Held to a Higher Standard............. (of Proof)

As noted in a recent post, City Council is due to consider a community drafted police accountability bill. It seeks to document various types of searches and requires more data collection. This is then to be reported in the Police Bureau’s annual report.

This bill has run into a surprising amount of opposition from the FOP and Ravenstahl’s office. Indeed this opposition has been of the worst sort. A refusal to meet with community activists and a closed-door council session to discuss the matter has meant that there has been almost no public argument made by the administration or the police which states why they oppose the bill.

Against this background, expect those who oppose these measures to point to the recent charges filed against Officer Garrett Brown –“one of the baddest of the bad apples” – as evidence that further efforts toward police accountability are not needed. 

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In fact, the case of Garrett Brown, and other officers charged with serious crimes, reveals an urgent need for further police accountability measures.

An analysis of cases going back almost five years reveals that, despite the most egregious conduct, and despite many cases involving a history of ongoing criminal behavior, our District Attorney’s office has failed to secure any felony conviction of a Pittsburgh Police Officer in a misconduct case! And, further, no city officer has even served so much as a day in jail for any criminal conduct! In fact, only two cases presented in the last five years have any police official serving any jail time at all. But those cases came on the heels of successful federal prosecutions, and they didn’t concern city police.

This points to some rather serious flaws in the way that oversight is conducted. But those flaws don’t just affect the Police Bureau.  The District Attorney’s office and the courts also seem to play a role in ensuring that officers evade sanction for criminal conduct.

Before we delve more deeply into the case of Officer Garrett Brown, let us review the handful of recent cases where criminal charges were filed. What is most notable about many of these is the extensive history of misconduct on the part of the accused officers. In many cases, by the time charges are filed, an officer has already been the subject of repeated investigations and exonerations into misconduct of exactly the same kind as that which forms the basis of the criminal charges. We also see less than aggressive attempts at prosecution. The DA simply doesn’t fight very hard in these cases to ensure felony convictions or jail time.

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Let us begin back with the case of Detective Bradley Walker. In 2010 Detective Walker was convicted of a road rage incident. During this altercation Mr. Walker, allegedly, kicked and punched the side of car that he had been involved in a minor accident with. He then pulled his gun on that motorist and pointed it at him before smashing the man’s window to choke him.

Surprisingly, Mr. Walker was not convicted of any felony charges. The judge, Anthony M. Mariani, threw out aggravated assault charges and only sentenced Mr. Walker to probation for the incident. He did however lose his job with the Police Bureau.

Was there any indication in Mr. Walker’s past that he might be too violent and aggressive for police work?

Absolutely!

 In 1999 Mr. Walker was the subject of a complaint which alleges that,

“He terrorized a motorist, waved a gun, bullied and said he was the police and to get out of the car,” 

Further, in 2007 he entered into a plea bargain on a domestic violence charge. He allegedly punched his wife and choked his son. The District Attorney’s office let this man walk and allowed him to keep his job by offering to withdraw the domestic violence charge if Mr. Walker completed a course in anger management. Those actions kept Mr. Walker on the police force for another 3 years.

That same year he was also internally disciplined for assaulting another officer who accidently shocked Mr. Walker with his Taser.

This man’s history reveals a troubling amount of rage and an inability to control violent impulses. It is no surprise that this behavior culminated in an incident of road rage and choking – precisely those behaviors that had already been well-documented. However, the DA’s office seems to prefer to let someone with these tendencies evade felony charges. In fact, our DA didn't file charges against him, the State did. And even they failed to make the felony charges stick. Mr. Walker has not served a single day in jail for any of these incidents since Judge Mariani decided that 4 years probation was sufficient punishment for this conduct.

But Walker’s case is no anomaly.

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Lets next examine the cases of Patrick Moffat and Joseph Simunovich. These two got into an altercation with police from Brookline during a Toby Keith concert. (Yes, that Toby Keith concert.) They allegedly disparaged the Brookline Police Force and told officers working that concert that they didn’t have to respect their authority. When a scuffle broke out, Moffat and Simunovich were arrested, as was Moffatt’s sister who tried to take the service weapon of one of the Brookline officers.

