Blood on the Badge, part 2

story continued from here

Why can't the Philly police rein in complaint-ridden cops?

by Noel Weyrich

When the news went out in the 25th District that DiPasquale was the shooter in the Donta Dawson killing, at least one young man and his family said they were shocked, but not completely surprised.

In July of 1994, Michael Feliciano, then 15 years old, filed a complaint with his mother, Maria Mulero, claiming physical abuse by a foul-mouthed Christopher DiPasquale. DiPasquale, they said, had slammed them into a car and then thrown them into a police wagon — while another officer looked on and did nothing. Feliciano was charged with possession of a knife, which he had been using on his porch to fix his bicycle.

Unlike many of DiPasquale’s other accusers, Feliciano didn’t have a history of problems with police. In fact, earlier in the day that he claimed DiPasquale assaulted him, the teenager had spent some time doing volunteer work at the Police Department’s horse stables, under a community relations program where citizens help maintain the stables in exchange for riding lessons.

Aside from the Dawson shooting, Feliciano’s charges against DiPasquale are among the most serious the officer has faced. Feliciano claims that DiPasquale later drove him alone to a deserted area near some railroad tracks, where the officer punched him in the face three times and struck him in the ribs with his nightstick.

Feliciano was treated at Parkview Hospital for his injuries. DiPasquale told investigators he used "only the force necessary to effect an arrest." Once again, Internal Affairs found the claims "not sustained," although it went back and reopened the case after new witnesses came forward. Then the city’s independent Police Advisory Commission commenced hearings on the case just this past spring, nearly five years after the initial incident. The commission may recommend disciplinary charges against DiPasquale when it announces its conclusions within the next several months.

To Yatvin, who has studied the department’s system of discipline closely in conjunction with other local civil rights lawyers, the long delays between accusation and conclusion sap the department’s disciplinary measures of whatever strength they might have.

"An officer knows that if you do something wrong, because of all the difficulties involved in sustaining an allegation, you have a good shot at being cleared by IAD," says Yatvin. Officers can appeal IAD decisions, he points out, first to a Police Board of Inquiry, and then to a labor arbitrator. "So from the time of the incident to final determination, it could be years down the road."

DiPasquale himself was issued a 10-day suspension when then-Commissioner Richard Neal determined he had lied to investigators examining the 1994 death in police custody of tow truck operator Moises DeJesus. DiPasquale has never served the suspension, however, because his appeal of Neal’s decision is still awaiting a hearing before an arbitrator.

The arbitration laws are governed by the same state law that forbids police unions from going on strike. In a way, the law compensates the police for giving up the right to strike by extending them all sorts of privileges to appeal management decisions on firing, discipline, promotions and transfers.

"Here’s where I find fault with reporters," Timoney says. "There’s a whole fucking raft of arbitrators’ decisions that are just bullshit, and I’m the only one screaming about this. Nobody’s taking these people on."

In New York City, where Timoney came from, disciplinary decisions can’t even be appealed to labor arbitrators. In Pennsylvania, at the very least, Timoney says he would like to see the state laws allow the city to appeal arbitration decisions in the courts, so "the arbitrators know their power is not absolute."

The conventional wisdom is that aggressive cops are inevitably going to get complaints filed against them. But statistics and anecdotal evidence don’t back up this notion.

Soon after Timoney arrived here in March 1998, arbitrators ordered him to return a lieutenant to Internal Affairs, even though the man had been moved out of the sensitive position when he fell under suspicion in a joint city-FBI corruption investigation. In another case, an arbitration decision forced three officers back onto the force over Timoney’s objections after their acquittal in a notorious corruption case involving the theft of proceeds from an illegal cockfight in North Philadelphia. Timoney insists the acquittals failed to prove the men’s innocence and that their sullied reputations would damage any future case on which they made an arrest.

The latest arbitration case that has Timoney peeved is one involving an officer who Timoney says failed a departmental drug test, but was nonetheless ordered returned to the force. According to Timoney, medical testimony said that the level of drugs in the officer’s system was enough to suggest addiction. "The doctor testified he must have built up some resistance to [the drugs], otherwise he would have OD’d," Timoney says incredulously. "There’s a ton of bullshit like that the press has been missing."

But Costello, of the FOP, says Timoney often fails to mention that arbitrators are sometimes compelled to disregard drug test results once the union proves that a test on an officer was done improperly. "We’re the ones who agreed to random drug testing," Costello says. "Timoney should be finding out who screwed up the testing process instead of whining about the arbitrator."

When the city’s last major corruption scandal broke in the early 1990s, Yatvin and other local civil rights attorneys threatened to sue the city on behalf of the NAACP and the Police-Barrio Relations Project, claiming that the Philadelphia police were out of control and should be run under the watchful eye of the federal courts. After six months of negotiation, the city and the lawyers entered into a settlement agreement in 1996, whereby the courts and the lawyers would jointly monitor the department’s progress in a variety of problem areas, including that of tracking and working with "at-risk" police officers — including officers with citizen complaints filed against them.

The idea quickly ran into trouble. It turned out that "at risk" wasn’t even a phrase that could be used, under Pennsylvania labor law. "That’s the magic term for sending the FOP into court," says one attorney.

What has evolved since then, says James Jordan, the department’s integrity and accountability officer, "is a counseling program that identifies officers who may have a problem. One of the tools used is looking at their history and providing them with counseling and, where appropriate, retraining in a completely non-punitive and hopefully constructive setting."Jordan estimates that about 35 officers have gone through the program in the last year or so.

Yatvin says that the tracking process is not ideal, but an improvement nonetheless.

