HUMAN RIGHTS WATCH Shielded from Justice: Police Brutality and Accountability in the United States

Police Advisory Commission
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The Police Advisory Commission (PAC), the city's external review agency, was created by an executive order issued by Mayor Rendell, under significant City Council pressure, on October 29, 1993, to investigate and publicly report on individual allegations of police misconduct and abuse, and broader issues of policy and procedure. PAC handles complaints alleging physical abuse, and verbal abusethat is related to ethnicity, race, or sexual orientation. The fifteen-member PAC is selected by the mayor and meets once a month; it had three investigators and two support staff as of August 1997.21 In April 1998, its Executive Director Charles Kluge was fired amid criticism of the PAC's inadequate community outreach efforts and its focus on minor allegations in recent years, since the DeJesus case.22 As noted in its fiscal year 1996 annual report, the PAC investigators have an average caseload of over thirty cases at any given time - more than double the caseload for Internal Affairs Division investigators.23 The PAC is permitted to hold public hearings, subpoena witnesses and review police documents. It can recommend disciplinary action or departmental policy changes.

Unfortunately, the PAC has become the battleground between the Fraternal Order of Police and police reform advocates. As explained by City Councilman Michael Nutter, who backed the creation of the PAC, the reaction has been that if you support the PAC, you are against the police.24 As part of this dynamic, the PAC has been forced to fight repeated lawsuits filed by the Fraternal Order of Police. In early 1995, in FOP v. Commission, the FOP claimed that PAC was illegally created and that it impermissibly interfered with the police department; the FOP later voluntarily dismissed its lawsuit. In the fall of 1995, seven of nine officers involved in the DeJesus case (See below) filed suit in state court to enjoin (or prohibit) the compulsion of their testimony at PAC public hearings in DiPasquale v. City of Philadelphia, et al.25 The parties agreed to a compromise: the officers received a letter from the police commissioner stating that they were compelled to testify about the incident, thus obtaining immunity from their testimony being used in anysubsequent criminal proceedings against any of the officers.26 The FOP again filed suit, this time against the city, calling for it to dismantle the PAC.

Over a two-year period, between July 1, 1994 and June 30, 1996, the PAC received 256 citizen complaints; 197 of the complainants were African-American or Latino, roughly 77 percent.27 Physical abuse or abuse of authority was the claim in 186 of the complaints.

The PAC operates with a six-month statute of limitations, which unreasonably limits complainants' ability to utilize the commission. Many victims of police abuse have been abused during an arrest and may face criminal charges (including "cover charges" such as resisting arrest or assaulting an officer often used by officers who commit violations). Most attorneys will advise alleged victims of abuse not to file an abuse complaint until criminal charges are disposed of, which can take much longer than six months. The statute of limitations thus prevents complainants from filing a complaint with the PAC. Advocates have suggested revising the deadline by adding a stipulation that a complaint may be filed up to "thirty days after the criminal case is completed." The FOP's local president, Richard Costello, in response to this suggestion, reportedly stated, "This whole commission [the PAC] is a felony in progress."28

The second PAC report (the first report described police stress problems) created an enormous stir in examining the death of Moises DeJesus.29 On August 21, 1994, 25th District officers were called to the 3600 block of North Third Street to subdue a large, allegedly drug-crazed man, DeJesus. DeJesus was placed in a lieutenant's car, then moved to another squad car. Witnesses claimed it seemed he could not breathe, so he kicked out a window and put his hand outside; his hands were hit with an officer's baton. Then he allegedly put his head out the window and was hit by Officer Donna Young. Accounts vary, but he got out of the carsomehow, and was allegedly hit again by Officer Young. He was finally handcuffed and put in a police wagon and taken to Temple University Hospital; he never regained consciousness and died three days later. PAC members agreed with the city medical examiner who found that drugs were the main cause of death but that excessive force was another, or the "straw that broke the camel's back."30

The PAC found that Young had used excessive force and lied, and it recommended a thirty-day suspension for lying. For five other officers - Nicholas DiPasquale and Chris DiPasquale (brothers), William Suarez, Raul Malviero, and Michael Page - the PAC recommended a fifteen-day suspension for "lack of candor." The PAC found the investigations by East Division detectives and the IAD inadequate. For example, when IAD had questioned the officers involved, its investigators allegedly allowed the officers' lawyers to respond to questions directed at the officers themselves, and failed to ask for details or pose follow-up questions. According to the PAC report, "[T]he interviews before Internal Affairs in this case were not calculated to exact the details concerning what had happened but constituted an effort by Internal Affairs to accept the officers' version without question or doubt rather than gather the facts....The investigation by Internal Affairs of this incident was totally inadequate."31

