COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO

RON PLUSH, ET AL, Plaintiffs v. CITY OF CINCINNATI, et al., Defendants.

: : : : : : : : : :

Case No. PRELIMINARY EXPERT REPORT OF MICHAEL D. LYMAN, PhD

I. Introduction

Pursuant to Ohio R. Civ. Proc. 26, I have been asked by Plaintiff’s counsel in this civil

action to provide opinions with a reasonable degree of professional certainty. These are

contained in this report as it relates to the following incident involving the death of Kyle Plush.

On April 10, 2018, at approximately 3:14 p.m., 911 Emergency Communications

Operator Stephanie Magee answered a call from a caller who stated “Help, I’m stuck in a van

outside Seven Hills [School] parking lot. Siri hang up. I’m trapped in my van, help. I can’t hear

you. I’m gonna die here.”1 Magee attempted to communicate with the caller, but the caller did

not respond to any questions.2 The call lasted approximately 2 minutes, 56 seconds, and was

disconnected by the caller at approximately 3:17 p.m.3

At approximately 3:18 p.m. Magee made an outbound call to the caller’s telephone

number (513.383.8718) which was answered by voicemail, with a message “Hello this is

Kyle....” Magee then disconnected the call without leaving a message.45 Magee then entered an

1 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 1 (GB000465); Also see Timeline from System Logs (GB000511); Also note that The Seven Hills School is a private pre-k-12 academy in Cincinnati. 2 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 1 (GB000465). 3 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 1 (GB000465). 4 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 1 (GB000465). 5 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 1 (GB000465).

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incident into the Computer Aided Dispatch (CAD) system for an “unknown trouble” to 5471 Red

Bank Road.6

At approximately 3:23 p.m., Emergency Communications Dispatcher Theresa Galloway, who was assigned to Channel 2, dispatched the incident via Mobile Data Computer (MDT) to District Two Police Officers Brian Brazile and Edsel Osborn. Brazile and Osborn were assigned as partners to Unit #2232 and were operating a marked police vehicle. The following information was told to the officers by dispatch over the radio at 3:22 p.m.,

“We have unknown trouble. It’s going to be 5471 Red Bank Road. Stand by for the details here.

It’s a female caller. Call taker could hear a female yelling ‘Help me, I'm stuck inside my van. I'm in Seven Hills parking lot.’

We got the location from stage 2, complainant kept stating she was unable to hear the call taker. She hung up. Voicemail on callback. She is possible-- possibly in the thrift store parking lot across from school there. 5471 Red Bank Road.”7

The following text was received on their mobile data terminal (MDT):

[1] PCO HEARD FEMALE STATING, "HELP HELP IM STUCK INSIDE MY VAN, IM IN SEVEN HILLS PARKING LOT" LOC FROM PHASE 2, COMP KEPT STATING SHE WAS UNABLE TO HEAR PCO, CALLER H/U , VM ON CB [2] POSS IN THRIFT STORE PARKING LOT ACROSS FROM SCHOOL8

The record shows that Brazile and Osborn arrived on scene at 3:26 p.m.9 When they arrived,

they did not drive to the address given, 5471 Red Bank Road, nor to the thrift shop parking lot.

They started driving through lots on the other side of the school, before finally making it to the

thrift shop lot.10 They drove through the south side of the lot, but not the north.11 They knew

they had not checked the north thrift shop lot, but chose not to continue the search.12 As a result,

6 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 1 (GB000465). 7 Dispatch 1522 Hours Transcript, p. 2 (GB005426). 8 CAD – 5400 Red Bank, p. 2 (GB000538). 9 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000465) Also see body cam videos of Brazile and Osborn in cruiser video and Osborn on scene. 10 Brazile interview transcript dated April 18, 2018, p. 6 (GB002960-68). 11 Brazile interview transcript dated April 18, 2018, p. 6 (GB002967). 12 Brazile interview transcript dated April 18, 2018, p. 6 (GB002967).

