PART I: THE PROBLEM
It was well into the early morning hours of Saturday, 29 August 2004, and Deven Werling was jonesing for a hot dog. Mr. Werling, along with two friends, was having far-past-midnight snack at the "O" in Oakland when a fight broke out just outside the restaurant's doors. Neither Mr. Werling nor his friends were involved in the fight, but as people often do, they probably sat back and took the opportunity to watch the spectacle unfold. On that particular evening, the "O" – like many Pittsburgh business which operate at this hour of the night – had employed two off-duty Pittsburgh Police officers, Sergeant Mark Eggleton and Brian Roberts, to provide security. Both police officers were working "under the table" that evening, and neither the Pittsburgh Police Department nor the IRS had any official knowledge that they were employed there.
The police officers moved in to break up the fight, and eventually used pepper spray to get things under control. Quite a bit of pepper spray was employed; the manager of the "O" had to go into the restroom to wash it off her skin before returning to work. Some small residual amount of the pepper spray worked its way back into the restaurant, and Mr. Werling began having a physical reaction to it. He then made a remark to his friends that, while seemingly innocent, would kick off a chain of events that would end up costing Pittsburgh taxpayers quite a bit of money.
"Why did those jackasses have to spray so much pepper spray?", asked Mr. Werling. That's all it took to get the ball rolling on what would become a federal lawsuit.
Sgt. Eggleton didn't hear Mr. Werling make this remark, but one of the "O's" employees told the sergeant about it. Sgt. Eggleton approached Mr. Werling and asked him if he was the one who had made the comment. Mr. Werling said something back to Sgt. Eggleton; perhaps as something as innocuous as "I'm eating", or perhaps something a bit more defiant. Employees at the restaurant would later testify that none of them heard Mr. Werling use profanity or even raise his voice, and nobody recalls seeing him push Sgt. Eggleton during this confrontation. Even Ofc. Roberts, the other police officer employed by the "O" that night, testified that "… he saw no conduct from Mr. Werling that would justify the use of force".
Whatever Mr. Werling may have said at that point, Sgt. Eggleton ordered him to leave the restaurant. Mr. Werling refused. Sgt. Eggleton swept the food off of Mr. Werling's table, and then, according to an expert witness who worked on the case, "… pulled him out of his seat, threw him against a window, thrust a baton across his throat until he almost passed out, threw him against a cooler, and punched him in the mid-section". After all of that, Mr. Werling and his two companions were somehow permitted to leave the restaurant without being arrested.
Once the men got outside, they encountered a University of Pittsburgh police officer. Mr. Werling, who was already planning to file some kind of complaint, asked the Pitt officer for the name and badge number of Sgt. Eggleton. Mr. Werling may (or may not) have also started screaming at Sgt. Eggleton from across the street, calling him a "fucking asshole". Sgt. Eggleton, upon seeing what was going on, then decided to arrest Mr. Werling, charging him with "… disorderly conduct, defiant trespass, [and] resisting arrest". Mr. Werling spent 15 hours in custody before being released. Later on, Sgt. Eggleton – after learning that a formal complaint had been made by Mr. Werling – filed additional charges of felony aggravated assault and obstruction. Many of these charges were later dropped by prosecutors for lack of evidence. When the criminal case against him came to trial, Mr. Werling was found not guilty of all the remaining charges.
This being America, a lawsuit was almost inevitable. On the 29th of June 2005, Mr. Werling filed suit in Federal court against Sgt. Eggleton, Ofc. Roberts, the "O" restaurant, and – of course – the City of Pittsburgh. The case has slowly moved forward since then, eating up countless hours of attorney time and producing well in excess of 200 different filings, motions, written arguments, exhibits, schedules, court orders, and other documents. As recently as 06 February 2007, a settlement conference was filed with the court.
A source whom I shall refer to as "Aliena" tells me that this case is now very close to being settled for a total in excess of $300,000. Half of this amount is to paid by the "O", and the other half will be paid by the taxpayers of the City of Pittsburgh. It is unclear what, if anything, the two police officers will be required to pay, or even whether they will be asked to pay the back taxes (plus interest and penalties) from their "under the table" wages that night.
The central question here, at least for me, is not whether either of these officers used excessive force, made an unjustified arrest, or did anything else wrong that evening. Our focus as taxpayers should not rest upon whether Mr. Werling brought this on himself or whether he simply got what he deserved. The point is that the police officers were there, a confrontation occurred, this lawsuit was filed, and that the case is now on the verge of being settled using more than $150,000 – plus legal fees – of our money.
A good question to ask at this point is why the City of Pittsburgh was ever dragged into this lawsuit in the first place. I have no problem at all with the fact that the "O" will have to pay their portion of the settlement. It was the "O" who hired these police officers to work there that evening, and the "O" is logically responsible for what their employees do. It also wouldn’t bother me if the police officers had to dip into their own pockets to settle this case. They were working on their own time, making their own (under the table) wages, and thus must bear the burden for the things that they themselves did.
But the city’s role in these events was almost negligible. Neither of these two officers were working for the City of Pittsburgh at the time of the incident. Even the city’s tax collectors didn’t know that they were employed by the "O" that evening. As one of the expert witnesses in the case pointed out, once Sgt. Eggleton came inside the restaurant and confronted Mr. Werling about his comment, he was no longer acting as a city police officer. The sergeant was no longer on public property, and he was enforcing the restaurant’s internal "house rules" instead of any public law. He was acting, in other words, as merely a "bouncer/security officer" instead of as a public police officer. In fact, Sgt. Eggleton's status as a private security guard – and not a public police officer – may be the primary reason why Mr. Werling was not arrested inside the restaurant itself, and why Sgt. Eggleton had to wait until Mr. Werling had left the "O" before making the arrest on public property.
