A federal judge on Tuesday threw out a civil case against the City of Pittsburgh for failing to have a policy in place to prohibit off-duty officers from drinking on the job.
Frank DeLuca’s civil trial on claims of malicious prosecution and excessive force against individual police officers involved in a 2018 brawl at the now-closed Kopy’s Bar on the South Side will continue.
However, the city is no longer a defendant.
DeLuca sued the City of Pittsburgh, as well as undercover officers David Honick, Brian Burgunder, Brian Martin and David Lincoln stemming from the incident on Oct. 12, 2018.
The officers were at Kopy’s conducting surveillance for a drug operation that night, when they were involved in a fight with DeLuca and three other members of the Pagans.
The argument turned into a brawl, and police charged DeLuca, Michael Zokaites, Erik Heitzenrater and Bruce Thomas with aggravated assault, conspiracy and riot.
The charges were later withdrawn by the Allegheny County District Attorney’s office, and the incident stirred controversy over the notion that the undercover officers drank to excess that night while on duty.
All four members of the Pagans sued.
Last week, Zokaites, Thomas and Heitzenrater’s estate settled their claims, but DeLuca, the person most severely injured that night, took his case to trial, which began on Monday.
His claims included false arrest, malicious prosecution and excessive force, as well as an allegation against the city that the failure to have a policy in place prohibiting undercover officers from drinking to excess led to a violation of DeLuca’s constitutional rights.
Former Pittsburgh Director of Public Safety Wendell Hissrich testified briefly as the plaintiff’s last witness. He said that there was an alcohol use policy for on-duty officers prohibiting them from drinking at the time.
But, he continued, there was no policy for undercover officers.
“I never, until this incident, thought about it,” Hissrich said.
After DeLuca’s attorney, James DePasquale, rested on Tuesday afternoon, the defendants argued to the court that DeLuca failed to prove his claims regarding false arrest and the city’s failure to have an alcohol policy for undercovers.
Hillary Weaver, who represented the city at trial, argued that DeLuca failed to show that the city was on notice — prior to the brawl — that officers were drinking to excess while working undercover.
“There was no way the city could have been aware such a policy was necessary,” she said.
DePasquale countered that it was foreseeable — allowing officers to drink to excess leads to fights, he said.
But U.S. District Judge Cathy Bissoon said that wasn’t enough.
“You have to demonstrate the city was on notice they were in need of such a policy,” the judge said. “Common sense is not going to rule the day here.”
DePasquale said he had no specific evidence of a problem prior to that night, and Bissoon granted the city’s motion.
“I realize you may view that as a prudent policy to have,” the judge told DePasquale. “I don’t know why one would know to ever have such a policy.”
The officers’ attorneys then made a similar motion regarding the false arrest claims.
Burgunder’s attorney, Anthony Hassey, argued that the video from inside the bar clearly showed DeLuca as the aggressor, pushing Honick as other, uniformed officers arrived. That was enough for probable cause to make an arrest, he said.
But DePasquale countered that the police charged DeLuca with aggravated assault with no evidence to support that charge.
Bissoon agreed with the defendants, and threw out the false arrest claims, as well.
Earlier in the day, DeLuca, Zokaites and Thomas testified.
All three men told the jury of five women and two men that the undercover officers never identified themselves as law enforcement before the brawl began.
DeLuca said he had been at the far end of the bar that night and moved down — closer to the officers — to order a drink.
“We were minding our own business,” he said. “[Honick] started to butt in and wasn’t leaving us alone.”
After some period of time, DeLuca continued, Honick began lifting his shirt, showing Zokaites his firearm in his waistband.
DeLuca said he wanted to de-escalate the situation and tried to shake Honick’s hand, who resisted at first.
A short time later, the four undercover officers stood up and blocked the bar’s exit.
“He’s gripping his pistol while talking to me,” DeLuca said. “I just know he’s slurring his words. He’s drunk, and he has a pistol.”
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The two men started shouting at each other and gesturing angrily, according to the video surveillance.
Two uniformed officers arrived at the bar as the argument continued, and four seconds later, DeLuca shoved Honick in the chest and neck.
Immediately, the officers descended upon him. The video showed Lincoln punch DeLuca 19 times. He was pinned down, strangled and pepper sprayed, DeLuca said.
“I couldn’t breathe,” he said.
An officer also put his knee into DeLuca’s back and said “Feel it, [expletive.]’”
“I never knew an officer to say that when they’re trying to arrest someone,” DeLuca said.
On cross-examination, the officers’ attorneys asked DeLuca if he was resisting arrest that night.
“How can I be resisting when I don’t even know there’s cops there?”