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The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Wives Behind the Badge

Wives Behind the Badge, Inc. has been in operation since 2006 when it’s founder Rose Winick responded to the need for resources and support for law enforcement families which are unique to the law enforcement dynamic. Wives Behind the Badge, Inc. (WBTB) is an all volunteer 501 (c)(3) nonprofit. WBTB has grown substantially since its inception and its resources and programs have grown along with it. The programs and services are run by our dedicated volunteer staff and include HALOS (Helping Aid Lost Officers’ Survivors), Families Behind the Badge, Blue Line Kids, KARE (K9 Assistance Resources Education), Scholarships, Online Forums, and POLICE family training.

HALOS  offers sympathy and support in the event of a line of duty or off duty law enforcement or K9 officer death or injury. A beautiful condolence or support card is sent to each family with the contact information of a volunteer (HALOS Angel) who is ready to help with any support needed. Through our partnership with the Arbor Day Foundation, a tree is planted in one of the nationally endangered and protected forests in honor of a fallen officer killed in the line of duty for every year of that officer’s service. Our vision is that no family faces these situations alone.

The Online Forums are the backbone of our organization and they provide a secure and friendly place to enjoy the company and fellowship of other law enforcement families. The forums are there to support spouses of officers whether they need to vent, share happy news, or just reach out to someone else who knows what they’re going through. Verified members are welcomed to the secure side where they are safe from hackers and predators. Verification is completed by submitting a verification application to the President of our organization, who then verifies the credentials of the officer and the relationship to the member.

Families Behind the Badge provides the same support and resources including a separate and secure support forum for family members of officers such as parents, grandparents, siblings, and children.

Blue Line Kids is a program designed to reach out to minor children of law enforcement officers, who can face their own share of challenges dealing with the law enforcement life.  Games, activities, and a summer reading program are just some of the fun things our Blue Line Kids coordinator is doing to reach out to our law enforcement children. Our online BLK forums are closely monitored by staff and completely hidden from the rest of the forum’s population to offer a safe online environment for our kids. We have also expanded our HALOS program and now have Blue Line Kids HALOS to reach out to children who are tragically affected due to a line of duty death or injury.

Scholarships are currently offered to children, spouses, and life partners of officers. These scholarships are aimed to promote higher education of children and spouses. This program continues to grow and expand and the number of scholarships offered per year has increased.

The State Auxiliary Committees act as extensions of the corporate offices located in California. Each is registered within their own state to conduct business and fundraise to provide programs and services at a local level. Today, WBTB has auxiliary chapters in most states and in the Philippines. Each auxiliary is led by a director who oversees volunteers in their area. The auxiliaries participate in various activities such as critical incident support, appreciation projects for officers and agencies, planning events for spouses and families, speaking to agencies and families, assisting with graduations and events, and fundraising projects. Our Ohio auxiliary is growing and currently planning some outreach events and assisting with agency events across the state.

Our POLICE family training course is taught by our trained staff and provides education to both the new and veteran families in the subject of law enforcement family dynamics and support. This course is certified in several states and we are currently working to have it certified nationally. The law enforcement lifestyle is unique and when you add a spouse and family into this it can become challenging and complicated, yet rewarding. Shift work, working holidays, birthdays, anniversaries, physical and emotional demands during stressful shifts, long hours, and court all add challenges the average family does not experience. This training course helps families set up their core support foundation so they can work as partners through the difficult distractions and learn to appreciate this lifestyle.

Wives Behind the Badge, Inc. is proud of the programs and services we provide to the law enforcement community. We strive to serve a positive voice for law enforcement in the communities and to help foster a better relationship with community members. We will continue to grow our programs to offer more services and resources for law enforcement families. We are bonded by our lives, one family, one vision, one badge.

To learn more about Wives Behind the Badge, Inc. and our Ohio auxiliary, please visit our website: www.wivesbehindthebadge.org, find us on Facebook at www.facebook.com/OhioWivesBehindtheBadgeInc or email our state director at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 

After seizing a cell phone incident to arrest, get a warrant prior to searching it!

