Fall 2020 Bulletin

BULLETIN

FALL 2020

PENNSYLVANIA CHIEFS OF POLICE ASSOCIATION

PCPA President Chief of Police of Edgeworth Borough

John English Inside this Issue: PCPA Executive Board and Committees

Police Chief James Adams to Retire

Agencies Continue to be Accredited by PLEAC

A Risk Manager’s Perspective on Accreditation

Legal Update for Law Enforcement

Self-Care for Public Safety Professionals

Legislative Report

Who’s in Charge of a Borough Police Department?

Officer Safety has a new normal Is your data ready to protect and serve?

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contents

USPS 425940 • ISSN 0031-4404

FALL 2020 • Vol. 122; Issue 3

6 7 48 50 52 54 56 58 62

Welcome New Board Members Police Chief James Adams To Close Out 42-Year Career Officer Safety has a New Normal: Is your data ready to protect and serve?

A Risk Manager’s Perspective on Law Enforcement Accreditation The Evolution of Kovatch Inc. Municipal Up-fitting LEJIS N-DEx Success Story

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Self-Care for Public Safety Professionals During the Coronavirus Crisis Opposition to Additional Maximum Truck Weight Exemptions Who’s in Charge of a Borough Police Department? - Another Perspective

COLUMNS AND DEPARTMENTS 5 PCPA Executive Board and Committees 5 PCPA Staff 8 President’s Message 9 Executive Director’s Message 10 Our Sponsors 11 Welcome New Members 12 Agencies Continue to be Accredited

by PLEAC 15 Legal Update for Law Enforcement: Did I hear that right? Pennsylvania Court clarifies use of hearsay at a preliminary hearing 26 Legal Update for Law Enforcement: Qualified Immunity in Pennsylvania: The Good News and the Bad News 34 Legislative Report 64 Technology Update 67 PCPA Membership Application

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Pennsylvania Chiefs of Police Association BULLETIN (ISSN 0031-4404) is published quarterly (spring, summer, fall and winter) by the Pennsylvania Chiefs of Police Association. Subscription to PCPA BULLETIN is included in PCPA annual dues. Periodicals Postage paid at Harrisburg, PA. POSTMASTER: Send address changes to PA Chiefs of Police Association BULLETIN, 3905 North Front Street, Harrisburg, PA 17110-1536.

The content of the PCPA BULLETIN is to be a practical reference featuring PCPA information of specific interest and relevance to law enforcement professionals. Topics of interest include professional development, current legislative goals, news items, PCPA upcoming events and legal issues. PCPA Articles or ideas for content should be submitted to PCPA Headquarters c/o Scott Bohn, 3905 North Front Street, Harrisburg, PA 17110-1536, or email to sbohn@pachiefs.org.

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OFFICERS Albert Walker Chairman Chief of Police Hanover Township

PCPA STAFF Royce Engler 3rd Vice President Chief of Police Wright Township

William Richendrfer Secretary – 2023 Chief of Police South Centre Township

Fred Harran 2nd Vice President Director of Public Safety Bensalem Township

Michael Vogel 4th Vice President Chief of Police Allegheny County Housing Authority

Ken Truver Treasurer – 2023 Chief of Police Castle Shannon Borough

Al Coghill -2022 Chief of Police Canonsburg Borough

Larry Palmer – 2022 Chief of Police Palmer Township

Jason Loper - 2022 Chief of Police Fairview Township

David Splain - 2022 Chief of Police Nether Providence

James Sabath – 2022 Chief of Police Newtown Borough

Mark Toomey – 2021 Chief of Police Upper Providence Township

Tim Trently - 2022 Chief of Police Archbald Borough

Aaron Lauth - 2023 Chief of Police Mount Lebanon

John English President Chief of Police Edgeworth Borough

David Steffen 1st Vice President Chief of Police Northern Lancaster County Regional

BOARD MEMBERS

Thomas Gross – 2022 Chief of Police (Ret.) York Area Regional Police

Scott L. Bohn, Executive Director, sbohn@pachiefs.org Marcia Nixon, Administrative Assistant to the Executive Director, mnixon@pachiefs.org Gregory Bean, Consulting and Member Services Manager, gbean@pachiefs.org Christopher Braun, Grants Management and Technology Coordinator, cjbraun@pachiefs.org Cheryl Campbell, Administrative Manager, ccampbell@pachiefs.org Dick Hammon, Accreditation Program Manager, rhammon@pachiefs.org Jerry Miller, Offender Identification Technology Program Manager, jmiller@pachiefs.org Andrea Sullivan, Administrative Assistant and Accreditation Assistant, asullivan@pachiefs.org

Thomas Rudzinski – 2021 Chief of Police Manheim Township

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BUDGET & PERSONNEL

LEGISLATIVE

Chair: John English, Chief of Police, Edgeworth Borough Royce Engler, Chief of Police, Wright Township Fred Harran, Director of Public Safety, Bensalem Township Bill Richendrfer, Chief of Police, South Centre Township David Steffen, Chief of Police, Northern Lancaster County Regional Ken Truver, Chief of Police, Castle Shannon Borough Michael Vogel, Chief of Police, Allegheny County Housing Authority

Chair: Fred Harran, Director of Public Safety, Bensalem Township Randy Cox, Chief of Police, Somerset Borough Thomas Gross, Chief of Police (Ret.), York Area Regional Police David Mettin, Chief of Police, Plumstead Township Dean Osborne, Chief of Police, Grove City Borough Larry Palmer, Chief of Police, Palmer Township Thomas Rudzinski, Chief of Police, Manheim Township David Steffen, Chief of Police, Northern Lancaster County Regional

EDUCATION & TRAINING

MEMBERSHIP/BYLAWS

Chair: David Steffen, Chief of Police, Northern Lancaster County Regional William J. Daly, Chief of Police, Horsham Township Royce Engler, Chief of Police, Wright Township Ashley Heiberger, Retired Captain, Bethlehem City Aaron Lauth, Chief of Police, Mount Lebanon Jason Loper, Chief of Police, Fairview Township David Splain, Chief of Police, Nether Providence Police Department George Swartz, Chief of Police, Spring Garden Township Ken Truver, Chief of Police, Castle Shannon Borough

Chair: Royce Engler, Chief of Police, Wright Township David Splain, Chief of Police, Nether Providence Police Department Mark Toomey, Chief of Police, Upper Providence Township Timothy Trently, Chief of Police, Archbald Borough Ken Truver, Chief of Police, Castle Shannon Borough Michael Vogel, Chief of Police, Allegheny County Housing Authority

NOMINATING Chair: Michael Vogel, Chief of Police, Allegheny County Housing Authority

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FALL 2020 BULLETIN

executive board & committees

Welcome New Board Members Chief Aaron Lauth Science in Strategic Leadership from Mountain State University in 2007. He is a 2016 graduate of the FBI National Academy in Quantico, VA.

Chief Aaron Lauth has been with the Mt. Lebanon Police Department since September 1998. He was promoted to Chief of Police in May 2015.

Chief Lauth was born and raised in the South Hills of Pittsburgh. He earned his Bachelor’s degree in Criminal Justice from Mercyhurst College in 1998, and his Master of

Chief Lauth previously served as a Deputy Chief of Police, a Lieutenant in the patrol division and a Corporal in the Crime Prevention Unit of the MLPD. He also served for several years as an Element Leader and Crisis Negotiator with the regional SHACOG Critical Incident Response Team.

Chief Lauth resides in Mt. Lebanon with his wife and two daughters.

Chief Thomas Rudzinski from Boston University and is a 2011 graduate of Northwestern University’s School of Police Staff and Command. Chief Rudzinski is a strong advocate of the accreditation program and has been an assessor since 2008. He is currently the Vice-Chairman of the Pennsylvania Law Enforcement Accreditation Commission and Vice-President of the Central Pennsylvania Chiefs of Police Association. He is active in the Knights of Columbus and is a Board Member of the PA Dutch Council Boy Scouts of America. He has been married to Stephanie for 23 years, and they have two children and one grandchild.

PA CHIEFS OF POLICE ASSOCIATION

Chief Thomas Rudzinski is a 1987 graduate of Franklin and Marshall College with a degree in Government and a minor in American History. The week following his graduation, he was hired by the Manheim Township Police Department in Lancaster County, and has been there ever since. He worked his way up through the ranks and was promoted to Chief of Police in 2017. He has a Master’s Degree in Criminal Justice

INTERESTED IN PENNSYLVANIA LAW ENFORCEMENT ACCREDITATION? This class is for you! You will learn what the accreditation program is, how to get started and what you will need to do while working in the program.

Please register for accreditation information and manager training on Wednesday, September 30, 2020 from 9:00 am to 4:00 pm. The class will be conducted via Zoom meeting. A link will be sent to the email address used for registration prior to class. The cost to attend class is $25.00.

Registration information can be found at www.pachiefs.org.

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When Adams joined the Upper Allen Police Department as its fifth, full-time officer in 1978, he could work seven nights in a row and not get a single call. Now, says Adams, the chief since 2003, his agency of 23 officers are generally very busy 24 hours a day, 7 days a week.

After a 42-year career with the department, Adams will retire at the end of July. He says his departure will be bittersweet.

“I do still truly love this job,” he said.

“I want to leave while I still love it.”

Board of Commissioners President Ken Martin praised Adams and said a broad search for his successor is underway.

“He’s more than just a police chief,” Martin said. “He is invested in the community and really thinks of the safety and quality of life of the residents. For him, it’s a passion and career instead of just a job. We’re going to miss him.”

Adams first became a Mechanicsburg volunteer fireman at 16 and shortly thereafter became one of the first EMT’s in the County, giving him more than 50 years in emergency services.

After earning an associate degree in criminal justice, Adams joined the police department in 1978. He later earned a bachelor’s degree in criminal justice and a master’s degree in public administration.

While working full-time at Upper Allen he taught criminal justice at Harrisburg Area Community College (HACC) for 11 years as an Adjunct Professor. He continues to teach in the Police Academy along with other specialized programs at HACC. Following promotions to corporal and patrol sergeant, Adams

became the department’s first lieutenant in 2001.

Early on, most arrests were for petty crimes in the Township of 5,000 people. Now, among the most serious crimes in the bustling municipality of 20,000 are computer fraud and phone scams.

Technology has changed the world and along with it the way we investigate crimes.

Perhaps Chief Adams’ most searing memory is of informing a wife on Christmas morning of the sudden heart-attack death of her young husband as he went to retrieve presents for the family in another municipality. Until a relative could come to the home, Adams sat with three children on his lap in front of the family’s Christmas tree consoling them.

“People don’t realize we do these things,’’ he said. “It’s a tough part of the job.’’

Residents are always responding with appreciation, he said, whether officers help change a flat tire, solve a crime or help them thru a crisis.

“Our break room is routinely filled with food people drop off to say thank you,” he noted.

Chief Adams joined the Pennsylvania Chiefs of Police Association in 2003. He has served on multiple committees: most notably the Executive Board, Chairman of PLEAC and the Membership Committee and the Legislative Committee.

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After retirement, Adams plans to continue working for the PA Chiefs of Police Association Consulting Division. He also plans to take up golf, visit every Pennsylvania winery after his wife retires and take his antique Pontiac Grand Prix to auto shows.

He will fondly remember his Upper Allen career, the work ethic of his staff and the support of the Commissioners. “I will miss the guys and gals here a heck of a lot,” he said. “They’ve kept me going.”

On behalf of the Pennsylvania Chiefs of Police Association, the PCPA Staff and our membership, we would like to thank Chief Adams for his 42 years of professional and dedicated service to law enforcement. He has been engaged in educating the next generation of law enforcement and has mentored many officers and leaders during his distinguished career. Chief Adams has distinguished himself as person of integrity and character and he has reflected positively on our Association and law enforcement.

We thank him and his family for their sacrifice and service.

FALL 2020 BULLETIN

Police Chief James Adams To Close Out 42-Year Career

PRESIDENT’S MESSAGE

DEAR MEMBERS,

I

am incredibly happy to be able to serve as President of the Pennsylvania Chiefs of Police Association (PCPA). I along with our Executive Board are committed to continue working to meet the ever-changing challenges confronting law enforcement today. I do not think anyone could have predicted what has taken place in our Commonwealth and Nation.

Canceling our July Training Conference was a terrible disappointment to me and to our Association. A lot of work had been done by our Executive Director Scott Bohn and his staff. All the details for a great event were completed. I would like to personally thank Director Bohn and the PCPA staff for all their work.

“BLESSED ARE THE PEACE MAKERS; FOR THEY SHALL BE CALLED THE

PA CHIEFS OF POLICE ASSOCIATION

CHILDREN OF GOD”

As we move forward, it is important to remember that even without the Conference our Association has a lot to offer our members.

Programs, such as Accreditation, administered by the Pennsylvania Law Enforcement Accreditation Commission (PLEAC) provides high quality up to date practices and services for departments to serve their communities. The Pennsylvania Virtual Training Network (PATVN), which is our online training, delivers both mandatory and roll call training to our members and to all officers in the Commonwealth.

PCPA’s Member Services and Consulting provides testing for entry level hiring, promotions, physical fitness evaluations, oral interviews, and agency reviews. We also administer many grants that provide the tools that we rely on every day.

We have gone through some exceedingly difficult days and there will be challenges ahead. Challenging times provide challenges for opportunity. Police officers across the Commonwealth have come under scrutiny for a series of ugly encounters with protesters demanding justice in the wake of the officer-involved death in Minneapolis. We understand that some media accounts of excessive use of force do not tell the whole story or take into account agitators and brazen criminals capitalizing on the chaos. Our profession is being tested and although we have been bruised, we will make progress and continue to move forward. We must educate the public we serve and our elected officials and share our message in the media. As President I will support and advocate for the professional men and women who honorably serve their communities and our profession.

I appreciate our memberships dedicated and faithful service to the citizens of our Commonwealth, “Blessed are the peace makers; for they shall be called the children of God” Sincerely,

John English

CHIEF OF POLICE, EDGEWORTH BOROUGH PCPA PRESIDENT 8

EXECUTIVE DIRECTOR’S MESSAGE FALL 2020 BULLETIN

DEAR MEMBERS,

O

n July 14, 2020 the Association swore in our 2020-2021 Executive Board and our new president, Chief John English.

It is a privilege to work with and for law enforcement leaders who are committed to the profession and the citizens of Pennsylvania.

Our Professional Police Executives are driven by a tremendous sense of service and duty to their communities. In Pennsylvania, the overwhelming number of police officers are ethical, courageous, and honest men and women who are committed to keeping our communities safe, enforcing the law, and meeting the needs of victims of crime. Pennsylvania’s law enforcement leaders are equally committed to continuing constructive changes that can make our criminal justice system fairer for all citizens.

While change is necessary and possible, it must occur through the lens of truth and reality.

Pennsylvania is one of the few states to pass meaningful reforms into law since George Floyd’s death. This is a considerable achievement. The legislation was supported by our law enforcement leaders. The adoption and approval of well-intended and well-constructed legislation is crucial to strengthening community trust. Our efforts must reflect a balanced approach to addressing crime and making community safety a priority.

This year has challenged our profession. The nature of police work carries with it a substantial amount of risk- legal, psychological, and physical. The PCPA is committed to pursuing offerings that support, enhance, and enable our members to meet the very real challenges that they and their departments face. We will continue to communicate how our Association, along with its benefits and information, can help them through these challenging times. We encourage your input and feedback.

THIS YEAR HAS CHALLENGED OUR PROFESSION. THE NATURE OF POLICE WORK CARRIES WITH IT A SUBSTANTIAL AMOUNT OF RISK- LEGAL, PSYCHOLOGICAL, AND PHYSICAL.

The PCPA is excited to announce that our new and improved website is live. You may have noticed that our website has changed since the last time you checked in. The PCPA staff has been working hard to bring you a better online experience. A significant change you may have noticed on the site is our web design. We want to be more responsive to our members and visitors, create easier navigation for all our platforms and update and improve the structure of our content.

Accreditation for law enforcement agencies in Pennsylvania and across the country is a significant topic of conversation and legislation. In the Commonwealth we have a robust law enforcement accreditation program that is offered by the Pennsylvania Chiefs of Police Association (PCPA). Given the current environment in law enforcement, we believe it is critical for an experienced organization such as PCPA, that is rooted and based in Pennsylvania and conforms to the best practice, policies CONTINUED ON PAGE 10 9

www.facebook.com/pachiefsofpolice www.twitter.com/pachiefs www.instagram.com/pachiefsofpolice

EXECUTIVE DIRECTOR’S MESSAGE (CONTINUED) and Pennsylvania laws, provides accreditation services in the Commonwealth of Pennsylvania. I strongly recommend that agencies seek accreditation. Contact us. Visit our website and get started.

Looking forward, we will continue to focus on matters and issues that impact our membership: • Use of force and other policing operations and training • Civilian oversight • Release of known information and videos • Independent investigations • Improved transparency and baseline expectations for police departments • Legalized recreational and medical marijuana • Police recruiting and retention • MOPETC- police hiring database system • Law enforcement investigations • Privacy Issues • NIBRS’ - January 1, 2021 deadline • Radar • Mandatory in-service training • Police Policy I am confident that our law enforcement leaders will continue to embrace the challenges and hold themselves accountable as we work through challenging times. We have a moral and professional duty to reflect the values of our community and we are proud and committed to upholding this obligation. The PCPA Staff and I are committed to working for and with you.

On behalf of the Commonwealths residents we thank you for your professional and honorable service.

Scott L. Bohn

PA CHIEFS OF POLICE ASSOCIATION

EXECUTIVE DIRECTOR PENNSYLVANIA CHIEFS OF POLICE ASSOCIATION

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Active Members Michael Carroll West Goshen Township Police Department Lieutenant

Mark Wiekrykas Mahanoy City Police Department Chief of Police

Justin DiMedio West Goshen Police Dept Lieutenant

Robert G. Deringer City of New Kensington Police Department Chief of Police

Kevin M. Sharkey Slippery Rock University Police Department Chief of Police

Jason Reber Susquehanna Township Police Department Captain

Brian A. Michael U.S. Department of Homeland Security -HSI Special Agent in Charge

Steve Ignatz Pennsylvania State Police Major

Michael Savitski Newtown Township Police Department Lieutenant

Matthew Menna Caernarvon Township Police Department Sergeant

PENNSYLVANIA LAW ENFORCEMENT ACCREDITATION

THE SYMBOL OF

ONGOING RISK MANAGEMENT Featuring a credible, affordable, and practical law enforcement accreditation program unique to Pennsylvania.

Training and start-up materials are provided

Call PCPA headquarters at (717) 236-1059 Pennsylvania Chiefs of Police Association | A program partially funded by PCCD

Is Your Information Up to Date?

Please take a moment to visit the PCPA website at www.pachiefs.org and log in at the top right corner using your email and password.

Logging in will allow you to gain access to members-only pages and information as well as the full membership directory. Here you can make changes to your contact information and department information.

Increasingly, the PA Chiefs of Police Association uses electronic methods, such as our website, to keep our membership up to date and informed. Please make sure your email address is current and correct so that you don’t miss out on pertinent information between magazines.

Your accurate information will allow us to better serve you!

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FALL 2020 BULLETIN

Welcome New Members

Premier Agency Status After extensive discussions, the Pennsylvania Law Enforcement Accreditation Commission instituted the Premier Agency Status program.

The Premier Agency Status program sets forth guidelines outlining a recognition program to identify the top echelon of agencies in Pennsylvania that have remained committed to State accreditation.

The Premier Agency Status recognizes those agencies that have attained certain longevity in accreditation, remained committed to a philosophy of excellence, and helps encourage them to sustain this level of commitment.

For an agency to achieve the Premier Agency Status, the agency must be reaccredited five times without provisions or an extension. The reaccreditations do not have to be sequential; however, if an agency receives provisions or an extension on a reaccreditation, that cycle will not be counted.

If an agency receives conditions or an extension on a reaccreditation after achieving Premier Agency Status, the agency will no longer be designated as a Premier Agency. The agency will not be eligible to be recognized as a Premier Agency until they have successfully completed another five reaccreditations without provisions or an extension.

PA CHIEFS OF POLICE ASSOCIATION

After reviewing our records, the Commission granted Premier Agency Status to 14 of our accredited agencies.

Congratulations and thank you to these agencies for their hard work and dedication to the Pennsylvania Law Enforcement Accreditation Program.

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Lower Southampton Township Bucks County Chief John T. Krimmel

Dublin Borough Bucks County Chief Michael Regan

Southern Chester County Regional Chester County Chief Gerald R. Simpson

New Sewickley Township Beaver County Chief Ronald Leindecker

East Pennsboro Township Cumberland County Chief Mark T. Green

Haverford Township Delaware County Chief John Viola

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FALL 2020 BULLETIN

Welcome to Our Newest Accredited Agencies

Re-Accredited Agencies at the PLEAC Meeting in August Allegheny County Police Allegheny County Superintendent Coleman McDonough (3rd Re-Accreditation) Franklin & Marshall College Lancaster County Chief William J. McHale (3rd Re- Accreditation) Palmer Township Northampton County Chief Lawrence R. Palmer (2nd Re-Accreditation) Lower Gwynedd Township Montgomery County Chief Paul Kenny (1st Re-Accreditation) Whitemarsh Township Montgomery County Chief Christopher R. Ward (4th Re-Accreditation)

PA CHIEFS OF POLICE ASSOCIATION

North East Borough Erie County Chief Michael L. Sliker (1st Re-Accreditation) Newberry Township York County Chief Steven D. Lutz (5th Re-Accreditation) North Coventry Township Chester County Officer C. Matthew Deichert (OIC) (4th Re-Accreditation)

Pennsylvania State Capitol Dauphin County Superintendent Joseph M. Jacob (5th Re-Accreditation)

Carlisle Borough Cumberland County Chief Taro D. Landis (3rd Re-Accreditation)

East Norriton Township Montgomery County Chief Brandon Pasquale (5th Re-Accreditation)

Baldwin Borough Allegheny County Chief Anthony E. Cortazzo (1st Re-Accreditation)

Quakertown Borough Bucks County Chief Scott McElree (3rd Re-Accreditation)

Springfield Township Delaware County Chief Joseph J. Daly (3rd Re-Accreditation)

York Area Regional York County Chief Timothy L. Damon (4th Re-Accreditation)

South Whitehall Township Lehigh County Chief Glen A. Dorney (1st Re-Accreditation)

Ferguson Township Centre County Chief Christopher Albright (1st Re-Accreditation)

Clarion University Clarion County Chief Jason Hendershot (1st Re-Accreditation)

Upper Dublin Township Montgomery County Chief Francis X. Wheatley (5th Re-Accreditation)

Findlay Township Allegheny County Chief Jesse J. Lesko, Jr. (5th Re-Accreditation)

State College Borough Centre County Chief John F. Gardner (4th Re-Accreditation)

Upper Gwynedd Township Montgomery County Chief David W. Duffy (5th Re-Accreditation)

Pocono Mountain Regional Monroe County Chief Christopher J. Wagner (3rd Re-Accreditation)

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LEGAL UPDATE FOR LAW ENFORCEMENT

Did I Hear That Right?

