99 Problems: Run-in with Jordan Miles wasn't first controversial incident for three 99-car cops | News | Pittsburgh | Pittsburgh City Paper

99 Problems: Run-in with Jordan Miles wasn't first controversial incident for three 99-car cops

"Unless the police brass begins punishing violators, the department will never be brought under control."

On Christmas Eve 2009, three Pittsburgh plainclothes officers in an unmarked Monte Carlo detected the scent of marijuana in the air. They spotted two men — the only people nearby — turned their car around and got out to investigate.

Moments later, the officers would be in a physical confrontation with Lamar Johnson, one of the men they thought could be responsible for the odor. They wrestled him to the snow-covered ground, suspecting he had a gun in his coat and that he might be trying to swallow narcotics.

No drugs or guns were recovered, though, and Johnson was released without being charged. Before the officers' shift was over, however, Johnson had lodged a complaint against them.

The incident went down exactly 19 days before the same three officers — Michael Saldutte, David Sisak and Richard Ewing — wound up in a violent confrontation with 18-year-old Jordan Miles, at the time an honor student at the Pittsburgh Public High School for the Creative and Performing Arts. As in Johnson's case, the officers thought Miles was acting suspiciously and that he might have a gun in his coat.

Miles filed a civil lawsuit against the officers in federal court, a case that ended up in front of two separate juries. But despite similarities between the Johnson and Miles encounters, the jurors never heard about Johnson or much else about the officers' records. A judge ruled the evidence was prejudicial, frustrating Miles' legal team.

"The Lamar Johnson case is almost exactly the same," says Kerry Lewis, an attorney who represented Miles. "Three weeks before, [they] jump out of a car and throw [Johnson] to the ground. [...] That indicated to me that that's their style."

Johnson and Miles, both African-American, were confronted by officers in "99 cars," controversial undercover units that are the focus of a separate City Paper story this week.

But documents recently obtained, including depositions and internal memos, reveal separate incidents in which the officers who confronted Miles had been previously criticized by supervisors. Problems, according to documents, range from lying in police reports to conducting illegal searches — and involved recommendations for remedial training and discipline.

Nearly two months before the Miles incident, for instance, Lt. Reyne Kacsuta recommended retraining in criminal procedure and rules regarding search warrants after Ewing, Saldutte and Sisak forcibly entered a residence without a warrant, according to a memo obtained under the state's right-to-know law.

And in a separate incident years earlier, Ewing — before he joined the 99 unit — and another officer were involved in a traffic stop in which they lied about having obtained consent to search the car, then-Zone 5 Commander RaShall Brackney alleged in a deposition for the Miles trial.

These incidents are important on their own, but also point to systemic concerns about how officers are disciplined. Why were officers who had been criticized for using illegal search practices allowed to patrol in undercover units with less supervision, eventually engaging Miles in one of the most high-profile confrontations with the public in recent years? Were they properly disciplined or retrained when supervisors and citizens raised concerns? Did the discipline escalate?

The city would not make police officials available to comment on those lines of inquiry, but Bryan Campbell, a lawyer for the Pittsburgh police union, says Sisak, Saldutte and Ewing "were believed to be good, proactive officers."

"They're given a yearly evaluation by their supervisors, and these officers had good evaluations," he says, "They're not some rogue unit that's doing whatever they want to do."

But according to Brackney, a former supervisor, the officer's histories are checkered. Though she wasn't their commander during the Miles incident, she testified in her deposition that they "were to be closely monitored; that they had a history of lying; that they had a history of not completing their paperwork; not accurately reflecting their paperwork; not accurately submitting their Field Contact Search & Seizures; [and] not rising to the level of reasonable suspicion on mere encounters with persons."

Deficiencies in accurate reporting, she added, "literally can cost lives and the officer's career."

None of the incidents detailed in the documents obtained by CP, however, cost the officers their careers. Though Ewing is now an officer in McCandless, all three men are still patrolling the streets.

Separate legal teams that represented Miles in his two civil trials tried to argue the officers' histories — particularly their conduct during the Lamar Johnson incident — were relevant in establishing a pattern of physical confrontations with people who shouldn't have been suspected of being criminals.

And while some elements of the Johnson incident were made public in a brief lawyers submitted in 2012 asking for a new trial, sworn depositions from Miles' first trial reveal details that have not previously been known. Depositions are sworn statements made by parties, usually in the discovery phase of a civil lawsuit. In the Miles case, the witnesses were questioned by Miles' attorneys with the officers' attorneys in the room.

According to portions of a police report read during Sisak's 2011 deposition, Sisak, Ewing and Saldutte became suspicious of Johnson after smelling marijuana near the intersection of Montezuma Street and Loire Way, in Lincoln-Lemington. The officers were in an unmarked "99" car at the time, and Ewing testified they didn't activate the car's lights or sirens. The officers didn't notice a joint or pipe as they walked toward Johnson, who was walking with another man.

