Who Polices the Philadelphia Police?

They do. That's the problem.

by Andrew Thompson

Evan M. Lopez

Fifteen months later, after accusations and denials, testimonies and counter-testimonies from police and witnesses, trials and the rumblings of more trials to come, the only consensus to come out of the whole incident is that Michael Foley was acting like an asshole. He was an asshole who'd had way too much to drink — he had a blood-alcohol level of 0.335, more than four times the legal driving limit — and was looking for a fight, and in a different scenario with different characters and different magnitudes, Foley may have deserved a fraction of what ended up coming to him.

But it would have been only a fraction, and it wouldn't have been doled out by a cop.

By 5:50 p.m. on Oct. 31, 2008, the day of the city-sanctioned celebration of the Phillies' world championship, Foley, a lanky 25-year-old with light brown shaggy hair, had already been kicked out of the Khyber — a bar on Second and Chestnut streets, across the street from City Paper's offices — and may have had a black eye from a previous, unspecified altercation, according to police records. Sloppy and aggressive, he stood outside the bar trying to start fights with whoever was around. His own lawyer would later call his behavior "obnoxious."

Philadelphia police officers Kevin Corcoran and Shawn Hagan, who usually patrol Grays Ferry, were assigned to Old City that day. Corcoran approached Foley; they talked for a couple of minutes. Court and police records would later record two versions of the conversation: Foley claimed he made a snide remark about Corcoran being a "public servant." Corcoran recalled Foley telling him, "Fuck you, faggot, suck my dick."

There are conflicting versions of the ensuing altercation, too. Corcoran, Hagan and other police officers would later testify in court and in statement to the department's Internal Affairs investigators that Corcoran swept Foley to the ground and struck him with his baton in order to subdue the belligerent suspect, who, in the words of Officer David DeCrosta, "began to swing to get away from [Corcoran]. Mr. Foley used his hands to push [Corcoran] away."

Meanwhile, Hagan said in a statement to investigators, Foley "tried to incite the crowd by yelling, 'Help, help, these motherfuckers!'" According to Corcoran, during the struggle, Foley told him, "You fucked with the wrong guy."

Eventually, Foley was cuffed and taken to Thomas Jefferson University Hospital, where he was treated for a facial wound that, Corcoran said, was the result of "smack[ing] his head on the concrete." At the hospital, Corcoran told investigators, Foley became apologetic, and admitted to having a drinking problem. Corcoran said that Foley asked him what happened, because, according to police records, "Mr. Foley had no memory" of the encounter.

From my vantage point across the street — maybe 30 feet away — I saw a much more brutal scene: In full view of scores of witnesses, Corcoran threw a hard right hook that connected with Foley's face. He yanked Foley over toward Chestnut Street, in an apparent effort to arrest him, though Corcoran managed to cuff only one of Foley's hands. He swept Foley to the ground and hit him with his baton once, then again, and again. And then he reached down, grabbed Foley by his powder-blue Phillies jersey, lifted him up in the air and threw him back down.

Foley lay there for a few seconds, before Corcoran pulled him back on his feet and dragged him to the southern sidewalk, bent him over, and threw him head-first into a newspaper honor box. Foley fell down; Corcoran picked him back up and did it again, this time into a wrought-iron garbage can.

Then the screaming began.

"Help me! Somebody help me!"Foley yelled with blood-curdling desperation, planted on the sidewalk and rocking from left to right.

The patrons at the former Philadelphia Fish Co. and Rotten Ralph's hadwalked away from their bass and their beers and wandered outside in throngs to catch the action. Revelers stopped. A handful of officers stood around, watching the altercation unfurl. The left side of Foley's face was covered in blood, dripping down from his head and splattering his jersey and jean shorts.

Witness LeeAnne Mullins later described the incident this way in court: "After he was in cuffs, he was — I'm not sure if [Foley] got up on his own or if he was pulled up, but after he was on his feet, he was dragged across the street and thrown head-first into a large, heavy wrought-iron garbage can. ... Then Mr. Foley stood up and raised his hands, which were in cuffs, and pleaded with other people around to help him, but I mean, we weren't going to help for obvious reasons."

