Framing the Debate
Positional asphyxia. It's the medical term for the fatal combination of suburban police officers, a Jaguar-driving black man and the mistrust swirling around them when they encountered each other late one night 10 years ago, on Oct. 12, 1995.
Jonny Gammage's asphyxia was indeed positional: It wasn't just being pinned beneath the weight of police officers that pushed the life out of the 31-year-old man. It was also, many feared, his position as a black man in a region where his entrepreneurial drive -- even his family connection to a Pittsburgh Steelers starter -- served him well only after his death, by making the media and the public pay attention to him just a little longer than they did to others.
After all, there had been police-related deaths before, as well as scattered complaints about racially motivated traffic stops and epithets hurled from behind badges. In fact, while Pittsburgh police officers were present at the scene, they weren't directly involved in Gammage's death, which came at the hands of suburban police from Brentwood.
But Jonny Gammage breathed his last breath into a city's resolve. His death eventually gave Pittsburgh the ability, willingness and energy -- from the top of its embarrassed, official head to its marching, grassroots feet -- to prevent deaths and abuse at the hands of police
"The Jonny Gammage case gave us the juice and the outrage," says Celeste Taylor, a longtime activist currently working with Pittsburghers for Open Government.
In the past 10 years, Pittsburgh has carried out increased monitoring of police behavior, and developed a deeper awareness of police accountability -- what it looks like, and what's needed to maintain it. But 10 years after Jonny Gammage's death, the city is at a crossroads. A federal consent decree monitoring city police was recently lifted, and some of the key advocates for police accountability are being pushed from the stage.
Gammage's death will make headlines once again this month, as local news outlets revisit its anniversary. Local filmmaker Billy Jackson has made a documentary about Gammage's death and its fallout [see sidebar, "Framing the Debate"], to be released this month. "We want as many people as possible to see it and get engaged," says Jackson. But while Jackson believes police accountability is a vital issue, he wonders if the public will stay engaged. "[I]t's going to be hard to maintain people's attention even after [the film] is shown," he says.
Indeed, if another Jonny Gammage died this month, 10 years later, would things be any different?
In the years following Gammage's death, policing in Pittsburgh underwent a dramatic overhaul, thanks to reforms on several fronts.
In 1996, the ACLU and NAACP assembled 66 plaintiffs who'd complained of run-ins with the Pittsburgh police, for a class-action lawsuit filed in the U.S. District Court of Western Pennsylvania. A third of these cases were either dropped or tossed out by a federal judge; the others were later settled for total of $275,000. By 1997, however, the federal Department of Justice (DOJ) had gotten in on the act. The DOJ determined that Pittsburgh police engaged in a "pattern and practice of conduct by law enforcement officers" which "deprives persons of rights ... protected by the Constitution." The Department alleged numerous shortcomings in the bureau's procedure for supervising and disciplining officers.
To settle the suit, the city and the DOJ hammered out the now-famed consent decree, among the first of its kind in the nation. The decree required the city to compile a computerized "early warning system" that would track complaints against officers, as well as other aspects of officers' conduct. Among other things, the system was designed to flag officers after a specific number of citizen complaints, record the race and gender of those involved in traffic stops, and document uses of force, and searches and seizures. Under the decree, quarterly reports tracking this data were provided to a court-appointed auditor, whose review and analysis were disclosed publicly.
The city already had an entity for investigating complaints against police, fire, medical service and building-inspection employees, the Office of Professional Standards. The consent decree renamed the body the Office of Municipal Investigation (OMI), and shifted it out of the city's public-safety division and into the law department. The court-appointed auditor oversaw the status of investigations and, according to the decree, OMI was required to "re-open for further investigation all investigations the auditor determines to be incomplete."
Taylor and her comrades, meanwhile, were not content to wait for the feds. Several ad-hoc organizations, made up of mad-as-hell community activists, police-misconduct victims and veteran organizers, sought to create an independent body to investigate claims of misconduct. Similar bodies, called citizen-review boards, already operated in other cities. In Pittsburgh, though, "When you had a complaint against the police, you walked into police headquarters," says City Councilor Sala Udin, an ally of the grassroots forces seeking public monitoring of police. "And the officers you were complaining against were at the desk and the complaints were investigated by the police."
Along with Jim Ferlo, a city councilor from 1988 to 2003, Udin was a vocal supporter for creating a Pittsburgh review board. But a majority of Pittsburgh's city council opposed the notion, thanks in part to opposition from then-councilors Bob O'Connor, who is now Pittsburgh's likely next mayor, and Dan Onorato, who today heads Allegheny County. Rebuffed by council, activists used a public referendum to push for the board instead.
"We had to get a lot of signatures," says Taylor of the eventual petition drive to get a review-board measure on the ballot. "In the dead of winter, people went out and got signatures."