Pennsylvania Court clarifies use of hearsay at a preliminary hearing By: Christopher Boyle, Esq.

Chris: Hope all is well. I had a prelim this morning and as I was walking in I happened to overhear part of a conversation between the Judge and the ADA about some new case law that has just been published regarding a new burden of proof at the preliminary hearing level? Things were very busy in the courtroom, so I did not have a chance to talk with the ADA about the new case law and what it means for us. I figured if anyone could explain it so we could make sense of it, it would be you.

Thanks for what you put out every week. We appreciate it. Matt the Boat Cop Matt: You were the first to ask me about this one, but you certainly weren’t the last. (Special thanks to Scott Bohn at Pa Chiefs as well, who has been working overtime responding to some pretty outrageous stuff about qualified immunity and defunding the police. Keep it up Chief. Your work is appreciated.) I have heard this case described as a “game changer” and various versions of ‘the end of life as we know it”, but I see it a bit differently. I sought the opinion of Shane Haselbarth on this one, a super genius in our Appellate Group who I have mentioned here before. It gives me a warm and fuzzy feeling when Shane agrees with me, as he is one

Christopher Boyle is an Attorney at Marshall, Dennehey, Warner, Coleman & Goggin and a retired Philadelphia Police Lieutenant. He is a frequent writer and lecturer on law enforcement topics, and panel counsel for DVPLT. He can be reached at: (O) 610-354-8476, (C) 215-919-7879 CPBoyle@mdwcg.com

Christopher P. Boyle, Esq.

smart cat. (To be honest, I asked him first, so it is really me agreeing with him, rather than the other way around, but who is keeping score on these things anyway? It’s kind of like when I got my first trial win and I told everyone that my Boss and I had over a hundred wins between us. See? Me and Shane? We figured this out, together!) The case you refer to, McClelland, is below. The Pennsylvania Supreme Court holds that hearsay, alone, is not sufficient to establish a prima facie case at a preliminary hearing. The Court also tells us that this has really been the law for thirty years, so it isn’t necessarily a “game changer” so much as a clarification on the way things really are. You’ll notice I only underlined one paragraph, because that paragraph really tells you everything you need to Presented by the Public Entity and Civil Rights Practice Group Editorin-Chief: Christopher P. Boyle, Esq.

Public Entity and Civil Rights Practice Group Phone: (215) 919-7879 known on this one. But let me add Shane’s comment to give credit where credit is due for his analysis: “the opinion confirms that the use of hearsay is permissible, as long as it’s not the sole basis to bound someone over for trial.

So, there is a need for the testifying officer to point to some non-hearsay evidence: the color of clothing, a shoe size, the fact that the defendant ran or threw evidence away, etc.

Something.” I think we always shoot for that anyway. This case just makes sure that we make it a priority. Be well and stay safe everyone.

Chris “The Chump” Boyle and “Super” Shane Haselbarth COMMONWEALTH of Pennsylvania, Appellee v. Donald J. MCCLELLAND, Appellant, 2020 WL 4092109 (Pa. July 21, 2020) I. Background *1 In Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. CONTINUED ON NEXT PAGE

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FALL 2020 BULLETIN

Legal Update for Law Enforcement

LEGAL UPDATE FOR LAW ENFORCEMENT

PA CHIEFS OF POLICE ASSOCIATION

Paragraph (E) provided: (E) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established.

413, 581 A.2d 172 (1990) (plurality) (“ Verbonitz”), a five-Justice majority of this Court held hearsay evidence alone is insufficient to establish a prima facie case at a preliminary hearing. In the present case, a divided Superior Court recognized the Verbonitz holding, but did not follow it, despite acknowledging “the facts of Verbonitz are virtually indistinguishable from the case sub judice.” Commonwealth v.

McClelland, 165 A.3d 19, 31 (Pa. Super.

2017). The Superior Court articulated five reasons for its departure from Verbonitz: (1) the Verbonitz Court did not agree on a single rationale to support its holding; (2) the Superior Court, in Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015) (“ Ricker I”), appeal dismissed as improvidently granted, 642 Pa. 367, 170 A.3d 494 (2017) (per curiam) (“Ricker II”), rejected the position of the three-Justice Verbonitz plurality opining the presentation of hearsay violates confrontation rights; (3) the twoJustice Verbonitz minority relied on a substantive due process analysis contradicted by Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality); (4) Verbonitz was decided before the 2013 amendments to Pa.R.Crim.P. 542(E); and (5) there was no procedural due process violation here. We

accepted review of the following issue: [W]hether the Superior Court panel failed to properly apply and follow the legal precedent set forth in Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172, 174-76 (1990) in which five (5) Justices held that “fundamental due process requires that no adjudication be based solely on hearsay evidence.”

Commonwealth v. McClelland, 645 Pa. 167, 179 A.3d 2 (2018) (per curiam).

Upon careful review, we hold the Superior Court erred to the extent it concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing.

Accordingly, we reverse the Superior Court’s decision in this matter and disapprove the Superior Court’s prior decision in Ricker I, which similarly concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing.

A. Verbonitz In Verbonitz, the defendant (Buchanan) was arrested and charged with statutory rape, corruption of a minor and endangering the welfare of a child. At Buchanan’s preliminary hearing, the seven-year-old female victim did not testify. Over defense objection, the Commonwealth presented the investigating officer who recounted what the victim told him about what Buchanan had allegedly done to her. On the basis of this hearsay alone, District Justice Edward Verbonitz determined a prima facie case had been established and bound the matter over for trial.

Buchanan’s subsequent writ of habeas corpus was denied by the trial court, the Superior Court denied Buchanan’s petition for review, and this Court granted allowance of appeal. The issue upon which we granted review was whether hearsay evidence alone is sufficient to establish a prima facie case.

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This Court reversed in a plurality decision. Verbonitz, 581 A.2d at 175.

Justice Larsen wrote the lead opinion, joined by Justice Zappala and Justice Papadakos, which concluded the Commonwealth failed to establish a prima facie case because it relied on inadmissible hearsay rather than legally competent evidence. Id. at 174. The lead opinion also reasoned Buchanan’s right to confront the witnesses against him, guaranteed by the Pennsylvania Constitution, was violated when he was bound over for trial solely on the basis of hearsay testimony. Id. at 174-75. Justice Flaherty wrote a concurring opinion, joined by Justice Cappy, which agreed hearsay evidence alone is insufficient to establish a prima facie case, but deemed this conclusion “to be a requirement of due process.”

Id. at 175 (Flaherty, J., concurring). In Justice Flaherty’s view, deciding the matter on due process grounds made it unnecessary for the Court to discuss a defendant’s confrontation rights.

Id. at 176. Justice Flaherty explained, “[i]t is sufficient to hold that a prima facie case cannot be established at a preliminary hearing solely on the basis of hearsay testimony.” Id. (emphasis omitted). *2 Accordingly, although Verbonitz was a plurality decision, a five-Justice majority of the Court concluded the presentation of hearsay evidence, without more, is insufficient to establish a prima facie case at a preliminary hearing. The five-Justice majority also agreed, in determining hearsay alone was insufficient to establish a prima facie case, that “fundamental due process requires that no adjudication be based solely on hearsay evidence.” Id. at 174 (Larsen, J., lead opinion); id. at 176 (Flaherty, J., concurring).1 B. Pennsylvania Rule of Criminal Procedure 542(E) Paragraph (E) and the comments thereto were first promulgated by Order of January 27, 2011, and were amended by Order of

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*3 In 2013, the second sentence of Paragraph (E) was amended, and the rule currently reads as follows: (E) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property. Pa.R.Crim.P. 542(E) (amending language emphasized).

Concurrently, the comment to Paragraph (E) was also amended as follows: Paragraph (E) was added to the rule amended in 2011 2013

to clarify reiterate that traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, especially with regard to the use of hearsay to establish the elements of a prima facie case. See the Pennsylvania Rules of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements of any offense. enumerated in Paragraph (E). That enumeration is not comprehensive, and hearsay is admissible to establish other matters as well. The presence of witnesses to establish these elements is not required at the preliminary hearing.

But compare Commonwealth ex rel.

Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (Pa. 1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case). See also Rule 1003 concerning preliminary hearings in Philadelphia Municipal Court. Pa.R.Crim.P. 542 (E), cmt. (deletions shown by strikethrough, additions in bold).

C. Ricker On July 2, 2014, Pennsylvania State Troopers Michael Trotta and Dana Gingerich were dispatched to David Edward Ricker’s residence to investigate reports of a disturbance.

Ricker engaged Trooper Trotta in an exchange of gunfire, witnessed by Trooper Gingerich. Trooper Trotta and Ricker shot each other multiple times, but each survived. Ricker was arrested and charged with attempted murder, assault of a law enforcement officer and aggravated assault. At Ricker’s preliminary hearing, neither trooper testified. Instead, the lead investigator, Douglas A. Kelley, testified regarding his investigation of the charges and played an audiotape of his interview with Trooper Trotta for the court.

Ricker objected to the use of this hearsay evidence and requested a continuance to call Trooper Trotta and Trooper Gingerich on his behalf.

The court overruled the objection, denied the request for a continuance, and bound the matter over for trial.

Ricker filed a pre-trial writ of habeas corpus. Therein, he argued it was improper for the court to conclude a prima facie case was established based only on hearsay evidence. The writ was denied, and the Superior Court permitted Ricker’s interlocutory appeal.

The Superior Court subsequently affirmed the order of the trial court. The panel first noted, although some nonhearsay evidence was presented at Ricker’s preliminary hearing, “none of that evidence was sufficient to establish the elements of the crimes charged.” Ricker I, 120 A.3d at 356. The panel found “the evidence used to meet the material elements of the crimes charged came from the taped statement of Trooper Trotta[,]” and thus, “hearsay alone was used to prove a prima facie case[.]” Id. The Superior Court further held “Rule 542(E) is not in conflict with any binding precedent.” Id. at 357. The court held if hearsay evidence can establish one or more elements of a crime, “it follows that, under the rule, it is sufficient to meet all of the elements.” Id. (emphasis added).

Thus, the court concluded the rule allows “hearsay evidence alone to establish a prima facie case.” Id.3 *4 Noting its conclusion did not resolve the case, the court considered Ricker’s claim that the preliminary hearing procedure violated his confrontation rights under the United States and Pennsylvania Constitutions. The court reviewed “the historical underpinnings of the preliminary hearing, the reasons for the creation of the Pennsylvania and federal confrontation clauses, and the original public meaning of the respective confrontation clauses,” and ultimately concluded it could find no “binding precedent that constitutionally mandates an CONTINUED ON NEXT PAGE

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April 25, 2013.2 Initially, Paragraph (E) provided: (E) Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established.

Hearsay evidence shall be sufficient to establish any element of an offense requiring proof of the ownership of, non-permitted use of, damage to, or value of property. Pa.R.Crim.P. 542(E) (2011 version). At that time, the comment to the rule explained: Paragraph (E) was added to the rule in 2011 to clarify that traditionally our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, especially with regard to the use of hearsay to establish the elements of a prima facie case. See the Pennsylvania Rules of Evidence generally, but in particular, Article VIII. Accordingly, hearsay, whether written or oral, may establish the elements enumerated in paragraph (E). That enumeration is not comprehensive, and hearsay is admissible to establish other matters as well. The presence of witnesses to establish these elements is not required at the preliminary hearing.

See also Rule 1003 concerning preliminary hearings in Philadelphia Municipal Court. Pa.R.Crim.P. 542(E), cmt. (2011 version).

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accused be afforded the opportunity to confront and crossexamine a witness against him at a preliminary hearing based on the federal or state confrontation clause.” Id. at 362-63.

Additionally, the court noted Ricker “has not alleged that his due process rights were infringed[.]” Id. at 355.

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Regarding Verbonitz, the court correctly observed “a majority of justices agreed that hearsay evidence alone was insufficient to establish a prima facie case at a preliminary hearing.” Id. at 360. The court then noted, “[t]hree justices based their rationale on a constitutional confrontation right, whereas two justices grounded their decision on due process.” Id. Acknowledging “[t] he comment to Rule 542 recognizes the tension between the rule and Verbonitz[,]” the panel nevertheless determined Verbonitz “is not binding and is valuable only insofar as its rationale can be found persuasive.” Id. at 361.

This Court initially granted allowance of appeal in Ricker to consider whether “a defendant does not have a state and federal constitutional right to confront the witness against him at a preliminary hearing” and whether “a prima facie case may Visit our Firm's Website http://www. marshalldennehey.com be proven by the Commonwealth through hearsay evidence alone[?]” Commonwealth v.

Ricker, 635 Pa. 255, 135 A.3d 175 (2016) (per curiam). Ultimately, however, as noted, this Court dismissed the appeal as improvidently granted.

Ricker II, 170 A.3d at 494.

D. McClelland The present appeal arises out of a criminal complaint filed by State Trooper Christopher Wingard, which accused appellant, Donald J. McClelland, of committing indecent assault, indecent exposure and corruption of minors against A.T., an

eight-yearold child. Specifically, the complaint provided that, on August 3, 2015, A.T.’s parents reported to State Police that A.T. told them McClelland touched her face with his penis several months earlier. A.T. later provided additional details about the incident during an interview with a Children’s Advocacy Center specialist, which led to the criminal charges. Relevant to the present appeal, the Commonwealth called Trooper Wingard as its sole witness at the preliminary hearing. Specifically, Trooper Wingard explained that he personally witnessed A.T.’s interview with the child specialist via a video link, and he recounted the contents of the interview to the magistrate, who bound the charges over for trial.

McClelland filed a motion seeking a writ of habeas corpus, arguing that allowing the case to proceed to trial based solely on hearsay evidence violated his rights to confrontation and due process under the Pennsylvania and United States Constitutions. The trial court denied the motion, and McClelland filed an interlocutory appeal to the Superior Court, which that court permitted.4 The Superior Court affirmed.

McClelland, 165 A.3d at 33. The court initially noted Ricker held the text of Rule 542(E) permits hearsay evidence to establish “any” element of an offense during a preliminary hearing and the rule does not violate a criminal defendant’s state or federal constitutional right to confront witnesses. Id. at 22. The court explained Ricker left unresolved the question of “whether notions of due process would require a different result.” Id. In addressing that issue, the court first considered the threshold question of whether due process protections apply to preliminary hearings, given that preliminary hearings are purely statutory in nature. The court observed, although there is no constitutional

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right to a preliminary hearing, the Commonwealth elected to act in this field by amending Article I, Section 10 of the Pennsylvania Constitution to permit prosecutions to be initiated by the filing of criminal informations, and 42 Pa.C.S. § 8931(b) later provided the statutory authorization giving effect to the amendment. The court noted these actions prompted our Court to promulgate “rules governing the initiation of criminal charges, including Rule 542 and its hearsay provision,” and triggered the application of due process protections to the procedures implementing the statutory right to a preliminary hearing. Id. at 26. *5 Next, noting appellant did not specify whether he was raising a procedural or a substantive due process claim, the court considered each type of due process and found substantive due process to be inapplicable, requiring the claim to be analyzed under the rubric of procedural due process. Specifically, the court emphasized that substantive due process under the Fourteenth Amendment to the United States Constitution “ ‘requires state criminal trials to provide defendants with protections implicit in the concept of ordered liberty.’ ” Id. at 27, quoting Danforth v. Minnesota, 552 U.S. 264, 270, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (emphasis omitted).

As the United States Constitution does not require the United States government to hold a preliminary hearing for criminal defendants, the court reasoned the right to a preliminary hearing was not “implicit in the concept of ordered liberty,” and, thus, it concluded substantive due process does not apply. Id. at 28, citing Albright, supra (majority of the Court finding no substantive due process right to be free from criminal prosecution except upon probable cause).

Having

determined

the

“appeal

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The court also addressed appellant’s argument based upon Justice Flaherty’s concurring opinion in Verbonitz, which opined the hearsay statement of a police officer was insufficient by itself to establish a prima facie case because it violated notions of due process. The court interpreted Justice Flaherty’s concurrence as expressing a view that “due process requires an adversarial probable cause determination in order to hold a person for trial,” which the court characterized as sounding in substantive due process.

McClelland, 165 A.3d at 31. Citing Albright, supra, the court again noted the United States Supreme Court has rejected the notion that substantive due process extends to preliminary hearings, and it explained that, in any event, the preliminary hearing is not a final adjudication of “life, death, liberty, and property[.]” Id. While the court acknowledged “significant liberty restraints may result from requiring an individual to stand trial,” it highlighted that “[t]he Fourth Amendment, not due process, applies to those pretrial restraints.” Id. at 32. The court further noted Verbonitz was decided prior to the amendments to Rule 542, and, thus, it observed that Justice Flaherty’s concurrence “could not account for later changes to that procedure.” Id. *6 In light of the foregoing, the court concluded appellant’s due process rights were not violated.

However, the court emphasized its decision was “predicated on the facts, with consideration of [a] ppellant’s ability to cross-examine the primary investigator.” Id. The court noted appellant was able to cross-examine the investigator, who witnessed A.T.’s interview, regarding the circumstances of that statement, and appellant “was free to challenge the plausibility and reliability of the hearsay when addressing the prima

facie question.” Id. The court stressed its decision “does not suggest that the Commonwealth may satisfy its burden by presenting the testimony of a mouthpiece parroting multiple levels of rank hearsay[,]” clarifying “there is no reason to think that magistrates do not already apply the similar Fourth Amendment probable cause standard used in other contexts where decisions are made on the basis of hearsay.” Id. at 32- 33, citing Commonwealth v. Smith, 784 A.2d 182 (Pa. Super. 2001) (probable cause determination for issuance of search warrant permits consideration of the basis of knowledge of persons supplying hearsay and various indicia of reliability and unreliability).

Judge Strassburger dissented, opining that procedural “due process requires the Commonwealth to produce something more than just hearsay at a preliminary hearing[.]”

Id. at 33. (Strassburger, J., dissenting).

In reaching this conclusion, Judge Strassburger first considered the liberty interests at stake and observed that, although the only restraint on liberty in the instant case was requiring appellant to stand trial, the liberty interest implicated in other similar cases may be more substantial, such as where a defendant is held without bail or cannot afford bail. Judge Strassburger contemplated the sufficiency of the procedure afforded to appellant and agreed squarely with the position advanced in Justice Flaherty’s concurring opinion in Verbonitz that a “ ‘prima facie case cannot be established at a preliminary hearing solely on the basis of hearsay testimony.’ ” Id. at 34, quoting Verbonitz, 581 A.2d at 175 (Flaherty, J., concurring). Highlighting the fact that, in the instant case, Trooper Wingard gave hearsay testimony regarding what he heard the victim tell the Child Advocacy Center interviewer, rather than testifying regarding his CONTINUED ON NEXT PAGE

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sounds in procedural due process[,]” the court next examined whether the procedures afforded to appellant in connection with his preliminary hearing were sufficient. Id. at 29. In so doing, the court noted the government may not deprive individuals of life, liberty, or property without due process, including, inter alia, “ ‘adequate notice, the opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.’ ” Id., quoting Commonwealth v.

Turner, 622 Pa. 318, 80 A.3d 754, 764 (2013). The court observed appellant “failed to specify what interest is at stake[,]” but construed his argument as alleging “the supplied procedure is ‘fundamentally inadequate to vindicate’ his rule-based right to confront” the witnesses against him “since the Commonwealth can elect to render it meaningless” by relying solely on the presentation of hearsay evidence. Id. at 29-30. The court went on to reject this argument, emphasizing that, in reality, appellant’s concern centered on his inability to test witness credibility, which the court opined is irrelevant at a preliminary hearing because cross-examination does not enhance the reliability of the prima facie determination. Moreover, the court mused, even assuming the trial court erred in admitting the hearsay evidence, the error would be irrelevant if appellant were found guilty beyond a reasonable doubt at trial, and it would not lead to a permanent loss of liberty if he were acquitted. Accordingly, the court concluded appellant’s procedural due process rights were not violated, as he failed to demonstrate that defendants subjected to a preliminary hearing are entitled to procedural due process protections beyond notice, the opportunity to be heard, and the chance to defend themselves before a fair and impartial jury, all of which were provided in this case.

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own interview with the victim, Judge Strassburger concluded appellant’s due process rights were violated, and he cautioned that “[p]ermitting the Commonwealth to present testimony only from the trooper investigating this case is the beginning of a path down a slippery slope.” Id.

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II. Arguments A. Appellant Appellant’s bedrock assertion is that the five-Justice Verbonitz holding — that hearsay alone is insufficient to establish a prima facie case at a preliminary hearing — is binding precedential authority from this Court, which the Superior Court had neither the prerogative to ignore nor the power to overrule. Appellant begins by quoting the Verbonitz Court’s statement of the issue upon which it granted review: “ ‘The issue presented in this case is whether hearsay testimony presented at a preliminary hearing regarding a victim’s account of an alleged criminal incident, which is the sole evidence presented by the Commonwealth, is sufficient to establish a prima facie case.’ ” Appellant’s Brief at 9-10, quoting Verbonitz, 581 A.2d at 173.

Appellant advances that “[i]n the lead and concurring opinions, a majority of the Court, five (5) Justices, held that the trial court erred by permitting a prima facie case to be based solely on victim hearsay,” and consequently, the Verbonitz Court ordered “ ‘the charges ... dismissed and the appellant ... discharged.’ ” Id. at 10, quoting Verbonitz, 581 A.2d at 175.

Appellant asserts the Verbonitz holding was not dicta but an “ ‘actual determination[ ] in respect to litigated and necessarily decided questions[.]’ ” Id., quoting In re L.J., 622 Pa. 126, 79 A.3d 1073, 1081 (2013) (additional bracketed text omitted). Appellant claims, moreover, that in cases where no majority rationale exists for a decision of this Court, the result of the decision is nevertheless precedential.

Id. at 11, citing, e.g., Commonwealth v.

Haefner, 473 Pa. 154, 373 A.2d 1094, 1095 (1977) (where a majority of the members of this Court agree in a result, the decision is precedential).

Appellant insists the “Superior Court’s duty here, and in Ricker [I],” was simply to “follow this Court’s holding in Verbonitz,” rather than “independently analyze [the] issue[ ]” and reach an opposite result or conclusion. Id. at 11-12. Appellant additionally maintains the Superior Court erred here (and in Ricker I) to the extent it concluded only three Justices in Verbonitz based their result on an application of due process concerns. Appellant contends five members of the Verbonitz Court joined in the due process rationale, and thus “ Verbonitz was binding on the Superior Court both as to the result and as to the rationale.” Id. at 13. *7 Appellant also claims the Superior Court erred in concluding the Verbonitz holding was expressly overruled by this Court’s adoption of amended Rule 542(E). Appellant asserts the Superior Court here and in Ricker incorrectly determined Rule 542(E) provides that hearsay can be used to prove all elements of a prima facie case and thus, that hearsay evidence alone is sufficient to establish a prima facie case. Appellant argues the rule addresses when hearsay may be admissible, but by its plain terms, does not address “if and when hearsay evidence, by itself, may be sufficient to establish a prima facie case.” Id. at 14-15 (emphasis omitted).