Despite the felony charges being filed at the time, both Detectives were released on their own recognizance. If convicted they faced the possibility of losing their jobs.

But, of course, those charges never materialized and the now demoted officers were allowed to plead guilty to disorderly conduct, pay less than $500 in fines, and retain their jobs as Pittsburgh Police Detectives.  In one final twist, all parties agreed to sign confidentiality agreements which effectively prohibit anyone involved in the case from speaking about it. I guess the DA’s office thinks that the justice it dishes out doesn’t need to be subject to public scrutiny.

The fact that one of them was the son of Allegheny County Police Superintendent Charles Moffatt had nothing to do with this, I am sure.

To be fair, Moffat and Simunovich’s case is one of the least egregious. Neither Detective seemed to have a history of this sort of thing and neither have made headlines since.

Still those two appear to be part of a pattern of soft-ball prosecution.

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Consider the, now well-known, case of Eugne Hlavac. In 2009 Sgt. Hlavac became the test case for the Bureau’s new zero-tolerance policy on domestic violence. But this is his second involvement with the policy. His promotion in 2007, despite two previous domestic violence incidents, also made him the inspiration for the Bureau’s zero-tolerance policy.

This case garnered so much attention in the past that little needs to be added here. In 2007, after police had been called to Mr. Hlavac’s residence for a domestic dispute, Hlavac’s supervisor recommended that he undergo anger management and have limited contact with the public. The recommendation that he be removed from contact with the public was ignored and three months later he was promoted to Sergeant – prompting an outcry from women’s groups.

Three of the other officers involved in that round of promotions also had domestic violence issues in their past and the subsequent complaints lead to the formation of the Bureau’s zero-tolerance policy. 

In 2009, Hlavac was charged with felony domestic-violence for dislocating his ex-girlfriend’s jaw – a woman 20 years his junior. However, Judge Nathan Firestone reduced those charges to a misdemeanor. And he was later found not-guilty.

It is also worth noting that the CPRB thought that a complaint filed in 2006, which charged Hlavac with endangering public safety by driving his car through a group of free-ride bicyclists, contained enough credibility that he should be disciplined.

Again, many serious complaints alleging criminal conduct result in no jail time and no felony convictions.

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To see further evidence of this pattern of easy-going judges and soft-ball prosecutions look not further than the cases of Officers Anthony Scarpine and Ken Simon.

Simon, it is alleged, lied in his police report to support the arrest of two suspects on drug charges. He claimed to see the two meet and pass drugs between them. However, video tape of the incident doesn’t support that. Neither of the suspects has any contact with each other and indeed arrived at the location 25mins apart.

Scarpine already had a complaint upheld against him for a previous false arrest. In that incident he claims to have seen a suspect assault a witness in a trial. However, video evidence contradicted his claims and revealed that he wasn’t even present to witness the event.

But, despite the fact that both officers were charged with felonies,and despite Scarpine's history of being contradicted by videotape, Judge James Hanley threw out the charges against him. Further, even though Simon was also alleged to have stolen money from one of the suspects arrested, he had his charges reduced to misdemeanors. 

No verdict has been made in this case yet. But even if the prosecution wins on all counts, there will be no felony conviction and, judging from similar cases, there will be no jail time either. 

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Then, there is the case of Paul Abel. This one has garnered a huge amount of attention and scrutiny. Some allege that the prosecution performed deliberately shoddy work so that this officer could escape punishment.

Paul Abel was drunk and off-duty celebrating his wife’s birthday on the Southside. While driving home, he was punched through his open car window by one of two assailants who then ran off into the night.

Abel, then decided to go looking for them. He found a man, who witnesses say was not wearing the same clothes as his attacker, and proceeded to assault ‘make an arrest’ – though, how a drunken take-down of an innocent man by someone who fails to identify himself as a police officer qualifies as an ‘arrest’, I will never know.

In the course of this ‘arrest’ Abel pistol-whipped the innocent man and then accidently discharged his firearm striking him in the hand.  (Just so we are clear, even Chief Harper calls the victim 'innocent'.) When real uniformed police officers arrived on the scene, they took Abel back to the station. They then waited over three hours to administer an alcohol test. PA law stipulates that, unless the prosecution presents reason that it should not be, a test may be discarded after a delay of two-hours. This move virtually ensured that Abel would beat the drunk driving charge. His BAL was .111 even many hours after the incident.