As they approached and identified themselves as police, Johnson put a hand in his pocket and "moves his cupped hand towards his mouth and placed an unknown object in his mouth," according to a police report authored by Ewing, which was read into the record during Sisak's deposition.

And while there was no immediate sign of a pipe, joint or any drug use, the report indicated that Ewing saw the right side of Johnson's coat hanging closer to the ground, bouncing off his body as he walked.

That's when he suspected Johnson had a gun.

According to the report, Johnson complied when he was ordered to stop, but didn't face Ewing squarely and "reached his right hand into his right pocket," later saying, "‘What the fuck are you stopping me for?'"

The physical confrontation began when Sisak tried to pull Johnson's hand out of his pocket and "wrapped his arms around Johnson's arms and around Johnson's upper chest to prevent him from reaching his pockets or waistband."

The incident escalated from there. Ewing wrote that he was afraid Johnson was trying to swallow drugs, so he used a maneuver designed to open Johnson's mouth, but that eventually both men lost their footing and fell to the ground.

In the end, "Johnson was not arrested due to the fact we could not determine for sure what Johnson had in his mouth," according to the report. "Johnson later stated it was a piece of candy."

Sisak testified that a pat-down never revealed or identified the object the officers thought might be a weapon.

Lewis, Miles' attorney in his first trial, thinks the circumstances should sound familiar to those who know the Miles case. In 2010, Miles accused the same officers of jumping out of their car without identifying themselves as police officers, and then assaulting him. The officers claim they clearly identified themselves as officers and confronted Miles because he was lurking near a house.

Pennsylvania American Civil Liberties Union legal director Vic Walczak says the Johnson and Miles incidents are reminiscent of practices that have plagued the bureau for decades. He points to the "jump squads" of the 1990s, in which plainclothes police frisked "large numbers" of black men and arrested them if they found anything, and if not, "they jumped back into their vehicles and disappeared."

"Officers who violate the Fourth Amendment [which prohibits unreasonable searches and seizures], whether in or out of uniform, need to be disciplined," Walczak wrote in an email response to these specific cases. "Until and unless the police brass begins consistently and appropriately punishing violators, the department will never be brought under control."

In 2012, as part of an argument for a new trial, Lewis wrote that Johnson would have testified that the officers, "jumped out of an unmarked car without identifying themselves as police officers and without provocation or basis assaulted him, including throwing him to the ground and choking him. [...] As happened with Jordan Miles, however, no weapon or contraband was found. Nor was any object produced from the pocket which supported their alleged observations."

Though there was an internal investigation stemming from a complaint Johnson filed, the incident never resulted in a ruling that the officers violated policy. Asked in his deposition if "anybody in the chain of command" ever admonished the actions in the Johnson incident, Ewing said that they had not, an answer repeated in Saldutte's deposition.

Campbell, a lawyer for the police union who represented Saldutte, says the Johnson incident and the officers' histories are "totally irrelevant."

"The only thing in the Jordan Miles [case] that's relevant is did the officers act in an objectively reasonable manner on the night in question."

Sisak's attorney, Jim Wymard, and Ewing's attorney, Robert Leight, did not return calls for comment.

Miles' confrontation with the officers left his head bloodied, bruised and missing dreadlocks that were ripped out during the scuffle. In 2012, a jury found in favor of the officers on the claim of malicious prosecution against Miles, but deadlocked on whether the officers erroneously arrested him or used excessive force. This March, a separate jury awarded Miles around $119,000 for false arrest, but said the officers did not use excessive force. 

Miles' current lawyer, Joel Sansone, who provided CP with the depositions in the case, says the Johnson incident is relevant as a matter of "common sense" and may have swayed the jury. He says he plans to appeal the case.

"We were constrained in the case by the ruling that none of the officers' prior incidents would be admissible," Sansone says, acknowledging that introducing all aspects of personnel records "can be unfair."

"But the fact that they did the same thing [in the Johnson case] — and they're called out for giving false reports — you just think those are things the jury would need to know."

The depositions also reveal incidents years before the Miles case that raised concerns for Brackney, the officers' supervisor at the time.

In one 2006 case that led to an internal investigation, Ewing and another officer were involved in a traffic stop that started when they pulled over an African-American man named Sam Gibson "for a registration issue with his plates," according to Brackney's testimony.

After running his driver's license, Ewing and Officer Jonathan Killmeyer, who were in uniform, found that there was a warrant from Georgia connected to Gibson — but that it was a non-extradition warrant, meaning they couldn't take him into custody.

According to Brackney's testimony, they asked "if [Gibson] had any drugs, weapons, or dead bodies in the vehicle." The officers searched the car and patted down Gibson and his nephew, who was in the car with him, according to the deposition.

But internal investigators could never find paperwork showing consent was obtained for the search, and their traffic-stop report "indicated that none of the occupants were frisked, which is contradictory to both Officer Ewing's and Killmeyer's statement that Mr. Gibson and his nephew were both patted down," according to an internal investigative report cited in the deposition.

