Allegheny County DA still silent on shooting of black man on his front porch by Pittsburgh police

By Emilia Beuger and Matt Stroud, ACLU of Pennsylvania

Will Christopher Thompkins’ killing be forgotten?

Thompkins and his ex-wife, Brenda, awoke around 4 a.m. on January 22 to someone standing beside their bed in their home near the eastern border of Pittsburgh’s Larimer neighborhood. As the intruder fled the room, Thompkins asked for Brenda’s pistol. He went downstairs to protect his mother who was sleeping on the first floor. “He was just saying, ‘My mom, my mom,’” Brenda Thompkins told TribLive. “That’s all he was worrying about.” As he went down the stairs, Brenda called 911 and went to a roof behind the house. She surmised that an alarm company may have called the police sooner, however, because when Thompkins reached his front porch, police were waiting for him.

And they killed him.

Thompkins was shot dead that morning through the front door of his home by two Zone 5 police officers. Brenda heard the two gunshots from the roof. Later, as police escorted her downstairs, she saw Thompkins’ body covered by a blanket on the stairs. The man who had broken into their house, Juan Brian Jeter-Clark, was handcuffed and sitting on the couch. Thompkins was pronounced dead at 4:08 a.m. “They shot the wrong guy,” Brenda told reporters.

She was right. We know that somehow in the break-in’s aftermath, those officers mistook a man defending his home and family for a burglar.

What we don’t know is how that happened — and how it might be prevented in the future.

As is typical in Pittsburgh police shootings, the Allegheny County District Attorney’s Office, lead by Stephen A. Zappala, took charge of investigating what happened. The two officers involved in the shooting — whose names have not been released by any public official — were placed on a 10-day administrative leave before they went back to their regular beats.

It’s been radio silence since then. As we approach the eight month anniversary of the shooting, it’s worth wondering why the investigation has taken so long, and why there seems to be little public push to either hold these officers accountable or explain why they should be let off the hook for killing a man.

Media coverage and errant public statements may explain some of the stall. An article published by TribLive on January 22, 2017, described how Thompkins had “run afoul of the law” years before he purchased the house he would later be killed in. KDKA implied he probably shouldn’t have been allowed to carry a firearm — as if that somehow justified his killing by police. Mayor Peduto even felt it was necessary to say, “Mr. Thompkins obviously had some issues in the past,” during a statement he made after meeting with the family. Beth Pittinger, executive director of Pittsburgh’s Citizen Police Review Board, chided the coverage: “I think it’s tragic that the media, and to some extent others, have quietly excused this because the guy had a pretty bad criminal record.”

A second explanation is more troubling: As the months roll past, it’s possible that the investigation of Christopher Thompkins’ shooting is being slow-walked by the District Attorney’s Office in the hopes that it’ll be forgotten. “[If the] officers returned to duty and are back on the force, you can almost conclude that the investigation is done,” said Donald Tibbs, a Drexel University law professor. Yet the investigation drags on nonetheless.

In the meantime, both the Pittsburgh Bureau of Police and the Allegheny County District Attorney’s Office have said nothing substantive about the shooting, instead invoking silence based on an “ongoing investigation.” While a Right To Know Law request from ACLU-PA has turned up a vague incident report and the name of the responding Zone 5 officers — Joshua Dengler and Richard Cerrillos — not much else is available to the public. That includes body camera footage from the incident, and an affidavit of probable cause, both of which are being withheld because they are “investigative in nature.”

“I don’t know of any legal rules or rulings that say that district attorneys must withhold information from the public,” Tibbs said. So then it is a question of their policy and practices. “District attorneys have a lot of discretionary power,” he went on.

Pittinger said it was “very unusual for an incident like this to be that quiet.” And while she and Brandi Fisher, president of the Alliance for Police Accountability, acknowledged that the shooting may have been an accident, they question why the public has been left in the dark.

Fisher places responsibility for the delayed and opaque process squarely on the district attorney’s office.

“I think they hold too much power, especially in Allegheny County,” she said. “There is no accountability.”

But there’s a possibility that Stephen Zappala could prove her wrong — by bringing this investigation to a close, and making public not only the affidavit of probable cause from the incident but the body camera footage as well.