Appellant acknowledges the language of the rule may be ambiguous, see id. at 16, citing Ricker II, 170 A.3d at 506 (Saylor, C.J., concurring) (“the applicable rules are not models of clarity”), but submits that “a lower court has no authority to overrule a decision of a higher court based on its interpretation of a subsequent ambiguous statement by the higher court.” Id., citing Bosse v. Oklahoma,

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– –– U.S. ––––, 137 S.Ct. 1, 2, 196 L.Ed.2d 1 (2016) (per curiam) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing validity.”).

Appellant lastly maintains the Superior Court here and in Ricker I failed to properly consider and apply the rules of statutory construction in determining that Rule 542 permits all hearsay to be admissible and that hearsay alone is sufficient to establish a prima facie case.5 Among other things, appellant argues the court in both cases erred to the extent it failed to properly interpret the phrase “[h]earsay as provided by law” in Rule 542(E) as “a limiting principle, referring to other statutes and past decisions.” Id. at 20. According to appellant, “[c]learly, the most significant past decision is Verbonitz which specifically held that a prima facie case may not be based entirely on hearsay.” Id. B. Commonwealth In response, the Commonwealth first asserts the Superior Court lacked jurisdiction to entertain the interlocutory appeal from the trial court’s denial of a request for habeas corpus relief because there were no “exceptional circumstances” present.

Commonwealth’s Brief at 1. The Commonwealth asserts exceptional circumstances exist, inter alia, “ ‘where an issue of great importance is involved.’ ” Id. at 2, quoting Commonwealth v. Reagan, 330 Pa. Super. 417, 479 A.2d 621, 622 (1984) (internal citation and quotation omitted). However, while acknowledging the Superior Court determined “important” constitutional questions were implicated in the appeal, the Commonwealth avers that “important is not enough; issues must be of great importance to warrant [interlocutory] review.” Id. The

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The Commonwealth next argues the Superior Court correctly treated Verbonitz as a non-binding plurality opinion. Quoting Justice Flaherty’s concurring opinion in which he described Justice Larsen’s lead opinion as a “plurality[,]” the Commonwealth asserts “[t]he Justices who decided the Verbonitz case agree that it is a plurality and no amount of legal wrangling and twisting by the [a] ppellant will change that.” Id. at 3, quoting Verbonitz, 581 A.2d at 175 (Flaherty, J., concurring). “ ‘Plurality opinions, by definition, establish no binding precedent for future cases.’ ” Id., quoting Commonwealth v.

Brown, 582 Pa. 461, 872 A.2d 1139, 1165 (2005) (Castille, J., concurring). The Commonwealth therefore concludes the Superior Court committed no error in declining to find the Verbonitz reasoning persuasive. *8 Moreover, in the Commonwealth’s view, appellant’s argument regarding the proper statutory interpretation of the phrase “hearsay as provided by law” is “illogical[;]” i.e., the phrase does not mean “that hearsay can be used except for the limits placed

by Verbonitz.” Id. at 5. Instead, the Commonwealth asserts, “the plain meaning of the words is that hearsay, as defined by the Rules of Evidence, can be used to meet the prima facie burden ... at the preliminary hearing.”

Id. The Commonwealth further argues any interpretation of Rule 542(E) that incorporates the Verbonitz plurality rationale would directly contradict

The Commonwealth maintains that, in any event, “[u]sing hearsay alone to prove a prima facie case does not violate substantive due process.”

merely provides an accused the right to cross-examine whatever witnesses are presented at the hearing. Finally, the Commonwealth argues that hearsay in the preliminary hearing context is similar to that permitted in the context of seeking a search warrant, and submits the information provided by Trooper Wingard was reliable since his basis of knowledge was probed and it sufficiently supported the reliability of the hearsay evidence.

C. Amici

the rule’s command that “ ‘Hearsay evidence shall be sufficient to establish any element of an offense.’ ” Id., quoting Pa.R.Crim.P. 542(E).

The Commonwealth insists, “[e]ither Verbonitz controls or Rule 542( [E] ) controls; they cannot be reconciled.”

Id. The Commonwealth maintains that, in any event, “[u]sing hearsay alone to prove a prima facie case does not violate substantive due process.”

Id. It notes that preliminary hearings are not constitutionally mandated; however, it also recognizes that once a state decides to institute such a proceeding “then procedural due process must apply.” Id. at 6. The Commonwealth insists appellant received all the process that was due — he received adequate notice, the opportunity to be heard, and the chance to defend himself before a fair and impartial tribunal.

Regarding cross-examination, the Commonwealth notes appellant, in fact, cross-examined Trooper Wingard at some length, and notes the language of Pa.R.Crim.P. 542(C) allows only that a “defendant ... may crossexamine witnesses[.]” Id. at 8, quoting Pa.R.Crim.P. 542(C) (emphasis supplied by the Commonwealth). The Commonwealth suggests Rule 542 does not give an accused the right to cross-examine his accusers, but

Amici Curiae, Attorney General Josh Shapiro and the Pennsylvania District Attorneys Association (“amici”) have jointly filed a brief on behalf of the Commonwealth. They assert the due process clause permits a preliminary hearing judge to hold a case for court and detain a defendant pending trial on the basis of hearsay evidence alone. In support, amici first suggest Verbonitz was unmistakably a plurality decision, a point they claim Justices Larsen and Flaherty made “clear” in their separate writings acknowledging their separate rationales — the “lead opinion” was based on “the constitutional rights of confrontation and cross-examination” while the concurrence “would resolve the case on due process grounds[.]”

Amici Brief at 5 (internal quotations and citation omitted). Nevertheless, amici recognize Justices Larsen and Flaherty both cited due process principles addressed in Commonwealth, Unemployment Compensation Bd. of Review v. Ceja, 493 Pa. 588, 427 A.2d 631 (1981) (“ Ceja”). Amici characterize Ceja as an “unrelated case[,]” and assert the citations to Ceja in the separate Verbonitz expressions amounted to “general language[.]” Amici Brief at 5 n.1.6 Amici additionally note the comment to Rule 542(E) describes Verbonitz as a “plurality” and suggests the “weight of authority, both federal CONTINUED ON NEXT PAGE

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gravamen of the Commonwealth’s argument is that “[a]ppellant has not lost any constitutional rights[,]” because he still has the full panoply of trial rights “ahead of him.” Id. Thus, despite the fact this Court granted discretionary review of the discrete issue involving the precedential effect of Verbonitz, the Commonwealth asserts the instant appeal should be quashed.

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and state, clearly supports the use of hearsay alone to find a prima facie case or detain a defendant.” Id. at 7-9, citing, inter alia, United States v.

Delker, 757 F.2d 1390 (3rd Cir. 1985) (rejecting claim hearsay may not be used at pretrial detention hearing to demonstrate defendant committed crime charged).

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*9 Amici then pivot to this Court’s authority to “create sensible rules for the use of hearsay evidence at preliminary hearings.” Id. at 10.

Acknowledging “the role of hearsay has proved to be a vexing problem in Pennsylvania jurisprudence” that “remains unresolved after decades of litigation and rulemaking[,]” and that previous approaches have “too often tried to be quantitative[,]” amici suggest “the question should be addressed qualitatively: what specific kinds of hearsay are reliable enough to move the case forward to trial?” Id. at 10-11. Amici then propose “three types of evidence that are easily defined and offer elements of reliability that justify their admission for preliminary hearing purposes”: 1) audio/video recordings; 2) testimony by an officer who actually participated in the interview of a witness; and 3) expert reports. Id. at 11-14. Amici ask this Court to amend the rules specifically to permit hearsay evidence of this nature.

Amicus Curiae, the Defender Association of Philadelphia (“DAP”), has filed a brief on behalf of appellant. DAP asserts that both the lead and concurring opinions in Verbonitz opined that hearsay does not constitute legally competent evidence and thus, five Justices agreed hearsay alone, as a matter of due process, cannot be sufficient to make out a prima facie case at a preliminary hearing. DAP argues Verbonitz is precedential under each of three separate doctrines: 1) “result” stare decisis; 2) “narrowest ground of

agreement” stare decisis; and 3) “false plurality” analysis. DAP’s Brief at 6.

DAP explains “result” stare decisis requires any “result espoused by a majority of this Court (no matter how many separate opinions are issued to establish this) should be controlling in substantially identical cases.” Id. at 8 (emphasis deleted), citing Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 COLUM. L. REV. 756, 779 (1980); Rappa v. New Castle County, 18 F.3d 1043, 1061 n.26 (3rd Cir. 1994), (“[I]t seems clear that lower courts must adhere at the minimum to the principle of ‘result’ stare decisis, which mandates that any specific result espoused by a clear majority of the Court should be controlling in substantially identical cases. The absence of a clear majority rationale supporting the result may give a lower court some flexibility to formulate a justifying rule[;] it does not, however, justify a court in embracing a line of reasoning that will lead to a contrary result. ... Adherence to ‘result’ stare decisis is essential if principles of certainty and uniformity are to have any meaning at all ....”), quoting Novak, supra.

DAP further claims “ Verbonitz is actually a case in which, as a result of Justice Larsen’s Opinion and Justice Flaherty’s Opinion, a majority of the Court did agree both on the result (i.e. the Commonwealth cannot establish a prima facie case based solely on hearsay evidence) and one common rationale supporting the result (i.e. due process protections).”

Id. at 9 (emphasis supplied by DAP).

DAP argues “[this] circumstance triggers the more commonly invoked stare decisis ‘narrowest grounds of agreement’ doctrine, which treats a case as binding authority on the narrowest of grounds upon which a majority of the Court agree on both a result and its supporting rationale.”

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Id., citing Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds[.]”) (additional citations and quotation marks omitted).7 *10 DAP also advances the argument that Verbonitz can be seen as “what some legal commentators refer to as a ‘false plurality’.” Id. at 11, citing Plurality Decisions and Judicial Decision Making, 94 HARV. L. REV. 1127 (1981).

The key characteristic that makes plurality decisions troublesome is the presence of at least two distinct rationales that will justify the result reached in a case, neither of which commands a majority. In some cases that are nominally plurality decisions, however, a majority of the Court does support a rationale sufficient to justify the holding. Such cases take the form of plurality decisions only because some justices go on to state additional ideas. Thus, when proposition A is sufficient to justify the holding, and either the plurality opinion supports A while the minority opinion supports both A and B, or the plurality opinion supports A and B while the minority opinion supports A, a ‘false plurality’ decision results. Id., quoting Plurality Decisions and Judicial Decision Making, 94 HARV. L. REV. at 1130.

DAP argues a “false plurality” decision is more akin to a majority decision than a plurality decision, but due to the structure of the opinion, the majority agreement is somewhat hidden.

According to DAP, “[f]or stare decisis purposes, the structure of a ‘false plurality’ should be pierced,” and its points of agreement should be seen as a majority decision of the Court. Id. at 12. DAP contends Verbonitz is just

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Moreover, DAP disagrees with the Superior Court’s suggestion that the continuing validity of Verbonitz has been undercut by the current version of Rule 542(E) and the Comment thereto. First, DAP notes the conclusions of Justices Larsen and Flaherty in Verbonitz are constitutionally based, not rulebased. In any event, DAP observes the Comment includes specific reference to Verbonitz as “disapproving” of “reliance on hearsay testimony as the sole basis for establishing a prima facie case.” Id. at 14, citing Pa.R.Crim.P. 542(E), cmt. Thus, DAP concludes, “[r]ather than being undercut by Rule [542(E) ],” Verbonitz has been “included in” and “fortified by” the rule. Id. III. Analysis Our Court has articulated the following standard and scope of review: “Ordinarily, an appellate court will review a grant or denial of a petition for writ of habeas corpus for abuse of discretion, but for questions of law, our standard of review is de novo, and our scope of review is plenary.” Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511, 521 n.13 (2007) (citations omitted).8 As stated, the precise question presented in this appeal is one of law, i.e., whether the panel below failed to properly apply and follow Verbonitz.

A. Precedential Value of Verbonit *11 In Verbonitz, the Court determined the Commonwealth failed to establish a prima facie case at a preliminary hearing. We have little difficulty in stating with certainty that five Justices in Verbonitz agreed a prima facie case cannot be established by hearsay evidence alone, and the common

rationale among those Justices involved due process considerations.

In the lead opinion, styled as the “Opinion of the Court,” Justice Larsen wrote: “In this case it is clear that the Commonwealth did not meet its burden. As Justice Flaherty stated in his concurring opinion in [ Ceja,] ‘fundamental due process requires that no adjudication be based solely on hearsay evidence.’ ” See Verbonitz, 581 A.2d at 174, quoting Ceja, 427 A.2d at 647 (Flaherty, J., concurring) (emphasis added). Because hearsay “does not constitute legally competent evidence[,]” Justice Larsen explained, “the Commonwealth has failed to establish prima facie that a crime has been committed and that Buchanan committed that crime.” Id. Justice Larsen immediately continued, “Additionally, a criminal defendant has a right to confront and crossexamine the witnesses against him: this right being secured by the United States Constitution; the Pennsylvania Constitution; and the Pennsylvania Rules of Criminal Procedure.” Id. (emphasis supplied; footnotes omitted). Justice Larsen stated, “[a] preliminary hearing is an adversarial proceeding which is a critical stage in a criminal prosecution[,]” and concluded Buchanan was denied his constitutional rights to confrontation and cross-examination. Id. at 175.

Justice Larsen’s opinion was joined

by Justice Zappala and Justice Papadakos.

In his concurring opinion, Justice Flaherty opined he “reach[ed] the same conclusion through an analysis somewhat different from that employed by the plurality.” Id. at 175 (Flaherty, J. concurring). Justice Flaherty observed that to “establish a prima facie case, the Commonwealth must produce evidence which presents sufficient probable cause to believe that the person charged has committed the offense stated.” Id.

(internal quotation marks and citation omitted). Noting the United States Supreme Court has “implied in dictum, but has not held, that other rights, such as the right to confrontation and the right to cross-examination, are constitutionally protected at the preliminary hearing[,]” Justice Flaherty opined those considerations “do not answer the question presented to us: whether hearsay testimony, standing alone, may constitute sufficient evidence to establish a prima facie case at a preliminary hearing.” Id. (emphasis in original).

Justice Flaherty “conclude[d] that it cannot[,]” and “deem[ed] this to be a requirement of due process.” Id. Justice Flaherty then cited his Ceja concurrence for the proposition that “fundamental due process requires that no adjudication be based solely on hearsay.” Id. at 176 (emphasis added). Accordingly, we conclude that although Verbonitz is nominally a plurality decision, it is clear that a five-member majority of the Court held hearsay alone is insufficient to establish a prima facie case at a preliminary hearing because to do so violates principles of fundamental due process.

B. The Validity of Verbonitz Following Adoption of Rule 542(E) While the subsequent promulgation of Rule 542(E) in 2011 permitted the use of hearsay in preliminary hearings, appellant challenges the instant panel’s interpretation of the rule as permitting unlimited use of hearsay, as announced in Ricker I, as long as such use is not in the nature of layers of rank hearsay. We begin by observing that we apply the Statutory Construction Act, 1 Pa.C.S. §§ 15011991, when interpreting the Rules of Criminal Procedure. See Pa.R.Crim.P. 101(C) (“To the extent practicable, these rules shall be construed in consonance with the rules of statutory construction.”).

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such a decision because “five Justices agreed (although spread across two Opinions) that a preliminary hearing prima facie case based solely on hearsay evidence violates due process.” Id.

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Turning to the interpretation of Rule 542(E) as set forth in Ricker I, we first note the rule, as originally set forth in 2011, expressly stated hearsay as provided by law “shall be sufficient to establish any element of an offense requiring proof of the ownership of, non-permitted use of, damage to, or value of property.” See Pa.R.Crim.P 542(E) (2011 version). The rule, by its plain language, was of limited scope. It permitted “[h]earsay as provided by law” to be “considered” and offered primarily to establish elements of property offenses.

The rule, in part, relieved victims of property offenses from attending an accused’s preliminary hearing simply to establish facts about the ownership of, nonpermissive use of, damage to, or value of stolen property. Notably, at that time, the rule was in essential harmony with the Verbonitz lead and concurring opinions, which concluded legally competent evidence, and not hearsay alone, was required to establish the elements which must be proven at a preliminary hearing. Thus, initial promulgation of subsection (E), to an extent, formalized a procedure many preliminary hearing courts were already following — allowing some hearsay to prove some elements when other legally competent, nonhearsay evidence was also presented, in accordance with the conclusion of the five Verbonitz justices who opined hearsay evidence alone is not sufficient to establish a prima facie case. See, e.g. Commonwealth v. O’SheaWoomer, 8 Pa.D.&C.5th 178, 184 (Lanc. Co. 2009) (admitting hearsay medical report at preliminary hearing where other nonhearsay evidence was presented to establish prima facie case, and noting “hearsay evidence alone may not be the basis for establishing a prima facie case in a preliminary hearing”) (emphasis in original). See also Commonwealth v.

Camacho, 2007 Pa.Dist.&Cnty. (Ches.

Co.) (granting pre-trial writ of habeas

Under Rule 542(E), hearsay shall be sufficient to prove any element. The word “any” is used to describe an element (or elements) of an offense, including, but not limited to, those for which proof of ownership of, non-permitted use of, damage to, or value of property is required. corpus on basis Commonwealth presented hearsay evidence alone, concluding “the Commonwealth has failed to present a prima facie case by competent evidence”). *12 Rule 542(E), however, was expanded in 2013. Implicit in our consideration of the Superior Court’s decision below is the scope of the expanded rule, and in particular, whether, as the Superior Court held in Ricker I and suggested here, the rule supplants Verbonitz, and permits all elements of all offenses to be established at a preliminary hearing solely on the basis of hearsay evidence. We determine Rule 542(E), though not the model of clarity, does not permit hearsay evidence alone to establish all elements of all crimes for purposes of establishing a prima facie case at a defendant’s preliminary hearing.

Initially, although the word “any” is an adjective which can mean “one, some, every, or all,” THE AMERICAN HERITAGE COLLEGE DICTIONARY (3d ed. 1993), the precise meaning of its usage depends largely on the context in which it is employed. See Snyder Bros. v. Pa. PUC, ––– Pa. ––– –, 198 A.3d 1056, 1073 (2018) (“we consider the meaning of the term ‘any’ to be wholly dependent on the context in which it is used in the particular statute under review”); see also JP Morgan v.Taggart, ––– Pa. ––––,

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203 A.3d 187, 193-94 (2019) (same). “ ‘A statute is ambiguous when there are at least two reasonable interpretations of the text.’ ” Id. at 194, quoting A.S. v. Pa. State Police, 636 Pa. 403, 143 A.3d 896, 905-06 (2016). Because the alternative interpretations of “any” offered by the parties are reasonable, rendering its meaning ambiguous, we resort to the canons of statutory construction. Those canons require us to consider matters beyond the statutory language, including the occasion and necessity of the statute or rule, the mischief to be remedied, and the object to be attained. See 1 Pa.C.S. § 1921(c). In addition, we read the sections of Rule 542 together, and we construe them to give effect to all of the rule’s provisions. Id. at § 1921(a).

Under Rule 542(E), hearsay shall be sufficient to prove any element. The word “any” is used to describe an element (or elements) of an offense, including, but not limited to, those for which proof of ownership of, non-permitted use of, damage to, or value of property is required. Thus, contextually under the rule, the understanding of “any” is intended to mean an indefinite or unknown quantity. Nevertheless, although the rule suggests the quantity of “any” may be indefinite, that quantity is delimited by the phrase “[h]earsay as provided by law shall be considered” contained in the first sentence of

LEGAL UPDATE FOR LAW ENFORCEMENT

Hearsay is generally inadmissible in legal proceedings unless it falls under a recognized exception.

Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 315 (2010). The critical term in the phrase “hearsay as provided by law” is the word “provided,” which is a conjunction meaning “on the condition [of].” THE AMERICAN HERITAGE COLLEGE DICTIONARY (3d ed. 1993). Thus, the phrase “hearsay as provided by law” could reasonably mean hearsay as defined by law, i.e. an out-of-court statement presented as evidence of the truth of the matter asserted. See, e.g., Castellani v. Scranton Times, L.P., 633 Pa. 230, 124 A.3d 1229, 1239 (2015), quoting Pa.R.E. 801(c) (defining hearsay as out-of-court statement made by declarant that party “offers in evidence to prove the truth of the matter asserted in the statement”). *13 Nevertheless, appellant’s argument that the phrase “as provided by law” is a limiting principle is also reasonable.

Because “as provided by law” could alternatively mean “contingent on” or “subject to” law, the phrase can

be a bulwark against reading the rule as a sweeping pronouncement permitting hearsay alone to prove all elements of all offenses at a preliminary hearing. Indeed, although the 2013 amendment expanded the potential offenses for which hearsay shall be permitted, the amended comment specifically added a comparison citation to Verbonitz, which parenthetically highlighted the contrasting conclusion disapproving the use of hearsay alone to establish a prima facie case at a preliminary hearing. See Rossi v. Commonwealth, Bureau of Driver Licensing, 580 Pa. 238, 860 A.2d 64, 66 (2004) (“individual statutory provisions must be construed with reference to the entire statute of which they are a part”), citing 1 Pa.C.S. § 1922(2); see also Commonwealth v. Lurie, 524 Pa. 56, 569 A.2d 329, 331 (1990) (“[S] ections of statutes are not to be isolated from the context in which they arise such that an individual interpretation is accorded one section which does not take into account the related sections of the same statute.”), quoting Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1, 5 (1987).

As the foregoing analysis reveals, the amended rule does not evince an articulated intent to overrule Verbonitz or re-affirm it; instead, subsection (E) is intended to allow some use of hearsay. The plain language of the rule does not state a prima facie case may be established solely on the basis of hearsay, despite the Superior Court’s contrary interpretation. Significantly, the rule as written is open to reasonable yet opposing interpretations. Indeed, given that the word “any” and the phrase “as provided by law” are ambiguous, particularly in light of the comment citing Verbonitz, we now prudentially apply the “canon of constitutional avoidance,” which instructs “we are bound to interpret

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a statute, where possible, in a way that comports with the constitution’s terms.” Commonwealth v. Veon, 637 Pa. 442, 150 A.3d 435, 443 (2016).

In other words, “when a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” Id., quoting Harris v. United States, 536 U.S. 545, 555, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002).9 “The primary reason for the preliminary hearing is to protect an individual’s right against unlawful arrest and detention.” Commonwealth ex rel.

Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565, 567 (1964). The preliminary hearing “seeks to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection.” Id. Our precedents make clear the full panoply of trial rights do not apply at a preliminary hearing, but the hearing is nevertheless a critical stage of the proceedings, and is intended under Rule 542 to be more than a mere formality. Due process clearly attaches, but due process is a flexible concept, incapable of precise definition. See Turner, 80 A.3d at 764 (although its basic elements are known, procedural due process “not capable of an exact definition”). Here, at the hearing afforded appellant, the Commonwealth relied exclusively and only on evidence that could not be presented at a trial. This is precisely the circumstance and rationale upon which five Justices in Verbonitz determined Buchanan’s right to due process was violated.10 IV. Conclusion *14 We reaffirm the validity of Verbonitz. We therefore reverse the Superior Court’s decision below and expressly disapprove Ricker I. The appellant is discharged without prejudice.11

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subsection (E). See Rule 542 (E) (“Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established.”) (emphasis added). Some meaning must be ascribed to every word in a statute (or rule, in the present case), and there is a presumption that disfavors interpreting language as mere surplusage. 1 Pa.C.S. § 1922(2) (“[i]n ascertaining the intention of the General Assembly in the enactment of a statute,” a court may presume “the General Assembly intends the entire statute to be effective and certain”); S & H Transp., Inc. v. City of York, 636 Pa. 1, 140 A.3d 1, 7 (2016) (in construing language of statute, court must give effect to every word, and may not assume any words were intended as mere surplusage).

LEGAL UPDATE FOR LAW ENFORCEMENT: QUALIFIED IMMUNITY IN PENNSYLVANIA: THE GOOD NEWS AND THE BAD NEWS

Legal Update for Law Enforcement

Qualified Immunity in Pennsylvania: The Good News and the Bad News

PA CHIEFS OF POLICE ASSOCIATION

By: Frank J. Lavery, Jr., Esquire, Andrew W. Norfleet, Esquire, and Frank J. Lavery, III

In the legal utility belt protecting police officers from civil liability, qualified immunity is one of the most important tools. Qualified immunity is a triedand-true shield for police officers against the time-consuming and often costly burdens of civil law suits based on a variety of discretionary circumstances encountered by police officers every day. That is, qualified immunity is based on the belief that police officers must be permitted to make the difficult, often splitsecond, discretionary decisions that they face every day without fear that a good-faith mistake will be put under a microscope, and result in civil liability. Qualified immunity “insulates from civil liability government officials performing discretionary functions insofar as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.”I Qualified immunity protects police officers against civil liability for violating a Constitutional right, as long as that right is not clearly established under the law. Stated another way, qualified immunity shields police officers from “harassment, distractions and liability” when performing their duties “reasonably.”II More importantly,

Frank J. Lavery, Jr. and Andrew Norfleet are shareholders in the legal firm of Lavery Law. Mr. Lavery also serves as the Solicitor to the Pennsylvania Chiefs of Police Association. Frank J. Lavery, III, is a student at the University of Notre Dame School of Law.

Frank J. Lavery, Jr., Esq.

Andrew W. Norfleet, Esq.

qualified immunity provides not only a defense to liability, but immunity from suit.III This is extremely important as it enhances the chance of a pretrial dismissal of the police officers from a civil action. Qualified immunity is to be decided as early as possible in the case so that police officers do not have to incur the burden of defending against claims if entitled to immunity.

While the concept sounds simple and fair enough, it has become a lightning rod for those seeking to change policing in light of the recent tragic circumstances in Minneapolis. The purpose of this article is to explain the concept of qualified immunity, explore how it has been applied in practice and to discuss recent efforts to limit or even eliminate qualified immunity as a defense for police officers.

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I: The History of Qualified Immunity in the Supreme Court of the United States The modern standard of qualified immunity comes from the 1982 case of Harlow v. Fitzgerald. While the case actually addressed the level of immunity afforded to senior aides and advisors of the President of the United States1, Associate Justice Powell solidified the doctrine of qualified immunity for police officers with the stroke of a pen.IV Justice Powell’s description of qualified immunity is both clear and succinct: [ W]e therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have known…Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment…By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct… remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. (emphasis added)V In essence, Justice Powell ruled that government officials—including police officers—could not be held civilly liable for violating a constitutional right that has not been clearly established as a matter of law.

While Justice Powell announced the broad standard for qualified immunity in Harlow, it is often the case with Supreme Court rules and standards that further refinement, qualification and/or explanation is required. Indeed, the ‘clearly established’ requirement of qualified immunity would not assume its current form until years after Harlow. In a later case, Supreme Court Associate Justice Antonin Scalia provided some of the most important guidance on how to identify a ‘clearly established’ constitutional right for purposes of qualified immunity.

In Anderson v. Creighton, Justice Scalia explained that a right which is clearly established must be particularized to the facts of a case.VI In other words, 1

A. Ernest Fitzgerald alleged that he was unlawfully discharged from his employment in the Air Force under the Nixon administration, and that certain senior staff members were involved in a conspiracy to have him fired.

an official must or reasonably should understand that he is violating a clearly established constitutional right under the specific circumstances of a given situation.VII This is not to say that the exact facts of a case must have been previously held to be a violation of a clearly established right—rather, “it is to say that in the light of preexisting law the unlawfulness must be apparent.”VIII Justice Scalia’s guidance on the application of the ‘clearly established’ standard was reiterated in 2011 in Ashcroft v. al-Kidd (‘clearly established’ law should not be defined at a high level of generality) and in 2017 in White v. Pauly (citing Anderson and Ashcroft).IX The importance of the particularization requirement to the concept of qualified immunity cannot be overstated. It means that it is not enough for the Plaintiff to overcome a qualified immunity defense by showing, for example, that a general prohibition against excessive force is clearly established. We all know that. What needs to be shown is that the force used in this particular type of circumstance has been held to violate clearly established law.

This “particularization” requirement contributes significantly to a police officer’s defense.

II: Qualified Immunity in the Third Circuit When it speaks, the Supreme Court is always the final word on questions of federal law. Yet the appellate courts directly below them, the United States Courts of Appeals, also play a crucial role in refining the Supreme Court’s precedents and applying them to new fact scenarios. These “lower” courts have made considerable contributions to the application of qualified immunity as we understand it today.

Pennsylvania police officers will find that the specific qualified-immunity case law affecting them most often comes from the Third Circuit Court of Appeals. Normally, in civil rights

cases, the qualified immunity defense comes up in the context of a summary judgment motion filed by the police officer’s lawyer after discovery has been completed. Essentially, the lawyer argues that based upon the undisputed material facts, the evidence does not show that the officer violated a clearly established right, and that judgment should be entered in his/her favor without trial.

One of the Third Circuit’s most important opinions on qualified immunity is Forbes v. Township of Lower Merion.X Forbes established the first of two supervisory rules in the Third Circuit for application of qualified immunity. The Forbes rules require district courts to “identify the relevant factual dispute(s)” that justify the denial of a motion for summary judgement in which a defendant raised the defense of qualified immunity, and to “specify those material facts that are and are not subject to genuine dispute” and to explain their materiality. XI In other words, a district court cannot simply say that qualified immunity is denied because there are “disputed facts”.

Rather, a district court must identify the specific material facts in dispute that prohibit qualified immunity from being awarded. This means that a district court must take qualified immunity seriously and identify why it does not apply if qualified immunity is going to be denied. It is not enough for a district court to say that material facts are in dispute and must be resolved at trial, which has been a common practice. The second rule was laid out in Grant v.

City of Pittsburgh and requires district courts to state these findings of fact as to each named defendant.XII The Grant rule requires district courts not only determine the officers violated “clearly established” law – the district courts must also make specific factual findings showing how the conduct CONTINUED ON NEXT PAGE

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LEGAL UPDATE FOR LAW ENFORCEMENT: QUALIFIED IMMUNITY IN PENNSYLVANIA: THE GOOD NEWS AND THE BAD NEWS

LEGAL UPDATE FOR LAW ENFORCEMENT: QUALIFIED IMMUNITY IN PENNSYLVANIA: THE GOOD NEWS AND THE BAD NEWS of each individual police officer was unlawful. In a case with a messy factual record, this is not an easy task.

This, in turn, creates a further obstacle to taking police officers to trial.

III: Qualified Immunity in the Third Circuit Applied: Williams v. City of York

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The rules laid out in Forbes and Grant illustrate a commitment by the Third Circuit to appropriately apply Justice Scalia’s requirement defining clearly established law in a “particularized” fashion. The recent decision in Williams v. City of YorkXIII reaffirms that the Third Circuit is willing to conduct a ‘cumbersome’ review of the summary judgement record when a district court fails to abide by the Forbes and Grant rules. It is also interesting that this opinion was issued after the George Floyd incident. This opinion reaffirms the obligation of the district court to make particularized factual findings as to each police officer when deciding the defense of qualified immunity.

In Williams, the plaintiff—Willashia Williams—brought claims for excessive force and false arrest arising from officer conduct at the scene of her arrest, as well as at City Hall where she was taken following the arrest.XIV Williams claimed that the officers used excessive force against her during her arrest. The Third Circuit noted that it was the plaintiff’s burden to demonstrate that she was seized and the seizure was “unreasonable.”XV The test for whether or not an officer’s actions are “reasonable” looks to the totality of the circumstances and asks if the officer’s actions were “objectively reasonable” in light of the facts and circumstances confronting the officer, without regard to his/her underlying intent or motivations.XVI When a court is trying to determine what actions are “objectively reasonable” the United States Supreme Court

has cautioned that consideration must be given to the fact that police officers are often forced to make split-second judgements, including decisions related to the amount of force required to address a situation when faced with circumstances that might be tense and rapidly evolving.

XVII In Williams, the Third Circuit concluded that an officer did not violate Williams’s constitutional rights by throwing her to the ground at the scene of the incident given the circumstances: the parties agreed that the officers were responding to a “shots-fired” call; Williams was running in close proximity to the area of the shooting; and, when ordered by officers to stop, Williams ran to the porch of nearby home and began banging on the door. The Third Circuit concluded that, when presented with these specific circumstances, there was no clearly established law holding it was unreasonable for a police officer to throw Williams to the ground.

Williams also alleged that officers violated her rights by failing to loosen her handcuffs. The Third Circuit noted that, in prior decisions, police officers have not been held liable in similar circumstances unless the officers were notified of an arrestee’s pain.XVIII Because Williams did not notify the officers of her discomfort, prior case law did not condemn the offices’ actions – thus, qualified immunity was appropriate. The Third Circuit reiterated that an assessment of the reasonableness of the police officer’s actions must be fact specific; for example, the Court noted that a police officer would not be entitled to qualified immunity where an arrestee complained of pain repeatedly and began to faint.XIX How did the District Court reach the incorrect decision regarding the officers’ actions in Williams? The Third Circuit noted that the District Court

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violated the Forbes rule when it failed to specify which issues of material fact it deemed to be disputed by the parties. Regarding Williams’s allegations regarding excessive force, the Third Circuit found that the District Court failed to state whether it assumed that Williams informed her arresting officers of pain she was experiencing from her handcuffs; likewise the District Court failed to state which specific officers could have put their knees into Williams’ back (in violation of Grant). Specifically, the Third Circuit found that the available dashcam video demonstrated that Williams never complained of pain from her handcuffs. Regarding her allegations that a police officer “put a knee in her back”, the Court concluded that Williams could not attribute “the knee in the back” to the actions of a specific officer. Because Williams could not meet her burden of demonstrating “personal involvement” of the named defendants, the Third Circuit reversed the District Court’s denial of the request for summary judgement related to Williams’s claim that the police officers used excessive force during her arrest.XX Regarding later events at City Hall, Williams alleged that officers “(1) failed to loosen her handcuffs; and (2) an officer twisted her arm, threw her against [a] wall, and threatened to break her arm.”XXI The District Court found that there was a genuine dispute as to which officer committed the complained-of offenses, but the Third Circuit ruled that the evidence showed this alleged dispute was “blatantly and demonstrably false.”XXII Again, the Third Circuit pointed to Williams’s inability to establish personal involvement of the defendant officers. This was an important conclusion for the Third Circuit to reach. The Third Circuit essentially ruled that—in addition

to violating the Forbes and Grant rules for not specifying the actions of the individual officers—the record, “quite clearly contradict[ed],” the determination by the District Court that there was any genuine dispute as to a material fact regarding what happened at City Hall.XXIII The Third Circuit made relatively short work of Williams’s allegation of wrongful arrest. The Court ruled that the officers did not violate any clearly established law when they arrested the plaintiff for escape, although it admitted that it was ambiguous whether or not the officers had probable cause for the crime of escape based on the contradictions2 between Commonwealth v. Stewart and Commonwealth v. Woody.XXIV Regardless of whether or not the officers had probable cause to arrest Williams for escape, the Third Circuit ruled that the ambiguity did not strip the officers of qualified immunity; rather, it insulated them from liability, as a conflict in relevant case law prevents law from being “clearly established”.XXV In short, Williams serves as a prime example of how qualified immunity case law is to be applied in the Third Circuit, and how it can insulate officers from civil liability.

First, the Third Circuit reinforced the importance of the supervisory rules set forth in Forbes and Grant –that district courts must specify the material facts that are in dispute when denying a motion for summary judgement. Second, the Third Circuit put the district courts on notice that 2

I n Stewart, the defendant’s conviction for escape was upheld because he fled from a uniformed officer who had demonstrated a show of authority by approaching his vehicle and telling him to place his hands on the dashboard of his car. In Woody; however, the defendant’s conviction for escape was vacated because the appellate court ruled that fleeing on foot from an officer in a marked police car was insufficient to convict Woody for criminal escape.

the alleged actions of each defendant must be examined individually. This will require the district courts to be more specific in their findings and will limit the district courts from relying on a catch-all finding that “a genuine dispute of material facts exists” to deny a defendant’s motion for summary judgement. In the end, the Court ruled that all of the officers named in Williams’s complaint were entitled to qualified immunity on all of the counts in the complaint.

IV: Some Recent Third Circuit and Pennsylvania District Court Decisions (1) Stephens v. N.J. State Police (In re Gibbons) – United States Court of Appeals for the Third Circuit; 2020 U.S. App. LEXIS 25548.

Stephens involved the Third Circuit’s denial of a Petition for Rehearing to examine the issue of when a police officer can use deadly force when encountering an individual threatening his/her own life. In a somewhat controversial decision (six judges from the Third Circuit agreed that the petition should have been granted), the Court extended qualified immunity to a police officer (Trooper Noah Bartlet) who used deadly force when confronted with an individual who was pointing a gun at his own head (Mr. Gibbons). The facts of the case are somewhat complicated and should be reviewed. For purposes of this article, we are relying on the discussion and legal analysis put forth by the dissenting judges, only, as the petition for rehearing was denied.

What is important to take from the analysis offered by the dissenting judges is that the decision in Stephens does not disturb the Court’s prior decision in Bennett v. Murphy (274 F.3d 133 (3d Cir. 2002).XXVI In Bennett, the Third Circuit held that “[if the victim] had stopped advancing and did not pose a threat to anyone

but himself, the force used against him, i.e., deadly force was objectively unreasonable.”XXVII The Bennett Court reached this conclusion even though Bennett was armed with a shotgun and was visibly agitated.XXVIII As noted by the dissenting judges in Stephens: after Bennett, any police officer who uses deadly force against an individual who did not pose a threat to anyone other than him/herself, would likely knowingly be in violation of the law of the Third Circuit.XXIX The dissenting judges acknowledged that Bennett does not apply if an individual threatening self-harm also poses a risk to others. XXX The dissenting judges found fault with the District Court’s analysis of Trooper Bartlet’s actions (and, therefore, disagreed with the decision to deny the petition for rehearing) because Trooper Bartlet never stated that Gibbons threatened him (Bartlet) or anyone other than himself.XXXI The dissent believed that the District Court improperly resolved multiple disputed issues in Trooper Bartlet’s favor to determine that “clearly established law applies” to find that qualified immunity was appropriate. Most importantly, the dissent in Stephens pointed out that because Gibbons made no threat to anyone other than himself, there was no factual dispute and the District Court “invented one” in favor of Trooper Bartlet.XXXII Following Stephens, it is fair to assume that cases involving police officers using deadly force against individuals making threats against their own safety will be decided on the specific facts of the case and, in particular, on the questions of whether the officer reasonably believed that the individual posed a threat to anyone other than him/herself.

(2) Pinkney v. Meadville – United States District Court – Western District of Pennsylvania; 2020 U.S. dist. LEXIS 60081 (April 3, 2020).

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LEGAL UPDATE FOR LAW ENFORCEMENT: QUALIFIED IMMUNITY IN PENNSYLVANIA: THE GOOD NEWS AND THE BAD NEWS

LEGAL UPDATE FOR LAW ENFORCEMENT: QUALIFIED IMMUNITY IN PENNSYLVANIA: THE GOOD NEWS AND THE BAD NEWS

PA CHIEFS OF POLICE ASSOCIATION

Pinkney involved a witness’s mistaken identification of the Plaintiff as the person who committed an assault upon a bar patron. Pinkney was arrested and charged with, among other offenses, aggravated assault.

The charges against Pinkney were ultimately dropped. Pinkney filed claims against a number of defendants, including several police officers.XXXIII In Pinkney, Police Officer Jared Frum participated in interviewing witnesses regarding the alleged assault.

Witnesses described an African American male, approximately six feet tall, with braided hair, walkedup to the victim and punched him in his face as he turned around.

Later, Officer Frum filed a criminal complaint against Pinkney; in the affidavit of probable cause, Frum alleged that a witness identified Pinkney as the assailant.XXXIV The story of the assault and Pinkney’s arrest was reported in local newspapers and identified Pinkney as the assailant.

Prior to Pinkney’s preliminary hearing, the Commonwealth withdrew the charges against Pinkney. Pinkney filed claims of false arrest, false imprisonment, and malicious prosecution against Officer Frum. XXXV Because the District Court found that Officer Frum had probable cause to charge and arrest Pinkney, the claims against him were dismissed.XXXVI Although the claims were dismissed on other grounds, Officer Frum argued that even if Pinkney raised valid civil rights claims against him, he was entitled to the protection of qualified immunity. The Court agreed that Officer Frum was entitled to qualified immunity because Pinkney’s allegations against Frum could not establish that a reasonably welltrained police officer in Frum’s positon would have known that his affidavit failed of provide probable cause and that he therefore should not have applied for the warrant.

Accordingly, qualified immunity shielded Officer Frum from suit on the Fourth Amendment claim asserted against him.

XXXVII

(3) Lewis v. City of Philadelphia – United States District Court – Eastern District of Pennsylvania; 2020 U.S. Dist. LEXIS 59729 (April 6, 2020).

In 1999, at the age of seventeen, Lewis was convicted of various charges related to a 1996 murder; he was sentenced to life in prison.

After serving over twenty-one years, he was released after an internal investigation revealed a strong likelihood that he was innocent.XXXVIII Lewis filed suit against two Homicide Unit police officers asserting claims of malicious prosecution, deprivation of due process, conspiracy, and failure to intervene. The officers moved for partial dismissal of the claims based on qualified immunity. The District Court dismissed Lewis’s Fourteenth Amendment claim for a violation of his right to due process, because there was “confusion amongst the lower courts” concerning a plaintiff’s ability to maintain a malicious prosecution claim based on an individual’s right to procedural due process.XXXIX Because of this “uncertainty” in the lower courts, even if the right against malicious prosecution existed under the Fourteenth Amendment at the time Lewis was arrested, it was “not clearly established” and the police officers were entitled to qualified immunity.XL Lewis also argued that his right to due process was violated when the officers withheld exculpatory evidence. Again, the District Court determined that the officers were entitled to qualified immunity because Third Circuit case law did not establish the police officer’s duty to turn over exculpatory evidence until 2005 – eight years after the investigation involving Lewis.

XLI The Court extended this same analysis to Lewis’s claims that the

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officers did not conduct an adequate investigation – finding that this “right” was not clearly established at the time of his prosecution.XLII The Court did not extend the protection of qualified immunity to all of the claims against the officers. To the contrary, the Court determined that Lewis’s right against the use of an impermissibly suggestive photo array was “clearly established” at the time of his prosecution and the officers were not entitled to qualified immunity.

(4) Boyle v. Evanchick – United States District Court – Eastern District of Pennsylvania; 2020 U.S. Dist. LEXIS 49958 (March 19, 2020).

This civil rights action was filed after a fight between two students at a grade school. Only one of the students acted violently, but both students were charged. The victim (the child who did not act in a violent manner) was charged with a summary disorderly conduct for using racial epithets that allegedly provoked the attack. The child’s mother filed the civil action alleging malicious prosecution; failure to provide exculpatory evidence; suppression of and retaliation against free speech; and various state law claims.XLIII Regarding the child’s First Amendment rights, Plaintiff’s argued that the child should not have been charged with disorderly conduct for engaging in nothing more than speech. The District Court found that the child’s language was not entitled to First Amendment protection. The District Court also found that the Defendants were entitled to qualified immunity. The Court reasoned that there was not "a robust consensus of cases of persuasive authority” clearly establishing the right at issue and noted that the consensus must be so clear that no reasonable officer could believe his conduct was lawful.XLIV Because no case from the Supreme Court or Third Circuit suggested that the use of racial epithets is protected

under the specific circumstances examined, the child’s purported First Amendment right to employ this type of language was not "clearly established" and could not overcome a qualified immunity defense.

V: The Current Social and Legislative Climate Regarding Qualified Immunity Unsurprisingly, civil rights scholars have been quite vocal about their distaste for qualified immunity for some time, viewing the doctrine as an avenue for police officers to violate constitutional rights with legal impunity. Recently, however, there has also been a sharp uptick in calls to end qualified immunity from beyond the nation’s community of legal experts.

Political pundits from the “chattering class” on the internet and on television have jumped into the fray. This trend is clearly linked —at least in part—to the death of George Floyd in May, 2020, and the call to end qualified immunity has fast reached the ears of the United States’ legislative bodies.

At the federal level, a qualified immunity bill is currently pending in the House of Representatives. The short title of this bill is, aptly enough, the “Ending Qualified Immunity Act”.

XLV Any alarm that this legislation may mean the death of qualified immunity is tempered for now by the fact that the House is controlled by the Democrats, while the Senate is controlled by the Republicans. Any legislation will have to pass in both chambers, and of course President Trump would have to sign the bill into law. That is admittedly an oversimplification, but given the political makeup of the legislative branch, and the current occupant of the White House, there is little question that qualified immunity will legislatively survive until January 20, 2021. What can also be said with some certainty is that the legislative future of qualified immunity may well

depend upon the outcome of the November, 2020, General Election.

Should the Democrats take the White House and the Senate while maintaining control of the House of Representatives, it is at least possible that legislation drastically changing— if not outright eliminating—qualified immunity could be enacted. If, on the other hand, the Republicans can reelect Donald Trump and/or keep enough seats in the Senate to avoid a Democratic majority, it is likely that qualified immunity as is will remain an integral part of civil rights litigation.

At the state level of government, moves to legislatively alter qualified immunity have been scarce at present. This is likely because state law has virtually no impact on qualified immunity under federal law. To date, Colorado is the only state to pass legislation altering qualified immunity within the state, and the action it has taken is drastic. On June 19, 2020, the Colorado General Assembly passed Senate Bill 20-217, which affects Title 24 Article 31 of Colorado’s Revised Statutes in that it eliminates qualified immunity as a defense in litigation pursuant to that section.XLVI Again, as qualified immunity is a defense almost always employed in federal civil rights suits under federal law, it does not appear that this new law will mean very much, because State legislation does not override federal law. At most, Colorado’s new law will eliminate qualified immunity in any actions brought pursuant to state statute in that jurisdiction.

