Al Gerhardstein

Alphonse A. Gerhardstein (born 1951) is a civil rights attorney in Ohio who has been litigating since 1976. While he is best known nationally as lead counsel for James Obergefell in the Supreme Court's marriage equality decision Obergefell v. Hodges, he has been an advocate on behalf of prisoners, victims of police misconduct and women seeking reproductive freedom throughout his career, in addition to LGBTQ causes like marriage equality.^[1] Beyond recovering millions of dollars for victims of official misconduct, he has sought and achieved systemic criminal justice reforms through injunctions and creative settlement agreements.^[2] He is also the founder of the Ohio Justice and Policy Center, a nonprofit agency that advocates and litigates for criminal justice reform.^[3]

Early life

Gerhardstein was born in Cleveland, Ohio to Carolyn and Richard Gerhardstein.^[4] His father was the manager of a commercial chicken farm for over ten years, then lost both his job and the pension he had been promised. In an interview on WCET, the local Cincinnati PBS affiliate, Gerhardstein described how this experience and its effect on his family deeply impressed upon him the plight of powerless individuals in the face of powerful corporations.^[5] He attended Beloit College where he met and married Mimi Gingold, the daughter of juvenile court judge Archie Gingold of St. Paul, Minnesota.^[6] He attended New York University School of Law on a Root-Tilden public interest scholarship and earned his Juris Doctor in 1976.^[7]

Legal career

Gerhardstein began his legal career as a Reginald Heber Smith Fellow at the Legal Aid Society of Cincinnati, Ohio. After two years, he joined Robert Laufman, a leading civil rights attorney, practicing primarily in the areas of employment discrimination, police misconduct and prisoner rights.^[8] After Laufman's retirement in 2004, Jennifer Branch joined him as a partner and the firm became Gerhardstein and Branch, LPA. The firm states its mission as advocating on behalf of those without power.^[9]

Civil rights practice

Prisoner rights

Gerhardstein commented in a Frontline interview that prisoners have no political base, only the power of the courts to redress grievances. He has sought to redress those grievances through litigation.^[10]

In 1994, Gerhardstein was named lead counsel in a class action against the state officers, administrators and staff of the Southern Ohio Correctional Facility in Lucasville, Ohio, on behalf of inmate victims of the riot that occurred there in 1993. The plaintiffs were awarded a record $4.1 million as part of a class action settlement that included sweeping reforms of the practices and procedures at that maximum security prison.^[11]

Gerhardstein and fellow attorney Robert Laufman had previously sued the state of Ohio for cruel and unusual punishment on behalf of several mentally ill prisoners. After filing the legal action, he worked with the defendant Director of the Department of Rehabilitation and Corrections to address the underlying problems. That collaboration resulted in a court enforced consent decree providing for reforms based on a treatment-oriented approach to mentally ill inmates in all Ohio state prisons.^[12][13]

He also filed a class action challenging the level of medical and dental services provided for inmates by the Ohio Department of Rehabilitation and Correction in 2003. That challenge resulted in a settlement agreement that provided for a five-year supervised plan to substantially improve those services.^[14]

From 2008-2015, Gerhardstein worked with the Children's Law Center of Covington, Kentucky and achieved significant reforms in the Ohio juvenile justice system by entering into an agreed order in cooperation with the defendant administrators of the Ohio Department of Youth Services on behalf of incarcerated juveniles. That agreement eventually resulted in a dramatic reduction of the inmate population, closure of several juvenile prisons, elimination of solitary confinement and improved mental health, educational and recreational services for the children in the juvenile detention facilities throughout the state.^[15][16]

Police misconduct

"There are lots of different strategies that don't rely on arresting black people and feeding more mass incarceration, and that's what we've worked so hard on." Gerhardstein is quoted as saying in an article published in The Atlantic.^[17]

In 2001, Gerhardstein and co-counsel filed a class action on behalf of the Cincinnati Black United Front and Ohio ACLU challenging the use of excessive force and racial profiling by the Cincinnati Police Department. The case was resolved through a collaborative plan, a mediation process that was markedly different from the approach taken in similar actions filed in other jurisdictions. Gerhardstein explained, "[w]e went to court because we've tracked 30 years of promises by the city. We need to have a set of promises that are enforceable."^[18] One month after that action was filed, an unarmed black teenager was shot and killed by a Cincinnati police officer, sparking riots throughout the city.^[19] Continuing his approach to resolve serious underlying systemic problems, Gerhardstein participated along with city officials, the police union, and citizens in the creation of a collaborative agreement that established wide reaching reforms in the department that has become a model for other jurisdictions.^[20][21][22]