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Brazile and Osborn did not locate the vehicle and exited the area at 3:37 p.m. logging their

activities as “Investigated.”13

14

The record also shows that at approximately 3:23 p.m., Hamilton County Sheriff Deputy

Doug Allen was present at the school monitoring traffic when he observed Brazile and Osborn

driving their police vehicle.15 Allen approached Brazile and Osborn and inquired whether they

needed any assistance.16 According to Allen, the officers stated that they were dispatched for

unknown trouble at the location and allowed Allen to observe their MDT computer screen which

indicated that there was a woman trapped in a van on The Seven Hills property.17 Allen stated

that the screen indicated the call was “Phase 2” and the officers stated that they were unfamiliar

with the code.18 Allen then phoned the school director, Robert Horne, to inquire the meaning of

13 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000465). Also see body cam videos of Brazile and Osborn in cruiser video and Osborn on scene. 14 The left panel is based on Officer Brazile and Osborn’s body cam footage. The middle panel is based on the same body cam footage and on Officer Brazile and Osborn’s statements. Brazile interview transcript dated April 18, 2018, p. 11 (GB002964); Osborn interview transcript dated April 25, 2018, p. 8-9 (GB003029-3030). The right panel is based on Officer Brazile and Osborn’s statements and on video from Seven Hills School. Brazile interview transcript dated April 18, 2018, p. 11 (GB002964); Osborn interview transcript dated April 25, 2018, p. 11 (GB003032). 15 Cincinnati Police Critical Incident Review Final Report dated November 2018 (GB003691). 16 Cincinnati Police Critical Incident Review Final Report dated November 2018 (GB003690). 17 21CP Solutions, Report on the Response of the Cincinnati Police Department, Nov. 2018 (GB000008). 18 21CP Solutions, Report on the Response of the Cincinnati Police Department, Nov. 2018 (GB000008); Cincinnati Police Critical Incident Review Final Report dated November 2018 (GB003691); Note that the term at approximately 3:14 p.m., E911 Operator Magee pushed the “rebid” button on the call screen, which provided the longitude and latitude of the cell phone signal. This is also known as a “Phase 2”, which is used to provide an approximate location of the caller by triangulating cell phone tower data. This generated the address 5471 Red Bank Road. (GB000471; GB003739).

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“Phase 2” and was told that he did not know.19 Allen said that the officers stated that they looked

around and did not see anything. Allen told them that he would look around further.20 Note that

Allen subsequently reported that after Brazile and Osborn left, he looked into a van in the south

thrift shop lot.21 He did not check the north lot and never checked Kyle’s van.22

At approximately 3:34 p.m., Emergency Communications Operator Amber Smith,

answered a second 911 call from the previous telephone number (513.383.8718).23 The caller’s

initial statement was overridden by the automated call taker greeting, and the caller stated, “I

can’t hear what you’re saying, just send quickly, I’m trapped in an Odyssey van.”24 Smith treated

the call as a silent call and used the teletypewriter (TTY) function of the phone. The TTY tone

overrode information from the caller.25 Smith disconnected the call at approximately 3:37 p.m.26

At approximately 3:37 p.m., Smith made an outbound call to the telephone number and the call

was answered by voicemail, with the message “Hello, this is Kyle....” Smith did not leave a

message.27

Brazile and Osborn never looked in the section of the parking lot in which Kyle was

parked, nor did Deputy Allen. The closest the officers’ came to the Plush’s car is when they

stopped to speak with Deputy Allen on the north end of that parking lot.28 During this

conversation the officers’ were mere yards away from the Plush’s van, however no one ever

searched the portion of the lot where the van was parked.29 Officer Brazile used his cellphone to

call Kyle’s number, reaching Kyle’s voicemail, but he did not use his phone, nor the MDT, to

19 21CP Solutions, Report on the Response of the Cincinnati Police Department, Nov. 2018 (GB000008). 20 21CP Solutions, Report on the Response of the Cincinnati Police Department, Nov. 2018 (GB000009). 21 21CP Solutions, Report on the Response of the Cincinnati Police Department, Nov. 2018 (GB000009). 22 Police Arrival 2 Video (GB001176). 23 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 24 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 25 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 26 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 27 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 28 Police Arrival 2_315_345 (GB001176) at 00:06:30 until 00:08:50. 29 Brazile interview transcript dated April 18, 2018, p. 6 (GB002967). Video shows that Deputy Allen never checked the north thrift store lot. Police Arrival 2 Video (GB001176).