And in the spring of 1997, more than 15,000 Pittsburghers voted to create what would become the Citizen Police Review Board.
Still, says Taylor, "It took a lot of work to get it in place. [City council] kept trying to water it down, [by doing things] like giving it no subpoena power. But we had looked at review boards across the country, to make it as strong as possible."
Today, the CPRB's seven employees and $441,000 budget work from a building in Uptown. Like OMI, the CPRB investigates complaints. Unlike OMI, the CPRB focuses exclusively on the police, holds public hearings and makes its findings public. Seven volunteer board members, appointed by the mayor and city council, conduct hearings and, based on evidence taken from testimony and in-house investigation, make recommendations about discipline.
Aside from supporting the review-board effort, some elected officials contributed to the movement in other ways.
County Coroner Cyril Wecht, for example, held inquests on police-related deaths of civilians. While the district attorney's office ultimately decided whether to prosecute an officer, these decisions too were made behind closed doors. Wecht's hearings, by contrast, included public testimony from police and other witnesses, autopsy reports and other documentation.
The convergence of all of these elements -- the work of grassroots activists, departmental changes required by federal oversight and a handful of public officials -- had an effect. "What I'm hearing from my constituents is that getting smacked upside the head is not a part of being arrested anymore," Udin says.
Even the Police Bureau agrees that the consent decree helped. Police chief Robert McNeilly, for one, says that having the decree made it easier to make changes in the police bureau, changes that otherwise might have been prevented by the Fraternal Order of Police.
"When I looked at the consent decree, I already had a list of things I wanted to accomplish as chief," he says. "A lot of the requirements of the consent decree were my own. There was no sense in fighting it."
Gwen Elliott is a former police commander who, before her retirement in 2002, implemented the decree's new training and monitoring procedures. She credits the court order with improving the means of tracking complaints about troublesome officers.
"If it wasn't for the consent decree, we'd still be doing everything by hand," she says. "Before, we had minimal computers. We were in the dark ages." Tracking complaints by computer, she says, makes it easier to spot trends involving lesser complaints, so managers can spot problematic behavior before it mushrooms into something serious, or even fatal.
Plus, she says, "Training intensified. We had more ways of having control of people who are out of control, without using deadly force. It gave police a lot of tools for making better decisions."
Rank-and-file officers, however, have long expressed doubts. Some have alleged that the new tools allow management to bully employees. One critic, officer Chuck Bosetti, wrote a stinging 2002 Pittsburgh Post-Gazette
article complaining about "strong-arm tactics" by commanders and alleging that "officers have literally been investigated for their 'tone of voice.'" Other skeptics worried that officers, fearful of being sanctioned, would be less aggressive about fighting crime.
In fact, crime rates in Pittsburgh, like those across the country, are hovering near historic lows. But Bryan Campbell, attorney for the Fraternal Order of Police, says the consent decree's new guidelines have tied officers' hands.
"It's a loss of faith in [officers] using their judgment," he says. "You can't set hard-and-fast rules with police. They have to have some discretion in what they decide to do. It's when they run into people who only have to have someone exert their authority before getting their back up. Anybody who has raised children knows this. Now, you have to be polite, and yet you're dealing with people who are mentally ill or drunk or belligerent."
He adds that monitoring and investigative requirements have added "bureaucratic paperwork" to officers' workdays. And even when a complaint is baseless on its face, he complains, the city has to investigate it. "They can't just look at it and decide it has no merit."
Someday, though, that could all change.
This April, the last vestiges of the consent decree were lifted. New training and monitoring procedures were in place, and a sizable backlog of complaints filed at OMI had been resolved. The Department of Justice agreed that Pittsburgh no longer needed federal monitoring.
Now, without the court-appointed auditor's reports, it's harder for the public to keep track of its operations, or even simple questions such as whether officers are more or less likely to use deadly force than they were the day Gammage died. In an Aug. 17 letter, the Department of Public Safety denied a July 6 City Paper
request, submitted under the state's "Right to Know" law, that it provide weapons-discharge reports. Support Services Manager John Warren wrote, "The City is not required to produce the documentation, as it is maintained within an involved officer's confidential personnel file."
That non-response took more than a month, although the state's Right-to-Know law requires a response within five business days. OMI has been similarly slow to respond: The agency has yet to respond to another letter, dated July 26, requesting quarterly statistical reports of complaints -- reports the consent decree once required it to disclose.
In at least one previous example, old problems in the department reasserted themselves when the court stopped watching. Following a 1970s racial-discrimination lawsuit, a federal court required the police department to hire equal numbers of white and black officers. The result, according to a 2002 report by the city's police review board, was that while the quota was "highly unusual" it "cured a significant deficiency in demographic representation in the [police force] and resulted in a police force that closely resembled the City."
