FOP And City Clash Over Policy For Investigating Pittsburgh Police Shootings

Jun 26, 2019

If an on-duty Pittsburgh police officer shoots someone and causes serious injury or death, Allegheny County Police take charge of the criminal investigation of the incident. This arrangement is meant to ensure the integrity of the probe – to prevent city police from investigating their own – according to Pittsburgh deputy police chief Thomas Stangrecki.

“It’s to promote a fair, transparent, unbiased investigation … to promote faith and confidence by the public that someone else has gathered the facts and submitted them,” Stangrecki said Wednesday.

The deputy chief was defending the policy at a Pennsylvania Labor Relations Board hearing in Pittsburgh. The proceeding stemmed from an unfair labor practice complaint the Pittsburgh Fraternal Order of Police union filed more than a year ago.

FOP president Robert Swartzwelder criticized Pittsburgh’s investigations protocol for police shootings as failing to protect officers’ constitutional rights to representation and against self-incrimination.

“They put an officer in an interrogation room alone. The officer’s subjected to a very stressful time. They’re not provided with representation. And unless they assert their own rights, who knows what the officer might say?” Swartzwelder said after the hearing.

Previously, union representatives were allowed to sit with officers during interrogations.

In its formal complaint, the FOP alleged that city officials never notified the union that it would end this “longstanding practice” on January 1, 2018, when the city ceded control of investigations into officer-involved shootings to the county police.

Under the FOP’s labor contract, the city must give the union at least 15 days in non-emergency situations to review new police policies before they go into effect.

But during Wednesday’s hearing, Swartzwelder says he didn’t find out that the agreement had taken effect until two Pittsburgh officers were involved in a non-fatal shooting in Homewood on January 11, 2018.

Assistant Pittsburgh city solicitor Kelly Mistick countered, “That is simply not the case.”

Rather, she said, public safety officials informed Swartzwelder of plans for a new investigations policy three months before implementing it. At an October 2018 meeting with at least a dozen city and county law enforcement representatives, she said, Swartzwelder conceded that the city had the right to subcontract investigation services from an outside agency.

Swartzwelder acknowledged he attended the October 2018 meeting but said he had received no communication about the new policy before it took effect.

While the agreement has been in place, county police have investigated a total of three shootings involving Pittsburgh police, according to Allegheny County Police Superintendent Coleman McDonough.

‘Brutal experience’

In its complaint, the FOP contends that the city should be required to bargain with the union about whether union representatives can sit with officers during interrogations.

But during the hearing Wednesday, city attorney Mistick said that the city has a “managerial right to ensure there are thorough and independent investigations” of officer-involved shootings.

Swartzwelder later said, however, it’s important that officers have access to union representatives during questioning because, he said, police shootings are “a brutal experience.”

“Police officers do not sign up in order to take lives,” he said. “They sign up to protect the public.”

“In a stressful situation like that,” Swartzwelder continued, “people have a tendency not to assert, or to forget, [their rights].”

The FOP president said union officials should be present when officers are questioned as part of a criminal investigation into actions they took while on duty.

“The Fraternal Order of Police is not concerned about who investigates,” said Swartzwelder, who said he could support investigations by county police if the terms were subject to bargaining. “The Fraternal Order of Police is concerned that the officers’ rights are always upheld during the investigation, just like any other American citizen.”

Swartzwelder recently drew intense scrutiny, however, for his insistence that he be present when police were questioned after officer-involved shootings. The Allegheny County District Attorney’s Office released a grand jury report in December that blasted Swartzwelder for allegedly using his influence to prevent DA detectives from interviewing officers involved in two shootings in 2017.

While the grand jury did not recommend criminal charges against the union president, it said his lack of cooperation “led to an inference that officers were ‘covering up’ what had happened and raised questions regarding the integrity of critical incidents within the city of Pittsburgh.”

‘A gross, major oversight’

It’s hard to tell what rules would govern future probes if the FOP were to prevail with its complaint before the labor board. In that case, the board would likely order the union to negotiate with the city to develop a new policy for police shooting investigations.

In its complaint, the union expresses a preference for the policy that predated the 2018 agreement with the county police. Indeed, Swartzwelder said he developed much of that protocol through discussions with former police chief Cameron McLay, who resigned from the Pittsburgh Police Bureau in 2016.

Under the former policy, the police bureau’s Violent Crimes Unit led criminal investigations into officer-involved shootings and department heads could ask the Allegheny County District Attorney’s Office and the FBI to “participate in and consult with the investigation of a critical incident.” Representatives of the District Attorney’s Office were supposed to be present throughout any probe.

But on Wednesday, Mistick, from the city solicitor’s office, indicated that the old process was inconsistent with a Pittsburgh city statute that was enacted in 1996 and requires public safety officials to ask an outside law enforcement agency to supervise investigations of officer-involved shootings.

The code arguably suggests that the agency must go farther than simply consulting with or being present for those investigations, as previous police department policy had dictated. Rather, the statute requires the outside agency to direct the department’s “exercise of investigatory and law enforcement powers.”

Beth Pittinger, executive director of the Pittsburgh Citizen Police Review Board, told 90.5 WESA in March that the old framework was inconsistent with Pittsburgh law and described it as “an oversight – a gross, major oversight."

‘It’s messy, and it needs to be cleaned up’

Pittinger, whose board reviews complaints of police misconduct separate from the city's internal disciplinary process, believes the city solved the discrepancy by giving county police responsibility for police shootings. Still, she said officials should have told the FOP before implementing the change, and Swartzwelder added that under state labor laws, the city must honor its collective bargaining agreement with the FOP.

“They should’ve talked it out and come to a resolution with the FOP,” Pittinger said. “But that didn’t happen. So, the FOP is doing what they have the right to do, and that’s to appeal it, to allege an unfair labor practice.”

And Pittinger said the union’s complaint raises legitimate questions about their constitutional right against self-incrimination. She noted that police officers sometimes must engage in otherwise illegal behavior, such as using deadly force, as part of their job.

The labor board judge in Wednesday’s hearing, Pittinger said, must balance officers’ rights with the need to hold police accountable for firing guns at civilians.

“It’s messy, and it needs to be cleaned up,” she said. “And that’s hopefully, what the resolution of this unfair labor practice will solve.”

It will likely take months for the labor board judge to issue a decision, and it is possible the issue will be resolved earlier through a separate arbitration process, where the city and the FOP are working to renew their collective bargaining agreement.