The Supreme Court of the United States recently examined how the search incident to arrest doctrine applies to modern cell phones. The Court noted that cell phones are “a pervasive and insistent part of daily life.”

In reaching its decision, the Court weighed the degree to which such a search intrudes on an individual’s right to privacy against the degree to which it is needed to promote legitimate governmental interests.  The Court determined that the interest in protecting an officers’ safety did not justify dispensing with the warrant requirement for searches of cell phone data, nor did the interest in preventing destruction of evidence justify dispensing with the warrant requirement for searches of cell phone data. Accordingly, the Supreme Court held that a law enforcement officer must obtain a search warrant before searching a cell phone that is seized incident to arrest, except under limited exigent circumstances.   Riley v. California, --- S.Ct. ----, 14 Cal. Daily Op. Serv. 7045, 2014 Daily Journal D.A.R. 8220, 24 Fla. L. Weekly Fed. S 921, U.S.Cal., June 25, 2014 (NO. 13-212, 13-132).

For law enforcement officers, this decision means that a law enforcement officer may still seize a cell phone during a search incident to arrest and the officer may secure the cell phone in order to prevent the destruction of evidence. In addition, for officer safety, prior to getting a search warrant, the officer may inspect the phone to see if there is any physical threat, such as a razor blade between the phone and the case.

However, before searching the phone’s digital data, the officer must either obtain a warrant or satisfy an exception to the warrant requirement, such as showing that there was an exigent circumstance. Exigent circumstances will be very limited because they will require that an officer demonstrate that he was faced with a ‘now or never’ situation, such as a circumstance where the arrestee’s cell phone was the target of an imminent remote-wipe attempt.

The Court concluded that, once a law enforcement officer has secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone. The Court acknowledged that there are additional forms of destruction unique to digital data, such as remote wiping and data encryption, and offered some suggestions. Law enforcement officers can fully prevent remote wiping by disconnecting the phone from the network, which can be done by either turning off the phone or removing the battery. Law enforcement can prevent encryption or other potential problems by leaving the phone powered in an enclosure that isolates the phone from radio waves, known as a “Faraday bag.”

In light of this recent decision, law enforcement officers must obtain a warrant to search the digital data contained within a cell phone, with limited exceptions. After seizing the phone, the officer should take appropriate actions to ensure that digital data from the phone is not destroyed via methods such as remote wiping or data encryption.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh

Summit County Prosecuting Attorney

 

Striving for Perfect Objectivity in the World of Police Promotions

Lately I have been handling several matters involving the issue of promotions, which is unusual.  I do believe however, that there is a sound explanation for the increased frequency of promotion related inquiries that make up my work docket.

Ever since the financial crisis there have been many ranking positions eliminated by many managements.  The ability of managements to “abolish” or otherwise eliminate promoted positions is practically as awesome as all of the most fundamental of management rights.

As many of you have discovered, abolishment of supervisory positions is permissible so long as the employer can demonstrate that its actions are driven by “economy and efficiency”.  Unfortunately for the employee, the ability to successfully appeal an abolishment is difficult to impossible given that such appeals are decided by the civil service commissions that are so intricately linked to the employer.

Undoubtedly over the last 5-7 years the opportunities for promotion in virtually every OPBA police department have become more scarce.  At the same time, as DROP dates began to occur, there has been a steady stream of newly hired patrol officers.

This presents a situation where the number of officers interested and anxious to participate in the promotional process is on the rise while the number of available opportunities is dropping.  This results in a supply/demand imbalance making each opportunity much more precious and valuable than under normal circumstances.

Another explanation, also with roots in the financial crisis, is the money necessarily associated and attached to each promoted position.  Rank differentials guarantee an automatic jump in the promoted employee’s base rate in amounts between 12% and 18%, a very nice and meaningful raise!