Only then, Christopher Thompkins’ killing might not be forgotten.

The government can’t send you a bill for your free speech

Protesters march during the “Philly is Charlottesville” March and Rally on August 16, 2017 (credit: Ben Bowens)

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

Imagine if Dr. Martin Luther King, Jr., future Congressman John Lewis, and their compatriots in the civil rights movement had been stuck paying the fiscal costs of Sheriff Bull Connor’s harassment, beatings, and arrests. Under a proposal before the Pennsylvania Senate, people who take to the streets to express their political views would have to do exactly that if they end up on the wrong side of the law.

On August 16th, four days after the white supremacist demonstrations in Charlottesville, Virginia, Senator Scott Martin (R-Lancaster) introduced a bill that could hold protesters liable for public safety costs associated with demonstrations. But despite the timing, Charlottesville wasn’t the primary trigger for this proposed legislation; the Dakota Access Pipeline protests were.

Under Senate Bill 754, courts could hold individuals convicted of protest-related misdemeanors or felonies liable for all public safety costs associated with demonstrations. This legislation is most certainly unconstitutional and would likely be struck down in federal court, but only after a costly legal fight.

While it may bother the primary sponsor and his friends in the energy industry that people of indigenous heritage opposed the pipeline, public protests and demonstrations are strictly protected by our First Amendment rights to free speech and assembly. The expression of those rights may sometimes incur costs, but those are collective public safety expenses which are collectively paid by us through our taxes.

SB 754 proposes two worrisome legal changes, both of which are certainly unconstitutional. First, it unreasonably expands the definition of liability. Individuals convicted of protest-related misdemeanor or felony offenses can be forced to pay for costs not directly resulting from their actions or even related to the crime of which they were convicted. Courts, of course, can already impose fines and restitution costs for expenses associated with a specific offense. But it would be unconstitutional to hold someone — even those convicted of protest-related offenses — liable for costs associated with other people’s actions or costs incurred to provide general public safety support at a demonstration.

Second, SB 754 selectively narrows the potential targets of this expanded liability. General public safety costs are recovered only from specific people engaged in a specific kind of activity, namely protesters exercising their constitutionally-protected rights to speech and assembly.

If this bill is enacted, it is doubtful it could withstand a constitutional challenge. In order to protect the First Amendment freedoms of speech and association, the Supreme Court has sharply limited the government’s authority to impose liability on organizations or their members for misconduct or criminal acts that occur during political demonstrations. Lower courts have similarly rejected attempts to hold demonstrators liable on the grounds that the government can recover their costs through existing civil and criminal sanctions against those directly responsible.

Furthermore, because municipalities generally do not impose responsibility for using public spaces on particular users, holding protesters liable would place an intolerable burden on their constitutional rights. In this context, the measures proposed in SB 754 are constitutionally suspect.

Equally alarming but no less important is the chilling effect this legislation would have on free speech and assembly. The prospect of being held liable for demonstration costs if, for example, you are convicted of obstructing a sidewalk (a misdemeanor offense), may well provide a strong disincentive to participate at all.

SB 754 is not the only bill targeting demonstrators. SB 652 was introduced by Senator Mike Regan (R-Cumberland and York) in April. It, too, was crafted in response to the Dakota Access Pipeline protests. SB 652 creates a new category of properties, comprised of eighteen different types of critical infrastructure facilities, and imposes severe penalties for criminal trespassing on those properties. In many cases, what are currently summary or misdemeanors offenses are enhanced to second and first degree felonies under this proposed legislation.

Even if neither bill is enacted, the measures they propose offer valuable insight into how our legislators perceive public protests and the worrisome ways they choose to respond.

Free speech is free. The government can’t send you an invoice.

Elizabeth Randol is the legislative director of the American Civil Liberties Union of Pennsylvania.

Reproductive Rights are Human Rights

By Franchesca Ramirez, Summer Intern, ACLU of Pennsylvania

The state of Oregon has made recent headlines for its triumphant passing of the Reproductive Health Equity Act, a new law that ensures all residents of the state have access to health services, including family planning, abortion, and postpartum care. The act, proudly supported by the ACLU of Oregon, guarantees reproductive health care for all women, regardless of income, gender identity, or citizenship status. It represents defiance towards the Trump administration’s agenda and a beacon of hope for women in the rest of the country.