One of Gerhardstein's areas of focus has been taser reform. He has litigated cases and published a white paper seeking policies and training that require officers to avoid chest shots and other tactics that increase the risk of injury. The local county sheriff's association responded to the white paper, opening a valuable local dialogue.^[23][24] Significant federal court decisions involving tasers include Goodwin, Brown (two cases challenging chest shots),^[25] and Peabody (challenging taser discharge at man on top of fence).^[26]

Reproductive freedom

Gerhardstein has represented the Planned Parenthood affiliate in Cincinnati and other Ohio abortion providers since 1985. After the Planned Parenthood clinic was firebombed in December, 1985, he secured an order requiring the hundreds of protesters to respect the women arriving as patients at the temporary clinic and to respect their right of access.^[27][28] His lawsuits challenged numerous Ohio laws restricting abortion and many were held to be unconstitutional.^[29]

LGBTQ rights

Gerhardstein has also been an active advocate for the rights of the LGBTQ community. In 1994, for example, he sued the city of Cincinnati unsuccessfully for five years in an effort to strike down an infamous Cincinnati Charter provision that prohibited the enactment of any law that protected the gay community.^[30][31] After the Supreme Court's decision in Romer v. Evans, striking down a Colorado law with almost identical language to that in the Cincinnati Charter, the case was remanded to the Sixth Circuit to be considered in light of the new precedent. However, the Sixth Circuit upheld the amendment for the second time, and it stood until overturned by Cincinnati voters in 2004.^[32][33] He and his law partner, Jennifer Branch, have also represented individual gay and transgender persons in employment discrimination actions.^[34]

An opportunity to further the cause of gay rights arrived when Gerhardstein was first introduced to James Obergefell and his dying husband, John Arthur, in 2013. He met with them and explained that Ohio would not recognize their Maryland same-sex marriage. As a result, when he died, the death certificate for John would state that he was a single person with no surviving spouse. Changing that would require immediate legal action against the state.^[35] Obergefell said that Al was the perfect attorney for them and is unsure they would have gone forward with anyone else.^[36] Gerhardstein filed suit in federal court seeking an emergency injunction prohibiting the state of Ohio from issuing a death certificate for John that listed the deceased as single and without a surviving spouse.^[37] The trial court decided in their favor, holding that "[u]nder the Constitution of the United States, Ohio must recognize on Ohio death certificates valid same-sex marriages from other states."^[38][39]

From that point, rulings came fast.^[40] A similar case was decided in favor of married same-sex parents who had given birth following in-vitro conception and who adopted children and wanted both parents listed on their children's birth certificates.^[41] The state of Ohio appealed to the Sixth Circuit Court of Appeals. Those cases were consolidated with others from district courts within the Sixth Circuit that were more broadly and directly challenging gay marriage bans. The appellate court reversed the trial courts' decisions and held that states could indeed ban same-sex marriage.^[42]

Ultimately, Gerhardstein and other lawyers whose cases had been consolidated petitioned the United States Supreme Court for a hearing, which was granted.^[43] Gerhardstein observed in a televised interview in April, 2015, that this was a civics lesson for the country that core constitutional principles are not up to the majority to decide.^[44] On June 26, 2015 the Court announced its historic decision in Obergefell v. Hodges that established marriage equality, finding that same-sex couples had a constitutional right to marry in all fifty states.^[45] That decision has been called "the sweetest victory in Al's career."^[46]

Lawsuit strategy

Gerhardstein was advised early in his career by Bob Laufman that their law firm was about "causes not cases."^[47] For the past 40 years, Al has made this his underlying philosophy. Its implementation has led him to the collaborative model and to pursue comprehensive settlements that have become the hallmark of the practice. Resolutions have included revised policies, training, memorials, apologies, plaques, and reconciliation meetings.^[48][49][50] One notable recent settlement involved the family of Sam DuBose, who was shot and killed by a University of Cincinnati police officer in 2015. The case was resolved for $4.85 million, an apology, a memorial on campus, tuition remission for Sam's 12 children, and engagement by the family in police reform at the university.^[51]

When asked in an interview how he managed to be successful in bringing about enforceable, creative and often collaborative resolutions in the generally adversarial climate of a lawsuit, Al responded that you must know your opponents thoroughly and respect their goals; go to trial only after you have expended rigorous efforts to resolve the dispute; and be sure that whether the resolution of the problem is best achieved through litigation, mediation or settlement, it includes both monetary compensation and a remedy that redresses the injustice to its victims and attempts to prevent its recurrence.^[52][53]

Referenced cases

In re Southern Ohio Correctional Facility, 173 F.R.D. 205 (S.D. Ohio 1997).