Compare the financial lot of a newly promoted employee to that of every other employee who is not promoted.  Over the same 7 year period as previously cited, everyone’s wage growth has been flat at best.  Furthermore, their annual income has been reduced, due to increased employee health care and pension contributions and general inflation.

This presents a situation where about the only way officers can meaningfully boost their standards of living is by getting promoted.  This results in more competition, concern and anxiety over the promotional process.

Most of the promotion related calls I get concern the fairness of the process.  I hear concerns relating to the awarding of extra points, the assessment and grading process and the ability to bargain around civil service issues.  All concerns contain an element suggesting that someone, other than the caller, has gotten an unfair advantage.

Everyone expects that the promotional process is to be perfect.  Everyone wants to believe that the process is designed and administered in a fashion that objectively produces the most qualified candidate.  Over the years though I have concluded that this is simply not possible.

At the time I began representing the OPBA, promotions were governed exclusively by the Ohio Revised Code, Section 124.44 (“Section 124”) and/or each jurisdiction’s local civil service commission rules.  Statutory cities were bound to strictly adhere to Section 124 while “charter” cities could, in certain instances, adopt rules that varied from Section 124.

Section 124 is very simple and quite objective in that it requires a written competitive examination that ultimately results in the establishment of an “eligibility list” of names ranked by the grade on their exam, plus applicable points.  Once that is completed Section 124 requires that the highest ranking name be promoted, henceforth.

Many observers of Section 124’s objective process concluded and commented that its simple procedure did not necessarily produce the best supervisor.  They noted that to obtain good supervision more should be considered than just the person who scores the highest on a written examination.

As a response to this concern charter cities that could stray from Section 124 did so by introducing the “1 in 3” rule.  This permitted the employer to promote any of the names on the list from a grouping of the top 3, thereby doubling the employer’s options beyond just the top test taker.

Using “1 in 3”, though, added an element of subjectivity to the process and with subjectivity comes human nature and the potential for favoritism or bias to be added to the equation.  With “1 in 3” it is entirely possible that one very smart and very capable candidate, who once left a bad impression on someone influential, can go a long time, if not forever,  without being promoted.

Along the way competitive oral assessment components have been added allowing considerations for how a candidate reacts to spontaneous situations.  Assessment centers too add subjectivity to the process because they necessarily involve humans who can either favor someone for reasons other than their qualifications or be tipped to favor someone.

Furthermore, the various providers of the oral assessment component are either companies for profit (ex. PRADCO) or interest based associates (ex. Chiefs of Police Association).  As such they are capable of constructing ambiguous examinations or ambiguously grading them, while incorporating their own biases.  Or they can make mistakes in the process itself that can not be undone.

Several years ago, the Ohio Supreme Court ruled that unions or managements could force each other to bargain over the issues of promotions.  A handful of OPBA units have seized on this ability and have bargained their own promotional process, thereby superseding the applicable civil service law.

While our bargained for promotional processes have narrowed the chances for subjective abuse, they do not guarantee an entirely objective selection.  Again, this is because people are involved and when people make selections they naturally tend to use their own experiences and biases as part of their decision-making process.

In the midst of this unsolvable situation I must provide advice and counsel to a member seeking total fairness.  And mostly they do not like what I have to tell them.

I believe that any decision involving individuals and upward mobility, in terms of money and power, will necessarily entail some measure of subjectivity or bias.  The object of every promotional process is to avoid or minimize this, but in reality it is a challenge to construct a promotional process that is entirely objective.

 

Collective Bargaining

I’m sure you recall that Ohio wasn’t the only state that tried to trash collective bargaining rights for public employees.  Wisconsin virtually repealed bargaining rights for most of its public employees.  And as I write this, the Wisconsin Supreme Court has upheld the 2011 gutting of the Wisconsin law.

I bring this up because this is the last issue of Police Beat before this November’s election.  Please remember that it was republicans in Columbus, spurred on by a republican governor, who tried to gut YOUR collective bargaining rights.