Meanwhile, in backward Pennsylvania, the state legislature is considering what would be one of the most restrictive policies against abortion in our nation, Senate Bill 3. SB 3 shortens the length of time during a pregnancy that a woman is permitted to have an abortion and entirely bans a common method of the procedure.

Also in the state legislature is Senate Bill 300, which restricts funding to Planned Parenthood and, thus, limits the accessibility of reproductive health care, including contraception, for Pennsylvania residents who rely on their services. This bill seeks to defund health care providers that offer abortions, in effect, defunding Planned Parenthood, the largest provider of these health services in the U.S. Planned Parenthood educates millions of people every year, offering knowledge and services for contraceptive care and preventing thousands of unplanned pregnancies. Unfortunately, there aren’t already enough other providers availing this knowledge and these services, so expecting them to absorb Planned Parenthood’s clientele is unimaginable. Informed family planning doesn’t just benefit individual families; it promotes the stability of the U.S. population. To protect reproductive rights is to honor the Constitution and protect the future of our country.

The reality is that millions of Americans would struggle without the information and preventative care necessary to plan their lives, possibly threatening their own health and the stability of their families. In this case, it wouldn’t be farfetched to predict that the number of abortions would increase access to contraception decreases.

Protecting reproductive rights is not a “women’s issue.” Reproductive rights are a human issue, like all other rights too often threatened by regressive policymakers. Stripping women of this liberty symbolizes a disregard for the rights of all Americans. It is not an issue that should be decided based on the selfish values of an elected few without consideration of the large populace they represent. Unsurprisingly, it is in Pennsylvania, the state ranking 48th in the country for the percentage of women in elected office, that this restrictive legislation is being considered. For too long, majority male officials in positions of power have applied their ignorance and short-term vision to policy affecting millions of people — particularly women, who have been historically underrepresented in society.

It is always necessary to put aside one’s own personal beliefs when making decisions that affect others. The issue of abortion is no exception. The best thing lawmakers in Pennsylvania can do is mirror the actions of Oregon’s legislators by voting to protect access to reproductive education and services, recognizing them as rights rather than ideological preferences.

Franchesca Ramirez interned this summer in the ACLU of Pennsylvania’s Harrisburg office, assisting the advocacy and communications departments. She is a second-year student at the University of Pennsylvania.

Kenney’s order claims “openness and transparency”…Almost

By Midge Carter, ACLU-PA Criminal Justice Intern

The decision to release information about complaints made against Philadelphia police officers is a step in the right direction. Photo via Time.

Starting in November, the City of Philadelphia will make all civilian complaints alleging police misconduct available online. Or at least parts of them.

The executive order signed by Mayor James Kenney follows The Philadelphia Declaration’s Philadelphia Police Accountability Project — a  venture designed to accomplish two goals: 1) to come up with $5,000 in copying fees that the city asked for to provide information about police complaints, and 2) to build “a truly independent, publicly accessible database of civilian complaints lodged against the Philadelphia Police Department.” Kenney’s order deflects attention away from the former goal and moves gradually in the direction of the latter.

Kenney’s order, which was signed, it claims, “to ensure openness and transparency,” requires the city to post a monthly list of complaints filed against Philadelphia police officers. The list will include complaint summaries, incident locations, and investigative findings within 90 days of the complaint being filed. The lists will begin rolling out on November 1, and data from the last three years will be uploaded by early 2018.

That’s progress! Revealing complaint summaries and locations is good. That information will allow journalists, citizens, and lawmakers to identify trends and address potential problems.

However, the lists won’t identify officer names, and the city is permitted to withhold “any portion of the investigative file that the Police Commissioner determines must be kept confidential.”

That’s called secrecy. That’s the opposite of openness and transparency.

A further concern is that the information offered online will become the only information available. There is no indication if individuals will be able to receive physical copies of complaints. If not, then the only misconduct complaint information available would be the heavily redacted online information.

Nationally, online police complaint data is becoming more available, largely as a result of civilian pressure. The Los Angeles Police Department has an app for viewing Office of Investigation reports and filing complaints, though the complaints themselves are not available. In Chicago, the police offer little information, but two initiatives, The Citizen’s Police Data Project and Open Oversight have been working to make complaint information available.