Fussel et al. v. Wilkinson, Case No. 1-03-CV-704, 2005 WL 3132321, (S.D. Ohio Nov. 22, 2005).

Dunn v. Voinovich, Case No. C1-93-0166 (S.D. Ohio 2000).

S.H. v. Taft, No. 2:04-cv-1206, 2007 WL 1989753 (S.D. Ohio July 9, 2007).

In re Cincinnati Policing, 209 F.R.D. 395 (S.D. Ohio 2002).

Goodwin v. City of Painesville, 781 F.3d 314 (6th Cir. 2015).

Brown v. Chapman, 814 F.3d 447 (6th Cir. 2016).

Peabody v. Perry Twp., Ohio, No. 2:10-cv-1078, 2013 WL 1327026 (S.D. Ohio 2013).

Planned Parenthood Ass'n. of Cinti., Inc. v. Project Jericho, 556 N.E.2d 157 (Ohio St. 1990).

Women’s Medical Professional Corp v. Taft, 114 F. Supp. 2d 664 (S.D. Ohio 2000).

Cincinnati Women’s Services v. Taft, 468 F.3d 361 (6th Cir. 2006).

Planned Parenthood Southwest Ohio Region v. Hodges, USDC, SDOH, Case No. 2:15-cv-3079.

Glover v. Williamsburg Local School Dist. Bd. of Educ., 20 F.Supp.2d 1160 (S.D. Ohio 1998).

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005).

Obergefell v. Kasich, No. 13-cv-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013).

DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).

Obergefell v. Hodges, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015).

Publications (selected list)*

Alphonse Gerhardstein, Making a Buck While Making a Difference, 21 Michigan Journal of Race & Law 251 (2016).

Alphonse Gerhardstein & David Krings, Uncomfortably True, Police Misconduct Cases, Keys to Appropriate Methods of Resolution, 10 Public Management (2012).

Alphonse Gerhardstein, Can Effective Apology Emerge Through Litigation? 72 Law and Contemporary Problems No. 2, Spring 2009.

Alphonse Gerhardstein, Leveraging Maximum Reform While Enforcing Minimum Standards, XXXVI Fordham Urban Law Journal No. 1, January 2009.

Alphonse Gerhardstein, A Practitioner’s Guide to Successful Jury Trials on Behalf of Prisoner-Plaintiffs, 24 Pace Law Rev. No. 2 Spring 2004.

Alphonse Gerhardstein, PLRA Can Affect Private Practitioner’s Ability to Represent Inmates, XIII Correctional Law Reporter 66 (Feb/Mar 2002).

Awards and recognitions (selected list)*

2016 – Holmes-Weatherly Award, Unitarian Universalist Association, Boston, Massachusetts

2016 – Honorary Degree, Doctor of Humane Letters, Meadville Lombard Theological School, Chicago, IL

2016 – Making Democracy Work Award (Joint with wife, Mimi Gingold), League of Women Voters of the Cincinnati Area

2015 – Courage Award, Ohio Association for Justice

2015 – Ally for Equality Award, for support to LGBT Community, Equality Ohio

2014 – Racial Justice Award, YWCA Greater Cincinnati

2014 – Theodor M. Berry Award, Cincinnati Chapter, NAACP

2010 – Courage Award, Ohio Association for Justice

2008 – The Diamond Award for Leadership, Service and Support, Planned Parenthood Southwest Ohio Region

2008 – Jewish National Fund/Judge Carl B. Rubin Legal Society Attorney of the Year

2007 – President’s Award, for dedication to community service, civil rights, and to the Sentinels Police Association’s Mission, Sentinel Police Association

2005 – Martin Luther King Spirit Award Baptist Minister’s Conference, Health Alliance of Cincinnati, UC Medical Center

2003 – Charles P. Taft Civic Gumption Award, Charter Party of Cincinnati

2002 – Wright-Overstreet Award for Community Service, NAACP Cincinnati Chapter

2001 – Outstanding Achievement Award, Cincinnati Women’s Political Caucus

1998 – Community Service Award, Stonewall Cincinnati

1995 – Andrew B. Dennison Courageous Advocate Award Potter Stewart Inn of Court

*For a complete list of cases filed by, articles written by and awards received by Gerhardstein, see Gerhardstein & Branch Co. LPA website @ www.gbfirm.com

References