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locate the address they were given. The officers left the parking lot and cleared the call without

checking the address they were given nor the entire thrift shop lot.30

At approximately 3:44 p.m., Magee answered a non-emergency call from Hamilton

County Sheriff Deputy Doug Allen who was working an off-duty monitoring at Seven Hills

School.31 Deputy Allen stated that he talked to Brazile and Osborn who informed him that they

were attempting to locate a woman stuck inside of a van.32 Allen called communications for

additional information so that he could attempt to locate the van.33 Allen told Magee he did not

know what “phase 2” means, and Magee explained it is “when we try to get the location from the

signal that we received from her phone,” meaning Kyle Plush’s phone.34 Allen also stated that

he looked inside a van but did not see anyone.35 Magee provided Allen the caller’s telephone

number.36 Allen stated that he would continue to check The Seven Hills School campus and

attempt to locate the van.37 Magee at no point provides any detailed location information when

speaking with Allen38, even though location data was available.39

At approximately 3:48 p.m., Operator Smith made a second call to the 911 caller’s

telephone number that was again, answered by voicemail, with the message “Hello, this is

Kyle....” Smith disconnected the call without leaving a message.40

Approximately 8:56 p.m., operators in Emergency Communications answered six 911

calls to send police and fire units to The Seven Hills School at 5400 Red Bank Road regarding a

30 Brazile interview transcript dated April 18, 2018, p. 6 (GB002967). 31 Cincinnati Police Critical Incident Review Final Report dated November 2018 (GB003693). 32 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 33 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 34 Phone Call Transcription – Magee and Deputy Allen, (GB005439-40). 35 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 36 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 37 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 38 See Phone Call Transcription – Magee and Deputy Allen, (GB005437-005447). 39 Cincinnati Police Critical Incident Review Final Report dated November 2018 (GB003687). 40 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466).

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missing student who was found inside a van and was unresponsive.41 Emergency

Communications Operator Tara Freson entered CAD Incident #CPD180410001622.

At approximately 9:00 p.m. Emergency Communications Dispatcher Carina Sylvester

dispatched officers to Seven Hills School at 5400 Red Bank Road. Officers arrived at 9:07 p.m.,

where they located 16-year old Kyle Plush, a student at Seven Hills School.42 Plush was found

deceased inside a gold Honda Odyssey which was parked in a parking lot to the north of the

thrift store.43 Investigators from the Cincinnati Police Criminal Investigation Section Homicide

Unit responded and assumed control of the scene.

1. Standards that apply to the call: This case involves a call made by a citizen to 911

emergency. The caller stated that he was trapped in a vehicle and needed help. It is important

to note that the police response for a call of this nature is not that of a call involving

criminality, but rather, more akin to a search and rescue. Based on the materials provided to

me in this case, at the time of this incident the Cincinnati Police policy that addressed this

type of call is policy 12.105 911 Disconnect Calls, 911 Silent Calls, Unknown Trouble Calls,

Panic/Duress Alarms, Emergency Medical Service, And Forced Entry. This policy, however,

is overly broad and general and is grossly inadequate because it fails to require officers to

conduct a thorough search by methods such as exiting the patrol vehicle and searching on

foot. A more responsible policy was established by CPD following this incident.

Nationally recognized standards of care also address the responsibility of patrol officers

when conducting patrol investigations such as the one associated with Kyle Plush’s 911 call

for help. For example, the International Association of Chiefs of Police published operational

41 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466). 42 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466); Also see Dispatch audio transcription (GB005424- GB005433). 43 Cincinnati Police Department Internal Report, by Egner dated April 11, 2018, p. 2 (GB000466).

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protocols relating to patrol investigations in their Training Key 331.44 Relevant provisions of

this protocol includes the following statements:

• “the extent of preliminary investigations conducted by patrol officers has traditionally

been limited to crime scene control and aiding the injured…”

• “The first function of the police officer is to aid the victim of the crime… the officer

must be capable of demonstrating concern for the victim, conducting an initial

investigation…”

The statements are evidence that patrol officers are not only first responders but have a

fiduciary responsibility to render aid and assistance to members of the citizenry who might be

victims of crime or otherwise in need of emergency assistance.

2. Evidence known by Officers Brazile and Osborn that a citizen (Kyle Plush) was known

to be at risk of harm. The record shows that at the time Officers Brazile and Osborn

responded to the school, they had received specific information from the dispatcher regarding

the nature of the call. For example, the record shows that Brazile and Osborn received the

following information:

Via dispatch over the radio at 3:22 p.m.:

“We have unknown trouble. It’s going to be 5471 Red Bank Road. Stand by for the details here.

It’s a female caller. Call taker can hear a female yelling ‘Help me, I'm stuck inside my van. I'm in Seven Hills parking lot.’

