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Cleveland agrees to pay $3.7 million to family of Euclid man killed by off-duty officer in 2012

September 25, 2018

Cleveland agrees to pay $3.7 million to family of Euclid man killed by off-duty officer in 2012

CLEVELAND, Ohio — The city of Cleveland has agreed to pay $3.7 million to resolve a lawsuit filed by the family of a Euclid man shot and killed by an off-duty police officer in 2012.

The agreement between the city and the family of Kenny Smith comes more three years after a jury found officer Roger Jones liable for using excessive force when he shot Smith in the head at East 9th Street and Prospect Avenue, following a disturbance outside Wilbert’s Food & Music on East Huron Road in downtown Cleveland.

The jury awarded Smith’s family $5.5 million, though a federal judge later decreased the award to $4 million. An appeals court upheld the judgment, but the Smith family’s attorney Terry Gilbert said they agreed to the lesser amount so they don’t have to continue fighting the city in court.

The agreed-upon payment was announced in a court filing in federal court Tuesday afternoon.

“They just did not want to prolong this anymore, and the family wanted to get this over with and move on,” said Gilbert, who worked on the case along with attorney Jacqueline Greene. “We think it’s a very respectable resolution.”

The payment is one of the largest the city has ever agreed to make in a police use-of-force case. The largest is believed to be a $6 million settlement the city entered into with the family of Tamir Rice, a 12-year-old boy shot and killing by a police officer November 2014.

The negotiated amount also includes attorneys’ fees for Gilbert and Greene. A federal judge, as well as a judge in Cuyahoga County Probate Court, must approve the agreement.

Cleveland spokesman Dan Williams said the city had nothing to add.

Jones had just gotten off his shift that night and was downtown to get a drink.

Smith, a 20-year-old aspiring rapper with no criminal record, was a passenger in a car driven by Devonta Hill, whom police believed caused the disturbance at Wilbert’s by firing into a crowd.

Then-Cuyahoga County Prosecutor Timothy J. McGinty initially cleared Jones of wrongdoing and wrote in an April 2014 letter that the officer “correctly and heroically took action to protect the safety of the citizens of Cleveland.” McGinty, as well as Cleveland police detectives, concluded that Jones fired as Smith lunged for a gun on the car’s center console.

Smith’s family asserted at the civil trial that Smith was outside of the car — and away from the gun — when Jones shot him.

Attorneys for the city, Jones and the Smith family participated in the negotiations, as did an attorney for the Cleveland Police Patrolmen’s Association, Tuesday’s court filing says.

Hill, the driver of the car that Smith was in when police approached, was indicted on murder and other charges in Smith’s death and the nightclub shooting.

He pleaded guilty in 2016 to felonious assault and discharge of a firearm on or near prohibited premises, in exchange for prosecutors dropping the more serious charges.

Even though two courts ruled in favor of Smith’s family, they agreed to enter negotiations with the city earlier this year. Since the judgment was against Jones and not the city itself, one question that lingered was whether the city had to pay a judgment on behalf of the officer, Gilbert said.

A similar question is the subject of a case the Ohio Supreme Court agreed to hear in August, as a man who spent more than a decade in prison for a murder he did not commit argues the city of Cleveland should be required to pay a $13.2 million judgment on behalf of two officers who he say framed him.

“We didn’t want to go through the same kind of litigation that David Ayers went through,” Gilbert said, referencing the wrongfully convicted man seeking the unpaid judgment.

Records show the city hired a bankruptcy attorney for Denise Kovach, a former officer involved in Ayers’ case, to discharge the judgment. The city also said it would hire a bankruptcy attorney for Jones, but he did not file for bankruptcy.

If you would like to comment on this story, please visit Tuesday’s crime and courts comments section.

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