So why are city taxpayers footing the bill for what happened in the "O" that night? First and foremost, because the City of Pittsburgh obviously has the deepest pockets of all possible defendants. Mr. Werling’s attorneys could only squeeze so much money out of the "O" and the two police officers, and suing the city would make far more cash available for their client. But that's the reality of any legal case, and it's hardly surprising.
The biggest reason why we are on the hook for this settlement may be because it would have been impossible for Mr. Werling to know that these two police officers were not working directly for the City of Pittsburgh at the time of the incident. The officers were "… in full police uniform (including uniform shirt and trousers, hat, badge, shoulder patches, baton, firearm, and other police accessories)…", and they never informed Mr. Werling – as some policy experts recommend – that they were working in a private capacity. Anyone in Mr. Werling's position would have no choice to assume that these were the city's police officers doing the city's business.
In this case, the cost to taxpayers will end up reaching into the hundreds of thousands of dollars. Admittedly, this instance is an extreme example, but those of us who fund the City of Pittsburgh often end up paying for things that our police officers do when they work for private employers during their off-duty time (a practice with the Pittsburgh Police Department refers to as "secondary employment"). These costs do not come from lawsuits alone. For example, a police officer working for Giant Eagle may end up ripping his shirt during a scuffle with a shoplifter; the taxpayer pays for a new shirt. Or an officer working at a Strip District nightspot ends up using a Taser to subdue an unruly patron; the taxpayer pays to replace the expended cartridge. Even if Mr. Werling hadn't been at the "O" that evening, the taxpayer would have had to replace the pepper spray that the two police officers had used to break up the earlier fight.
Whether in small amounts or large ones, our city government ends up spending money in order to fund and support these secondary employment arrangements. We are bearing much of the financial cost and assuming almost all of the legal liability needed to allow our police officers to run their own private businesses during their off-duty hours.
When you think about it this way, the practice seems quite bizarre. Consider, for example, an electrician who normally works for a large contractor, but who wants to start his own business doing in-home electrical repairs at night and on weekends. You wouldn't expect his regular employer to pay for all the wire, breakers, tools, and other items needed to get this new enterprise off the ground. And you certainly couldn't expect his employer to cover his legal liability. If one of these homes that our electrician works on subsequently burns to the ground due to his shoddy work, he will simply have to face the legal music on his own, unprotected by his regular employer's insurance policy.
But no matter how bizarre it may seem, this is precisely what the City of Pittsburgh does for its police officers. Taxpayer costs and liability are almost impossible to avoid here. As long as our police officers are wearing city uniforms and using city supplies when working at these secondary employment gigs, we are going to be on the hook for funding these things. And to be perfectly fair, secondary employment jobs can provide some public benefit, since they increase the amount of visible police presence on the streets, particularly in very locations – bars, clubs, sporting events, concerts, retail stores, etc. – where trouble tends to concentrate.
We taxpayers could, at least to some extent, avoid these costs by changing the rules that city police officers must follow when they are engaged in secondary employment. For example, we could forbid them to wear city uniforms. We could mandate that they identify themselves only as a "private security officer", and never as a "police officer", when working these jobs. We could insist that they purchase their own equipment, and require them to purchase liability insurance to cover themselves in the event of a lawsuit. We could even go so far as to deny them access to sidearms, Tasers, and police radios, so that they functioned with the exact same set of tools and legal privileges that any other private security officer would have at their disposal.
All of those ideas are probably good ones, and they would reduce some of the taxpayer costs associated with secondary employment. But they wouldn't necessarily eliminate the city's legal liability. The City of Pittsburgh would almost certainly still end up tangled in lawsuits. We would be sued for providing "inadequate training" on the use of deadly and physical force. We would be sued for "not properly instructing" these officers on the limits of their police powers when they are working for private employers. We would be sued when these officers over-stepped these boundaries and used their official police powers anyway. We would be sued when these off-duty officers called for backup from those who were on-duty, since it would quickly become unclear exactly who did what and in what capacity. And most obviously, we would be sued because the City of Pittsburgh has far deeper pockets than almost any private employer could ever hope to provide to the plaintiff's attorneys.
Even more to the point, the Fraternal Order of Police (FOP) – which functions as a police union – would fight tooth-and-nail against any of these proposals. Police officers who work off-duty details command much higher wages than private security guards, precisely because they work in full city uniform and are equipped with all of the equipment and – at least to the casual observer – arrest powers of an on-duty police officer. The FOP would not be doing its job if didn't protect these higher off-duty wages for its members. The FOP would also defend its membership against the added costs, such as purchasing uniforms and equipment, that they would face under these kinds of restrictions. And perhaps most importantly, the FOP would be loathe to see its members working without the protection of all the tools – especially sidearms and police radios to call for assistance – that any on-duty police officer would have.
Thus for a wide variety of reasons, the City of Pittsburgh and its taxpayers are almost inescapably burdened with the costs of supporting the secondary employment of our police officers. As the case with Mr. Werling and Sgt. Eggleton demonstrates, these costs can be very substantial. And that is precisely the reason why, in the waning days of former Mayor Tom Murphy's administration, then-Police Chief Robert McNeilly unveiled his plan to recover some of the city's costs from these secondary employment details.
Part II of this series, to be posted tomorrow, will examine Chief McNeilly's proposed solution and trace what became of it once Mayor Bob O'Connor took office. Part III, which will appear on Tuesday, will examine the cost recovery plan's fate under Interim Mayor Luke Ravenstahl's administration.
Sunday, February 11, 2007
PART I: THE PROBLEM