We got the location from stage 2, complainant kept stating she was unable to hear the call taker. She hung up. Voicemail on callback. She is possible-- possibly in the thrift store parking lot across from school there. 5471 Red Bank Road.”45

Via their mobile data terminal (MDT):

44 The International Association of Chiefs of Police Training Key 331 Vol. 14: Patrol Investigations, p. 109 (1983). 45 Dispatch 1522 Hours Transcript, p. 2 (GB005426).

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[1] PCO HEARD FEMALE STATING, "HELP HELP IM STUCK INSIDE MY VAN, IM IN SEVEN HILLS PARKING LOT" LOC FROM PHASE 2, COMP KEPT STATING SHE WAS UNABLE TO HEAR PCO, CALLER H/U , VM ON CB

[2] POSS IN THRIFT STORE PARKING LOT ACROSS FROM SCHOOL46

Based on this, they knew that the caller was in distress, they had an address to check and a

description of the possible location, and they knew the caller could not hear the operator.

These factors taken collectively would cause a reasonable officer to conclude that a

citizen was in harm’s way and that the extent of danger the citizen was facing was uncertain

and was in need of immediate, thorough investigation. Further, Brazile and Osborn knew

they were looking for a van and had the exact location of the van on the school’s property.

3. The investigation by Officers Brazile and Osborne following the dispatch call related to

Kyle Plush lacked thoroughness and was therefore irresponsible and completely

careless under the circumstances: There is evidence in this case that Officers Brian Brazile

and Edsel Osborn’s response to the radio dispatch call was completely inadequate given the

information they had received from the dispatcher and on their CAD (computer assisted

dispatch). Both Brazile and Osborn stated that they were looking for signs of a person in

distress such as citizens “flagging” them down or the 911 caller calling out to them, and thus

chose to ignore the possibility that the subject making the 911 call for help would likely not

be visible to officers merely driving through the parking lot.

For example, the record shows that at 3:23 p.m., Osborn and Brazile were on the scene of

the school but only drove through some of the parking lots and never exited their vehicle.

They cleared the scene at 3:37 p.m. after being on the scene for approximately 11 minutes.47

This was done without attempting to respond to the address they had been given, without

46 CAD – 5400 Red Bank, p. 2 (GB000538). 47 Osborn interview transcript dated April 25, 2018, p. 15 (GB003036).

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checking the entirety of the parking lot that had been identified, or checking any of the vans

on foot.

Statements by Officer Osborn: This is supported by Officer Osborn who stated that he and

Brazile received a radio run to respond to Seven Hills School for a “female” who was stuck

in a van and that she was located in a parking lot.48 Osborn stated that there were many

students standing around as well as “many vans, SUV’s cars.”49 Osborn stated “We tried to

see if we noticed anyone needing help back there or anything like that.”50

Osborn further stated, “We had seen nothing of anybody needing any help.”51 He

acknowledged that he and Brazile also stopped and spoke with a sheriff’s deputy (Allen). He

stated that Brazile made a phone call to the 911 caller but got voicemail.52 He further stated,

“…after that, we drove back through the lot. And then, once we didn’t find anything, we

cleared the run.”53

Statements by Officer Brazile: Brazile made similar statements. For example, he stated that

he learned from the police dispatcher that a female called and stated, “Help, help, I’m stuck

in my van. I’m in the Seven Hills parking lot.”54 The call was entered in the CAD at 15:21:33

hrs as “[UNK] unknown trouble.”55 Brazile also acknowledged that dispatch said something

about the location was from “Phase 2” and indicated the location of the Thrift Store across

from the school.56 The caller stated that they were unable to hear the dispatcher. Brazile

stated that he was unaware what “Phase 2” meant.57

48 Osborn interview transcript dated April 25, 2018, p. 3 (GB003024). 49 Osborn interview transcript dated April 25, 2018, p. 4 (GB003025). 50 Osborn interview transcript dated April 25, 2018, p. 4 (GB003026). 51 Osborn interview transcript dated April 25, 2018, p. 5 (GB003026). 52 Osborn interview transcript dated April 25, 2018, p. 5 (GB003026). 53 Osborn interview transcript dated April 25, 2018, p. 6 (GB003027). 54 Brazile interview transcript dated April 18, 2018, p. 6 (GB002959). 55 Timeline of events found in Incident Report Review of Cincinnati Emergency Communications Center’s Response to Kyle Plush’s 911 calls, p. 4 (GB003684). 56 Brazile interview transcript dated April 18, 2018, p. 6 (GB002959). 57 Brazile interview transcript dated April 18, 2018, p. 6 (GB002959).