"It’s not living up to what was hoped for," he says. "But the most effective part is the unspoken part [that says] ‘We are paying attention to this. You don’t want to keep popping up on this list.’"

But Costello worries how that level of attention to unsubstantiated complaints could discourage some officers from remaining active and aggressive crime-fighters. In the past, he says, the department often blocked patrol officers from moving into specialized units if they had too many complaints, which, he claims, "led a lot of cops to just drive past drug corners without saying a word."

Generally, any kind of tracking of "troubled" officers tends to get police departments in trouble with the unions. The Chicago police briefly had a computerized "early warning" system that tracked "at-risk" officers by pouring absenteeism rates, complaint totals and other numbers into a complicated formula that tried to predict propensity for misconduct. After the police union condemned the system as "Orwellian," the department pulled the plug on it soon thereafter.

Some department sources here say that the Philadelphia department’s counseling program has been working well, especially in showing some modest reductions in verbal abuse complaints. Costello says the FOP has no problem with the program as long as it isn’t "punitive."

But punishment for some officers could be considered being taken off the streets and put behind a desk, or even being consigned to foot patrol in a quiet district. In both cases, a big part of the problem is money. Police in busy districts make a lot of overtime income by processing arrests and going to court to give testimony. It’s not uncommon for a patrol officer making $35,000 annually to earn another $15,000 in overtime.

And thanks to a provision in the city’s labor agreement with the FOP, transfers for "punitive" reasons can be, and are frequently, fought in the arbitration process.

"You cannot transfer anyone here if they don’t want to be transferred," Timoney complains. "The arbitrators have ruled that. I have no frigging control over transfers in my department."

Still, he concedes, the department is occasionally able to persuade an officer that it’s in his or her best interest not to fight a transfer, and Timoney says he has urged captains to keep certain officers off the streets or under close supervision, without transferring them.

And he’s not willing to go as far as they do in the NYPD, where cops with brutality complaints run the risk of being caught in a departmental "sting" operation. Undercover cops, posing as belligerent and unruly citizens, try to goad the targeted officers into behaving badly.

"That’s a very hairy situation, using stings to test for brutality," he says. "You couldn’t get away with it here, not with the FOP. And I would kind of understand."

Earlier this year, two Philadelphia judges summarily threw out the criminal charges against Christopher DiPasquale in the Donta Dawson shooting. A Municipal Court judge and then a Common Pleas judge each ruled independently that no crime had been committed because DiPasquale was indeed reasonably fearful for the safety of himself and others.

District Attorney Lynne Abraham announced she would not try to prosecute DiPasquale for a third time, but a group of black legislators has since engaged an attorney to prepare an unusual private criminal complaint against DiPasquale. If it succeeds, the district attorney’s office would be forced to attempt another prosecution of DiPasquale — possibly for first- or second-degree murder. A hearing in that case is set for January.

Meanwhile, the U.S. Attorney’s Office here has yet to announce whether it will try DiPasquale criminally for violating Donta Dawson’s federally guaranteed civil rights. Some may remember that the Los Angeles police officers videotaped beating Rodney King in 1991 were first acquitted by a state criminal court (sparking the 1992 L.A. riot) but later went to federal prison after being convicted for criminal civil rights violations. First Assistant U.S. Attorney Michael Levy explains the local office had stood back while the Philadelphia district attorney’s office was pursuing charges against DiPasquale, and that now "I’m not sure what we’re going to do at this point. I have a feeling we’re going to continue our review of the case."

But DiPasquale’s attorney, Jack McMahon, predicts the feds "won’t touch this case in a million years. They’re not in the business of bringing big cases that they know they’re going to lose, and they would have done it by now if they were going to do it."

Soon after the second dismissal of the charges in Common Pleas Court, DiPasquale exercised his right to request a return to the Police Department. Timoney rejected the application, but there is ample precedent to suggest that unless DiPasquale is convicted of something, an arbitrator will inevitably return him to the force and order that he be given a gun to work patrol once more.

Nonetheless, problems from his past would await the former officer upon his return. The Police Advisory Commission will compel him to answer direct questions by members regarding Michael Feliciano and Maria Mulero’s allegations that he beat them both back in 1994.

There is also yet another citizen complaint, a somewhat mild one, awaiting his attention. Two weeks after the Dawson shooting, Common Pleas Court Judge Rayford Means filed a complaint that DiPasquale and another officer had "acted unprofessionally" in the hallway outside his courtroom, disrupting the proceedings. DiPasquale has never been interviewed in the matter because he was kicked off the force soon after the incident.

Finally, there are the disciplinary measures meted out to DiPasquale, along with two other police officers, in response to a brutal head cut suffered by an intoxicated Kensington man caught with a handgun in a wooded area near Bingham Street in September 1997.

According to an Internal Affairs report, a draft of which was obtained by City Paper, DiPasquale and two other 25th District officers, including his brother Nicholas, set upon a 32-year-old white man with blackjacks after he refused to drop the gun he was holding. Although the investigators concluded the three officers did not use excessive force, one of them did open up a gash in the man’s head, which required 15 stitches, and headstrikes with batons and blackjacks are in violation of department regulations (blackjacks have since been banned altogether).

The report wasn’t drafted until December 1998, several months after the Dawson shooting, even though it dealt with events that took place more than a year earlier. It takes note of DiPasquale’s past disciplinary problems and makes this recommendation:

"The commanding officer, 25th district should ensure that Officer [Christopher DiPasquale] receive not only additional training but a much closer level of supervision."

Almost as an afterthought, the report’s final line states that on Nov. 19, 1998, DiPasquale had been suspended "on an unrelated matter" — the shooting of Donta Dawson.

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