Please also remember that it was the same republicans in Columbus who balanced the state budget by throwing city and county budgets into chaos.  I am referring to the phasing out of funds the state used to divvy up among the subdivisions and also the elimination of the estate tax.  These two measures made it much more difficult for subdivisions to pull out of the recession.

We have seen five (5) years now with nearly flat wage growth and struggling to avoid concessions, and all the while paying more each year for medical insurance.

And we continue to hear that so –called “right to work” legislation is going to be brought up after the elections this fall.  This is another republican attack on unions and working people that should more accurately be called “right to work for less.”

All these problems can be traced to a single source – a republican ideology that favors the wealthy and screws over everyone else.  The way to solve this is really quite simple – they must be voted out of office.  Remember this in November – vote democrat up and down the ticket.



 

Two Federal Cases Revisited

Two recent federal court cases caught my eye, so, I thought I would share them.

Each of the cases revisits a topic that I have written to you about previously.

First, on July 16, 2014, the Sixth Circuit Court of Appeals, which is the federal appeals court with jurisdiction in the State of Ohio, reversed a case that had been decided in favor of a Sheriff’s Office employee, in southwestern Ohio, concerning an excessive use of force claim in a county jail.

In this case, which is captioned Cordell v. McKinney, Case No. 13-4203 (6th Cir. 2014); an inmate claimed that he was slammed headfirst into a wall while handcuffed, allegedly in violation of the Eighth Amendment to the U.S. Constitution.

After considering the evidence, the United States District Court for the Southern District of Ohio at Dayton had granted summary judgment in favor of the Deputy Sheriff, finding that: 1. The allegations of excessive force were uncorroborated, 2. The deputy was justified in utilizing the level of force that was exerted, and 3. The deputy was entitled to qualified immunity.

The Sixth Circuit Court of Appeals completely reversed the findings of District Court, after finding that some level of force was appropriate because the prisoner tensed up and turned toward the deputy while being escorted.

However, in determining that a genuine issue of material fact existed as to whether the amount of force utilized was excessive, the court stated, “we conclude that a reasonable jury could find that Deputy McKinney lacked a good-faith reason to use Cordell as a human battering ram.”  The Court based its decision on the severity of the prisoner’s injuries, the threat that the deputy actually faced, in light of the fact that the inmate’s hands were cuffed behind his back and the deputy had him in a submission hold and that the court found no evidence that the deputy made any effort to moderate the level of force that he used.

After reviewing the entire case, however, in my opinion, the case turned on the fact that the inmate was restrained at the time the use of force occurred.

This is illustrated by the Sixth Circuit, at p. 15 of the Opinion, where it states:

We have held in the past that “striking a neutralized suspect who is secured by handcuffs is objectively unreasonable.”  Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010); see also Burgess v. Fischer, 735 F.3d 462, 474-75 (6th Cir. 2013).  While Cordell admitted turning toward Deputy McKinney, presenting a slightly different factual situation, we doubt that slamming a handcuffed and controlled prisoner headfirst into a concrete wall comports with human decency.  See Burgess, 735 F.2d at 474-75 (citing Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988)).


As such, it continues to be extremely important to carefully consider the level of force necessary to subdue a subject that is already restrained, as the Sixth Circuit continues to carefully scrutinize these types of cases.

Secondly, on March 26, 2014, the United States, Supreme Court, in U.S. v. Castleman, 134 S Ct. 1405 (2014), considered the issue of what constitutes “the use of physical force” adequate to result in a misdemeanor crime of domestic violence sufficient to trigger the lifetime ban on possession of firearms contained in 18. U.S.C. §922(g)(9).

The case examined the statute’s definition of misdemeanor crime of domestic violence, to wit:

“an offense that… (i) is a misdemeanor under Federal, State or Tribal law; and (ii) has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person that is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.”


However, the case turned specifically on the meaning of the phrase “the use . . . of physical force,” in the statute.

The trial court had previously held that the defendant’s conviction did not trigger the federal firearms disability on the theory that the use of physical force, for §922(g)(9) purposes, must entail “violent contact with the victim.”