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He stated that as he and Osborn were approaching the school, at about 3:26 p.m., they

turned on their body cameras and started surveying the area.58 He said school was getting out

at that time. Brazile further stated, “So I was actually under the assumption that someone’s

doors were malfunctioning, like their electronic locks or something got stuck and they

couldn’t open the door.”59 He further stated, “No other kids were flagging us down. The

deputy (Allen) knew nothing, called the phone (Kyle’s phone].”60

Brazile’s statement that he assumed the call was merely a citizen having mechanical

problems with their door-lock system in their vehicle was completely misguided and

unreasonable under the circumstances. This is because calls where the nature of the call is

unknown and calls involving a welfare check are often calls where a citizen’s life is in peril

and immediate action is required. A reasonable officer would not make such an assumption

until such time a proper investigation was made to first locate the vehicle to determine what

the nature of the call was.

Yet another factor addressing the unreasonableness of Brazile’s actions was his statement

that he never drove to the parking lot where Kyle Plush’s gold van was parked.61 Instead, he

took the word of Deputy Allen that he [Allen] would drive to the lot and check for the

vehicle.62 This is a violation of their duty because Allen was not responsible for the call.

Rather, Brazile and Osborn received the call and should have assumed responsibility for

checking the thrift store lot themselves. This is especially so considering it was known that

Allen was off-duty and was present at the school for the purpose of directing traffic. Had

Brazile and Osborn chosen to drive through the entire thrift store lot, they would have

observed the gold Honda Odyssey van where Kyle Plush was trapped. This is supported by

58 Brazile interview transcript dated April 18, 2018, p. 5 (GB002958). 59 Brazile interview transcript dated April 18, 2018, p. 13 (GB002966). 60 Brazile interview transcript dated April 18, 2018, p. 21 (GB002974). 61 Brazile interview transcript dated April 18, 2018, p. 16-17 (GB002970). 62 Brazile interview transcript dated April 18, 2018, p. 17 (GB002970).

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Brazile who when asked if Kyle’s vehicle was tucked away in the parking lot, he stated

“No…It [was] visible.”63

Additionally, when officers Brazile and Osborn discussed the situation with Deputy

Allen, they had already turned off their body cameras, suggesting they considered their

response to the call to be complete.64 They had already decided they had fnished their

investigation without checking the address they were given and without checking the lot that

was specifically identified, or all of the vans. They never followed up to determine if Deputy

Allen checked the lot. While he checked one van in the south half of the lot, he never

checked the north lot where Kyle’s van was parked.65

4. Opinion: Based on my review of the materials provided in this case, the

operational response by Cincinnati Police officers Brian Brazile and Edsel Osborn to the 911

call made by Kyle Plush was completely mishandled. This is because the “search” for the van

described by Kyle consisted of an abbreviated, 11 minute effort in which Brazile and Osborn

(1) never exited their patrol vehicle to look inside any of the parked vehicles located in the

thrift store parking lot – especially vans; (2) failed to look through the entire thrift store lot

and thus completely missed the van in which Kyle Plush stated he was trapped; (3) made an

unreasonable assumption that the call involved a citizen having mechanical problems with

their vehicle’s locking system; (4) never utilized the navigation button of the MDT that

populates a map in the police vehicle; (5) failed to communicate with supervisory personnel

regarding the status of the brief search; and, (6) failed to communicate with supervisory

personnel for clarification of a “Phase 2” location which was understood only by dispatch

personnel. These operational shortcomings, individually or collectively, illustrate a perilous

63 Brazile interview transcript dated April 18, 2018, p. 22 (GB002975). 64 Osborn interview transcript dated April 25, 2018, p. 10 (GB003026). 65 Police Arrival 2 Video (GB001176).

