Amid conflicting accounts over what led Pittsburgh police to break up a protest in East Liberty Monday, Pittsburgh Mayor Bill Peduto vowed to review transcripts of police communications “line by line” to determine what actually happened. But the mayor said at a news conference late Monday night that he would not make the transcripts public, a move that has prompted criticism from some transparency advocates.
The controversy centers over what caused police to use rubber bullets, smoke, and tear gas to disperse demonstrators who remained after a march ended Monday. That gathering had been called to condemn police brutality in the wake of the death of a black Minneapolis man, George Floyd, at the hands of police.
Public safety officials said they used crowd-control equipment because as the march broke up, a “splinter group” had started to vandalize storefronts and throw rocks and bottles at officers. But protesters dispute that account, saying police fired rubber bullets at them first.
During a late-night press conference Monday, Peduto acknowledged that protesters have "said, 'That's not how it happened. It went down a very different way'" than police described.
"So I've ordered the police chief to transcribe all of the emergency operation command communications" that took place during the confrontation with protesters, Peduto said. "Can I provide it to the media? No. Two reasons: Number one is just on the basis of critical information on the operation side during an emergency, and the second is contractually with the [Fraternal Order of Police], that we do not have the right to release information if there's to be an investigation or if it's an ongoing investigation."
FOP President Robert Swartzwelder disagreed with that interpretation. Swartzwelder said that “absolutely nothing in the working agreement between the city [and the union] prohibits the release of 911 transcribed records as a matter of labor law.”
On Wednesday, a city spokesman said Peduto might release the transcript after all, and offered a different explanation for why doing so might be difficult.
“We’re still studying legal options to see if we can legally release the transcript," said spokesman Tim McNulty. "We very well could release them if it’s legal to do so. I don’t want to say it’s a hard no on releasing them, but it might be a state law issue.”
McNulty said that Peduto was still reviewing the transcript as of Wednesday morning.
Later in the day, Peduto announced that he was calling for investigations.
Melissa Melewsky, an attorney at the Pennsylvania NewsMedia Association, agreed the police contract was irrelevant, and said the city had options to release the transcript if it wanted to.
“You can’t contract around transparency, so I think we should put that [argument] aside right away,” Melewsky said. And under the state’s open records law, the public has a right to access transcripts of police communications, unless the government can show why they are exempt from the rule. Melewsky said while there are exemptions for criminal investigation records and safety and security concerns, officials must explain why they apply to specific records, and whether an exemption is mandatory or not.
“There are often flexibility provisions embedded in laws that allow agencies to release information when it serves the public interest, even if they would otherwise be exempt,” Melewsky said.
The controversy over Monday’s protest, she added, “sounds like a situation where that [flexibility] would be very applicable … because [Pittsburgh officials have] obviously gotten the question from their constituents and the media, who represent their constituents.”
‘What we want is transparency’
Peduto has long championed the cause of transparency in government, both as a mayor and during his time on City Council. On Monday night he said, "I was elected to look at documents like [the police transcripts] in order to be able to make decisions based upon facts and not emotions.”
Brandi Fisher, president of the Alliance for Police Accountability and a protest leader, said Peduto should give the public the chance to come to its own conclusions.
“Mayor Peduto knows that transparency has always been a call of the people. We want the truth. You work for us,” Fisher said. “And so what we want is transparency.”
Fisher said police transcripts regarding the East Liberty protest could reveal what officers were “told that made them think that [their] level of response was OK.”
And University of Pittsburgh law professor David Harris, who studies law enforcement and race, said transparency can improve police-community relations.
When police use force, Harris said, “you have to come out as early as you can, disclose as much as you can, and be as transparent as you can, and explain why you can’t be more transparent, if there’s a reason, and do this on an ongoing basis."
“Everybody knows there may be an ongoing investigation and [that] if you disclose things from an ongoing investigation, it can sometimes in certain ways compromise the investigation – people understand that,” he added.
Fisher said that she, for one, is even more inclined to protest in the absence of more information on the tactics police used.
“It makes me want to be there more ... to witness them, instead of getting third-party accounts, and to ensure people are safe, because these are people who are hurting,” Fisher said.
‘It would go a long way to dissipate the controversy’
Pittsburgh’s Citizen Police Review Board, which investigates complaints of police misconduct, has also been monitoring the protests. The board’s executive director, Beth Pittinger, worries that withholding police communications could worsen trust problems.
“We're talking about police accountability in its most visible way these days,” Pittinger said. “And everything we can do to be transparent in that, we should be doing." Sharing the transcripts “would go a long way to dissipate the controversy and it would take away a whole element of criticism.”
Pittinger said her organization, too, needs more information to assess whether the actions of police Monday night were appropriate. While the officers used “typical crowd dispersal tools,” Pittinger said, the review board still must determine what provoked their response.
“If it [was] looting, breaking windows, spray painting and defacing properties, that is criminal behavior, and none of us should tolerate that,” Pittinger said. But she added that police might also become suspicious of anyone who does not leave at the end of a protest and “is no longer a part of that lawful protest. ... And that's when you see police moving in, in their effort to restore order or to prevent disorder.”
Vic Walczak, legal director of the American Civil Liberties Union of Pennsylvania, said even in that context, “I don’t see a justification for issuing that kind of dispersal order.”
And even though demonstrators reportedly ignored multiple police warnings to clear the streets before an 8:30 p.m. curfew took effect Monday evening, Walczak noted that in the U.S., people can demonstrate without a permit from the government.
“The Supreme Court said that parks, streets, and sidewalks are held immemorially for the public trust. These are what are known as traditional public forums. This is the quintessential place for expression,” Walczak said, citing a landmark 1939 ruling at the nation’s highest court.
Walczak noted that Peduto and other public-safety officials have acknowledged the vast majority of protesters were peaceful, and that some were trying to stop people from engaging in vandalism.
“So when you see that kind of thing happen, you don’t need to shut down the entire protest,” the lawyer said. “[The police] are fully capable of identifying the people who are engaged in the misconduct and getting them.”
“The protests are largely against police officers pushing people around and worse,” he added. “And so when you’ve got that kind of assertion of authority during a demonstration against that kind of use of authority, it’s not going to go well.”
*This story was updated at 4:19 p.m. on June 3, 2020 to reflect Mayor Bill Peduto's call for investigation.