By which, her testimony made clear, she meant that there were "four or five" other cops standing around, watching this happen.

"Someone help me!" Foley screamed.

"I was exclaiming to my boyfriend, 'I can't believe this is happening,'" Mullins testified. "Like, can you do something? Call the police. They're already here."

The paddy wagon pulled up, and, according to Mullins' testimony, Corcoran "picked him up more towards his back and threw him head-first into the wagon, and they sat there for about 10 to 15 minutes." Nothing in police records explains this delay.

Police charged Foley with harassment, reckless endangerment, disorderly conduct, failure to disperse and resisting arrest; in August 2009, a judge acquitted him of those charges. Foley filed a complaint with the Philadelphia Police Department's Internal Affairs Division (IAD). In November 2009, IAD sustained one charge against Corcoran for not filing a Use of Force Report. But IAD decided that Foley's charges against Corcoran could not be proven.

In January 2009, just three months after Foley's arrest in Old City, Corcoran punched a wheelchair-bound man in the face while on patrol in Grays Ferry. That man, too, ended up in the hospital. In that case, IAD found Corcoran's use of force justified.

Andrew Thompson THERE WILL BE BLOOD:This cell-phone picture captures Michael Foley toward the end of his encounter with Officer Kevin Corcoran on Oct. 31, 2008, in Old City.

There are three ways to think about what happened in Old City that Halloween evening: The first is that the cops' version of events is accurate, and LeeAnne Mullins and I — who know neither each other nor Foley — either lied about or misinterpreted what we saw. The second is that it's an aberration, which just so happened to occur outside this newspaper's office and, consequently, drew the paper's attention — to put it another way, perhaps it was blown out of proportion. The third is more troubling: What if this case was unique only in that it took place in front of patrons and tourists and celebrants and, yes, reporters — people who aren't used to seeing cops behave this way? What if this behavior isn't unique at all, it just usually happens in the city's shadows, away from the public eye?

The truth is, it's difficult to say. That's because, as a City Paper investigation shows, the infrastructure set up to ensure that police are accountable to the citizens who pay their salaries has completely broken down.

It's not supposed to be this way. In 1996, following a lawsuit brought by the ACLU of Pennsylvania, the NAACP and the Police Barrio Relations Project (PBRP) in the wake of the 39th District scandal — in which a handful of officers in North Philadelphia raided and robbed crack houses and drug dealers, and planted evidence on suspects — the First District Court of Pennsylvania ruled that the PPD's underlying problems were systemic: There was only nominal oversight of police misconduct that almost never resulted in any discipline for offending cops.

In response, the city created the Integrity & Accountability Office (IAO), and bestowed it with unprecedented investigative powers. The office could demand records and reports from the police department. In turn, the integrity office was supposed to publicly release annual reports on the department's accountability problems. The court required the city to send quarterly reports to ACLU, NAACP and PBRP lawyers on its progress instituting reforms.

In 2003, then-IAO director Ellen Ceisler published a scathing report of the police department's disciplinary system, calling it "fundamentally ineffective, inadequate, and unpredictable." The records generated under the court order produced a comprehensive encyclopedia of why discipline in the police department is "fundamentally ineffective" — the corroborating of falsehoods among officers, the impotence of civilian oversight, the cursoriness of IAD investigations and investigators' complicity in not connecting glaring discrepancies.

And, with the heat turned up, the police department responded: In 2001, IAD sustained allegations of misconduct in 342 cases. Five years earlier, without outside oversight of the disciplinary system, it did so in only 115 cases.

But in 2003 the court order expired, and with it, the catalyst for reform evaporated. By 2004, the integrity office had stopped issuing its reports, and drifted off into the bureaucratic ether. Other safeguards have met the same fate. From its outset, the civilian Police Advisory Commission (PAC), which the city created in the 1990s, was essentially impotent; moreover, it operates largely in secret.