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disregard for the safety of a citizen who was known to be in harm’s way. This is crucial

because both officers were aware that a citizen called 911 seeking help and was stuck in a

van. It was unknown the extent that the 911 caller was in harm’s way, but the fact that the

caller made a distressed 911 call requesting help was sufficient evidence to require Osborn

and Brazile to conduct a thorough search of the area before concluding that the call was

unfounded. Osborn stated, “…I just kind of figured it was just somebody who just couldn’t

get out of a van because locks malfunctioned.”66 Brazile assumed it was a prank, but this

was unreasonable because there was no evidence to base such a belief upon.67

In my opinion, a reasonable officer would conclude that because the caller was known to

be trapped inside a vehicle, other persons in the parking lot would not necessarily be aware

of any emergency situation. Thus, a reasonable officer would know that the only way to

rescue someone inside a parked van is to exit the patrol vehicle and physically look inside

parked vans for the purpose of viewing the 911 caller.

Furthermore, when Kyle called 911, a map was displayed on the CAD system at the 911

call center. Officers Brazile and Osborn had the ability to use the navigation feature in their

MDT and populate an aerial map of the area, including the location of the 911 call from

Kyle’s cell phone. Had the officers used this feature in their cruiser, it would have directed

them right to the van. They also could have used a cell phone to search for directions to the

address. Officer Brazile used his cell phone to call Kyle’s number, but never attempted to

find the address they had been given using his cell phone.

At the time Brazile and Osborn cleared the call, both officers reasonably knew that the

911 caller was still trapped in a van and was still in potential harm’s way. They also knew

they had not checked the address they had been given nor the parking lot that had been

66 Osborn interview transcript dated April 25, 2018, p. 10 (GB003031). 67 Brazile interview transcript dated April 18, 2018, p. 20 (GB002973).

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identified. Failing to thoroughly search the thrift store lot and examine the vans demonstrates

a complete abandonment of their duties and indifference for the safety and welfare of the

citizens they were sworn to protect.

It is likely, if not certain, that had Officers Brazile and Osborn not abandoned their duties

and thoroughly searched the thrift store parking lot on the Seven Hills School property, they

would have discovered the gold Honda Odyssey and would have been able to extract Kyle

Plush from the vehicle and save his life. This outcome was more likely than not given that

Kyle was still alive when the officers cleared the scene.68

II. Qualifications

I am a Professor Emeritus of Criminal Justice at Columbia College of Missouri (a copy of my

Curriculum Vitae, which states my qualifications to render this opinion, is attached). A list of

the cases in which I have testified in the last four years is also attached as an addendum to my

curriculum vitae

III. Compensation

I have been retained by Counsel for the Plaintiffs. I am charging at the rate of $200 per hour and

an initial retainer of $4000. I charge $2350 per day plus expenses for depositions and any work

conducted out of town. I have testified as an expert witness on 241 occasions including hearings,

depositions and trials.

IV. Sources of information

I have reviewed the following case materials to form the basis for my preliminary opinion.

1. Dispatch 1522 Hrs. Transcription 2. Cincinnati Incident Review 3. Terrence Woods ECS Failure Memo and Response 4. 21 CP Report on Response 5. CPD Policies: Unknown Trouble

68 Kyle was on the phone with call taker Smith while Officers Brazile and Osborn were on the scene. 21CP Solutions, Report on the Response of the Cincinnati Police Department, Nov. 2018, p. 5 (GB000008).

14

6. Incident Review Timeline and Observations 7. MCP Final Report; January 2019 8. Audio Transmission Interview: Officer Brian Brazil 9. Audio Transcription Interview: Ofc. Edsel Osbourne 10. CPD PowerPoint Dated May 14, 2018 11. MCP And 21 CP City Hall Presentation Dated November 15, 2018 12. CPD Internal Investigation Report 13. Body Cam: Osborn at Scene 14. Body Cam: Brazile in Cruiser 15. Body Cam: Osborn in Cruiser 16. CAD Reports: Berkshire Club Dr.; 5400 Red Bank 17. Incident Detail Report GB400-403 18. Incident Detail Report: Seven Hills Lower Parking 19. Email Copy of CAD Incidents w/Attachments 20. Audio: Osborn IA Interview dated April 25, 2018 21. Audio: Brazile IA Interview dated April 18, 2018 22. Seven Hills School Video, Police Arrival 1 23. Seven Hills School Video, Police Arrival 2

V. Process

I reviewed the case materials, professional literature and relied on my experience as a law

enforcement professional, education, experience as a college professor and as a nationally-

recognized criminal justice author. I have prepared this report based on this effort. The opinions

expressed in this report are held to a reasonable degree of professional certainty.

