Obtaining use-of-force records for the Pittsburgh officers involved in that videotaped beating might prove harder than you’d think

It would be easier to get that information in … Arkansas.

Pittsburgh Police headquarters.

Pittsburgh Police headquarters.

Jasmine Goldband / The Incline

A viral video showing the violent arrest of a man by Pittsburgh police officers outside PPG Arena last month has spawned a federal review and renewed questions about police tactics in a city that has long struggled to redefine public perceptions of law enforcement.

But obtaining more information about the officers involved — namely any prior use-of-force reports they’ve filed or past complaints against them — could prove difficult under Pennsylvania’s existing open records laws, experts say.

Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Association, said complaints against officers (and other public employees) are exempt from public access under the state’s Right-to-Know Law and therefore often difficult or impossible to compel. She also said access to use-of-force reports and similar incident reports have been “routinely” denied under Pennsylvania’s public access laws.

In Arkansas, meanwhile, the state’s Supreme Court in 2012 upheld a lower court’s decision confirming that police officers’ self-prepared reports — those detailing instances where force was used — should be subject to public release under the state’s Freedom of Information Act. (Pennsylvania has no such ruling.) Courts in other states have also been grappling with this and similar issues.

The arrest

The precedent in Pennsylvania, however, remains firmly in favor of official and usually local discretion, a dynamic sometimes questioned on the heels of high-profile encounters like the one seen — and videotaped — in Pittsburgh last month.

That encounter, officials say, began when officers spotted a warrant suspect, 34-year-old David Jones, in the area of PPG Arena on Sept. 19.

Jones had previously fled from officers and, when approached this time, rushed toward them. Officials said that as Jones was being taken into custody, another man, Daniel Adelman, 47, tried to interfere with the arrest, leading to the beating caught on video, the Post-Gazette reported.

It shows a total of five officers, two of them plainclothes, present during the arrests, as punches are rained down on Adelman’s face and head.

Adelman was taken to the Allegheny County Jail on charges of obstructing the administration of law, resisting arrest, and public drunkenness. An attorney for Adelman — and Adelman himself — later said he was just trying to help, KDKA reported.

In a Sept. 20 statement, Mayor Bill Peduto said one of the officers, Andrew Jacobs, had been placed on desk duty pending the outcome of official reviews.

“Our police officers are trained to de-escalate situations,” the mayor added. “This is part of the protocol of the Pittsburgh Bureau of Police. We have zero tolerance for deviation to that standard.”

The officers

Days after the incident, The Incline submitted three separate Right-to-Know requests to the city for any use-of-force reports filed in the past by the officers involved — Andrew Jacobs, Brian Markus, Todd Modena, Robert Palivoda and Francis Rende — as well as any prior complaints made against them and any settlement agreements resulting from lawsuits or threatened legal action against them.

“The city can provide the information, but if they choose not to, there’s plenty of support in the law and jurisprudence to allow them to deny it,” Melewsky said, referring to use-of-force documents. “These requests are routinely denied based on the criminal investigative records exemption. I don’t agree with it, but it’s pretty common.”

Melewsky added of complaints made against officers, “I don’t believe there is a law that prohibits release, and they are not subject to a privilege, so I think the police agencies can exercise discretion when the release serves the public interest.”

The City of Pittsburgh on Sept. 29 requested an additional 30 days to decide whether it will deny the requests, grant them or grant only certain portions. This is not unusual and fully within the parameters established by Pennsylvania’s Right-to-Know Law.

Meanwhile, previous local news coverage turned up little about the officers’ histories. One report said that Rende was filmed accosting someone and brandishing a taser in a crowd of St. Patrick’s Day revelers in 2013. That case also prompted an FBI review and then-Mayor Luke Ravenstahl to call for Rende’s termination. Rende, a detective, remained on the force.

Asked about any past use-of-force incidents involving Rende or the four other officers present for Adelman’s Sept. 19 arrest, Department of Public Safety spokesperson Sonya Toler referred back to this official release issued a day after the incident.

The Pittsburgh Fraternal Order of Police Lodge 1 did not respond to a request for comment.

And while Pittsburgh officials do release some use-of-force data, it’s usually in aggregate form. This includes a five-year report on use-of-force incidents that was compiled at the behest of then-Chief Cameron McLay and released in 2016. The report cited a drop in such incidents but said the decrease “did not keep pace with a concurrent decrease in the number of arrests.” The report also found African-American residents were “disproportionately” impacted.

Asked whether Pittsburgh has a use-of-force problem, Beth Pittinger of the Pittsburgh Citizen Police Review Board cited reforms undertaken in recent months and years, including training enhancements focused more on constitutional and procedural justice issues and alternatives to use of force.