This lack of accountability is borne out in the department's numbers. According to documents obtained by City Paper, IAD sustained allegations against just one-third as many officers in 2009 as it did in 2001, when the police department was under the monitoring agreement's spotlight. Of the 690 complaints filed with IAD in the first 11 months of 2009, just 111, or 15 percent, were sustained — and of those 111, only 50, or 7 percent, resulted in any discipline whatsoever beyond a simple reprimand. (Another nine officers left the force voluntarily while IAD was reviewing their cases.) Compare that to 1996 — before the court-ordered oversight — when 12 percent of officers who faced IAD investigations, out of 866 total complaints, were disciplined.

"There has been backsliding generally," says David Rudovsky, a civil-rights lawyer who represented the ACLU in the 1996 suit.

Of course, it's worth noting that, in many of those cases, the police officers IAD investigates shouldn't be punished. Criminals lie. And, sometimes allegations of abuse or other misconduct simply can't be substantiated one way or another, so it's entirely proper for the officers to be given the benefit of the doubt. It's also worth noting that only an infinitesimal proportion of calls to which Philly cops respond generate complaints.

That said, it doesn't mean that abuses of power should be overlooked. And anecdotally, you see the evidence that the PPD doesn't police its own all that well in last year's headlines: It began with the Daily News report that Officer Jeffrey Cujdik allegedly robbed Latino bodegas and paid off informants, and ended with the discovery that Officer Tyrone Wiggins allegedly repeatedly raped a 12-year-old girl, but stayed on the force for two years after the charges came to the department's attention.

If the department's reaction to these high-profile incidents was wanting, what does that say about its approach to the scores of incidents that don't make the front page, such as the case of Michael Foley? After all, Officer Corcoran was not punished for his treatment of Foley in a highly populated area, where his actions were witnessed by dozens of tourists and diners. Just imagine what happens in the city's darker crevices.

Under cross-examination at Foley's August 2009 trial, Corcoran denied punching Foley, or throwing him head-first into a newspaper box or wrought-iron garbage can. Rather, Corcoran testified, his wounds — including the lacerations above Foley's eye — came from him hitting his head on the sidewalk after Corcoran swept his leg.

"Prior to trying to place him under arrest, officer, because he was cursing at you, did you ever punch him in his face?" asked Todd Berger, Foley's public defender.

"No," said Corcoran.

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"So it's incorrect to say you threw the first punch, is that right?"

"No, I didn't throw the first punch. I swept his legs out from underneath him."

Corcoran argued that all of the injuries Foley sustained were in the service of subduing him.

But that's not what Foley's two witnesses — LeeAnne Mullins, a woman who was in Old City that evening looking for a post-work bite to eat with her boyfriend, and I — testified that we saw. Mullins and her boyfriend were outside Rotten Ralph's, 20 feet from the incident. From there, Mullins testified, "I saw a police officer punch Mr. Foley probably towards the back of his head, about his body, [his] general upper-body area."

As Berger pointed out in his closing argument, Mullins and I corroborated each other's stories, and together painted a picture of police officers who simply lost control: "What ends up happening is, [Foley's] out there and he's mouthing off to the cops and there's people around and it's a long day and he's saying things to them, offensive things to them they don't like," Berger argued. "They're not happy with it, and they ... punch him in the face. They decide, you know what? I'm not taking it from this guy. ...

"A very typical story we sometimes hear, you know, [is that] if the guy got these injuries, he had to get these injuries because he was so out of control and, 'I had to effectuate arrest.' ... What are [the officers] going to do, go back to the captain and say, 'Look, this is what he looks like. I know, I punched him in the face because he said, "F you," and I threw him into the box. And yeah, I'm sorry about that, captain.' They can't possibly say that. They can't possibly explain the arrest photos or the fact that he has to go to the hospital. ... You have one party in this case who has a motive to fabricate what happened and invent this story. Then you have two other parties who don't."