Cincinnati makes all complaints available online but without any information that would make identifying an officer possible. NYC’s Data Transparency Initiativemakes complaints public and also offers visual summary reports. However, the information released from individual complaints is extremely limited. It provides only basic location, giving no insight into who filed the complaint or which officer the complaint was filed against. Philly’s online misconduct complaint release will potentially look very similar to New York’s.

Other cities are setting a precedent for more transparency. Baltimore and Indianapolis go a step further than Philadelphia. Both cities’ police departments participate in Project Comport, an online database of complaints. Though Project Comport does not list officer names, it does list “unique identifiers,” allowing civilians to track patterns of officer misconduct. We think Philadelphia should set a higher standard than all of these systems; it should release names.

Mayor Kenney said in a statement on Wednesday, “Everyone who works for the city of Philadelphia is a public servant, and the public deserves to know we will take their complaints about any city service seriously.” How is the public to know if complaints are being taken seriously if they do not know who the complaint is against?

Being unable to identify the public servants involved in complaints cripples the public’s ability to hold them accountable.

If police officers are to be effective public servants, then their misconduct and the complaints lodged against them need to be public as well.

IN OTHER NEWS

(Criminal justice news deserving of an in-depth look.)

Juvenile lifers are being resentenced following the Supreme Court’s mandate, but justice looks different across state lines. Photo from AP.

  • Associated Press: “AP Exclusive: Parole for young lifers inconsistent across US”
“For years, officials in states with the most juvenile life cases were united in arguing that the Supreme Court’s ban on life without parole did not apply retroactively to inmates already serving such sentences. Now, states are heading in decidedly different directions. Pennsylvania, which long resisted reopening the old cases, has resentenced more than 1 in 5 of its 517 juvenile lifers and released 58 so far. Attorneys there talk about working their way through all the cases in the next three years. Just two Pennsylvania inmates have been resentenced to life without parole, which the nation’s highest court said should be uncommon and reserved for the rare offender who ‘exhibits such irretrievable depravity that rehabilitation is impossible.’”

  • Juvenile Law Center: “Unlocking Youth: Legal Strategies to End Solitary Confinement in Juvenile Facilities”
“Despite a growing consensus that solitary confinement harms youth and undermines the rehabilitative goals of the juvenile justice system, the practice remains all too common. At the same time, the field lacks sufficient information on the prevalence of the practice, the alternatives, and the perspectives of affected youth and families. This report uses surveys of public defenders, conversations with youth and families, interviews with correctional administrators, and legal and psychological research to fill these gaps and set forth recommendations for reform.”

“The use of money bonds to hold people who are arrested is falling out of favor in an increasing number of courts across the U.S., and Allegheny County is among them. The reasons include concerns about mass incarceration, as well as jail costs, civil lawsuits and studies that find jail time increases the chances of being arrested again. Such concerns have led to efforts to reform the way courts manage defendants before their trial. And the result has been the rise of a more evidence-​based approach for deciding who should and shouldn’t be locked up that takes money out of the equation. ‘Recommending monetary bail was one of the things we did because that’s just how you did things,’ said Janice Dean, director of Allegheny County Pretrial Services, which manages how people arrested are handled before their cases are resolved. ‘But you have people who aren’t dangerous staying in jail because they don’t have the money. And if I have $500,000 to post, no matter how dangerous I am, I’m getting out. Money doesn’t make us any safer.’”

  • Washington Post: “Fired and Rehired: Police chiefs are often forced to put officers fired for misconduct back on the streets”

“Since 2006, the nation’s largest police departments have fired at least 1,881 officers for misconduct that betrayed the public’s trust, from cheating on overtime to unjustified shootings. But The Washington Post has found that departments have been forced to reinstate more than 450 officers after appeals required by union contracts.

Most of the officers regained their jobs when police chiefs were overruled by arbitrators, typically lawyers hired to review the process. In many cases, the underlying misconduct was undisputed, but arbitrators often concluded that the firings were unjustified because departments had been too harsh, missed deadlines, lacked sufficient evidence or failed to interview witnesses.”

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