The attorneys stood before the jury and presented two different tales.
In one, Frank DeLuca was the victim — needlessly assaulted by three undercover Pittsburgh police officers who’d spent the previous five hours drinking extensively. Then, he was wrongfully prosecuted for crimes he said he didn’t commit.
In the other, DeLuca is the aggressor — purposely antagonizing three undercover Pittsburgh police officers and picking a fight with them until finally he makes the first move and goes at one’s throat. Then, when DeLuca refused to comply with officers’ commands, they say they used just enough force to subdue him.
A jury now must decide whose story they believe.
The panel of five women and two men began deliberating in DeLuca’s civil trial Wednesday afternoon.
DeLuca was at Kopy’s Bar on the South Side with three other members of the Pagans motorcycle club early on the morning of Oct. 12, 2018.
Four undercover city officers, David Honick, Brian Burgunder, David Lincoln and Brian Martin, were sitting at the bar doing surveillance for a drug operation.
They arrived around 7:30 p.m. and had been drinking extensively before the Pagans arrived around 11:30 p.m.
When the club members went to leave, they said the officers blocked their way. DeLuca argued with Honick, and eventually shoved him, prompting a brawl.
The four Pagans were arrested and charged with aggravated assault, conspiracy and riot.
However, the Allegheny County District Attorney’s office withdrew all the charges, and the officers were investigated for their conduct drinking on the job.
All four Pagans sued, alleging excessive force, false arrest, malicious prosecution and a claim that because the city failed to have an alcohol use policy for undercover officers, that it led to their constitutional rights being violated.
Three of the plaintiffs settled their cases last week. Michael Zokaites received $100,001. The estate of Eric Heitzenrater got $70,000 and Bruce Thomas received $78,000, their attorneys said.
DeLuca’s case did not settle and went to trial this week before U.S. District Judge Cathy Bissoon.
At the close of the plaintiff’s case, the judge dismissed the count against the city for failing to have a policy in place to prohibit off-duty officers from drinking on the job. She also granted a motion dismissing the false arrest claims against Burgunder and Honick.
That means the jury will only consider excessive force allegations against the three officers and malicious prosecution against Burgunder, who was the one who filed the charges.
During closing arguments on Wednesday, DeLuca’s attorney, James DePasquale, repeatedly called the officers’ conduct that night “outrageous.”
“It is outrageous that those four police officers got so drunk on taxpayer money, and then, like they were a gang, looked for a fight with other people who were minding their own business,” he said. “It is disgraceful conduct, what they did.”
Burgunder choked DeLuca, the attorney said, while Lincoln and Honick, who’d previously flashed his gun at the men, “pounded him.”
“Why couldn’t they simply walk out of that place?” DePasquale asked.
The Pagans testified that they didn’t know the men at the bar were police officers, and that they never identified themselves that way.
“How could you possibly believe these drunks were City of Pittsburgh on-duty police officers?” DePasquale asked the jury.
But the officers testified during the trial they were worried their cover would be blown. At one point, Lincoln testified, he went outside and retrieved firearms for himself and Burgunder because he feared what could happen.
But DePasquale was unconvinced.
“They were drinking. They were unfit for duty. They were the ones that provoked that fight,” he said.
He asked the jury to award his client compensatory damages - including $13,000 for medical expenses and $11,000 for lost wages for 11 weeks of missed work.
DeLuca is also seeking punitive damages.
But attorneys for the officers said DeLuca is not entitled to anything.
Michael Comber, who represents Honick, said his client, only facing a claim of excessive force, engaged physically with DeLuca for just 10 seconds - attempting to punch him several times, though few blows landed.
During that time, Comber said, his client was trying to stop DeLuca from going for the gun he was carrying - and potentially hurting the officers and others in the bar that night.
Whether the detectives were drinking, he continued, isn’t relevant.
Instead, he told the jurors they must decide whether the officers’ conduct and the force they used in trying to subdue DeLuca was reasonable.
“It was reasonable. It was necessary,” Comber said. “It potentially saved lives.”
He also noted that, at the time of the fight, DeLuca wasn’t working. Therefore, Comber said, he should not be paid for lost wages.
Anthony Hassey, who represents Burgunder, said the jury should find there was no malicious prosecution. All that was necessary to make an arrest, he said, was for his client to have probable cause to file charges.
Burgunder did, his attorney continued.
He also argued that the only force his client used - grabbing DeLuca’s chin, pulling his hair and pressing him to the bar - were necessary to get him to comply with officer commands.
“The force was justified,” Hassey said.
Albert Veverka, who represents Lincoln, said the scene that night was chaotic.
Even still, he continued, Lincoln only engaged with DeLuca for 15 seconds - punching him 19 times, according to the video.
And that was after Zokaites had punched Lincoln three times, he’d been thrown to the floor, pepper sprayed and broken his finger.
“Lincoln wasn’t looking to engage in anything,” Veverka said.
It took 45 more seconds - and seven officers - to finally get DeLuca under control, the attorney said.
“Mr. DeLuca started a bar fight,” Veverka said. “The force used by Det. Lincoln was not excessive. They used the force that was necessary for the situation.”