(The police department denied City Paper's right-to-know request for Foley's arrest photo, though it's not clear why. However, the IAD report on the incident says that, "While the arrest color photo shows stitches above the eye and [a] small cut on the nose, it shows no evidence of the type of bruising or swelling that would be consistent with the beating described by Mr. Thompson," referring to this reporter.)

In her closing, Assistant District Attorney Jessalyn Gillum argued that "we aren't dealing with your regular day. This was a day following the Phillies parade. ... There was a concern for public safety. There had been problems not directly at this incident, but across the city with destruction and riots and things of that nature going on. So the officers are on high alert."

It was a tense situation, Gillum told the court, and Foley was causing trouble. She suggested that the defense's two witnesses may have misinterpreted what they saw. "[The officers] certainly have no motive, certainly not in front of a crowd of people, [for] just wailing on this individual for no reason," she argued.

Immediately after the closing arguments wrapped up, Court of Common Pleas Judge Karen Yvette Simmons found Foley not guilty, because "the Commonwealth has not met its burden to any of the charges."

A little more than two months later, IAD formally cleared Corcoran of all but one charge — not filing a Use of Force Report — saying that its investigation "can neither prove nor disprove [Foley's] allegation."Alongside statements from me and a couple of Khyber employees, who stated that Foley was making a nuisance of himself that day, IAD's report featured interviews with a handful of officers, including Corcoran, who all said they did not see Corcoran do anything improper. (Because Foley did not file a complaint with IAD until February 2009, four months after the incident, investigators said they had a difficult time tracking down additional witnesses.)

This is not uncommon, civil rights attorneys say. "You can look in those reports and see things that were talked about a decade ago, and the same thing is still going on," says attorney John Rightmyer, who has filed numerous suits against the city alleging police misconduct. "One thing you realize when you look at it is you get other officers who are witnesses to things and more often than not, when [Internal Affairs] actually does an investigation, brings them in for questioning, it's basically, 'I didn't see anything.'"

Interestingly, department records show that officers directly sent to the Police Board of Inquiries — the entity responsible for deciding disciplinary matters —by their supervisors were much more likely to receive punishment than those whose cases are evaluated by IAD. Compared to the 7 percent who received discipline from IAD investigations in 2009, 56 percent of officers referred to discipline by their supervisors were punished in 2008, and 51 percent in 2009.

City Paper's attempts to reach Corcoran were unsuccessful. Foley, who plans to sue the city, declined to comment.

In a 2003 report on the ills of the PPD's disciplinary system, Ellen Ceisler, then the city's integrity office director, offered an elegantly simple solution: "To ensure the enforcement of a code of conduct that guarantees the integrity of its police force to the greatest extent possible, and to restore and maintain the trust and confidence of dedicated and law-abiding officers, as well as the citizens of Philadelphia, the IAO recommends that an entity, independent of the Philadelphia Police Department, be established and empowered to review disciplinary matters, determine penalties, and enforce disciplinary system guidelines."

In other words, hand the job over to the public.

Theoretically, such a thing already exists. In 1993, then-City Councilman Michael Nutter elicited the ire of the Fraternal Order of Police (FOP) with his first big-ticket bill, a proposal to create the Police Advisory Commission (PAC), which was lauded by citizens and jeered by the FOP. To the FOP, this would be the worst type of oversight: It would involve public hearings held by a panel of 15 members with subpoena power, and it would directly take citizen complaints.

"The very existence of this panel could be construed as a major contributing factor to the high level of police stress," then-FOP president Richard Costello told The Philadelphia Inquirer after the FOP filed suit to dissolve the PAC in 1995. Current FOP president John McNesby did not return calls for comment.