Respectfully: _________________________________________________

8-9-19

MICHAEL D. LYMAN, PH.D. - CURRICULUM VITAE

CURRENT POSITION

Business address: Columbia College of Missouri 1001 Rogers Street Columbia, MO 65203 Office (573) 875-7472

Residence: 3703 Hunter Valley Drive Columbia, MO 65203 Cellular: 573.268.4224 Rank: Professor of Criminal Justice

Service from: August 1989 to Present Responsibilities: Coordinator: Master of Science of Criminal Justice degree program Developed the curriculum for the Master of Science in Criminal Justice (MSCJ) program Developed curriculum for Bachelor of Science of Forensic Science degree program Former department chairman from 1989-2001. Undergraduate courses taught include Introduction to Criminal Justice; Policing in America;

Criminal Investigation; Management of Criminal Justice Agencies. Graduate courses taught include: Development of Standard Operating Procedure; Policy Development and Evaluation; Current Issues and Future Directions in Criminal Justice.

PREVIOUS EMPLOYMENT

General Background: As a law enforcement officer I have participated in over 600 felony arrests and testified in over 275 criminal trials and hearings. I also regularly sat on shooting and disciplinary boards and served as lead investigator in numerous internal affairs investigations. I have also been the lead investigator in cases involving numerous crimes. These include but are not limited to: murder, extortion, arson, drug trafficking, corruption, rape, burglary, robbery, assault, organized crime investigations. In this capacity I have developed and managed informants, worked with witnesses, victims, newspaper reporters, federal agencies and working undercover in criminal investigations. Duties have included surveillance operations; interviews of witnesses; interrogations of suspects; arrests; searches & seizures, etc. Certified Generalist Instructor - The University of Missouri-Columbia

Law Enforcement Training Institute - School of Law 321 Hearnes Center Columbia, Missouri 65211

From - 7-15-86 to 8-15-89 Responsibilities: Instructed police office recruits in police academy in the

areas of criminal investigation, interviews & interrogations, informant management, use of force, felony arrests, professional ethics Police academy program coordinator keynote speaker at academy graduation ceremonies

policereview@gmail.com

2

The Oklahoma Bureau of Narcotics and Dangerous Drugs (state police bureau) 4545 North Lincoln Blvd. Oklahoma City, Oklahoma 73102 Position –Criminal Investigator

Responsibilities: Originated and managed large-scale criminal investigations throughout the State of Oklahoma; testified in criminal court

on both the federal and state level; made arrests; served search warrants; conducted interrogations; served on personnel hiring boards; disciplinary boards; shooting review and promotion boards; conducted background investigations of prospective recruits and conducted numerous internal affairs investigations as Sr. investigator; testified in two congressional hearings. I also served as training and field training officer (FTO) for new recruits for over four years. From - 10/1/81 to 7/9/86

The Kansas Bureau of Investigation (state police investigative bureau)

1620 Tyler Topeka, Kansas 66612 Position –Criminal Investigator

Responsibilities: Originated and managed large-scale criminal investigations throughout the State of Kansas; testified in criminal court on both the federal and state level; made arrests; served search warrants; conducted interviews and interrogations; conducted

numerous internal affairs and pre-employment background investigations.

From - 6/75 to 10/80

Agent – City County Investigative Squad (Johnson County, Kansas)

Johnson County Courthouse, Olathe, Kansas (Kansas City Metro Area) Task Force concept utilizing officers on loan from 13 jurisdictions. This unit is no longer in existence as it operated on grant money which was depleted during the early 1980s. Position –Criminal Investigator (civilian)

Responsibilities: Initiated full-scale criminal investigations at the direction of

the unit Manager; enforced the laws of the State of Kansas; assisted in conducting arrests and serving search warrants; developed and managed informants; testified in criminal hearings and trials; conducted interviews and interrogations.

From - 6/74 to 6/75

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Visiting Professor – University of Oklahoma Norman, Oklahoma From 1986-1989 In this capacity I was brought to Oklahoma three times each year (December, May and August intercessions) for a period of nine years to teach courses in the law Enforcement Administration Program.

PUBLICATIONS

Textbooks: 1. Lyman, M. D. & G. W. Potter (2015). Organized Crime, 6th ed. Prentice Hall: Upper Saddle

River, NJ 2. Lyman, M. D. & G. W. Potter (2014). Drugs in Society: Causes, Concepts and Control, 7th ed.