But a judge ended that court order in 1991. And today, the review board noted, officers "hired as a result of the [quota system] are retiring. As they leave, we observe the demographic diversity of the Bureau declining." In 2002, blacks made up 22 percent of the force, versus 27 percent of the city population as a whole, and the numbers are likely to get worse. Black males made up only 2 percent of new recruits trained between 1994 and 2001; 2.6 percent of recruits were black women, according to the report.
"If you look at the police-recruitment classes, you'll find that the participation of women and minorities has gone down considerably," says Councilor Udin. The review board suspected bias in screening tools, but Udin surmises it's because of "the negative image that the Police Bureau has in the black community. And women don't see [the Police Bureau] as a welcoming place, and that's correct."
Such backsliding may or may not happen this time, but one thing is for certain: Udin won't be around to stop it. In the May primary this year, he lost his battle for re-election to Tonya Payne, president of the Uptown Community Action Group and a former Udin aide. Payne won the Democratic nomination for Udin's seat -- thanks in part to an endorsement from the Fraternal Order of Police.
Payne says that endorsement won't affect her position on police accountability. "When I went to interview for the FOP endorsement, I made it clear that I and they were on the same side of helping the community," Payne says. "They want to see a partnership between the police and the African-American community. I don't think we can go any further bumping heads."
But Payne admits she isn't yet certain what that partnership would look like or whether it would include the review board.
"In the end, I can't worry about the endorsement of the FOP," she says. "I have to focus on the citizens and whatever it is that is going to keep them safe. I can't say right now how it should happen."
Udin's defeat wasn't the only election result that might affect police accountability. The Democratic primary has all but ensured that Pittsburgh's next mayor will be Bob O'Connor. O'Connor, who while on council opposed the review board, received the FOP endorsement as well.
"I can't speak to that," says O'Connor spokesman Dick Skrinjar, of O'Connor's actions on the council. "But his focus now is on professionalizing the management of the city, including the police department, with better training, management and motivation. You want a city that's safe, and monitoring is a part of that."
O'Connor will be inheriting a cash-strapped city -- one where OMI, like the police it oversees, has been shrinking. Previous cuts have shrunk the office's roster of investigators from 12 to nine. In all the noise surrounding the layoffs of police and firefighters, few noticed the reductions in the office that oversees their conduct.
As for the city's independent review board, Skrinjar would not specifically discuss O'Connor's approach to it. He did, however, note that "[n]o one should have any assumptions or preconceived notions of the status quo. Just because it's this way now doesn't mean it will be this way later."
The May election had one additional impact on police accountability: a referendum on county row offices will replace several elected county positions with political appointees. Among the affected positions is that of coroner: Next year, Wecht's job will be an appointed position whose occupant will be chosen by Allegheny County Chief Executive Dan Onorato, who like O'Connor opposed police accountability measures when he served on council.
"There will still be autonomy," assures Timothy Uhrich, solicitor to the coroner's office. "The medical examiner cannot be removed, except by court action."
Court action has, however, already curtailed some of Wecht's power.
Wecht's attempts to hold open inquests into police-related deaths hit a wall last year, when District Attorney Stephen Zappala began challenging the legality of the inquests. In several cases, Zappala has filed motions to stop Wecht from scheduling inquests and issuing subpoenas. According the court records, Zappala claims that officers are unfairly being called to testify before the completion of internal police investigations into the deaths, and that Wecht is "acting beyond the scope of his authority."
"We don't know what triggered this," says Uhrich. "Over the last 10 years, we did a number of inquests with no interference."
The courts have largely sided with Zappala. Earlier this summer, a judge upheld Zappala's motion throwing out Wecht's subpoena in two police-related deaths: the hanging death of 45-year-old John Walker in a Dormont holding cell, and the shooting death of a Turtle Creek man involved in a domestic dispute.
In September, Judge Jeffery Manning told Wecht that he couldn't hold an open inquest into the July death of John Trojan. Trojan died during an altercation with Crafton borough police at a shopping center in July. At least one witness claimed that police gunned Trojan down, but police say Trojan, who apparently had a gun, shot himself. Wecht announced plans to hold an inquest, but Manning ruled the hearing might interfere with an ongoing investigation.
Wecht has also spent much of the past year battling charges -- initially lodged by Zappala -- that he used his county office in support of his private consulting business.
Perhaps most importantly, the public's interest in accountability has waned since the days in which Gammage's death drew headlines. Many police-accountability advocates have since moved on to other things, like protesting the Iraq war, and even Celeste Taylor acknowledges "I got burned out. Hopefully, some other people, young people, will take it up. It will be nice to get some new energy."
The ACLU has moved on as well, for the most part, although the organization still speaks out on current police matters.
"We have nothing on the front burner right now," said ACLU legal director Vic Walczak, once among the loudest voices calling for increased police monitoring. "Frankly, you need some time for the situation to play out. If you're going to get some regression in police accountability, you need time" to see the trend.