The FOP's lawsuit didn't succeed, but it may as well have. From its inception, the PAC has been a largely ineffectual body. In its nearly 17 years of existence, it has held only 20 public hearings. Of those, the police department accepted its recommendations only once — after its first public hearing, in 1995, when the PAC heard the case of a 30-year-old man allegedly beaten to death by officers. It recommended that the police department suspend the six cops involved for 15 to 30 days.

Since its inception, the PAC has seen its staff and budget cut — from six members to five, and from $390,000 a year to $282,000 a year, according to executive director William Johnson. The PAC hasn't released an annual report since 2004, meaning there is no way to tell how many complaints the PAC has received since that date, or what citizens complained about. The "Complaint Data" section of the PAC's Web site (phila.gov/pac/complaint_maps.html) — the closest thing one can find to an annual report — is a spreadsheet that compares the number of PAC complaints to those received by the police department by district. For instance, it says that in 2008, the PAC received 240 civilian complaints to the police department's 464 — the police department's IAD handles not just civilian complaints, but complaints from police officers and department staffers, as well — though it does not say what became of them.

Taken together, this means there is no way to track how effective the PAC is. And aside from these numbers and semiannual hearings for one or two cases, nothing is public — not the investigations or their outcomes, nor the recommendations to the department or how the department responded.

In an interview, Johnson — who was appointed to head the PAC in 2005 by the advisory commissioners, who are in turn appointed by the mayor's office — declines to explain why the agency hasn't released a report in five years, though he says one is forthcoming. Asked why complaint information is not made available, he responds via e-mail: "

"But doesn't this make it impossible to know if the board merely rubber-stamps police department decisions? "

Public hearings comprise only a small part of what the PAC actually does. In 2008, the commission accepted 201 complaints to investigate out of the 280 that citizens submitted for review. But of those, just one resulted in a public hearing. What happened to the rest is, as far as Johnson is concerned, none of your business. It denied City Paper's right-to-know request for the release of all of the PAC's investigations and recommendations. The Pennsylvania Office of Open Records denied the newspaper's appeal Jan. 25, ruling that PAC records are exempt from the state's public records laws because they pertain to a "noncriminal investigation."

The PAC has proven such a disappointment to reformers that numerous reports, including the Mayor's Task Force on Police Discipline in 2001 — which the FOP filed an injunction to prevent from even forming, though the injunction failed — have recommended that it shift its focus from investigating individual cases to analyzing systemic issues that produce the agency's catalog of cases in the first place. The biggest problem, the task force reported, is that the PPD didn't really care what the advisory commission had to say. "The PAC has complained to the task force ... that its recommendations on police discipline are largely ignored," that 2001 report says. "The department's cooperation has been grudging at best."

Evan M. Lopez

In 2005, Ellen Ceisler left her position as the Integrity & Accountability Office's director to run for, and eventually win, a judgeship in the Court of Common Pleas. Then-Mayor John Street never replaced her, and the one-person agency floated in City Hall as a captain-less ghost ship for three years. In 2008, The Philadelphia Inquirer described the office as closed.

That same year, however, Deputy Mayor for Public Safety Everett Gillison, under new Mayor Michael Nutter, appointed Curtis Douglas as the new head of the agency. In an interview, Gillison says he "retooled what the responsibilities were for the IAO." The Nutter administration stretched the IAO's jurisdiction to include not just the police department, but prisons and the fire department, as well, each of which have thousands of employees.

Despite having an agency director on the job for nearly two years, the IAO has not published a single report. That may be the case for a long time — Gillison describes integrity office reportage as "internal to my office, and subject of discussion between the police commissioner and myself."

In January, Douglas left the office to work for new District Attorney Seth Williams. (The city is searching for his replacement.) However, in an interview before his departure, Douglas declined to say what he was working on. He believes he has the discretion to make reports public, "but because of the nature of the [police] department, I'd rather run it by them. Because police deal with criminals and criminal activity, I don't want to affect anything that would negatively impact anything they are doing."

In an interview, Ceisler says this reticence effectively neuters the office. "The only power I had with so limited resources, the power that came with the [integrity office], was total access to the police department and the ability to make the findings public. If you don't have that, what do you have?"

