The Civilian Police Review Board (CPRB) is recommending discipline for Cleveland Police officer Jose Garcia, who shot and killed 23-year-old Desmond Franklin on April 9, 2020.
In a 4-3 vote, the board members found that Garcia had failed to identify himself as a police officer before shooting seven times from his unmarked vehicle into the car Franklin was driving, striking him in the right temple.
Franklin died after crashing into the fence at Riverside Cemetery on Pearl Road.
The decision was split along racial lines. The four black members present at Tuesday’s meeting – Sherall Hardy, Billy Sharp, Brandon Brown and Chenoa Miller – all voted to sustain discipline for Garcia. The three white members – chairman Michael Hess, Michael Graham and David Gatian – all voted against discipline.
Garcia was on his way to work at the 2nd Police District, in an unmarked vehicle, dressed in civilian clothes, when he says he saw Franklin and the passenger in his car, Devin Badley, take soda out of a delivery truck in a convenience store parking lot and put it in their car.
Garcia entered the parking lot and spoke with Franklin. It’s unclear what was said in that conversation, but both vehicles left the store and, shortly after, Garcia shot Franklin.
The issue CPRB members grappled with was whether Garcia was acting as a police officer during the encounter.
“He inserted himself into the situation with zero coercion and then decided, after he already made contact, that he didn’t want to make further contact,” said Brandon Brown, a newly appointed member of the CPRB.
Garcia claimed that, after leaving the parking lot, Franklin pointed a gun at him. There was a gun in Franklin’s car. But, in a statement to investigators with Cleveland's Office of Professional Standards (OPS), Badley claimed that Franklin never pointed it at Garcia.
During the 911 call by Garcia after the shooting, he claimed that Franklin had shot at his car. No evidence was found of any shots fired by Franklin.
After an investigation by the Cuyahoga County Sheriff’s Department and Ohio Attorney General’s office, a grand jury declined to charge Garcia with a crime.
Franklin’s father, Emmanuel Franklin, filed a complaint with OPS shortly after the shooting, alleging excessive force and failure to identify as an officer. OPS said there was insufficient evidence to sustain the excessive force allegation. But recommended discipline to CPRB on the failure to identify charge.
Some CPRB board members, including Michael Graham and David Gatian, questioned whether Garcia did enough during the initial encounter to constitute police actions. Garcia admitted that he never identified himself as a police officer but told OPS he was acting as a private citizen and shot Franklin in self-defense.
“What if an officer in civilian clothes yells at some kids, “Hey kids, you’re not allowed to be riding your bike over there in the schoolyard when it’s off hours?’” asked CPRB member David Gatian during a Nov. 15, 2022 CPRB meeting. “Is that a police action?”
Gatian and the two others who voted against discpline argued that Garcia had to do more, like detain or handcuff Franklin or Badley, to be acting as a police officer.
The majority of board members found that, because Garcia was initially responding to an alleged crime that he witnessed, his response qualified as a police action.
The board also voted 4-3 to recommend the middle level of discipline – Group II – which requires a suspension of between 6 and 10 days.
That recommendation goes to Chief Wayne Drummond. Cleveland Division of Police already cleared Garcia of wrongdoing in their internal investigation.
If Drummond rejects CPRB’s recommendation, the board can appeal to Safety Director Karrie Howard.
Earlier this month, nominees to the new Community Police Commission, which has ultimate authority over police discipline, were approved by Cleveland City Council. The CPC could take up Garcia’s discipline if Drummond and Howard reject the board’s recommendation.