Elsevier/Anderson Publishing: Cincinnati, OH. 3. Lyman, M. D. (2017). Criminal Investigation: The Art and the Science, 8th ed. Prentice Hall:

Upper Saddle River, NJ. 4. Lyman, M. D. (2015). Criminal Investigation, 2nd ed. (Brief Edition). Pearson Education:

Columbus, OH. 5. Lyman, M. D. (2010). The Police: An Introduction, 4th ed. Prentice Hall: Upper Saddle River,

NJ. Fourth Edition due out in May 2009.

6. Lyman, M. D. (2007). Practical Drug Enforcement, 3rd ed. CRC Press: Boca Raton, FL

7. Lyman, M. D. (1989). Gangland: Drug Trafficking by Organized Criminals. Springfield, IL: Charles Thomas Publisher

8. Lyman, M. D. (1987). Narcotics and Crime Control. Springfield, IL: Charles Thomas

Publisher Articles / Essays:

Lyman, M. (2013). “Arrests.” Found in: The Encyclopedia of Street Crime in America. Sage Publications (ISBN: 9781412999571): Thousand Oaks, CA.

Lyman, M. (2005). “Drug Enforcement in the United States.” An essay for The Encyclopedia of Law Enforcement, Sage Publications: Thousand Oaks, CA. Lyman, M. (2005). “Undercover Operations.” An essay for The Encyclopedia of Law Enforcement, Sage Publications: Thousand Oaks, CA.

Lyman, M. (2004). The Decision to Chase: Revisiting Police Pursuits and the appropriateness

of Action. The Police Forum Journal. Lyman, M. (2004). “Transnational Organized Crime.” An essay for The Encyclopedia of Murder & Violent Crime; Eric Hickey Editor. Sage Publications: Thousand Oaks, CA. Lyman, M. (2004). “Domestic Organized Crime.” An essay for The Encyclopedia of Murder & Violent Crime. Sage Publications: Thousand Oaks, CA.

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AWARDS

2004 Community Partner Award presented by the Columbia Missouri Police Foundation, February 2004.

Police Instructor of the Year Award presented by the Missouri Department of Public Safety,

Peace Officer's Standards and Training (POST). Presented April 1989.

Meritorious Award for Independent Study Course presented by the National University Continuing Education Association. April 1989.

ACADEMIC BACKGROUND

Doctor of Philosophy (1992) Higher and Adult Education and Foundations. University of

Missouri-Columbia, Columbia, Missouri

Master of Science in Administration of Justice – Police Agency Management (1979) Wichita State University Graduate School, Wichita, Kansas

Bachelor of Science in Administration of Justice (1977) Wichita State University, Wichita,

Kansas

Successfully completed 16-hour Taser Instructor course in April 2009

CONSULTING I have been practicing as an expert witness/consultant since 2001 and as such have sat on

both sides of the table evaluating cases for both plaintiff and defense. Of the cases I have accepted for review, approximately 80 percent are for the plaintiff and 20 percent for the defense. Thus far, I have reviewed over 300 cases in over thirty states and have provided expert testimony on approximately 186 occasions. I have also testified in at trial numerous 1983 civil federal actions. For the most part, my expertise is in the area of use of force but I have provided testimony in the areas of proper investigative procedures and police supervision. I consider cases for both defense and plaintiff, and favor neither.

In April 2009 I consulted for a Hollywood production company by reviewed and providing

creative feedback on a screenplay for a television pilot. The company, Saint of Circumstance Productions is a Twentieth Century Fox Company.

I have served as consultant for the Federal Research Division of the U.S. Library of Congress

and the Director of Central Intelligence Crime and Narcotics Center in Washington DC (in January 2003.)

I have conducted police training seminars for the Public Agency Training Council located at

5101 Decatur Blvd. Ste. L., Indianapolis, IN. Topics included: criminal investigation; undercover operations and informant management (in Columbus, OH (1989-1991).

In 2006 I, along with two police detectives, wrote a model policy and companion paper on

digital crime scene photography for the International Association of Chiefs of Police (IACP), which is used as a national guideline for police policy development. This model policy is currently available through the IACP.

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ORGANIZATIONAL AFFILIATIONS

International Association of Chief’s of Police (IACP) Academy of Criminal Justice Sciences (ACJS) American Society of Criminology (ASC) American Academy of Forensic Science (AAFS American College of Forensic Examiners International (ACFEI) The International Association for the Study of Organized Crime (IASOC)