After Gibson lodged a complaint, the city's Office of Municipal Investigations found that Ewing and Killmeyer had conducted "an illegal search and seizure," Brackney's deposition shows.

"I had concluded ... that my officers were not truthful in their reporting of their official police reports and their traffic stops that they had submitted for review to their supervisors," Brackney testified. "I recommended that they be disciplined. I also recommended that they be retrained and counseled."

Brackney isn't the only supervisor who recommended retraining after expressing concern over the officers' use of warrantless searches.

Roughly three years after the Gibson traffic stop, and about a month before the Lamar Johnson incident, Kacsuta warned then-Zone 5 Commander Kevin Kraus about an incident in which Ewing, Saldutte and Sisak "forcibly" entered a residence without a warrant, according to a memo obtained under the state's right-to-know law.

The November 2009 incident unfolded after the officers used a confidential informant to arrest a "male juvenile" they suspected of selling drugs off a porch. When they arrested their suspect, he yelled, "‘Get out of here bro,' indicating he had a co-conspirator," according to the memo.

Though it's not entirely clear, the memo suggests the search for a co-conspirator led the officers at around 10 p.m. to an apartment occupied by an elderly woman. "They heard noise inside the apartment and forcibly entered without a search warrant. [The woman] told the officers that some people had been hanging out on her porch and was too afraid to ask them to leave or call the police," Kacsuta wrote.

"I do not believe that the officers had probable cause. ... However, even giving the officers the benefit of the doubt and concluding that they may have had probable cause, they did not have exigent circumstances. Without exigent circumstances, a search warrant is required to forcibly enter a home to search for drugs."

Kacusta wrote that the officers "did not assess" the risk of entering the residence and "did not follow the operational plan," adding that she recommends retraining in criminal procedure, rules regarding search warrant and exceptions, and additional training "regarding narcotics investigation."

But, she added, Ewing, Sisak and Saldutte "are very ambitious officers who are under pressure to succeed. They are not malicious in their actions, but in their zest to make this drug case, they made a mistake."

Pittsburgh police spokeswoman Sonya Toler said that neither Saldutte and Sisak, both active police officers, was authorized to speak without Chief Cameron McLay's permission and that he couldn't give permission because "he doesn't know the background" of the incidents. She noted he would be briefed and would agree to an interview "as soon as possible." That did not occur by press time.

Ewing did not respond to a request made through McCandless Chief Gary Anderson, who confirmed Ewing is currently an officer there, but wouldn't comment further.

Toler said she would not comment on the officers' disciplinary records, citing the police union's contract with the city.

Kraus, the commander to whom the Kacsuta memo was addressed, said he didn't recall the incident, and otherwise said the officers were among the best. He's now a chief deputy in the Allegheny County Sheriff's Office.

In fact, when choosing officers for his zone's undercover 99 units, "All the information that I reviewed and the people who applied for it — hands down those were the best applicants for [those] positions."

Kraus would not comment extensively on the officer's histories, but said one of the things that impressed him were Ewing, Sisak and Saldutte's arrest statistics.

Felony arrests for narcotics and firearms were all considered, Kraus says. And according to the bureau's reports, Saldutte and Ewing led the department in weapons (VUFA) arrests, with 99 between the two of them in 2009. Adding Sisak's 32 arrests, the trio were responsible for 20 percent of weapons arrests within the entire bureau of police that year. Sisak was responsible for 1,000 arrests over a four-year period ending in August 2009, his deposition shows.

But lots of details about how the officers were chosen for undercover 99-car work don't come through in each of their depositions.

According to Ewing, for instance, Sgt. Robert Lee recommended him in his application to work in a 99 car, but he didn't learn until after the fact that Lee had recommended him.

In another question from a Miles attorney, this time in Sisak's deposition, it's revealed that Lee recommended Sisak for the position "no matter what you may have heard about him," noting problems with "p.m. supervisors." Sisak replies that he doesn't know of any issues with those supervisors.

For his part, the ACLU's Walczak is pushing for the police to better monitor encounters with the general public by making the department's officers document all pedestrian stops. It would allow supervisors to look at officer behavior and drive a conversation about how different communities should be policed.

Walczak says the three stops described above involving Ewing, Sisak and Saldutte "raise serious questions and concerns about these officers' regard for Fourth Amendment rights of African-American suspects. With conduct like this, it's no wonder that communities of color are afraid of and dislike the police."

Campbell, the police-union lawyer, expressed frustration with that sentiment and the current wave of outrage toward police practices — from Pittsburgh to Ferguson, Mo.

He says the media largely ignore how police are trained, which is why cases like Miles' "got blown all out of proportion. ... They set their own standards for what officers can or can't do.

"Officers are trained and they act in a certain way — and the general public and the media say, ‘We don't have to look at it through those eyes.'"

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