VI: Conclusion Qualified immunity has an established history and foothold in federal jurisprudence, and the Supreme Court does not seem particularly motivated to alter it anytime soon.

In June, the Supreme Court decided not to hear several cases through which it could have drastically limited

or eliminated qualified immunity.

Notably, however, Justices Clarence Thomas and Sonia Sotomayor— at the farthest right and left sides, respectively, of the Supreme Court’s spectrum— have both indicated that they would like to review the doctrinal parameters of qualified immunity in an appropriate case. They only need two more justices to agree to review the doctrine, but for now, those votes are not there.

Qualified immunity is also currently strong in the Third Circuit. The Forbes and Grant rules have driven home Justice Scalia’s requirement for a particularized analysis in each case.

Williams v. City of York reiterates the Third Circuit’s willingness to grant qualified immunity for each officer when particularized facts showing a violation of clearly established constitutional rights cannot be presented. All of this is clearly the “good news.”

The “bad news” is that qualified immunity occupies an uncertain position at this moment in our legal history. Members of the lower judiciary have recently publically questioned the future of qualified immunity in addition to the two Supreme Court Justices. The United States House of Representatives has already introduced legislation that would eliminate qualified immunity as a defense in civil litigation. Though the future of the “Ending Qualified Immunity Act” is dubious, it shows that the nation’s legislators are testing the waters around the doctrine, and it is more than possible that the outcome of the November, 2020 Election may have ramifications for qualified immunity. Even if everything remains business as usual, the public and the media have turned a keen eye on how police officers are called to account for civil rights violations.

Qualified immunity is at the forefront of that debate. States have not yet CONTINUED ON NEXT PAGE

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FALL 2020 BULLETIN

LEGAL UPDATE FOR LAW ENFORCEMENT: QUALIFIED IMMUNITY IN PENNSYLVANIA: THE GOOD NEWS AND THE BAD NEWS

LEGAL UPDATE FOR LAW ENFORCEMENT: QUALIFIED IMMUNITY IN PENNSYLVANIA: THE GOOD NEWS AND THE BAD NEWS become significantly involved with qualified immunity, as the issue is one of federal law, with the exception of Colorado being the first and only one to walk back the doctrine. While it seems that Colorado’s new law will not carry much weight, it is still important to note that more and more of the nation seems poised for reformulation of qualified immunity.

For now, at least, qualified immunity remains a viable defense to claims of civil rights violations. That could well change in the upcoming years. If the current trend in the public and media continues, and there is no reason to believe that it will not, the criticism of qualified immunity will likely continue If and when that actually results in a change in its protections, or its outright elimination remains an open question.

Citations I

PAJUR MUNLAW §8:84.

James v. N.J. State Police (In re Gibbons), 957 F.3d 165 at 166 (2020).

VII

Id.

25548 at *3-4.

VIII

Id.

XXVII

Id. at *13.

XXVIII

Id. at *14.

Ashcroft v. al-Kidd, 131 S. Ct. 2074 at 2084 (2011); White v. Pauly, 137 S. Ct. 548 at 552 (2017).

IX

Forbes v. Twp. of Lower Merion, 313 F.3d 144 (3d Cir. 2002).

Donahue v. City of Hazelton, 2020 U.S. Dist. LEXIS, 13724, *7, citing, Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534 (1991).

Harlow v. Fitzgerald, 102 S. Ct. 2727 at 2738-2739 (1982).

IV

V

Id.

Anderson v. Creighton, 107 S. Ct. 3034 at 3039 (1987).

PA CHIEFS OF POLICE ASSOCIATION

VI

Id.

XXX

Id.

XXXI

Id. at *18.

XXXII

Id.

X

XI

Id. at 149.

Pinkney v. Meadville, 2020 U.S. Dist. LEXIS 60081 at *2-3.

XII

Grant v. City of Pittsburgh, F.3d 116 at 121 (1996).

XXXIII

Williams v. City of York, No. 183682 (3d Cir. 2020).

XXXIV

Id. at *7-8.

XXXV

Id. at *15.

XIII

XIV

Id. at 13.

XXXVI

Id. at *25.

XV

Id.

XXXVII

Id. at *28-29.

XVI

Id.

XXXVIII

XVII

Id.

XVIII

Id. at 15.

Lewis v. City of Philadelphia, 2020 U.S. Dist. LEXIS 59729.

XXXIX

Id. at *22.

XIX

Id. at 19.

XL

Id.

XX

Id. at 16-18.

XLI

Id. at *25-26.

XXI

Id. at 18.

XLII

Id. at *34-35.

XXII

Id. at 19.

XLIII

XXIII

Williams, No. 18-3682 at 19.

II

III

XXIX

Williams, No. 18-3682 at 22-24; Commonwealth v. Woody, 939 A.2d 359 (Pa. Super. Ct. 2007); Commonwealth v. Stewart, 648 A.2d 797 (Pa. Super. Ct. 1994).

XXIV

XXV

Williams, No. 18-3682 at 22-24.

Stephens v. N.J. State Police (In re Gibbons), 2020 U.S. App. LEXIS XXVI

Boyle v. Evanchick, 2020 U.S. Dist.

LEXIS 49958 at *2.

Id. at *21-22, citing Kelly v.

Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010).

XLIV

Ending Qualified Immunity Act, H.R. 7085, 116th Cong. (2020).

XLV

2020 Colo. Legis. Serv. Ch. 110 (West).

XLVI

Qualified immunity is also currently strong in the Third Circuit. The Forbes and Grant rules have driven home Justice Scalia’s requirement for a particularized analysis in each case. Williams v. City of York reiterates the Third Circuit’s willingness to grant qualified immunity for each officer when particularized facts showing a violation of clearly established constitutional rights cannot be presented. All of this is clearly the “good news.”

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WRITTEN EXAMS – Entry-Level & Promotional exams as partnered with Stanard & Associates ORAL BOARDS – We come to you for entry-level and promotional boards CHIEF OF POLICE POSITIONS – We do all the work in setting up a system of success to find the right police leader FITNESS EXAMS – Our team administers legally defendable entry-level fitness testing WEBSITE FOR EMPLOYMENT Our robust web site gets the attention of candidates nationwide seeking employment in the policing profession. Currently we are emailing our job postings to over 4,500 persons who have signed up for this service.

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33

FALL 2020 BULLETIN

HIRING Officers has never had a HIGHER Priority

LEGISLATIVE REPORT

LEGISLATIVE REPORT

PA CHIEFS OF POLICE ASSOCIATION

The following is a list of bills that have been introduced that are of interest to the Association. This list does not consist of all bills related to police and criminal justice matters, as there are numerous bills coming in on a weekly basis.

If you have knowledge of a bill or questions, please contact Jerry Miller, jmiller@pachiefs.org or Scott Bohn at sbohn@pachiefs.org.

3434

LEGISLATIVE REPORT: FALL 2020

HB 80

Wheatley, Jake(D) Amends Title 75 (Vehicles), in licensing of drivers, providing for relief from administrative suspension program.

Remarks: would establish a Driver’s License Amnesty Program for a one year period for individuals who would still be required to serve the suspension for their underlying offense, but would provide amnesty for all subsequent suspensions for driving while suspended and provide the opportunity for a payment plan or community service to satisfy all financial penalties.

Last Action: 9-15-20 H Set on the Tabled Calendar HB 165

Donatucci, Maria(D) Amends Title 18 (Crimes & Offenses), in firearms & other dangerous articles, further providing for definitions, for sale or transfer of firearms and for PA State Police and providing for selfexclusion from purchasing a firearm.

Last Action: 9-15-20 H Set on the Tabled Calendar HB 175

Klunk, Kate(R) Amends Title 53 (Municipalities Generally), in municipal police education and training, further providing for powers and duties of commission and establishing the Police Department Grant Program; and making a related repeal.

Remarks: municipal police education and training, further providing for powers and duties of commission and establishing the Police Department Grant Program; and making a related repeal. The bill establishes minimum standards for training police officers on domestic violence. The Pennsylvania State Police and county sheriff's offices shall be eligible for a grant for domestic violence training in order to fund the training required under section 2164(17). 53 Pa.C.S. 2172 Last Action: 6-15-20 H Introduced and referred to committee on House Judiciary Act 63, HB 256

Metzgar, Carl(R) Amends Title 18 (Crimes & Offenses), in assault, further providing for the offense of assault by prisoner; in sexual offenses, for the offense of institutional sexual assault; in registration of sexual offenders, for sexual offenses.

Last Action: Enacted into Law, Act 63, 9-21-20 G Earliest effective date HB 303

Nelson, Eric(R) Amends Title 18 (Crimes and Offenses), in firearms and other dangerous articles, further providing for firearms not to be carried without a license.

Remarks: HB302 will create a process for citizens who needed temporary mental health treatment to restore their second amendment rights after demonstrating they are not a threat to themselves, or others, before a judge through an FBI-approved process.

HB303 inserts federal firearm guidelines to replace our currently complicated laws for transporting a firearm. My goal is to enhance police officer safety during vehicle stops and enable law abiding citizens to more easily comply with transportation laws.

Last Action: 9-15-20 H Set on the Tabled Calendar

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FALL 2020 BULLETIN

Bills Tracked and Enacted into Law this Legislative Session 19R 2019-2020

LEGISLATIVE REPORT: FALL 2020

Act 38, HB 364

Gabler, Matt(R) Amends Title 75 (Vehicles), in rules of the road, for enforcement of failure to stop for school bus with flashing red lights; and, in other required equipment, for visual signals on authorized vehicles.

Last Action: Enacted into Law, Act 38, 8-30-20 G Earliest effective date HB 432

Barrar, Stephen(R) Amends the Workers' Compensation Act, in interpretation and definitions, further providing for the definition of "occupational disease"; and, in liability and compensation, further providing for compensation for post-traumatic stress injury.

Remarks: bill adds that "occupational disease" includes post-traumatic stress injury, which is suffered by a police officer, firefighter or emergency medical services provider and caused by exposure to a traumatic event arising in the course of the provider's employment or, after four years or more of service, is caused by and related to the cumulative effect of psychological stress in the course of the provider's employment for the benefit and safety of the public.

Last Action: 9-15-20 H Set on the House Calendar HB 585

Kortz, Bill(D) Amends Title 18 (Crimes and Offenses), in inchoate crimes, further providing for prohibited offensive weapons.

Remarks: amends Section 908 of the Crimes Code to provide an exception to the offense of possessing an offensive weapon if a person possessed or deployed an electric or electronic incapacitation device (tazer/stun gun) for self-defense of the person or the person's property pursuant to Section 908.1 Last Action: 9-15-20 H Set on the Tabled Calendar HB 1006

Davis, Austin(D) Amends Title 53 (Municipalities Generally), in general provisions, providing for Municipal Police Enhancement Consolidation Grant Program & establishing the Municipal Police Enhancement Consolidation Grant Program Fund.

Remarks: Provides grants to be used to improve and enhance the capabilities of municipal police departments, incentivize consolidation and provide training and other appropriate resources to municipal police officers Last Action: 4- 2-19 H Introduced and referred to committee on House Local Government HB 1066

Keller, Mark(R) Amends Title 18 (Crimes and Offenses), in firearms & other dangerous articles, providing for limitation on the regulation of firearms & ammunition; and, in preemptions, providing for regulation of firearms and ammunition.

Remarks: Prohibits local ordinances from contradicting state firearms laws.

Last Action: 9-15-20 H Set on the Tabled Calendar

PA CHIEFS OF POLICE ASSOCIATION

HB 1414

Cox, Jim(R) Act providing for the rights of law enforcement officers concerning certain complaints and grievances.

Remarks: Law Enforcement Officers’ Bill of Rights, providing law enforcement officers with certain rights in disciplinary matters.

Last Action: 9-12-19 H Introduced and referred to committee on House Judiciary Act 69,HB 1459

Schlossberg, Mike(D) Amends Title 35 (Health & Safety), in general provisions relating to emergency management services, for defs. & for emergency responder mental wellness & stress management; est. the Statewide Critical Incident Stress Mgmt. Program.

Remarks: in Title 35, adding a chapter providing for emergency responder mental wellness and stress management; establishing the Statewide Critical Incident Stress Management Program; Last Action: Enacted into Law, Act 69, 7-23-20 G Earliest effective date

36

LEGISLATIVE REPORT: FALL 2020

Delozier, Sheryl(R) Amends Titles 18 (Crimes & Offenses) & 63 (Professions & Occupations (State Licenses)), in criminal history record information, for use of records by licensing agencies; for Bureau of Professional and Occupational Affairs; making a repeal.

Remarks: would amend the Criminal History Record Information Act (“CHRIA”) to require that boards only withhold a license for convictions which are directly related to the practice of the occupation, and that the boards consider the nature of the offense, the amount of time that has passed since conviction, evidence of the applicant’s fitness to practice the occupation, and other relevant factors prior to withholding a license.

Last Action: 2-19-20 H Discussed during budget hearing with Dept. of State, House Appropriations HB 1536

Miller, Brett(R) Amends Title 75 (Vehicles), in licensing of drivers, for suspension of operating privilege; in rules of the road in general; in special vehicles & pedestrians; in misc. provisions, for the offense of careless driving.

Remarks: defines the term “Vulnerable Highway User” as pedestrians, bicyclists, wheelchairs, motorcyclists, horseback riders, horse and carriages, and farm equipment, and increases the penalties for a person convicted of reckless or careless driving that results in either the death, serious bodily injury, or bodily injury of a Vulnerable Highway User Last Action: 2-19-20 S Received in the Senate and referred to Senate Transportation HB 1551

Dawkins, Jason(D) Amends Title 18 (Crimes & Offenses), providing for mental health evaluations.

Remarks: Amends Title 18 (Crimes and Offenses) adding a new chapter requiring law enforcement officers to undergo a mental health evaluation for post-traumatic stress disorder by a licensed mental health professional on a biennial basis and within 30 days of an incident of the use of lethal force during the course of law enforcement duties. Further provides for treatment and desk duty.

Last Action: 6- 3-19 H Introduced and referred to committee on House Judiciary HB 1633

Boback, Karen(R) Amends Title 23 (Domestic Relations), in child protective services, further providing for employees having contact with children; adoptive and foster parents.

Remarks: requires full set of fingerprints sent to PSP/FBI for background check Last Action: 9-15-20 H Set on the House Calendar HB 1664

Lee, Summer (F)(D) Amends Title 18 (Crimes & Offenses), in general principles of justification, further providing for use of force in law enforcement.

Remarks: Amends Title 18 (Crimes & Offenses), in general principles of justification, eliminating effectuating an arrest as a justification for the use of deadly force and provides that deadly force is justified only when law enforcement reasonably believes that such force is necessary to protect himself or another from imminent death, serious bodily injury or kidnapping, or sexual intercourse compelled by force or threat.

Last Action: 7-28-20 H Discussed during public hearing, House Democratic Policy Committee HB 1666

Rabb, Christopher(D) Amends Title 44 (Law & Justice), in other officers, providing for interdepartmental police hiring reform.

Remarks: Amends Title 44 (Law & Justice), in other officers, establishing interdepartmental police hiring reform.

The legislation requires law enforcement agencies to keep detailed personnel records that include all criminal, civil and ethics complaints, as well as the reason and circumstances surrounding the separation of each officer. The legislation provides provisions related to maintenance of records, reporting and disclosure of separation Last Action: 6-24-19 H Introduced and referred to committee on House Judiciary

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37

FALL 2020 BULLETIN

HB 1477

LEGISLATIVE REPORT: FALL 2020

HB 1805

Dowling, Matthew(R) Amends Title 18 (Crimes and Offenses), in inchoate crimes, further providing for the offense of use or possession of electric or electronic incapacitation device.

Remarks: would allow people to own the incapacitation device if the label has been worn off, removed or not on the device without fear of legal ramifications Last Action: 9-15-20 H Set on the Tabled Calendar HB 1807

Rabb, Christopher(D) Amends Title 18 (Crimes and Offenses), in sexual offenses, further providing for the offense of institutional sexual assault.

Remarks: would expand Pennsylvania’s definition of institutional sexual assault to include law enforcement officers and any person in the officer’s custody. By doing so, it would eliminate sexual consent as a defense, making any sexual contact between an officer and a person in custody a third-degree felony Last Action: 9-12-19 H Introduced and referred to committee on House Judiciary HB 1827

Keefer, Dawn(R) Amends Title 18 (Crimes & Offenses), in criminal homicide, further providing for the offense of causing or aiding suicide.

Remarks: legislation, referred to as “Shawn’s Law”, provides that the Pennsylvania Commission on Sentencing provide for a sentence enhancement where the person who commits suicide is under 18 years of age or has an intellectual disability Last Action: 5-25-20 S Received in the Senate and referred to Senate Judiciary Act 57, HB 1841

Readshaw, Harry(D) Amends Title 44 (Law & Justice), providing for law enforcement background investigations, for duties of the Municipal Police Officers' Edu. & Training Commission, law enforcement agencies & employers & for immunity from liability & violations.

Remarks: Law Enforcement Background Investigations and Employment Information requires an employer to disclose employment information to a law enforcement agency that is conducting a background investigation of an applicant, and to permit a court to compel the release of such employment information if the employer fails to comply. The legislation also provides that the applicant's previous employers will not be civilly liable for sharing employment information in good faith with a police department looking to hire a new officer Last Action: Enacted into Law, Act 57, 7-14-20 G Earliest effective date HB 1851

Stephens, Todd(R) Amends Title 42 (Judiciary), in sentencing, further providing for sentences for offenses committed with firearms and providing for sentences for persons not to possess, use, manufacture, control, sell or transfer firearms.

Remarks: establishing a five-year mandatory minimum sentence when during an offense a firearm is possessed illegally, designating the crime of a felon illegally possessing a firearm as a crime of violence, and allowing for second and third strike provisions for repeat offenders.

PA CHIEFS OF POLICE ASSOCIATION

Last Action: 9-15-20 H Set on the House Calendar HB 1881

Kauffman, Rob(R) Amends the Public School Code, in school security, further providing for school police officers powers and duties.

Remarks: Amends the Public School Code providing a school police officer appointed under section 1320-C(b) shall have the power, if authorized by the court, to exercise the same powers as exercised under authority of law or ordinance by the police of the municipality in which the school property is located. This shall not apply to an individual provided through a third-party vendor.

Last Action: 9-15-20 H Set on the House Calendar

38

LEGISLATIVE REPORT: FALL 2020

Miller, Daniel(D) Amends Title 42 (Judiciary), in recordings by law enforcement officers, providing for definitions, for scope of chapter, for requests for audio recordings or video recordings, for procedure and for petition for judicial review.

Remarks: this bill Returns all non-body camera police video to the purview of the Right to Know Law, as was the case before Act 22; Increases the amount of time a person has to request body camera footage from 60 to 180 days; Increases the ways a person may formal request such footage; Increases response time for such requests; Increases appeal rights by providing for review by the Office of Open Records; and Develops a uniform request form. This bill keeps the exact investigative exemption language relating to body cameras that is currently in Act 22 Last Action: 6-17-20 H Discussed during Joint Public Hearing with the Senate, Senate Judiciary Law & Justice Committee HB 1904

Miller, Daniel(D) Act providing for use of force reporting and for duties of the Municipal Police Officers' Education and Training Commission, the Pennsylvania State Police and law enforcement agencies.

Remarks: legislation would require a standard and appropriately detailed form to be created and used throughout Pennsylvania. It will also create a bright line for when such forms must be completed and reviewed by a supervisor.

Last Action: 10-15-19 H Introduced and referred to committee on House Judiciary HB 1905

Miller, Daniel(D) Amends Title 42 (Judiciary and Judicial Procedure). in actions, proceedings and other matters generally, providing for recordings of law enforcement officers.

Remarks: protects and enshrines the right of citizens to record police officers who are conducting official business without interference from them, Last Action: 10-15-19 H Introduced and referred to committee on House Judiciary Act 59, HB 1910

Williams, Dan (F)(D) Amends Titles 42 (Judiciary), 44 (Law & Justice), & 53 (Municipalities), in selection & retention of judicial officers, for continuing education credit; in other officers, for mental health evaluations; and, for powers & duties.

Remarks: Titles 42 (Judiciary and Judicial Procedure) and 53 (Municipalities Generally), in selection and retention of judicial officers, establishing mandatory training for identifying and reporting child abuse in court proceedings involving children; and in employees, providing the Municipal Police Officers' Education and Training Commission with the powers and duties to train police officers to recognize and report suspected child abuse, and establishing the efficacy of conducting forensic interviewing of victims of child abuse within the setting of a children's advocacy center Last Action: Enacted into Law, Act 59, 7-14-20 G Earliest effective date HB 1934

Hill-Evans, Carol (F)(D) Amends the Public School Code, in school police officers and school resource officers, providing for training requirements for school police officers and school security guards.

Remarks: would require school police officers and security guards to take a school-approved training program, in addition to their current training, within one year of being hired.

Last Action: 10-15-19 H Introduced and referred to committee on House Education HB 1955

Mentzer, Steven(R) Amends Title 23 (Domestic Relations), in protection from abuse, further providing for commencement of proceedings.

Remarks: will vest the authority to Magisterial District judges to order police officers to serve emergency protection from abuse orders on the defendant/abuser in circumstances where the plaintiff/victim believes that his or her safety is in jeopardy Last Action: 3- 4-20 H Introduced and referred to committee on House Judiciary

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FALL 2020 BULLETIN

HB 1903

LEGISLATIVE REPORT: FALL 2020

HB 1958

Davis, Tina(D) Act authorizing police depts. to establish & administer an ANGEL program that assists eligible individuals in identifying and receiving treatment for opioid use disorder; imposing powers and duties on the Attorney General.

Remarks: would allow any individual wishing to seek treatment for their opioid dependency to visit a participating police department without fear of arrest or prosecution.

Last Action: 3- 4-20 H Introduced and referred to committee on House Judiciary HB 2012

Gainey, Ed(D) Amends Title 53 (Municipalities Generally), in employees, further providing for definitions and providing for police officer training on hate-based intimidation.

Last Action: 7-28-20 H Discussed during public hearing, House Democratic Policy Committee HB 2016

Schmitt, Lou (F)(R) Amends Title 18 (Crimes and Offenses), in assault, providing for the offense of harassment of law enforcement officer; and imposing penalties.

Remarks: legislation would define harassment of law enforcement officer as intentionally or knowingly causing or attempting to cause a law enforcement officer to come into contact with blood, seminal fluid, saliva, urine or feces by throwing, tossing, spitting or expelling such fluid or material. further provides that an offense is a felony of the third degree if, at the time of the offense, the person knew, had reason to know, should have known or believed such fluid or material to have been obtained from an individual, including the person charged under this section, infected by a communicable disease, including, but not limited to, human immunodeficiency virus (HIV) or hepatitis B, and otherwise, the offense constitutes a misdemeanor of the first degree.