Although the police commissioner's report in response to the PAC findings missed the deadlines required in the PAC's charter, he and Mayor Rendell strongly rebuked both PAC and its report once they did respond.32 The police commissioner disagreed with PAC's conclusion that excessive force was used or that any force used contributed to DeJesus's death, and stated, "I'm going to disregard the findings of the Police Advisory Commission."33 The FOP called for federal prosecutors to investigate PAC, alleging it had failed to provide some of its witness statements tothe police department.34 The PAC acknowledged its investigation was not perfect, since it was the first major case it had handled, but stood by its findings.

Police Commissioner Neal did acknowledge that officers were not truthful with the PAC; medical experts found that DeJesus had been hit in the head, yet none of the officers on the scene had admitted to witnessing any blows. Neal stated, "I will not, however, condone a lack of candor or `code of silence' for any reason, even for the purpose of protecting a fellow officer."35 The police commissioner handed out ten-day suspensions to eight officers for "lack of candor" - reportedly the least severe penalty for failing to cooperate - which the officers appealed.36 According to the PAC, this is the first time Philadelphia police officers had been disciplined for following the code of silence.37 In reaction to the penalties, FOP lawyer Jeffrey Kolansky rejected the notion that there is a code of silence but declined to answer a reporter's questions on the topic.38 In February 1997, DeJesus's family received $250,000 from the city in a settlement; the city officially admitted no wrongdoing but acknowledged possible flaws in training.

Following the DeJesus case, the PAC began convening lower-profile panels hearings, with five such hearings taking place between February and September 1997.39 PAC staff note that responding to the FOP's legal challenges and holding hearings in each case has resulted in a backlog of cases. They also assert that the PAC's mandate, which calls for broader policy investigations and reports, cannot be fulfilled with current staffing levels.40

There is no linkage between the City Solicitor's office (when a civil lawsuit against the police is handled) and the PAC, with the city solicitor's staff claiming that there is no notification because the PAC is an "independent" office.41

21 Telephone interview, PAC Executive Director Charles Kluge, August 19, 1997.

22 Mark Fazlollah, "City police advisory panel dismisses its director," Philadelphia Inquirer, April 14, 1998.

23 PAC Annual Report, Fiscal Year 1996, p. 5.

24 Interview, August 20, 1996.

25 As described in PAC Annual Report, Fiscal Year 1995, pp. 21-22.

26 During the DeJesus hearing, about 300 FOP members reportedly shouted "Kangaroo! Kangaroo!" "Kangaroo courts" are tribunals disregarding or parodying existing principles of law. Paul Maryniak, "Philadelphia's story," Pittsburgh Post-Gazette, April 21, 1996.

27 According to the 1990 federal census, African-Americans make up nearly 40 percent of Philadelphia's population, and Hispanics of any race make up about 5.5 percent.

28 Michael Matza, "Police panel time limit is assailed," Philadelphia Inquirer, September 13, 1996.

29 PAC report on DeJesus case, December 19, 1995, PAC. NO. 94-0015.

30 Ibid., p. 16.

31 Ibid., p. 17. One member of the PAC dissented from the report's findings.

32 Response to Police Advisory Commission, in re: Moises DeJesus, No. 94-0015, April 29, 1996.

33 Jeff Gammage, Mark Fazlollah and Richard Jones, "8 city officers suspended in DeJesus case," Philadelphia Inquirer, April 30, 1996.

34 According to police abuse expert Prof. James J. Fyfe, the police department's own investigations do not usually include witness statements but instead contain investigators' paraphrased accounts of what witnesses are alleged to have told investigators.

35 Response to PAC report, p. 47.

36 Sec. 1.11 of Police Disciplinary Code, cited on p. 48 of response.

37 PAC annual report, Fiscal Year 1996, p. 2.

38 Jeff Gammage, "Code of Silence: A barrier to truth in investigations of police," Philadelphia Inquirer, May 5, 1996.

39 PAC Annual Report, Fiscal Year 1996, p. 2, and telephone interview with PAC Executive Director Charles Kluge, August 19, 1997.

40 Ibid.

41 Telephone interview with Shelly Smith, City Solicitor's office, January 27, 1997. Smith was contacted by telephone after correspondence from Human Rights Watch went unanswered; she stated she would respond in writing, but no letter has been received.

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© June 1998
Human Rights Watch