So did the prosecution give reason to use the evidence from the delayed alcohol test? It seems not. Critics of the prosecution’s efforts claim that they offered no challenge to seeing the drunk driving charge thrown out. This would have been the easiest charge to prove since witnesses saw him driving and the BAL was so far over the legal limit. If these critics are right, it was lax prosecution that allowed the evasion of this charge.

They also allege that the prosecution failed to demonstrate how difficult it is to accidently discharge a Glock pistol. They argue that the multiple safety features of this weapon make it likely that the only way it could have accidentally discharged was through reckless conduct.

Abel walked away from his criminal trial with no convictions.

He has a long history of overly aggressive and plain criminal conduct.  His own wife alleges that he pressured her to make false claims against her children’s grand-parents. She claims that Abel wanted her to report that the grandparents sexually abused the children to thwart a custody request.  

Abel is further alleged to have started a fist-fight inside the County Courthouse, bragged about ‘knocking the shit out of people’ on his myspace page and generally being an aggressive and out-of-control menace. But, he still wears the uniform of a Pittsburgh Police Officer.

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It is also useful to recall the case of Talib Ghafoor. This former Pittsburgh Police officer was recently charged with running a prostitution ring. However, before that, he was caught committing perjury. Indeed, the evidence that he perjured himself came from recordings made at the jail which contradicted his claim, under oath, that he did not have contact with two defendants in a murder trial. Ghafoor resigned from the Pittsburgh Police under a cloud of suspicion. That seems to have been enough for our DA since he then failed to file perjury charges, despite evidence solid enough to force the resignation.

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So now we have felony charges filed against Officer Garrett Brown. Officer Brown, you may recall, was the off-duty officer who forced a truck driver off to the side of the road in the wee hours of the morning last year and twisted his arm while throwing him against the vehicle. When uniformed police arrived they allowed the motorist to leave and he subsequently sued the City of Pittsburgh and received a 150K settlement for his efforts. That case seems to have been ignored both by OMI and the DA’s office.

However, later that year Officer Brown seems to have suffered another incident of road rage. The City Paper reports that he deliberately backed his car into a delivery truck that had cut him off earlier and then exited his vehicle and challenged the delivery driver and his passenger to a fight. When they refused to exit their vehicle and called 911 to report the incident, Brown continued to follow them and had uniformed police officers charge them with hit and run when they stopped to make the next delivery. Brown, of course, denies all criminal conduct and claims he was struck by the delivery vehicle.

However, OMI found that the story told by the delivery driver to be the most credible.  Apparently his insurance company has also obtained evidence indicating that Brown’s car had backed into the truck causing the accident.

Officer Brown faces felony charges for insurance fraud and theft by deception.

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In all of the research I did spanning the last five years I could only locate one case of misconduct that was successfully prosecuted and resulted in jail time. A federal investigation into Chief Frank Diener of the West Mifflin Police Department revealed that he stole government property, built an unaccountable slush fund, and was in possession, with intent to distribute, of both cocaine and marijuana that had been stolen from the evidence room. The DA’s conviction, in that case, came after both federal and state prosecutions and didn’t result in any increase in jail time. In fact, for all of these crimes the former chief was only sentenced to a year and a day.

As part of that investigation into misconduct at the West Mifflin PD, it was revealed that Officer Missig assaulted a juvenile suspect and lied to obtain a search warrant. This case was sucessfuly prosecuted and resulted in jail time. However, Missig was only sentenced to 6-12 months for these offenses, and he served only 3.

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This much should be obvious, but it bears repeating. A practice of treating police with kid gloves is incredibly corrosive to the public trust. Indeed, it should be recognized that almost every case of police misconduct is a violation of someone’s constitutional rights. If an officer lies to get a search warrant, the fourth amendment is violated. An unjustified use of force violates one’s right to suffer no punishment without due process of law. This country, for reasons I can’t really fathom, has chosen to build one of the most extensive and dehumanizing systems of incarceration that the world has ever seen. Let us remind ourselves that our country incarcerates more people per capita than any other country ever has. We lock up a greater percentage of our population than the Soviets did during the gulag and they had the whole of Siberia to send people to.