Last Action: 5-25-20 S Received in the Senate and referred to Senate Judiciary HB 2047

Kosierowski, Bridget (F)(D) Amends Title 42 (Judiciary), in governance of the system, providing for criminal prosecutions involving domestic violence survivors; and, in post-trial matters, providing for post conviction relief for domestic violence survivors.

Remarks: would require that individuals who were survivors of domestic violence at the time of an offense have their history of domestic violence taken into account during sentencing and be provided with shorter sentences or alternative sentences Last Action: 11-14-19 H Introduced and referred to committee on House Judiciary HB 2050

Wheatley, Jake(D) Amends the Medical Marijuana Act, for title of act; for medical cannabis; in program; in practitioners; in patients; in medical marijuana organizations; in medical marijuana controls; in Medical Marijuana Advisory Board.

PA CHIEFS OF POLICE ASSOCIATION

Remarks: "legislation is a culmination of social and criminal justice reform, aided by legal adult-use. the pursuit of delivering legal adult-use to the more than 60% and growing of Pennsylvanians who support it."

Last Action: 4-20-20 H Discussed during press conference HB 2056

Struzzi, James (F)(R) Amends Title 18 (Crimes and Offenses), in assault, further providing for the offense of aggravated assault.

Remarks: causes bodily injury to a person with a physical or intellectual disability is guilty of aggravated assault, a felony of the second degree. definition is "vague and far reaching" Last Action: 5-25-20 S Received in the Senate and referred to Senate Judiciary

40

LEGISLATIVE REPORT: FALL 2020

Rabb, Christopher(D) Amends the Medical Marijuana Act, in miscellaneous provisions, further providing for protections and for patients and caregivers.

Remarks: legislation will provide protections for employees failing a drug test due to their use of medical cannabis as a qualified patient. Employers would be forbidden from discharging, threatening, refusing to hire or otherwise discriminating against such employees. Employees alleging employer violation under the act would be provided the right to bring civil action against their employer.

Last Action: 12- 2-19 H Introduced and referred to committee on House Labor and Industry HB 2211

Rabb, Christopher(D) Amends Title 18 (Crimes and Offenses) and 42 (Judiciary), in authorized disposition of offenders, further providing for sentencing of murder, murder of unborn child & law enforcement officer, arson, criminal mischief, property destruction.

Remarks: Repealing the death penalty Last Action: 1-14-20 H Introduced and referred to committee on House Judiciary HB 2239

Rozzi, Mark(D) Amends Title 18 (Crimes & Offenses), in obstructing governmental operations, further providing for the offense of resisting arrest or other law enforcement.

Remarks: adds the offense of threatening to resist arrest, which would be defined as threatening, by word or menace, to cause bodily harm to a public servant or another person, or otherwise engaging in destructive behavior that would require force to be utilized to overcome the resistance with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty. This offense would be graded as a third-degree misdemeanor.

Last Action: 1-21-20 H Introduced and referred to committee on House Judiciary HB 2266

Neilson, Ed(D) Amends Title 18 (Crimes and Offenses), in assault, further providing for the offense of aggravated assault.

Remarks: will codify protection for crossing guards and give attackers more sever punishment Last Action: 2- 3-20 H Introduced and referred to committee on House Judiciary HB 2284

Farry, Frank(R) Amends Title 23 (Domestic Relations), in protection from abuse, further providing for emergency relief by minor judiciary.

Remarks: would allow local courts to extend the time period for the expiration of emergency PFA relief Last Action: 3- 4-20 H Introduced and referred to committee on House Judiciary HB 2333

Miller, Daniel(D) Amends Title 18 (Crimes and Offenses), in general provisions relating to offenses involving danger to the person, further providing for definitions.

Remarks: prohibiting the use of the “gay panic” and “trans panic” defense in consideration of serious provocation. "gay panic" and "trans panic” defense theory may allow perpetrators of criminal actions against Pennsylvanian’s LGBTQ+ community to receive a lesser sentence and in some cases even avoid being convicted or punished, by placing the blame for their actions on a victim’s actual or perceived sexual orientation or gender identity Last Action: 3-10-20 H Introduced and referred to committee on House Judiciary

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FALL 2020 BULLETIN

HB 2097

LEGISLATIVE REPORT: FALL 2020

HB 2337

Rabb, Christopher(D) Amends title 75 (Vehicles), in commercial drivers, for definitions; and, in driving after imbibing alcohol or utilizing drugs, further providing for driving under influence of alcohol or controlled substance and for authorized use not a defense.

Remarks: allow individuals who legally use medicinal cannabis to operate a motor vehicle. legislation protects medicinal cannabis patients, it does not extend to any illegal cannabis use. applies to approved patients who use medicinal cannabis legally and are not impaired – the same as any other prescription medication.

Last Action: 3-10-20 H Introduced and referred to committee on House Transportation HB 2396

Ravenstahl, Adam(D) Amends Title 35 (Health & Safety), in Commonwealth services, providing for work-related hazardous duty.

Remarks: If a life-sustaining worker contracts an infectious disease that requires hospitalization, quarantine, isolation or other controlled measures, bill establishes the presumption that the worker’s medical condition or inability to work was a result of their work-related duties. As such, the worker would not be required to use sick time, vacation time, personal time or any other accrued paid-time off or contractual-time off to cover the period the worker is unable to work.

Last Action: 4-13-20 H Introduced and referred to committee on House Labor and Industry HB 2399

Nelson, Eric(R) Amends the Enforcement Officer Disability Benefits Law, further providing for disability benefits.

Remarks: Amends the Enforcement Officer Disability Benefits Law (Heart and Lung Act) providing a person covered under the law who contracts or is diagnosed with COVID-19 or is subject to quarantine resulting from exposure to COVID-19, and is temporarily incapacitated from performing his duty shall be compensated under the act.

Last Action: 4-13-20 H Introduced and referred to committee on House Labor and Industry HB 2414

Culver, Lynda(R) Amends Title 75 (Vehicles), in general provisions, further providing for definitions; and, in other required equipment, further providing for visual and audible signals on emergency vehicles.

Remarks: to authorize county correctional institution vehicles across the Commonwealth to be equipped with revolving or flashing red lights; as is currently done in cities of the first class Last Action: 4-17-20 H Introduced and referred to committee on House Transportation HB 2440

Kortz, Bill(D) Act providing for the designation of shooting ranges, sportsman clubs, hunting facilities and business relating to the sale of production of firearms and ammunition as life-sustaining.

PA CHIEFS OF POLICE ASSOCIATION

Remarks: provides all outdoor sportsman clubs that choose to remain open during the COVID-19 emergency shall impose social distancing and mask requirements, only permit five shooters in each range at a time and close clubhouses associated with the outdoor sportsman club. Effective immediately.

Last Action: 6-17-20 S Received in the Senate and referred to Senate State Government HB 2537

Grove, Seth(R) Amends Fiscal Code, providing for coronavirus aid, relief and emergency response; and establishing the Coronavirus Aid, Relief and Emergency Response Fund.

Remarks: $400 M for local governments not eligible for the direct federal local government funds. $200 M for municipalities $200 M for county governments $300 M for EMS, Police and Fire Services Last Action: 5-21-20 H Introduced and referred to committee on House Finance

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LEGISLATIVE REPORT: FALL 2020

Bullock, Donna(D) Amends the Policemen and Firemen Collective Bargaining Act, further providing for right to collectively bargain.

Remarks: Amends the Policemen and Firemen Collective Bargaining Act providing that no collective bargaining agreement shall contain language that interferes with a police misconduct investigation. Establishes that records of a police misconduct investigation subject to a collective bargaining agreement may not be protected and shall be subject to public disclosure under the Right-to-Know law.

Last Action: 6-23-20 H Introduced and referred to committee on House Labor and Industry HB 2627

Kinsey, Stephen(D) Amends Title 44 (Law and Justice), providing for actions by law enforcement.

Remarks: Amends Title 44 (Law and Justice), providing that law enforcement personnel are prohibited from using chokeholds, pressure to the diaphragm, prone restraints, and face down positions after restraint unless the use of deadly force is permitted under law.

Last Action: 7-28-20 H Discussed during public hearing, House Democratic Policy Committee HB 2655

Oberlander, Donna(R) Amends Title 18 (Crimes) & Title 42 (Judiciary), in sexual offenses, further providing for the offense of institutional sexual assault; and, in registration of sexual offenders, further providing for sexual offenses and tier system.

Remarks: legislation that will ensure that police officers cannot coerce anyone in their custody or control from engaging in sex acts with them Last Action: 7- 8-20 H Introduced and referred to committee on House Judiciary HB 2709

McClinton, Joanna(D) Amends Title 18 (Crimes & Offenses), in sexual offenses, providing for the offense of sexual assault by police officer.

Remarks: would create a new crime entirely: Sexual assault by a peace officer. Under this proposal a peace officers commits a 3rd degree felony if he or she engages in sexual intercourse with a person that is being investigated by that peace officer, is under arrest, or is otherwise in official detention.

Last Action: 7-30-20 H Introduced and referred to committee on House Judiciary HB 2717

Bullock, Donna(D) Amends Title 35 (Health and Safety), in public safety, for violence intervention & prevention; est. the Community-Based Violence Intervention & Prevention (VIP) Grant Program; imposing duties on the PA Commission on Crime & Delinquency.

Remarks: companion to Senator Art Haywood’s SB 1029, aims to help support community-based violence reduction initiatives by creating the Violence Intervention Program (VIP). The VIP would be a competitive grant program, awarded from a fund of $30 million for three years, administered by the Pennsylvania Commission on Crime and Delinquency for municipalities that have been disproportionately impacted by violence.

Last Action: 7-30-20 H Introduced and referred to committee on House Judiciary HB 2731

Diamond, Russ(R) Act providing for the right of an employee or prospective employee to refuse to participate in an invasive medical test or vaccination required by an employer.

Remarks: legislation to protect Pennsylvanians from mandatory invasive medical screening and vaccinations in the workplace, Exceptions would be retained for some specific medical testing required by state or federal law, testing for illegal use of drugs (except marijuana) Last Action: 7-30-20 H Introduced and referred to committee on House Labor and Industry

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FALL 2020 BULLETIN

HB 2602

LEGISLATIVE REPORT: FALL 2020

HB 2771

Bullock, Donna(D) Amends Title 53 (Municipalities Generally), in employees, providing for visible badges required.

Remarks: Amends Title 53 (Municipalities Generally) adding a new section requiring a uniformed police officer in a county, city or other municipality to visibly display a badge, tag or label clearly indemnifying the officer at all times.

Provides an exception for a police officer or other person empowered to make arrests who is not in uniform Last Action: 8- 7-20 H Introduced and referred to committee on House Judiciary Act 32, SB 275

Ward, Judy (F)(R) Amends Titles 18 (Crimes & Offenses), 23 (Domestic Relations), & 42 (Judiciary), in assault, for offense of stalking; in wiretapping & electronic surveillance, for defs.; for penalties; for sentences.

Last Action: Enacted into Law, Act 32, 8- 4-20 G Earliest effective date SB 459

Costa, Jay(D) Amends Title 53 (Municipalities Generally), in employees, providing for use of force recordkeeping and reporting for law enforcement agencies.

Remarks: Amends Title 53 (Municipalities Generally), in employees, providing for use of force and deadly force model policy for law enforcement agencies. Requires the Municipal Police Officers' Education and Training Commission to certify the adoption of the use of force policies and to report to the state police departments that have not adopted them Last Action: 7-14-20 H Press Conference Held SB 607

Scavello, Mario(R) Amends Title 75 (Vehicles), in rules of the road in general, further providing for speed timing devices.

Remarks: Amends Title 75 (Vehicles), providing that any police officer may use an electronic speed meter, radar or light detection and ranging devices upon approval by local ordinance and completion of training requirements.

Provides for a revenue cap on the amount of money a municipality may keep from speeding tickets and calibration standards for radar guns.

Last Action: 9-15-20 H Set on the House Calendar SB 611

Haywood, Arthur(D) Amends the Commonwealth Attorneys Act, in general provisions, further providing for defs.; and, in Office of Attorney General, further providing for criminal prosecutions.

Remarks: granting the attorney general exclusive jurisdiction to appoint a special prosecutor to investigate and prosecute the conduct of a peace officer, as defined by 18 Pa.C.S. 501 (relating to definitions), who, acting in an official capacity, is involved in an incident in which an individual has died under circumstances which may constitute the offense of criminal homicide under 18 Pa.C.S. Ch. 25 (relating to criminal homicide) as a result of the peace officer's conduct.

PA CHIEFS OF POLICE ASSOCIATION

Last Action: 6-18-20 S Discussed during Joint Public Hearing with the Senate Law &, Senate Judiciary Justice Committee Act 53, SB 637

DiSanto, John(R) Amends Titles 18 (Crimes & Offenses) & 63 (Professions & Occupations), in criminal history record information, for use of records by licensing agencies; for prelim. provisions & for bureau of prof. & occupational affairs.

Remarks: requiring occupational licensure boards to only withhold a license for convictions which are directly related to the practice of the occupation, and that boards consider the nature of the offense, the amount of time that has passed since conviction, evidence of the applicant's ability to practice the occupation and other relevant factors prior to withholding a license Last Action: Enacted into Law, Act 53, 7- 1-20 G Earliest effective date

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LEGISLATIVE REPORT: FALL 2020

Costa, Jay(D) Act imposing a fee on municipalities for services provided by the Pennsylvania State Police; and providing for allocation of funds and for penalties.

Last Action: 6-10-19 S Introduced and referred to committee on Senate Law and Justice SB 773

Killion, Thomas(R) Amends Title 75 (Vehicles), in licensing of drivers, for offense while operating privilege is revoked; in driving after imbibing alcohol or drugs, for grading, penalties, ignition interlock, prior offense, sentencing & sobriety monitoring.

Remarks: will substantially increase penalties for those who have multiple DUI convictions and target offenders who repeatedly drive drunk with high Blood Alcohol Content levels in their systems, including a mandatory requirement for drivers with three or more DUI convictions to wear electronic alcohol ankle monitors as a condition of probation.

Last Action: 9-15-20 H Set on the House Calendar SB 944

Costa, Jay(D) Amends Title 53 (Municipalities Generally), in employees, further providing for definitions and providing for police officer training on hate-based intimidation.

Last Action: 4- 2-20 S Press conference held SB 990

Muth, Katie (F)(D) Amends Title 18 (Crimes) and 42 (Judiciary), in authorized disposition of offenders, for sentencing for murder, murder of unborn child or law enforcement officer, arson, and other offenses; in procedures in sentencing.

Remarks: repeals the death penalty Last Action: 1-15-20 S Introduced and referred to committee on Senate Judiciary SB 1025

Santarsiero, Steven (F)(D) Amends Title 18 (Crimes and Offenses), in general principles of justification, further providing for use of force in self-protection.

Remarks: would repeal Pennsylvania's "Stand your ground law" Last Action: 1-31-20 S Introduced and referred to committee on Senate Judiciary SB 1044

Leach, Daylin(D) Amends Title 18 (Crimes & Offenses), in criminal homicide, further providing for the offense of murder.

Remarks: legislation to eliminate the use of felony murder doctrine to convict people of second-degree murder. An offender is guilty of second-degree murder if he acts as a principal or an accomplice in the perpetration of a felony and that felony results in the wrongful death of another person. A person convicted of second-degree murder receives a mandatory sentence of life in prison without parole.

Last Action: 2-19-20 S Introduced and referred to committee on Senate Judiciary SB 1072

Brewster, Jim(D) Amends Public School Code, in school security, further providing for school security guards.

Remarks: requiring school security guards to complete the training required by the Municipal Police Officers’ Education and Training Commission (MPOTEC). Active law enforcement officers shall be exempt from the training requirements.

Last Action: 3- 3-20 S Introduced and referred to committee on Senate Education

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FALL 2020 BULLETIN

SB 741

LEGISLATIVE REPORT: FALL 2020

SB 1085

Blake, John(D) Amends Title 18 (Crimes and Offenses), in obstructing governmental operations, providing for the offense of evading arrest or detention on foot.

Remarks: Evading Arrest or Detention by Foot in response to the tragic death of Officer John Wilding of the Scranton Police Department. In July 2015, Officer Wilding fell to his death while chasing three teenagers suspected of armed robbery.

Last Action: 3-11-20 S Introduced and referred to committee on Senate Judiciary SB 1106

Regan, Mike(R) Amends the Enforcement Officer Disability Benefits Law (Heart and Lung Act), further providing for disability benefits.

Remarks: amending the Heart & Lung Act and providing a crucial protection to first responders in response to the novel coronavirus (COVID-19) pandemic Last Action: 4-29-20 S Set on the Senate Calendar SB 1110

Ward, Kim(R) Amends Disease Prevention and Control Law, further providing for reports and for confidentiality of reports and records, further providing for confidentiality during a disaster emergency.

Remarks: requiring the Pennsylvania Department of Health (DOH) to notify county commissioners or their designated county emergency management coordinator of the municipality in which there is any confirmed communicable disease cases, such as COVID-19 Last Action: 9-15-20 H Set on the House Calendar SB 1124

Mastriano, Doug(R) Amends Disease Prevention and Control Law, further providing for confidentiality of reports and records; and abrogating a regulation.

Remarks: legislation to update the state’s Disease Prevention and Control Law of 1955, in an effort to enhance transparency. will revise the restrictions that are preventing the PA Dept. of Health from publicizing relevant facts and data concerning the COVID-19 pandemic. will enable the Health Department to release more information that is currently considered private during health epidemics.

Last Action: 4-20-20 S Introduced and referred to committee on Senate Health and Human Services SB 1196

Haywood, Arthur(D) Amends Title 18, in general principles of justification, further providing for use of force in law enforcement.

Remarks: (PN 1788) Amends Title 18 (Crimes & Offenses), in general principles of justification, eliminating effectuating an arrest as a justification for the use of deadly force and provides that deadly force is justified only when law enforcement reasonably believes that such force is necessary to protect himself or another from imminent death, serious bodily injury or kidnapping, or sexual intercourse compelled by force or threat Last Action: 6-22-20 S Introduced and referred to committee on Senate Judiciary

PA CHIEFS OF POLICE ASSOCIATION

SB 1198

Hughes, Vincent(D) Amends Title 18 (Crimes and Offenses), in falsification and intimidation, further providing for false reports to law enforcement authorities.

Remarks: Amends Title 18 (Crimes and Offenses), in falsification and intimidation, providing if a false report to law enforcement authorities is based solely on the race or ethnicity of the alleged perpetrator of the crime or other incident within and not on actual suspicion that a crime has been or might be committed, the offense shall be a misdemeanor of the first degree.

Last Action: 6-22-20 S Introduced and referred to committee on Senate Judiciary

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LEGISLATIVE REPORT: FALL 2020

Williams, Anthony(D) Amends Titles 4(Amusements), 18 (Crimes), 42 (Judiciary), & 75 (Vehicles), in prohibited acts & penalties, in criminal homicide, sexual offenses, telecommunications, trafficking, process and procedures and related repeals.

Remarks: amends Titles 4 (Amusements), 18 (Crimes and Offenses), 30 (Fish), 42 (Judiciary and Judicial Procedure) and 75 (Vehicles), in various provisions of the law, requiring a connected criminal conviction of a property owner prior to forfeiture and providing the proceeds of forfeiture to the general fund of counties or the state in cases where the Pennsylvania attorney general prosecuted the case. Repeals numerous inconsistent provisions and establishes Chapter 58A in Title 42 regarding asset forfeiture. Establishes provisions regarding the scope of criminal asset forfeiture, criminal asset forfeiture in general, process for criminal asset forfeiture, process for third-party interest holders, and interaction with the federal government. Repeals Chapter 58 of Title 42 and other inconsistent provisions found in statute Last Action: 6-22-20 S Introduced and referred to committee on Senate Judiciary SB 1205

Street, Sharif(D) Amends Title 53 (Municipalities Generally), in employees, providing for use of force and deadly force model policy for law enforcement agencies.

Remarks: Amends Title 44 (Law & Justice) prohibiting chokeholds; applying any pressure to the diaphragm, airways or any compression that inhibits breath or the flow of blood to the brain; or holding the person in prone restraint or facedown while restrained for longer than three minutes or as practical to avoid positional asphyxia when making an arrest. Provisions shall not apply when the use of deadly force is permitted under law.

Last Action: 7-28-20 H Discussed during public hearing, House Democratic Policy Committee SB 1207

Street, Sharif(D) Amends Title 44 (Law and Justice), in preliminary provisions, providing for limitations on excess property procurement by local law enforcement agencies

Remarks: Amends Title 44 (Law and Justice), in preliminary provisions, providing local law enforcement agencies may not, regardless of the funding source, procure military equipment from or through a federal program, state program, third party, law enforcement foundation or organization unless the agency requests written approval from the governing body of the municipality; publishes notice of the written request online; provides the public with an opportunity to comment on the request at a public hearing; and the governing body approves the request after the public hearing not earlier than 14 days after the publication. Provides for the law enforcement's inventory and accounting, including a duty to maintain a written inventory of military equipment procured. A law enforcement agency that procures military equipment shall, on a monthly basis, publish online the local law enforcement agency aggregate data on the inventory maintained.

Last Action: 6-22-20 S Introduced and referred to committee on Senate Law and Justice

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FALL 2020 BULLETIN

SB 1203

CODY: OFFICER SAFETY HAS A NEW NORMAL: IS YOUR DATA READY TO PROTECT AND SERVE?

Officer Safety has a New Normal: Is your data ready to protect and serve?

Adjusting to a ‘new normal’ as a result of the COVID-19 pandemic has been a once-in-a-lifetime challenge for us all.

But, for those who wear blue, this ‘new normal’ didn’t end with social-distancing, self-quarantining, and mask-wearing. After the tragic death of George Floyd, officers and agencies are under more scrutiny than ever before.

PA CHIEFS OF POLICE ASSOCIATION

The civil unrest that is unsettling our country and the world has presented an even deeper, more long-lasting challenge for our police. In many ways, with the events of the last few months, Officer Safety has been redefined. Bullet proof vests and sophisticated tactical gear aren’t enough.

Your agency is no doubt considering purchasing a whole host of new tools with the primary focus being to support your officers’ actions and offer accountability when the time comes where you must defend your agency and officers from legal action. The real question then becomes, is your DATA ready to protect and serve? What is your plan to gather the necessary incident, officer activity, traffic stop data, use of force and other data that will be required and necessary when this time comes?

When a high-powered city attorney (backed by the very cartels your agency is helping to dismantle) is attacking your agency, are you ready with data and reports in-hand to defend your officers’ activity -- who they stopped, how and why they stopped, with documentation to back them up? If your RMS isn’t up to the task, you could be unknowingly putting your agency and officers at risk – but by then, it could be too late. The difference between your agency being taken down or being left alone could be the reliable, actionable data in your RMS and the ability to derive meaningful, purposedriven reports that use the TRUTH as justification.

