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Testimony underway in Cincinnati police ‘n-word’ case as officers try to prove reverse racial discrimination

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CINCINNATI, Ohio (FOX19) – Testimony is now underway in the federal trial of two veteran Cincinnati police officers who filed a reverse racial discrimination lawsuit against the city and police chief over their discipline for saying a racial slur.

Former Cincinnati Police Chief Eliot Issac is on the stand testifying.

The officers, Donte Hill, who is black, and Dennis Barnette, who is white, both used the “n-word” to refer to black citizens during responses months apart in 2018, city records show.

Their lawsuit claims the city violated their constitutional rights by treating them differently for using the same racial slur.

“They are using this case to send a message about racial double standards,” said one of the attorneys for the officers, Chris Wiest.

The suit names Isaac, who now is the chief of police and public safety director at the University of Cincinnati.

In addition to Wiest, attorneys Zach Gottesman and Rob Thumann also are presenting the officers.

Assistant City Solicitor Katherine Baron is defending the city and Isaac, who is sued in both his official and individual capacity.

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

Duhaney was named as a defendant, too, but was dismissed by the judge. Duhaney left City Hall in the fall of 2020 and is now the city manager in Virginia Beach.

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.

Body camera footage captured both officers saying the racial slur and will be played during the trial.

The 10-person, all-white jury with no alternates was seated on Monday (See jury demographics below).

In addition to Isaac, both officers, and retired Sgt. Dan Hils, the police union president, are among the witnesses expected to testify.

The trial is expected to last the rest of the week.

PREVIOUS | City manager questions discipline of second CPD officer who used racial slur | Records: Top police officials including chief knew officer said n-word when they approved reprimand

According to police records, Hill said the n-word to another black man as he intervened in a fight at a Westwood home in September 2018:

This is f—in’ stupid. I told you to f—in’ walk home, didn’t I? That Godd— alcohol got you n—— out here acting stupid.”

Barnette used it to refer to an African-American woman he restrained during her arrest as she struggled and struck him in the face: (“N—– slapped me in the face”) outside the Brownstone nightclub in Roselawn in December 2018, police records show.

Hill was given a written reprimand and allowed to keep working on active duty and off-duty details, police records show.

Barnette was stripped of his police powers, gun and badge and put on desk duty with pay on Dec. 26, 2018. He was not permitted to work off-duty details.

The chief launched an internal investigation and alerted Duhaney to the situation in an email that was reported in the media 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.”

MORE | Cincinnati police officer under investigation for using ‘N’ word during arrest | CPD releases body camera footage of officer using ‘N’ word on duty | Mother of woman at center of CPD racial slur case: ‘She was traumatized’

Two days after Barnette’s suspension, after a member of police internal affairs pointed out to the chief the difference in Hill’s discipline, the chief put Hill on desk duty and suspended his police powers with pay, too.

The chief sent Duhaney another memo indicating the way Hill’s discipline was handled was flawed, records show.

Isaac said the violation that should have been applied prohibits police from expressing, verbally or in writing, any prejudice or offensive comments concerning race, religion, national origin, lifestyle, gender or similar personal characteristics.

Duhaney was concerned about the discrepancy between the handling of the two cases, according to an email he wrote at the time to then-Mayor John Cranley and members of city council.

“The offending officer received only a reprimand because the matter was incorrectly categorized when presented to Chief Isaac. This error was only recently discovered. The matter is now being evaluated by the Internal Investigations Section, which is what should have occurred initially, per CPD policy,” his email stated.

Cincinnati Police Chief Eliot Isaac (Photo: Provided by the City of Cincinnati)

Both officers would remain on desk duty until April 2019, when Gottesman filed suit in Hamilton County Common Pleas Court.

City attorneys requested the officers’ lawsuit be removed to federal court, where it was assigned to Judge Dlott.

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.”

A city spokesman, Rocky Merz, provided the following statement to FOX19 NOW on Tuesday when we called City Hall for comment:

“The lawsuits filed by Officers Hill and Barnette address an entirely different issue than what was decided at arbitration. The issue in the federal lawsuit, filed by the officers, is an allegation that the City racially discriminated against both Officer Barnette and Officer Hill when it gave them both the same discipline for saying the n-word on duty.

“These decisions were made because both Officers’ conduct was inappropriate and is inconsistent with the high standards of professionalism the City, and the citizens of Cincinnati, expect from their officers. The City will defend the Chief’s decisions to hold these officers accountable and rejects the idea that former Chief Eliot Isaac racially discriminated against anyone.”

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

Here are the rest of the jury demographics released to us by the judge’s staff on Tuesday when we called to ask:

  • Gender: Five females, five males
  • Age range: 27 to 83 years old
  • Education: Seven have at least some college, three high school
  • Marital status: Four married; Four single and two separated or divorced
  • Homeowner status: Eight yes, two no
  • County of residence: Five in Hamilton County, three in Butler, two in Warren
  • Occupations: Compliance specialist, retired software engineer, products research, crisis consultant, a surgical technician. teacher, educational assistant, manufacturing engineer, retired business owner, a retired salesman

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