Ultimately, those interviewed say, the effectiveness of the integrity office and the city's monitoring agreement with the ACLU, NAACP and PBRP stemmed from the fact that they made information easy to come by. Their reports were available to the public, the people were paying attention.

"What do they say, 'Sunlight is the best disinfectant?'" Ceisler says.

Reform is possible, says Paul Messing, a civil rights attorney and a partner in Rudovsky's firm. He cites compelling figures: In the days of Police Commissioner John Timoney —who headed the department from 1998 to 2002 and was perceived as being attuned to the department's disciplinary problems — physical abuse complaints hovered at about 150 a year. In 2007, when Sylvester Johnson was commissioner, they rose to 255. And in 2008, the year Charles Ramsey was appointed, they shot up another 20 percent, to 306.

To Messing and other reformers, the message has to come from the top. But to pin the problem on any one man ignores the institutional factors at play. It is, in fact, extremely difficult to punish Philadelphia police officers, in part because the Fraternal Order of Police has, over the years, wielded its clout so effectively. Consider this: Even when Internal Affairs uncovers wrongdoing, and the police commissioner signs off on an officer's discipline, the matter isn't settled. The union can, and often does, file a grievance, which allows union representatives to argue the disciplined officer's case before an arbitrator. And those arbitrators can, and often do, throw out the police commissioners' verdict. Between 2003 and 2008, for example, the union won 45 percent of the grievances it filed; another 25 percent were split decisions, which the union got at least part of what it sought.

In some of those cases, civil rights lawyers say, cops who were fired had their full rank and pay reinstated. However, the exact natures of arbitrations is unclear: Last year, the FOP filed an injunction to prevent a Daily News reporter from gaining access to that information through open records laws. The city and the Daily News have appealed that injunction, but it is currently in effect.

On Jan. 23, 2009, a little less than three months after the Phillies celebration in Old City, Officer Kevin Corcoran, who joined the force in May 2004, and his partner, Shawn Hagan, responded to a reported shooting near Stinger Square Park, at 32nd and Reed streets in Grays Ferry. According to the statement given to IAD by complainant Jamie Henley, a special education teacher, "We were approached by several officers who asked if we had seen anything. They immediately searched me, an innocent bystander. Of course, I was not carrying anything illegal. Then they approached Carlton Abbott. I saw the shorter officer [Corcoran] flip his wheelchair, then strike him in the face."

Abbott, 41, claimed to be having a seizure and was taken to a nearby hospital, where he was treated for facial injuries.

Neither Abbott nor Henley cooperated with IAD investigators, police records say, and when investigators canvassed the neighborhood a few weeks later, nobody admitted to witnessing the incident. Perhaps, then, it's not surprising that the official version of events contradicts Henley's.

According to IAD's investigative analysis, "Corcoran observed a black male in a wheelchair ... place an unknown object into his right jacket pocket. Believing that Mr. Abbott possibly placed a gun into his pocket, [Corcoran] immediately placed his hand inside Abbott's jacket pocket. As [Corcoran] did this, Mr. Abbott grabbed Corcoran's hand. ... He then grabbed Corcoran's jacket, pulling Corcoran towards him. [Corcoran] then struck Mr. Abbott in the face, above his left eye, knocking him backwards. The punch caused the wheelchair of Abbott to go flip backwards, but Abbott did not hit the ground or fall out of the wheelchair."

Corcoran and Hagan discovered generic Xanax in Abbott's pocket, the report says; the officers arrested him for assault on a police officer and drug possession, since he didn't have a prescription for the pills. IAD Inspector Jeanette Lake Dooley exonerated Corcoran: "At that time, Mr. Abbott grabbed and attacked [Corcoran], forcing Corcoran to punch Abbott in the face once. This action was also justified, to subdue and control Mr. Abbott."

The charges against Abbott were later dropped.

(andrew.thompson@citypaper.net)