Picture this – your PD is a mid-size agency serving a quiet local community that also is responsible for patrolling a piece of interstate that runs through your jurisdiction that gets a lot of ‘traffic’ – drugs, guns, money, and ‘bad guys’. You employ an aggressive criminal patrol team to work the interstate -- and they do their job – seizing millions of assets and helping the FBI and Secret Service whittle down their Watch List. What’s your reward for your efforts? Your agency and individual officers become targets for civil and criminal legal action, forcing you to defend your officers and your agency against multiple lawsuits and criminal prosecution.

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This is just what happened to the officers and police department of Willoughby Hills, Ohio. For them, the data made all the difference.

activities, as well as the overall department activities, to combat all allegations of illegal stops and searches, racial profiling and improper officer conduct.”

“As Chief, it has always been my job to protect my officers and to give them the tools they need to do their jobs safely. Our department proactively patrols two large areas of interstate highways east of Cleveland, Ohio, that has led to numerous seizures of drugs, guns, stolen property and money,” said Chris Collins, Chief of Police. “This high-profile activity has led to significant court ligation to include both criminal and civil actions against the department and individual officers.”

Armed with the reports from the RMS Willoughby Hills PD successfully prosecuted these high-profile cases and neutralized the civil cases against the officers and department. “At one point in the process,” Chief Collins added, “we ended up in federal court in New York and the judge commented on how well prepared we were and how well the department presented the information and statistical data. In the end, this is what protected us from the lawsuit in federal court.”

For 17 years, the Willoughby Hills PD has used the CODY RMS system from CODY Systems in Pottstown, PA. The department has relied on the efficient data capture, intuitive linking, powerful analytics, and robust reporting engine that are at the heart of the system. “CODY RMS has proven invaluable to the Willoughby Hills Police Department on numerous occasions, but especially so during these court actions,” said Chief Collins.

In fact, Willoughby Hills PD got such a reputation for having good, clean data to back up their actions that once the word got out, the lawsuits disappeared. “We haven’t had a lawsuit in years so they bypass us and go the other way,” Chief Collins said.

“The amazing power of the CODY RMS System,” Chief Collins said, “allowed us to gather, process and create detailed statistical reports itemizing individual officer

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“We credit the power of the CODY RMS for assisting us in that way,” commented Chief Collins. “It is undeniable that there is nothing more important than having the confidence that when you need it, the essential data is not only THERE, but accessible and easy to quickly create the justification and activity report you need.”

FALL 2020 BULLETIN

CODY: OFFICER SAFETY HAS A NEW NORMAL: IS YOUR DATA READY TO PROTECT AND SERVE?

A RISK MANAGER’S PERSPECTIVE ON LAW ENFORCEMENT ACCREDITATION

A Risk Manager’s Perspective on Law Enforcement Accreditation By: Peter Erndwein, Director of Risk Control, Delaware Valley Trusts

“W

PA CHIEFS OF POLICE ASSOCIATION

hat is the return on investment for accreditation?” Over the past sixteen years of working with law enforcement agencies, I wish I had a dollar for each time someone asked me this question. Most of the time the inquiry comes from a well-meaning finance person. One can’t blame them – “ROI” is taught as an acid test for determining the suitability of capital projects or proposed financial ventures. If you can recover your initial investment in three years, the decision is an easy one to make.

Risk management initiatives will generally stand up to this type of ROI analysis. Consider common prevention investments such as seat belts, body armor or the measles vaccine. The magnitude of harm prevented by these controls clearly produce a favorable ROI. In contrast, there are prevention initiatives worth pursuing that may not have an immediately quantifiable ROI. For example, it is generally recognized by industrial

psychologists that clean, organized, well-maintained work environments improve employee morale (as well as increase productivity and reduce injuries). Morale is certainly a valuable workforce asset; however, it is challenging to quantify the benefit of this social asset. With this nuance in mind, let’s consider how law enforcement accreditation offers both tangible and intangible risk management benefits to the organization.

My current employer, Delaware Valley Trusts (DVT), has over 50 members who have law enforcement operations that receive property and liability coverage. Roughly half are agencies accredited through the Pa. Law Enforcement Accreditation Commission (PLEAC). A further 78 members with law enforcement operations received workers’ compensation coverage. Our two largest members have successfully attained CALEA accreditation. Each of our members receive an annual service visit at which time their loss experience is reviewed and

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“…6 out of the top 12 (50%) best performing property/ liability members and 7 out of the top 16 (44%) best performing workers’ compensation members are PLEAC accredited agencies.” their operations evaluated. While it is challenging to come up with hard numbers, in general terms I and my risk control colleagues find accredited agencies are better run and tend to have fewer risk management concerns compared to their non-accredited peers. Fewer concerns translate to fewer claims and ultimately to lower insurance costs.

A RISK MANAGER’S PERSPECTIVE ON LAW ENFORCEMENT ACCREDITATION

No wonder accredited law enforcement agencies are sought after by risk sharing pools and commercial insurers. In the insurance business, these organizations are simply viewed as “superior risks”.

Just like an A-student can expect to be rewarded with lower auto insurance rates, insurers would prefer to do business with responsible partners. There is wisdom in the saying, “Only a fool lends money to a drunk!” Accredited agencies tend to be offered more favorable coverage, have a lower risk of having their policy cancelled due to excessive claims and as discussed above, tend to pay lower premiums because of fewer claims.

Just like a vaccination protects against the flu virus, accreditation can also protect organizations from frivolous lawsuits. Let’s face it, most plaintiff attorneys are in the business to make money.

Their income comes from winning cases and taking a cut of their client’s awarded damages. If it is known that a police department targeted with a claim of questionable merit is accredited, plaintiff attorneys recognize they will need to work harder to discredit the agency in front of a jury. The accredited agency will be able to

Accreditation establishes a more methodical, disciplined “checklist” work culture. Why do pilots, chemical plant operators and surgeons use comprehensive checklists in performing their duties? These task aids reduce the risk of overlooking an essential job step which could lead to a catastrophic event. produce policies and documentation which non-accredited agencies may not be able to provide. Given that in such cases a quick win is less certain, these litigators are more likely to pass up the accredited department for a more vulnerable, non-accredited mark.

Speaking of documentation, much of litigation pivots on records kept, whether hard “paper” or electronic.

Accredited agencies can more easily product critical documentation which can establish the competency and credibility of the organization.

Being able to quickly generate required proofs reduces the cost of preparing for litigation and increases the likelihood of a successful defense.

Potential savings on legal fees benefit the agency as well as their insurer.

Accreditation establishes a more methodical, disciplined “checklist” work culture.

Why do pilots, chemical plant operators and surgeons use comprehensive checklists in performing their duties?

These task aids reduce the risk of overlooking an essential job step which could lead to a catastrophic event. Checklists ensure consistent, purposeful behavior. In a similar way, the operational discipline fostered by accreditation reduces the likelihood that critical issues, such as a defective AED or a suicidal prisoner, will be overlooked. Ultimately, this reduces the potential to harm the

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agency’s clientele and thus reduces the likelihood of lawsuits.

In this article I have focused on just a few of the tangible benefits law enforcement accreditation can provide. As often heard in commercials, “individual results may vary”. A poorly run department can have a banner year and a stellar performer will on occasion suffer a serious loss. This unpredictable, “chaos factor” is a recognized phenomenon in risk management.

What has been well established over the years is that agency accreditation has efficacy, defined by MeriamWebster as, “the power to produce an effect”. As a risk manager, I want to offer my clients interventions with a proven track record. I am certainly glad that law enforcement accreditation is in my arsenal of effective risk management tools.

About the author Peter Erndwein is a risk management professional with over 30 years of loss prevention experience. Since 2003, he has been the Director of Risk Control for Delaware Valley Trusts, a local government risk sharing pool which provides property and liability, workers’ compensation and health coverages to local government in Pennsylvania and Delaware.

For more information on DVT, visit: www. dvtrusts.com.

FALL 2020 BULLETIN

In preparing for this article, I was curious to see whether we could demonstrate a quantifiable benefit to accreditation.

Accordingly, I compiled property/liability and workers’ compensation claims data for the past three full coverage years (2015-2017). If only DVT members who have law enforcement operations are considered, then 6 out of the top 12 (50%) best performing property/liability members and 7 out of the top 16 (44%) best performing workers’ compensation members are PLEAC accredited agencies.

These numbers support the concept that accreditation is associated with better overall insurance performance.

THE EVOLUTION OF KOVATCH INC. MUNICIPAL UP-FITTING

The Evolution of Kovatch Inc. Municipal Up-fitting By: Mark Kopunek

PA CHIEFS OF POLICE ASSOCIATION

More than 75 years ago, and shortly after serving in World War II, John (Sonny) Kovatch II decided to open a two-bay service garage. Over the years, this small cornerstone of the Kovatch Organization grew to include multiple car dealerships, service centers, land development and a truck dealership which was the foundation of government contracting work for both refurbished and newly constructed vehicles. The diversity of the government contracting product grew to include refueling vehicles, airport maintenance vehicles and emergency apparatus of all types.

As the company’s growth continued, John Kovatch III stepped up to lead Kovatch Mobile Equipment and it grew to be one of the largest Emergency Vehicle manufacturers in North America. With a dealer network covering the entire country and Canada, along with several export groups, the Kovatch Organization developed Emergency Vehicles for First Responders in every marketplace.

Now, with over 15 years of experience in the Law Enforcement, Emergency and Municipal market, the next step in the evolution of the Kovatch Organization, Kovatch Inc., now led by John Kovatch IV, is to further diversify its wide range of Law Enforcement, Emergency and Municipal Vehicles by offering all of the current vehicles available on the Ford, Chevrolet and Dodge vehicle platforms.

Now, with over 15 years of experience in the Law Enforcement, Emergency and Municipal market, the next step in the evolution of the Kovatch Organization, Kovatch Inc., now led by John Kovatch IV, is to further diversify its wide range of Law Enforcement, Emergency and Municipal Vehicles by offering all of the current vehicles available on the Ford, Chevrolet and Dodge vehicle platforms. With a full line of sedans, trucks, SUVs, special service, heavy command, SWAT and rescue vehicles available, the inclusion of all three major car manufacturer brands broadens the scope of offerings to accommodate every department’s needs. Additionally, with the latest updates to Kovatch Inc.’s Costars vendor offerings, Kovatch Inc. now has a full line of related equipment brands available to include with your vehicle purchases. Kovatch Inc. is so confident in its high level

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THE EVOLUTION OF KOVATCH INC. MUNICIPAL UP-FITTING

As Kovatch Inc. continues to enhance our presence in the Law Enforcement, Emergency and Municipal markets, we have clearly defined our product offerings.

From Chevrolet, the Tahoe and Silverado 1500 models appear to be the vehicles of choice as there is no longer an option for a Chevy sedan to meet the needs of the Law Enforcement market.

From Dodge, the 2021 Charger sedan is soon to be released, but the Durango has increased in popularity for the SUV of choice and the Dodge Ram 1500 is continuing to gain ground in many municipalities.

a large distributor for many vendors, Kovatch Inc. offers more options at far lower cost than any other up-fitter.

And since our expert Municipal Up-fitting Technicians are dedicated exclusively to Law Enforcement, Emergency and Municipal Vehicles, you can be confident that you're receiving the very best options that work for your department.

As you look at the available platforms for your next Municipal Vehicle purchase you will see that there is increased popularity of the Ford F-150 Responder Pickup and, since Ford discontinued the extremely popular, pursuit ready Taurus, there is added interest in bumping up from the Interceptor SUV to the Expedition models, providing additional space for weapon and equipment capability in either of these alternatives.

The one thing that the elimination of the Taurus did is that it opened the marketplace for both Chevrolet and Dodge product offerings. One of the best by-products of this change is that the increased demand for the Chevy and Dodge product has also stimulated more competitive pricing for all of these models.

As Kovatch Inc. continues to enhance our presence in the Law Enforcement, Emergency and Municipal markets, we have clearly defined our product offerings.

From warning lights to consoles/computer mounts to prisoner containment systems, we didn’t just look at initial quality, but also consulted with our customers to determine which of the available products has the desired longevity and trouble-free lifespan to ensure that our premium packages provide nothing but the best customer experience. And, by increasing the volume of the slightly more expensive components, we continue to be dramatically more competitive with PREMIUM product offerings.

The Kovatch Inc. product lineup also includes specialty type vehicles with utility style bodies to meet the needs of all special service groups. Configurations like this truly display our customization excellence.

To round out all of the Kovatch Inc. product offerings we add the ability to customize most of what we offer with vendor-trained, experienced technicians and we ensure that every facet of the installation process is performed to specification and is compliant with all vendor warranties. Upon delivery, we warrant what we do for five years so you can have the confidence you received top-level service every step of the way.

For more information on the complete line of Up-Fitting Products and Services from Kovatch Inc. call (570) 6695111 or send an email to municipal@kovatchinc.com.

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of technician expertise and quality of the installation performed in house that a five year installation warranty is standard with all vehicle purchases. In the event of a warranty claim there's no need to track back who is responsible for making it right. This keeps your vehicle in service longer and returns it back to service faster. As

LEJIS N-DEX SUCCESS STORY

LEJIS N-DEx Success Story Overview of LEJIS

PA CHIEFS OF POLICE ASSOCIATION

The Law Enforcement Justice Information System (LEJIS) Steering Committee was formed in 2005 to oversee the creation and management of a new Law Enforcement Data Interoperability Project for Pennsylvania law enforcement agencies.

As the current chair of that committee, I like to periodically update the PCPA members on the program’s progress. Over the past month, we learned of a success story that was a direct result of a municipal agency submitting data to LEJIS, and ultimately to N-DEx. LEJIS is an innovative police data sharing system that has increased the accessibility of data for law enforcement agencies within Pennsylvania. Built by our integrator SAIC, and hosted within the Pennsylvania Justice Network (JNET) ecosystem, LEJIS provides a nearreal-time pointer-index information-sharing platform built on National Information Exchange Model (NIEM) standards available to all Criminal Justice agencies within the Commonwealth. This vendor agnostic approach to information sharing has transformed the way in which law enforcement agencies in Pennsylvania and beyond access and share local, state, and federal public safety records. This approach enables a department to maintain their own RMS application, while still benefiting from the foundational principle of LEJIS, which is vendor agnostic information sharing.

Participating law enforcement agencies can gain access to LEJIS either through their own department records management system (RMS) or through the LEJIS Web Interface (LWI), which is accessible through the JNET Portal with the appropriate JNET user credentials. By having this information easily accessible, users across the Commonwealth (i.e. officers, sheriffs, detectives and prosecutors) are able to increase their own safety as well as that of the community. These users can quickly identify whether other law enforcement agencies have had prior contact with an individual, a piece of property or a vehicle, and provides followup contact information. This system also supports gains in efficiency when conducting investigations and provides the ability to conduct cross-jurisdictional investigations resulting in numerous success stories.

The LEJIS is a data-driven, pointer index system, not a data warehouse. Police incident reports are not stored in the LEJIS index. Rather, each time a police department enters or modifies person, property

FACT CORNER • 440 submitting departments • 45 of the 67 counties • 20.3 million records • 31% of municipalities and 50% population • 5,000 average daily submits • 1,500 average daily searches

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LEJIS N-DEX SUCCESS STORY INC. PREMIUM MUNICIPAL UP-FITTING FALL 2020 BULLETIN

or vehicle data in its RMS, the department’s RMS automatically submits some of the report’s data to the LEJIS index where it is stored. LEJIS users may rapidly search the index to help them solve cases.

Police departments participating in LEJIS maintain control over their RMS data. The executive officer of each department determines which incidents or incident categories are shared. If a new incident is added to their local RMS and is sharable, it automatically is uploaded. If a previously shared record is updated, those updates are sent to the LEJIS Index. Finally, if a previously shared record or information from a record, such as an individual’s name, is deleted from the local RMS, it is deleted from the LEJIS Index. This is to ensure synchronization between local RMSs and the LEJIS Index. Current certified LEJIS vendors include In-Synch, Centralsquare (Metro-Alert and VisionAir), CSI, Cody, Mason, BThree, Informant Technologies, and DataWorksPlus (cNET contractor), with additional vendors in progress.

National Information Sharing The LEJIS application serves as a key contributor to other national justice information sharing platforms allowing access from, or share information with, law enforcement agencies across the country. For example, collaboration with the Liberty Mid-Atlantic High Intensity Drug Trafficking Area (LMA HIDTA), which comprises federal, state, and local law enforcement agencies, provides the ability to query information in LEJIS making Commonwealth data accessible to HIDTA agencies across the country. Access to LEJIS supports HIDTA’s mission by improving interagency collaboration and promoting accurate and timely information sharing.

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The FBI’s National Data Exchange (N-DEx) is a second information sharing system, which receives a daily submission of Pennsylvania Police Incident Data from the LEJIS Core Application. The N-DEx system is an unclassified national information sharing system that enables criminal justice agencies to search, link, analyze, and share local, state, tribal, and federal records. N-DEx is also a strategic investigative information sharing system that fills informational gaps and provides situational awareness. N-DEx provides criminal justice agencies with an online tool for sharing, searching, linking, and analyzing information across jurisdictional boundaries. N-DEx enables users to “connect the dots” between data on people, places, and things that may seem unrelated to link investigations and investigators.

A LEJIS Success Story There have been countless examples in the past of how LEJIS has provided timely information to protect the public, keep officers safe and provide a key piece of information to solve a crime. Most recently the “2019 N-DEx Success Story of the Year” highlighted how information shared by Philadelphia and Upper Merion Township police departments in LEJIS was critical to linking a suspect to a physical address, which assisted in obtaining a search warrant and ultimately an arrest.

You can read the story at https://bit.ly/3gOXQzo. As you can see, LEJIS and other information sharing systems provide access to criminal justice records from thousands of agencies across the nation to obtain additional detailed reports and improve law enforcement outcomes.

Chief Tom Medwid Lower Salford Township (Montgomery County) On Behalf of the LEJIS Steering Committee

SELF-CARE FOR PUBLIC SAFETY PROFESSIONALS DURING THE CORONAVIRUS CRISIS

Self-Care for Public Safety Professionals During the Coronavirus Crisis By: Bill McAuliffe

PA CHIEFS OF POLICE ASSOCIATION

Across the country—across the world—the COVID-19 pandemic is bringing unprecedented challenges for everyone. Public safety personnel are some of the hardest hit. They must confront the same stresses as the general public—concern for loved ones, loss of income as family members are laid off from service jobs, trying to care for children who are scared and bored and suddenly home all the time.

But public safety professionals are called to serve, which means they must also put themselves in danger, day in and day out, responding to the needs of others. The pressure is only likely to mount as exposure to the coronavirus depletes public safety staffing, requiring those who can still work to take on more hours.

More than ever, it is important for public safety personnel to be extra aware of their personal health—and

not just physical wellbeing. Just as important, personnel must monitor and nurture their mental and emotional health.

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Don’t Neglect the Basics Research has shown that increased stress for prolonged periods of time makes the human body more

SELF-CARE FOR PUBLIC SAFETY PROFESSIONALS DURING THE CORONAVIRUS CRISIS

Minimize Fear Around the world people, are stopping their regular activities and isolating themselves to help slow the spread of this virus. Such disruption necessarily creates fear.

The hoarding of toilet paper and nonperishables may be the most obvious manifestation of that fear.

Adding to the stress of lockdowns and social distancing is an overpowering 24-hour news cycle and pundits and prognosticators galore. Unfortunately, not too many of those folks are spreading positive, insightful and encouraging information. While it is tragic that so many people around the world are suffering and dying from this virus, a majority are surviving. News reports that focus on negativity and the unknown further drive the fear response in many people.

Be sure to limit your exposure to this negative input. Find a news source or two that provide reliable, unemotional information to help you stay well-informed. (I recommend the COVID-19 pages on Lexipol’s digital communities: PoliceOne, EMS1, FireRescue1, CorrectionsOne.) Limit the time you spend consuming news, too. It’s easy to lose several hours as one story links to another and compelling personal accounts grab our hearts as well as our minds.

Ask yourself whether what you’re reading adds to your understanding

of our present situation in a way that is actionable. Will this article or video change what you’re doing? If not, it might be best to turn it off or put the phone down.

Give Yourself Time to Process Emotion As a public safety professional, you’re not only dealing with your own emotion and the emotions of your friends and family members.

As you serve in the line of duty, you confront a wide range of emotional responses to this pandemic. That is a lot of emotion!

As you navigate this unique and ever-evolving period, it’s imperative to take time to process your thoughts and emotions. Doing so will make you more effective while on-duty.

It is as simple as breathing! All it takes is being conscious of that natural, subconscious act of inhaling and exhaling. Simply taking five minutes at the beginning of the day to sit in a quiet spot, maybe close your eyes, focus on your body’s process of breathing, and “check in” with yourself can make a difference in your entire day.

In the world of mindfulness and meditation, the breath provides the foundation of a new level of self-awareness. Meditation is simply a moment to disengage the brain and all those thoughts being processed and pay attention to your body, where your feelings and your emotions reside. When you become more aware at that level, you will operate more clearly and thoughtfully during your day. You will be more resilient to the inputs coming your way while on duty.

If this process is new to you, it may make it easier to use any number of the guided meditations you can easily find online, some long, some short. If you can, try to take another

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2-3 minutes periodically throughout the day to stop and focus on what your body is doing—not what your head is telling you, but what your body is feeling. Process those feelings and emotions someplace you feel safe doing so. Don’t pile more into that “emotional duffle bag” to be carried onto the next shift or to the next call for service.

Stay Strong We need our public safety heroes healthy and strong on all fronts. We cannot ignore that they are human and are living through this period of uncertainty with the same feelings and stresses as everyone else.

You may feel compelled to fight the fear of the coronavirus by pushing yourself harder, taking on additional shifts while also trying to keep up with your regular responsibilities at home. This reaction is admirable— and we all need to step up. But it’s equally important to invest in selfcare. Only then can we be ready for what the next shift brings.

Editor’s note: Looking for additional tips on stress management for emergency services personnel during the coronavirus epidemic?

Join us for the webinar “First Responders, Stress Management and Coronavirus” on April 2 (webinar available on-demand after this date).

Bill McAuliffe is the director of Professional Services for Lexipol and a 22-year veteran of law enforcement.

He served as a lieutenant in positions including Patrol Watch Commander, Professional Services Lieutenant, Chief Pilot and Jail Commander. Prior to serving in an administrative functions, Bill served as a deputy working in detention, patrol and court security. He was also a member of the SWAT team for eight years and a K9 handler for five years.

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susceptible to illness. While we are learning more and more each day about COVID-19 and researchers and medical professionals are working hard to try to minimize the spread, we are likely in this for the long haul. Good overall health will make you more resilient to illness.

Eating healthy, sleeping regularly, exercising and keeping connected and communicative with friends, family, neighbors and peers are all essential.

OPPOSITION TO ADDITIONAL MAXIMUM TRUCK WEIGHT EXEMPTIONS

Opposition to Additional Maximum Truck Weight Exemptions By: Scott L. Bohn

I have long opposed legislation that would increase the allowance of truck weights over 80,000 pounds due to concerns from law enforcement and public safety communities who believe this would result in a more dangerous environment for motorists and have negative impacts on infrastructure.

