Family of Officer Wants His Badge on Memorial Wall

Author(s): James F. McCarty Plain Dealer Reporter Date: June 10, 2007 Section: Metro

Cleveland Patrolman David Smith died clutching his service revolver. But nearly 10 years after he was gunned down outside a nightclub on Euclid Avenue, some of his former colleagues still aren't convinced Smith died in the line of duty. As a result, Smith's badge is absent from the memorial wall at police headquarters, a place of honor consisting of three glass cases and 119 badges of fallen officers.

A lawyer for Smith's children blames the snub on one officer with a personal grudge: Sgt. Rich Kerber, president of the Fraternal Order of Police, which manages the badge memorial.

"The decision not to recognize the heroic acts of David Smith is unjust and indefensible," said attorney Craig Bashein, who represents Smith's son, David Jr., 18, and daughter, Lois, 16.

Kerber denied he has a vendetta against Smith, a classmate of his at the Cleveland Police Academy. He said a committee of FOP members - not one person - decides which badges are honored in the memorial case and which badges are denied entry.

"I hold no malice against any of my classmates," Kerber said.

He accused Bashein of being out of line for going public with his complaints.

"I told him three years ago to get his information and documents together and to present them to the Badge Case Committee," Kerber said. "We never received anything from anyone."

Bashein said Kerber and the FOP have all the information they need to include Smith's badge in the case. He said advocates for other inductees were not required to make formal presentations, and he questioned why some officers' badges are in the memorial case but not others'.

One badge in the memorial case belonged to a police officer who died of a heart attack. Other badges are from an officer who was electrocuted, an officer who contracted a fatal disease after being spit on during a hostage situation and an officer who died 25 years after being wounded in the 1968 Glenville riots.

The campaign to win Smith a place in the badge memorial is the final hurdle in a nine-year struggle by the officer's children to restore their father's legal rights and reputation.

On the night he died, Smith was off duty, drinking beer with his cousin at the Office bar, where he exchanged glares with a rowdy patron, Maurice Mackey of Solon. Mackey left the bar, got a gun and waited outside to ambush Smith.

Smith pulled his gun, but he wasn't fast enough, and Mackey shot him in the chest.

Mackey is serving a 13-year prison term for involuntary manslaughter.

At first, the city, state and police pension boards opposed efforts by Smith's children to collect his retirement benefits and to have his name carved in the Greater Cleveland Police Memorial at Huntington Park. They said Smith wasn't on duty when he was killed.

Bashein challenged those rulings in court and won. A Cuyahoga County Common Pleas Court judge, the Ohio attorney general and the state Fire and Police Pension Board all ruled Smith died in the line of duty. Former Police Chief Rocco Pollutro testified that Smith died a hero.

But none of those legal victories persuaded Kerber and the FOP to honor Smith, although some were left to wonder after picking up a copy of this month's FOP newsletter, the Cleveland Communicator. On the front page, Smith's name and the date of his death are printed along with 23 other fallen officers below a photograph of the Badge Case memorial.

Kerber said Smith's name was listed in error.

"That just goes to show the hypocrisy of the process," Bashein responded. "It's an embarrassment to this city and to David Smith's fellow officers that he has not been properly recognized for his ultimate sacrifice and heroic actions on behalf of this community."