess of $25,000 at trial, immediate and permanent equitable relief, reasonable attorneys fees and other relief as the court feels is just.

Isaac, who retired last year and is now the police chief and public safety director for the University of Cincinnati, testified at length during the trial in July.

He repeatedly defended his actions when he signed paperwork in October 2018 authorizing a written reprimand for Officer Hill, who is black, for saying the n-word on duty to a black citizen in September 2018.

When the white officer, Dennis Barnette, said the same racial slur in December 2018 in reference to a black woman he arrested outside a Roselawn nightclub, the chief handled that harsher.

Isaac stripped Barnette of his gun, badge and police powers and put him on paid desk duty. He also prevented Barnette from working off-duty details.

He also launched an internal investigation and alerted then-City Manager Patrick Duhaney to the situation in an email media picked up on shortly after.

“This type of behavior is unacceptable and will not be tolerated inside the department,” the chief wrote.

“I will keep you updated on the progress of the investigation and have a recommendation for discipline at the conclusion of the disciplinary process.”

Shortly after, a member of CPD’s internal affairs section alerted the chief to his very different handling of Officer Hill’s discipline. Then the chief sent Duhaney another memo indicating the way that officer’s discipline was handled was flawed, records show.

The chief retroactively disciplined Officer Hill by suspending his powers, too, putting him on desk duty with pay and preventing him from working off-duty details.

On the witness stand, Isaac said he mistakingly signed off on the written reprimand for Officer Hill, calling it an oversight.

He testified that he was “100% certain” that other members of his staff who signed Hill’s reprimand did not speak to him about its content and said, “I did not read the form close. That was my error. I made a mistake.”

The chief also told the jury he was “understaffed” and “overloaded” at the time.

The chief’s testimony about Officer Hill’s initial written reprimand - what he knew and when he knew it - conflicts with testimony from the president of the union that represents Cincinnati police.

Retired Sgt. Dan Hils, under cross-examination, responded “Yes” when he was asked by a city attorney if Isaac was lying about when he knew Officer Hill received only a written reprimand.

Hils testified that then-Assistant Police Chief Paul Neudigate told him during a phone call that Neudigate said he specifically discussed the fact that Officer Hill said the n-word on duty with Isaac before Isaac signed the form authorizing the written reprimand.

During the first trial, an all-white jury with no alternates deliberated for about an hour one day and all day the following one after hearing testimony for three days.

The jurors asked four questions including why more Cincinnati police officials were not called to testify, including the three who, besides Isaac, signed a document approving a written reprimand for the black officer who said the n-word on duty to another black man during a response in Westwood in September 2018.

By comparison, the white officer who said the n-word on duty to a black woman outside a Roselawn nightclub a few months later, in December 2018, received much harsher treatment from the chief.

The jury was instructed not to draw inferences from the other three officers not testifying during the trial.

Immediately after the mistrial, one of the officers’ attorneys, Zach Gottesman, told FOX19 NOW they “will attempt to fill in those gaps for the next trial.”

When asked if that means having those three officers including retired Assistant Police Chief Paul Neudigate, who is now the police chief in Virginia Beach and retired assistant police chief Paul Broxterman, who is now the police chief in Pierce Township, give sworn testimony through depositions and/or testify at the next trial, Gottesman responded yes.

The chief’s testimony Thursday and Wednesday about Officer Hill’s initial written reprimand - what he knew and when he knew it - conflicts with testimony on Wednesday from the president of the union that represents Cincinnati police.

Retired Sgt. Dan Hils, under cross-examination, responded “Yes” when he was asked by a city attorney if Isaac was lying about when he knew Officer Hill received only a written reprimand.

Hils testified that Neudigate told him during a phone call that Neudigate said he specifically discussed the fact that Officer Hill said the n-word on duty with Isaac before Isaac signed the form authorizing the written reprimand.

Both Officers Hill and Barnette would remain on desk duty for four months, until April 2019, when their attorney filed suit.

Both officers also filed grievances, which were upheld in arbitration later that year. The city was ordered to repay their lost wages and remove the suspensions from their records. The discipline was reduced to written reprimands for both officers.

“Simply put, Chief Isaac erred in not reading the memo closely enough,” one of the arbitrators wrote. “That his error was later brought to his attention does not justify trying to correct it by disciplining (Hill) again. Rather, the City must live with the error.”

Officer Hill has since quit the Cincinnati Police Department and now works for Evendale police.

PREVIOUS | City manager questions discipline of second CPD officer who used racial slur |

In January 2019, Duhaney announced he had amended the city’s policy related to racial slurs back in October 2018.

Workers who violate it are suspended without pay for 40 hours and are required to undergo sensitivity training.

They face termination for a second offense.

City Council also passed an emergency ordinance requiring all city employees to undergo implicit and explicit bias training.

READ MORE | ‘Wrong, racist, and we will not stand for it’: Mayor addresses use of ‘n-word,’ announces bias training

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