PA CHIEFS OF POLICE ASSOCIATION

One thing special exemptions have in common is that they undergo little or no review before they are approved. With only a few exceptions, there has been no research to evaluate the outcomes of exemptions on safety or infrastructure once adopted.

Scott L. Bohn is Executive Director for the Pennsylvania Chiefs of Police Association.

Scott L. Bohn

Importantly, the U.S. Department of Transportation has consistently opposed this kind of “piecemeal approach” to highway policy. Here is what the Department said about special exemptions in a 2004 report:

are overcome. Despite recent Congressional action approving additional size and weight exceptions and waivers on a piecemeal and nationwide basis, DOT recommends a thoughtful approach to future policymaking.2

The Department does not support this kind of piecemeal approach to truck size and weight policy. It makes enforcement and compliance with truck size and weight laws more difficult, it often contributes little to overall productivity, it may have unintended consequences for safety and highway infrastructure, and it reduces the willingness to work for more comprehensive solutions that would have much greater benefits.1

Since 1994, the Commonwealth’s state legislature has approved 20 unique truck weight exemptions that have allowed specified commodities to carry loads substantially heavier than the baseline 80,000-pound maximum that applies to Pennsylvania roads in general.

These exemptions have ranged from “bulk refined oil” to liquid glue, refrigerated meat products and “hot ingots.” They have allowed for higher weight ranges between 90,000 and 150,000 pounds.

And, in its 2016 Final Report to Congress, the Department again made clear its position:

I believe that these “carve-outs” for particular industries should be brought to a halt due to their potential to create more dangerous scenarios involving the motoring public and increased negative impacts on roads and bridges. As has been the trend in many states, other industries without an expanded

As such, the Department stresses that no changes in the relevant Federal truck size and weight laws and regulations should be made until these limitations 1 U.S. Department of Transportation, 2004. Western Uniformity Scenario Analysis, pg. ES-11

U.S. Department of Transportation, 2016. Comprehensive Truck Size and Weight Limits Final Report to Congress, pg. 21

2

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Wane.com Posted: Jan 16, 2020 exemption are likely to look at the long list of expanded exemptions from the past 30 years and request a carve-out for their own industry. Eventually, the addition of even more exemptions will result in a “defacto” statewide weight increase, which would pose significant problems for safety and the maintenance of infrastructure throughout the Commonwealth.

Commodity-Specific Increases Make Truck Weight Enforcement More Difficult Many law enforcement departments’ budgets across the Commonwealth have already been stretched thin, which has had an impact on both the number of staff and quality of training – this has occurred at the state, county and local levels. Increasing the number of these arbitrary exemptions would further stretch already limited resources, require constant re-education on the new laws, and increase costs associated with additional equipment, information technology and human resources.3 • The cost of training officers in motor carrier inspection is often prohibitively high. This has an outsized effect on smaller boroughs and townships that have limited staff but consistently see high volumes of heavytruck traffic due to their location on integral local roads that connect to factories or warehouses (many examples in Western Pennsylvania re: coal and steel goods).

• An increase in the number of weight exemptions would make enforcement even more complicated and time-consuming for law enforcement.

• As more exemptions are passed, a patchwork is created that would fuel calls for statewide increases, U.S. Department of Transportation, 2015. Comprehensive Truck Size and Weight Limits Study Compliance Comparative Analysis Technical Report, pg. 59

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with devastating consequences for public safety and infrastructure.

Heavier Trucks Would Cause Significant Additional Safety Risks In 2016, the U.S. Department of Transportation (USDOT) issued a report recommending against any increases in the weight of trucks because there is simply not enough reliable data on which to base any increases in truck size and weight.4 That report did find, however, that heavier trucks had serious safety problems and would impose additional costs to our highway infrastructure—and concluded with a series of recommendations for collecting more reliable data.

• Higher crash rates: USDOT found in its 2016 report to Congress that heavier trucks had anywhere from 47% to 400% higher crash rates in limited state testing.5 • More severe crashes: The severity of a crash is determined by the velocity and mass of a vehicle. If its weight increases, so does the potential severity of a crash.6 Any increase in crash severity increases the likelihood of injuries becoming more serious or resulting in fatalities.

• Increased rollover propensity: Heavier trucks tend to have a higher center of gravity because the additional weight is oftentimes stacked vertically. Raising the center of gravity increases the risk of rollovers.7 • Increased wear and tear: Increasing the weight of trucks causes additional wear and tear on key safety components. The 2016 USDOT study found that trucks weighing over 80,000 pounds had 4 USDOT; 2016. Comprehensive Truck Size and Weight Limits Study, Final Report to Congress 5 Ibid.

6 Ibid.

7 USDOT; 2000. Comprehensive Truck Size and Weight Study

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OPPOSITION TO ADDITIONAL MAXIMUM TRUCK WEIGHT EXEMPTIONS

higher overall out-of-service (OOS) rates and 18 % higher brake violation rates compared to those at or below 80,000 pounds.8 This is especially important because a 2016 study by the Insurance Institute for Highway Safety found that trucks with any out-ofservice violation are 362% more likely to be involved in a crash.9 In numbers provided by the Federal Motor Carrier Safety Association, there were 7,114 large-truck crashes in Pennsylvania in 2018--unfortunately, 142 people lost their lives in those crashes, while 3,283 sustained injuries.10

• Rural roads are the most dangerous—they are more likely than NHS routes to have roadway features that reduce safety, such as narrow lanes, limited shoulders, sharp curves and steep slopes. Rural roads have a traffic fatality rate that is nearly 300 % higher than all other roads. Pennsylvania’s rural fatality rate is ranked 16th highest in the nation.14 • Nationally the majority of automobile traffic, 56%, is on local roads.

Heavier Trucks Would Cause Significant Infrastructure Damage to Pennsylvania Roads and Bridges

• Local roads and bridges are at the intersection of significant large truck activity and where constituents live and work.

53% of Pennsylvania’s major roads are in poor or mediocre condition. Driving on roads in need of repair costs Pennsylvania motorists $5.54 billion a year in extra vehicle repairs and operating costs, or $618 per motorist. Adding even heavier trucks would only make this worse.11 Of the 22,911 bridges in Pennsylvania, there are 15,581 bridges that are in fair/poor condition – that is over 68% of the bridges statewide. Pennsylvania has the second highest number of bridges rated in poor condition in the nation.12 Many of these bridges could not accommodate these heavier trucks.

• Bigger trucks would impose an additional tax burden triggered by further damage to roads and bridges that will shift the responsibility to the state and to localities without any federal source for cost recovery.

Heavier Trucks Would Threaten Local Pennsylvania Communities

PA CHIEFS OF POLICE ASSOCIATION

and towns, not the federal government or states. In Pennsylvania, over 6,600 bridges are owned by local governments and 27% are in poor condition.13

Approving additional weight exemptions would mean more dangerous and damaging trucks running on local roads through the Commonwealth’s towns and communities where people live and work. Heavier trucks find their way onto a variety of state and local roads and bridges as they make pick-ups and deliveries, meaning these trucks would spill over into local communities. And when these trucks run on local roads, their impact would be greater because these roads are more vulnerable to the impacts of the bigger trucks: • Nationwide, 66% of the bridges classified as “structurally deficient” are owned by the local cities 8 USDOT; 2016. Comprehensive Truck Size and Weight Limits Study, Final Report to Congress 9 Insurance Institute for Highway Safety; 2016. Crash Risk Factors for Interstate Large Trucks in North Carolina 10 Federal Motor Carrier Safety Administration; 2018. Analysis & Information Online- Crash Statistics. MCMIS and FARS Database.

11 TRIP – 2020 – Key Facts About Pennsylvania’s Surface Transportation System 12 Federal Highway Administration; 2019. Bridge Condition by Highway System 2019

Data Collection Recommendations Instead of Industry Specific Weight Increases I believe that improving the collection of crash and travel data on existing state exemptions is the logical next step as opposed to continuing the expansion of exemptions for the operation of heavier, more dangerous trucks. I believe that any loss of life is unacceptable and request that PennDOT consider the following specific recommendations to improve data collection: • Support reinstituting the collection of higher-quality, impartial data statewide and nationally (i.e., TIFA and VIUS type data), including vehicle miles traveled (VMT), and implement a uniform statewide crash report form that accurately collects information as to the number of axles, truck weight, and road type where the crash occurred.

• Collect and analyze data on the impacts of heaviertruck operations on local roads and bridges.

• Support off-road operational tests of heavier-truck configurations, fully evaluating vehicle dynamics in real-world conditions.

Heavier trucks create a dangerous environment for motorists and an unintended negative consequence for our highway infrastructure.

13 Pennsylvania Department of Transportation – 2018 – Projects and Programs: Bridges 14 The Road Information Program, 2015. Rural Connections: Challenges and Opportunities in America’s Heartland

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WHO’S IN CHARGE OF A BOROUGH POLICE DEPARTMENT? - ANOTHER PERSPECTIVE

Who’s in Charge of a Borough Police Department? Another Perspective The Legislature and Commonwealth Court Have Answered this Question.

PA CHIEFS OF POLICE ASSOCIATION

By: Jim Nowak

On May 17, 2012, the General Assembly of Pennsylvania revised and reenacted the Borough Code for the first time in 46 years. The passage of Act 43 of 2012 was the culmination of a nine year process which began in 2003 when the Pennsylvania State Association of Boroughs (PSAB) constituted its ad hoc Borough Code Revision Committee. Under the leadership of the PSAB working closely with the Local Government Commission, the Borough Code was modernized to eliminate archaic statutes, amend ambiguous and conflicting provisions and clarify the powers and duties of elected officials, among other changes.

The Borough Code Revision Committee specifically addressed the powers and duties of council and mayor with respect to the police department. The Committee

Jim Nowak has been a lawyer for forty-one (41) years including seven (7) years as an Assistant County Solicitor. I have been an elected official in Whitehall Borough for thirty-six (36) years both as a member of Council (10) and Mayor (26). I have been the President of the Pennsylvania State Mayors’ Association for 14 years and have authored countless opinion letters on behalf of Mayors.

Jim Nowak

This article originally appeared in the Pennsylvania Borough News, a publication of the PA State Association of Boroughs.

reorganized and subdivided the powers and duties of each independently elected office involving that department. Section 1121 of the Borough Code, entitled “Council’s powers concerning police,“ delineates five powers and duties of council, all of which relate to police personnel. If a council establishes a police department, then it has “powers” to appoint, arrange for schooling, remove, suspend and demote borough police officers.

Council’s duties include designating

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ranks and the duties of each rank as well as determining the total hours of employment.

It is important to note that council’s “powers” are qualified in boroughs which have three or more police officers. That is, the power of council to appoint, remove, suspend and demote in such boroughs is subject to the participation and review of an independent civilian entity, known as the Civil Service Commission. It should be further noted that the Pennsylvania Supreme Court has

WHO’S IN CHARGE OF A BOROUGH POLICE DEPARTMENT? - ANOTHER PERSPECTIVE

Section 1123.1 of the revised Borough Code, entitled “Mayor’s powers concerning police,” sets forth the powers and duties of the office of mayor with respect to the police department. Like council, mayors have five powers and duties. In contrast to council, all of the powers and duties of the mayor pertain to police operations. The duties are written in plain language which is not susceptible to multiple interpretations. One duty reads “the mayor shall have full charge and control of the chief of police and the police force.” Another duty states “the mayor shall direct the time during which, the place where and the manner in which the chief of police and the police force perform the duties of their rank.” The mayor’s “powers” include the appointment of special police during emergencies and the activation of auxiliary police for purposes of crowd and traffic control.

The straightforward language of Section 1123.1 of the revised Borough Code leaves no doubt that the mayor is in charge of the police department. There are important public policy reasons why executive control of the police department must reside with the mayor and not the council. The revised Borough Code charges the Mayor with the legal duty for maintaining public

safety in the borough.

Section 10A07 of the Code entitled “Duties of mayor” states: “it shall be the duty of the mayor: (1) To preserve order in the borough, to enforce the ordinances and regulations, to remove nuisances, to exact a faithful performance of the duties of the officers appointed and to perform any other duties as shall be vested in the mayor's office by law or ordinance. It would be impossible for the mayor to effectively carry out the legal duties assigned to the office by the Borough Code if authority over police personnel were divided between the mayor and council.

The Commonwealth Court utilized this reasoning in the case of Hoffman v. Borough of Macungie, 63 A. 3d 461 (Pa. Cmwth. 2013) which was decided on January 3, 2013, almost eight months after the revisions to the Borough Code were enacted by the legislature. In relevant part, the Court held that “Mayor Hoffman has a duty to preserve order in Macungie and enforce Macungie’s ordinances and regulations. In order to carry out this duty, Mayor Hoffman has complete control over the manner in which the Macungie chief of police and police force operate.” The court went onto say that “pursuant to the rights and duties vested in the office of borough mayor by the Code, Mayor Hoffman has the ultimate executive authority over the manner in which the Police Department operates.” Notably, this case was decided under the Borough Code of 1966, as amended, and not the

revised Borough Code of 2012.

When it comes to protecting the public, which has been the historical and primary role of the mayor, executive decision making is much more suited for running a police department than legislative decision making. By design, council acts as a body of individuals where a majority of a quorum makes decisions.

Whether it is acting at large, or by committee, council is required to make its decisions in the light of public scrutiny under the Sunshine Act. This manner of decision making is antithetical to the type of executive decision making which is required to enforce the Crimes Code, declare emergencies, and protect the public from unexpected perils. The Criminal History Records Information Act prohibits and even penalizes certain information gathered in a police department from being revealed at all.

In conclusion, the Legislature guided by the PSAB’s Borough Code Revision Committee and Local Government Commission made a wise decision that the mayor, the elected executive of borough government, is in charge of the police department. The Commonwealth Court’s decision in the case of Hoffman v. Borough of Macungie is a reminder that this has always been the case. Although the mayor is in charge of the police department, cooperation with council is essential for borough government to best protect and serve its residents and businesses.

When it comes to protecting the public, which has been the historical and primary role of the mayor, executive decision making is much more suited for running a police department than legislative decision making.

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ruled that it matters not whether the three police officers work full-time or part-time to enjoy the protections of the civil service provisions of the Borough Code (Deforte v. Borough of Worthington, et al. J-24-2019).

TECHNOLOGY UPDATE

Technology Update By: Christopher J. Braun MSIT, PCPA Technology Coordinator

PA CHIEFS OF POLICE ASSOCIATION

Working in the new scary Environment

If you thought that COVID-19 was changing all our lives, the events following the death of George Floyd added more dangerous, scary, and depressing events. In the light of this changing environment, media assault and misinformation, it is a good time to discuss the positive support that the Association’s technology programs bring to Pennsylvania law enforcement. The programs and the support we provide, and you use, in terms of the 2015 President’s Task Force on 21st Century Policing report, show that Pennsylvania’s law enforcement is committed to professionalism and improving the service to their communities.

PAVTN The MPOETC curriculum in 2017 presented “Procedural Justice & Police Legitimacy” as a mandatory course it defined and explained the core concepts of procedural justice

and techniques associated with implementing procedural justice tactics to improve community/police relationships. and police legitimacy and taught officers how to build respectful relationships with members of the community while improving officer safety and their professional work environment. The training discussed the research behind procedural justice, the benefits of incorporating procedural justice strategies,

In 2018 MPOETC provided PJ Tactics and De-escalation Techniques. This course built on the core concepts of procedural justice and police legitimacy taught in 2017 Procedural Justice and taught officers specific tactics and de-escalation techniques that support these concepts. As with the 2017 PJ course, most of

In the light of this changing environment, media assault and misinformation, it is a good time to discuss the positive support that the Association’s technology programs bring to Pennsylvania law enforcement. The programs and the support we provide, and you use, in terms of the 2015 President’s Task Force on 21st Century Policing report, show that Pennsylvania’s law enforcement is committed to professionalism and improving the service to their communities.

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TECHNOLOGY UPDATE

Pillar Five of the President’s Task Force on 21st Century Policing report covered “Training and Education.”

According to the report, “Today’s line officers and leaders must meet a wide variety of challenges including international terrorism, evolving technologies, rising immigration, changing laws, new cultural mores, and a growing mental health crisis.” The PAVTN has courses on most of these topics, either in the PAVTN Curriculum or the MPOETC Curriculum.

Our award winning courses about veterans in crisis, human trafficking, LGBTQ victims, domestic violence, victims with disabilities, sexual assaults, victims trauma, delivering death messages and handling child victims along with the MPOETC courses are on the type of topics in the report. The PAVTN serves Pennsylvania’s law enforcement 24 hours a day, 365 days a year. During the pandemic we have been able to provide the training. We even reduced the one day we needed to make upgrades to only take 12 hours.

Pillar Two of the Task Force on 21st Century Policing recommends “Law enforcement agencies are encouraged to adopt identification procedures that implement scientifically supported practices that eliminate or minimize presenter

bias or influence.” For a community to have trust in their police department they must know their investigations are just, their procedures fair and evidence is gathered in a constitutional and scientific manner.

The PAVTN provides our Conviction Integrity course to instruct officers and investigators to remove bias in offender identifications and suspect interviews. All our offender identification programs are based on positive identification by biometrics. We provide Mobile Fingerprint ID devices for rapid biometric identification in the field.

Our new Forensic program is to help police departments be better equipped and trained to process crime scenes and collect evidence.

This project supports improving the quality and frequency of collected latent evidence from crime scenes across the Commonwealth. Through a sustained effort of training, equipment, and agency executive support, a collaborative enterprise can be substantiated to educate and equip larger police departments, District Attorney Offices, Sheriff Offices, and/or regional partnerships (for the smaller agencies) to employ the latest discovery, collection, preservation, and development tools for processing latent evidence.

Although currently waiting rescheduling for COVID restriction.

We hope to have the training and resources later this year.

Do not be a procrastinator get your training done. It is not clear if you can take physical classroom

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instruction anytime soon. The PAVTN has won many awards for the training it delivers. If you never tried online learning, now is the time to try it. The PAVTN provides several great electives for you to fulfill your certification requirements. For more information or to register for training on the PAVTN please email me at cjbraun@comcast.net.

Mobile Fingerprint Identification Devices

The PCPA Mobile Fingerprint Identification Project is still operating. However, we are now again delivering devices and we are doing the usual in person training according to the COVID guidelines of personal distancing. However, training on the devices is also available on the PAVTN. Hundreds of uses proved the effectiveness of these devices identifying suspects in the field that do not have other identification. In some cases, wanted persons were discovered in others new crimes were both identified and prevented. In the month of June 954 inquiries were made through our 269 deployed devices. While the grant funding is gone, there are still a few refurbished devices available for just the annual operating cost of $990. That provides the device, full system/device maintenance and one year of secure cellular service.

Any department interested can see the requirements on our web page https://pcpa.memberclicks.net/ mobile-fingerprint-id or contact me by email cjbraun@pachiefs.org.

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the material was drawn from two existing courses: Philadelphia’s De-Escalation Techniques and Pittsburgh’s Procedural Justice Tactical Legitimacy.

Although optional, the course did build on the material taught to all officers in 2017 and provided more specific guidance and recommendations to officers facing a multitude of challenging situations. The end goal, as with 2017 PJ, was to teach officers how to build respectful and effective relationships with the community while improving officer safety. Both courses are still available on the PAVTN,

The Pennsylvania Chiefs of Police

TESTING PROGRAM

Are you hiring new officers or dispatchers?

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Contact the Pennsylvania Chiefs of Police Association at

717-236-1059 with any questions. For an order form, go to https://www.pachiefs.org/police-testing.

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P E N N S Y LV A N I A CHIEFS OF POLICE ASSOCIATION

APPLICATION TYPE:

APPLY ONLINE!

oA ctive Membership $150 per year plus $100 Initiation Fee ($250 to accompany application) oA ffiliate Membership $150 per year plus $100 Initiation Fee ($250 to accompany application)

3905 North Front Street | Harrisburg, PA 17110 | Tel: 717-236-1059 | Fax: 717-236-0226 | www.pachiefs.org ¨ CHECK HERE FOR A MAILED COPY OF THE BULLETIN...$25 PER YEAR Please type or print clearly.

APPLICANT INFORMATION

RECOMMENDING MEMBER

Full Name of Employer_______________________________

Please list a current member of the Pennsylvania Chiefs of Police Association who has recommended that you apply for membership. If the applicant holds a rank lower than Chief, your recommending member must be your Chief, Superintendent or Commissioner.

Office Address _____________________________________

Recommending Member Name and Title:

________________________________________________

________________________________________________

Name____________________________________________ Rank ___________________________ Date of Appt_______

________________________________________________ County _____________________ Phone ________________

Department Name and Phone Number: ________________________________________________

Fax ___________________ Email _____________________

APPLICANT DEPARTMENT INFORMATION

Are you a sworn police officer? Y or N

Provide the number of sworn police officers in your department

Full time police officer in above department? Y or N

Full time ___________ Part time __________

MPOETC # ________________________________________ If not applicable, please explain why MPOETC number is not

If industry, number of security officers under applicant’s command ___________

present ___________________________________________

If other, state nature of business in relation to law enforcement

________________________________________________

________________________________________________

Residence Address _________________________________

________________________________________________

________________________________________________

________________________________________________

________________________________________________ County ____________________ Region ________________ Date of Birth _______________ Phone _________________ Have you ever been convicted by a Court of Record of the commission of a felony or misdemeanor? Y or N

If yes, explain on a separate sheet of paper and attach to application form.

Signature of Applicant: ______________________________________________________

MAIL TOTAL FEE AND THIS FORM TO: PA Chiefs of Police Association 3905 North Front Street, Harrisburg, PA 17110 For office use: Check Amount & No. ______________ Date _______________________

MEMBERSHIP QUALIFICATIONS

Section 4. Active Membership. “Active” membership shall be open to the following: (a) All full-time sworn chiefs of police, superintendents, or commissioners of municipal police agencies in the Commonwealth of Pennsylvania who have police powers and MPOETC Certification (b) All full-time sworn municipal police officers in the Commonwealth of Pennsylvania who have police powers, MPOETC Certification and hold the rank of captain or above and persons who hold the rank of Captain or above that are members of the Pennsylvania State Police; (c) Special agents in charge, assistant special agents in charge, and resident agents of any law enforcement entity of the United States government if, at the time of application, such persons are headquartered in the Commonwealth of Pennsylvania; and; full-time persons with command-level responsibility in any law enforcement agency of the Commonwealth of Pennsylvania provided that these individuals are not elected to their position by a popular vote of citizens Section 5. Affiliate Membership. “Affiliate” membership shall be open to those persons who, by occupation are Chiefs of Police who work part time, Police Officers In Charge of Police Departments, Directors of Police Agencies, and Ranking officers who have a supervisory role in a police department. This category also includes agency heads of Corporate Security and Police Academies . These individuals must share a mutuality of interests with the Association and its membership, enabling them access to information from the Association that is regularly provided to Active Members. Affiliate members may attend the Association’s Annual Meeting at the invitation of the Executive Board and under no circumstances shall such members have or exercise the privilege of voting, either by voice or ballot, on Association business. For the full by-laws regarding membership, please visit our website at www.pachiefs.org.

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