But just when it seemed that the media and everyone else had stopped paying attention, protesters at an Aug. 20 anti-war rally in Oakland faced off with Taser-wielding Pittsburgh police. The incident -- in which video footage showed seemingly passive protesters being attacked by a police dog and with pepper spray and stun guns -- shocked many observers. And because the incident involved the kind of folks known for raising a fuss, says Taylor, police conduct may again become an issue.
"The fact that it's once again in the forefront will help us to build this movement and help it continue to grow," she says.
Walczak agrees. "I don't think we're getting the volume of complaints we used to," he says. "But when you see something like [the anti-war protester incident], you wonder."
Pete Shell, board president of the Thomas Merton Center and a key voice in the 1990s police-accountability movement, believes the district attorney's office should be the next focus for activists.
"Our main thing is that the police officers involved in violence be prosecuted," Shell says. The problem, he contends, is that "Right now, the prosecutor works with the police department on a regular basis, so there's a built-in conflict [of interest]." Shell is pondering whether in cases involving police conduct, "we could advocate for an appointed prosecutor from outside the DA's office in cases involving police."
"An independent prosecutor campaign would take a lot of organizing," says Taylor. "But I think you're going to see a renewed interest in Zappala's role."
Others say that Taser use isn't the only area in which clearer guidelines are needed. Language in state law grants officers considerable leeway in determining when shooting someone is necessary in order to make an arrest, says Dr. R. Paul McCauley, a professor of criminology at Indiana University of Pennsylvania. Currently, state law governing police use of lethal force states that an officer may fire if the officer believes that "the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay."
The problem, says McCauley, is that final instance of the word "or." It makes the limits on deadly force looser than those specified in federal law. And state law governs the training of officers in city police departments, including Pittsburgh's.
"It affects the suspect," he explains, "if the officer believes that you are doing any of the things that follow the word 'or,' and harms or shoots you." This is why officers who kill citizens are often not prosecuted or convicted.
McCauley is proposing that the final "or" be changed to "and." This would create, he argues, a stricter standard by which officers can use deadly force. He has sent his findings to Pennsylvania Attorney General Tom Corbett, but so far has gotten no response.
Locally, meanwhile, the police review board has struggled to command respect from city officials. Until just this September, for instance, at least one seat on the board had been vacant for the previous two years because Mayor Tom Murphy was slow to appoint new members. One of Murphy's previous appointees, retired police commander Ronald Freeman, didn't show up at a single meeting after being appointed in November 2003.
Freeman has since been replaced, but the review board finds itself caught between different sets of expectations. While police officers worry that the CPRB is too intrusive, others suggest that it doesn't do enough.
Despite the fact that the board does not have the power to discipline officers directly -- only to make such recommendations to the chief -- it still suffers from resentment and distrust by police. Many officers choose not to testify, invoking a right against self-incrimination and frustrating those who think the review board should be more effective. In her campaign for Sala Udin's city council seat, for example, Tonya Payne suggested that if the review board could not be strengthened, it should not exist.
"If it's supposed to discipline officers, then let it do that, and have the necessary tools to do that," says Payne. "If not, why have it? Who has the CPRB really helped?"
CPRB Executive Director Beth Pittinger points out that the board consistently clears most police officers in cases it investigates. "Ninety-two percent of the time, the officer has done nothing wrong," she says. "But for that remaining eight percent, you need a check and balance."
"People tell us, 'You have to make them talk," adds Pittinger. "But that's not being impartial, or independent or fair. ... We respect the rights of officers, and we respect the rights of citizens. And I guess the fact that everybody's upset with us means we're doing our job."
Udin says he wishes the board could discipline officers, "but that's not what the legislation that created it says," he adds. "I don't follow [Payne's] logic. So, if the board is serving 80 percent of the purpose, but not 100, you can get rid of it?" Pointing to Payne's FOP support, Udin suspects Payne has another agenda. "A disguised way of mounting opposition to it is to say that it doesn't have the authority is should have," he says. "If [the board] was so weak and impotent, it wouldn't be as feared as it is by officers."
Both sides agree, however, that public scrutiny is key if Pittsburgh is to avoid slipping back to the status quo that existed before Jonny Gammage's death. Taylor, for one, hopes to increase public attendance at CPRB meetings, and to increase pressure on the next mayor to appoint board members sooner.
Payne, though, worries that it may take another high-profile victim to keep the issue at the forefront. Previously, she says, when there was a police shooting, "the media followed it all the way through to the end to see what happens." But "[a]fter the consent decree, folks kind of let it go.
"All the hype around Jonny Gammage kept people's juices flowing, and they kept working," Payne says. "Now, people are waiting for the next big issue. The writing can be clearly on the wall, and we'll still be waiting for something to happen."