For this system of incarceration to be a system of justice, it must work impartially. And the evidence presented here makes it look exceptionally partial. Indeed, I would wager that if those who administer this system were subject to its full force, it wouldn’t be able to continue. Too many powerful and compelling voices would speak out against it and highlight its unfairness and draconian consequences.

Also troubling is the fact that this problem is just not the sort of thing that the legislation currently being considered is designed to combat. Too often efforts at police accountability are split along race lines. But the issues are linked. Those who allow conduct to slide because it happens in minority communities help build a culture that refuses to take rights and the law seriously. 

But, legislation and citizen action can address this problem. Pittsburgh needs a more transparent and proactive system for investigating and disciplining officers. There are some very minor changes that could be made today that would go a long way toward achieving this.

First, make the Bureau’s Police Policy Manual public. Our police have resisted doing this for years citing concerns about officer safety. Indeed, they won’t even share this document with City Council which is why the recent session debating Bill 234 had to be closed to the public. This is ridiculous. There is already a precedent for making this information public. Denver, Minneapolis, Seattle and Cincinnati among others make these documents available. They recognize, as Pittsburgh has not, that one cannot exercise civilian control over a police force if the public is unable to see the policies that are in place. This wouldn’t even require a majority vote of council. If an intrepid and bold councilor were willing, the document could be subpoenaed and put into the public record.

Second, stop treating officer discipline as an internal personnel matter. It must be acknowledged that misconduct is a violation of a citizen’s rights. We cannot hope to be a people that take rights seriously unless we acknowledge that a violation of one person’s rights is not a closed matter between that person and the transgressor. A violation of some person’s rights is a public matter because it is only by creating an environment where rights are respected that any single person can make a claim to have his rights upheld. By making internal discipline secret we have essentially set up a parallel system of secret justice where unknown rules and principles dictate what punishments are to be meted out for a violation of duty to the public. This is no way to secure public trust because in the absence of scrutiny and transparency there can be no basis for this trust. Indeed, if it is true, as some of these cases seem to suggest, that the DA’s office will sometimes not file charges because discipline has already been handled internally, this means that a substantial portion of the law is secret. The average citizen is in no position to see justice being done in cases involving police because those matters are resolved in behind closed doors and even the rules and procedures are opaque. This step could be accomplished in a variety of ways. Council might refuse to ratify contracts that treat internal discipline as a non-public matter. Alternately, we might empower the Citizen’s Police Review Board in such a way that it can review officer discipline, make binding recommendations, and disseminate that information to the public.

Third, we can stop defending egregious conduct in the civil trials that inevitably follow this kind of misconduct. Chicago already does this. If police knew that behavior which shocks the conscience would result in personal financial accountability, especially when that behavior occured off-duty, it is my belief that many would think twice before allowing their emotions to get the better of them.

Other changes to address this problem probably need to be made by altering the attitude of the citizenry. It is no secret that the voting block of the police union has significant power in determining elections for Judges and District Attorney. Many people pay very little attention to the election of judges – most of which are determined in the primaries. But not everyone is so apathetic. Judges and the District Attorney know who they must please if they are to be reelected – it’s the police union. Only an engaged and informed citizenry who see even the justice system as ultimately answerable to them can exert the influence at the polls needed to alter the status quo. Further, an engaged citizenry is one that contacts and questions its public officials. If you don’t contact the Mayor’s office, Council offices, the DA and Judges and tell them what you think of their performance there will be very little pressure for them to see that your concerns are being responded to.

 The flaws in American justice are more extensive that those pointed to in this discussion of Pittsburgh. But local politics is one place where voters can make the greatest impact. We can only do this by demanding a transparent and equal system of justice for everyone. Current efforts are a step in the right direction, but much more needs to be done.

The work that needs to be done begins with building an engaged citizenry that demands to be heard and demands to scrutinize the work of those who work for us. But when things are stated that way I wonder if, collectively, we are up for that challenge.