“The incident at PPG certainly raises questions about the ability of these officers to maintain control and self-discipline” Pittinger said. But she also said it doesn’t speak to what’s happening writ large in the department.

“I don’t think we can really objectively say now whether we’re backsliding or not. But I think in another two years we can.”

The precedents

Pittinger added that while use-of-force tallies are released by the department annually, further details can be difficult to come by.

“[The officers’] personnel records you’ll never get because those are protected,” she explained.

“And if it’s a [legal] settlement, they probably have signed an agreement to keep it confidential, and I don’t know how you break through that.”

“We certainly don’t agree that it should be confidential under any circumstances when it involves police action or a settlement and expenditures of tax dollars. As far as we’re concerned all that material should be public, but the Commonwealth legislature doesn’t agree with us.”

In Harrisburg, Pennsylvania Office of Open Records Deputy Director Nathan Byerly told The Incline that use-of-force reports remain a particularly murky area of the state’s Right-to-Know Law — a law critics say offers few explicit protections and little guidance.

“It’s not black and white,” Byerly said, adding, “Unless another law specifically says they can’t, [officials] always have the discretion to release it if they want to. The Right-to-Know Law does not tell them you cannot release it, it says you can withhold it if you want to.”

As it turns out, authorities acting under similar circumstances often don’t — or can’t — release the information.

In 2016, the Associated Press and partner newspapers conducted a survey of how governments handle requests for public records. They found that police agencies denied 10 of 25 dash cam video requests made by participating reporters, and usually did so while invoking “state laws that give law enforcement broad power to keep out of public view anything considered to be investigative material,” the AP wrote. In 10 other instances, officials said they didn’t have the tapes because they had been erased, handed off to prosecutors or other departments or the recorder was turned off or nonexistent.

That means only 1 in 5 requests yielded video footage.

The degree of subjectivity is often only heightened with use-of-force reports, which Byerly describes as a “convoluted area” of the law. As a result, the decision-making process remains a highly localized and interpretive one.

Byerly explained further:

“Use-of-force reports are gonna get into criminal investigative-type matters, and a lot of times investigative records are exempt under Right-to-Know [meaning public access is not protected]. However, even before that analysis, we [at the OOR] don’t have jurisdiction over investigative records of local law enforcement, and so if we get [RTK requests for use-of-force reports], we’ll transfer [those requests] over to the local DA who will determine whether they are criminal investigative records or not.”

This means that, by and large, it is left up to local authorities in Pennsylvania to determine if a police document is a criminal investigative record and therefore exempt under the Right-to-Know Law.

In Pittsburgh, the Allegheny County District Attorney’s Office was the recipient of an OOR-referred Right-to-Know case earlier this year, after a local reporter’s request for use-of-force data from city police was partially denied by the city. The portion of the request granted by the city produced minimal information, similar to that included in a police blotter report. In explaining its denial of the rest, the city argued that certain records are “records of a criminal investigation” and therefore exempt. The reporter appealed their decision, leading to the OOR and then to the DA.

Mike Manko, a spokesperson for the DA’s office, said he does not have any numbers indicating how many times RTK appeals have been granted or denied by his office. A follow-up email asking about the status of this particular appeal was not immediately returned. An inquiry seeking an update from the reporter who filed it was also unsuccessful. 

The legislature

But Melewsky says the trouble with relying on local authorities to make public records decisions is the lack of a mechanism there to keep track when they do.

“The DAs who handle [some requests] at the local level don’t have a central repository like the OOR does. […] There may be five decisions or there may be 100 — there’s really not a practical way to get access to them. The OOR keeps a database of all the decisions it makes, and the DAs do not. The law has to change in order to require them to do that. And that’s up to the legislature.”

At the OOR, Byerly said that although the office doesn’t have jurisdiction over investigative records belonging to local law enforcement agencies, it does have jurisdiction over those belonging to the state police. Still, he could not recall any cases in which the OOR addressed use-of-force reports as they pertained to those agencies.

“I don’t know that we’ve taken [the use-of-force issue] on outside the Department of Corrections and inmate context,” he added.

Increasingly, though, advocates say it’s time someone (read: the legislature) does. And while advocates call on the legislature to plug the holes in Pennsylvania’s open records statute — recent efforts in the Capitol seem to signal a push to weaken rather than strengthen public access overall. Governor Tom Wolf’s office did not immediately respond to a request for comment for this article.

“Pennsylvanians, in general, are better off under the current Right-to-Know Law than under the previous Right-to-Know Law, but we still have significant public access issues here in this state and one of those is with public access to criminal investigative records,” Melewsky said.

“Pennsylvania residents have very little access to law enforcement records and criminal investigative records as a whole. We would have to have the law changed to get better access.”