On appeal, the Sixth Circuit affirmed, but, on other grounds.  It held that the degree of physical force required is the same as that which occurs in the statutory definition of “violent felony,” which requires “violent force.”  Therefore, it found that the defendant’s conviction did not qualify as a misdemeanor crime of domestic violence for the purpose of the federal firearms ban.

The United States Supreme Court reversed by indicating that Section 922(g)(9)’s “physical force” requirement is satisfied “by the degree of force that supports a common-law battery conviction – namely, offensive touching.”  Id. at Syllabus.

Thus, the court found, that defendant’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child qualified as a misdemeanor crime of domestic violence sufficient to trigger the firearm ban in the federal statute.

The potential impact of this case cannot be understated for anyone that is required to carry a firearm within the scope of his or her employment.

As always, if you have any questions about these or other issues that may impact your livelihood, please do not hesitate to contact your OPBA representative.



 

The SERB Wage Increase Breakdown

The economic news we are hearing every day has been much better than what we were hearing during 2009. The economy is still growing in the USA, but not real fast.  Finally, the predictions of a healthy economy are almost here!  Healthy economies tend to provide healthy wage increases.

There are many who have been living in fear that the economy is heading into another recession due to the economy slowing down.   Some point to the housing market as a disappointment.  Others complain that the new jobs are mostly service industry and don’t pay enough. Still others say that there are still too many under employed, those working part-time that want full-time.

All are true to one degree or another.  Most of the jobs have been in the service sector, but not all of them.  In fact Ohio has been improving in manufacturing and business jobs for quite a while.  Further, the people that may have given up on job hunting for a while are starting to come back into the job market with some success.

However, the economy in Ohio is doing better than most of the US and the rest of the world.  At this time the unemployment rate is down to 5.5%, which is about a half point lower than the US as a whole.  The State has a budget surplus of a couple of billion dollars.  They have pretty much taken everything from the local governments that they could, so there is only an upside left.  The demand for specialized workers is still high enough that people are moving to the State to find jobs and are indeed finding them.

The various branches of the government are generally improving economically.  While there are few jurisdictions that are still hurting, most are hiring.  Some are still not replacing those who retire at the local level, but the State is hiring more then enough to offset that.

The State Employment Relations Board (SERB) has released the wage settlement report for 2013.  The economic mess really hit around the last quarter of the 2009.  The negative impact from recession hit the public sector twelve to eighteen months after.  The impact to wage increases was plain to see.  That was by far the worst average wage increase ever recorded by the SERB.

The State wide average increase in wages for 2011 was 0.57%.  In 2006 it was 3.01%. - The average wage increase has decreased every year since then.  The range over the ten years of the survey was 0.57% in 2011 up to 3.59% in 2002.  Since 2011 the wage increases have been going up.  In 2012 they were one (1%) percent and 2013 they were almost one and a half (1.47%) percent.  From what I’m seeing at the table, the trend of increasing wages is continuing.

The Cincinnati region had the largest decrease in wage rate increase in 2011, from the following year of 0.71%, down to 0.49%.  The lowest regional increase award goes to Cincinnati again for 2013 at one point twelve (1.12%) percent.  They are the only one of the regions that saw their rate of wage go down from the last wage survey.  Bad time to be in the south west section of Ohio!

Southeast Ohio had the largest wage rate in 2013 at one point nine (1.90%)..  That was the highest increase in wage rates as well.  However the largest increase from 2012 was in the Akron/Canton area.  They increased by almost three quarters of a percent (0.74%).

Counties were the jurisdiction that had the highest increase in rate of wage increase over 2013.  They had the highest percent for the second year in a row.  School Districts came in the largest increase from 2012 with a point six three (0,63%) percent increase over last year.

Police and Fire tied for the largest increase in unit type with one point six one (1.61%) percent.  Fire did better than any other unit six out of the last ten years.  The teachers found themselves on the bottom of the pack again.  They increased their percent wage increase by an average of one and a quarter (1.23%).

SERB Wage Breakdown