Ben Mannes: Is Krasner violating the civil rights of Philadelphia police officers?
Crime has risen each year since the election of District Attorney Larry Krasner, and state legislators have called for greater oversight and transparency in the District Attorney’s Office. At the same time, law enforcement unions are calling for possible civil suits, impeachment, or corruption investigations considering an apparent double standard in Krasner’s dropping charges against repeat felony offenders, while charging police officers where law enforcement experts say there is little to no probable cause to even charge, let alone convict a defendant.
In April 2022, the Supreme Court ruled in Thompson v. Clark that former criminal defendants can sue law enforcement for a wrongful arrest without needing to prove that they were innocent of the offenses they were charged with, only that their underlying cases ended without a conviction. As Krasner is the top elected law enforcement officer in Philadelphia, Thompson gives those wrongfully prosecuted an avenue to pursue lawsuits under the Fourth Amendment. This is especially noteworthy as many politicized prosecutions against law enforcement officers end in dropped charges, and not in a trial outcome exonerating them. This is why John McNesby, head of FOP Lodge 5, representing Philadelphia Police Officers told Broad + Liberty that “We are looking at different options.”
In previous cases, prosecutors hid behind the protections of absolute immunity and prosecutorial discretion when questioned about charging one suspect for charges similar to or less than other suspects in which charges were dropped or downgraded. This was notable in the 2015 prosecution of six Baltimore Police Officers by then-State’s Attorney Marilyn Mosby, in the death of Freddie Gray. Despite a lack of evidence or completed investigation, Mosby charged the officers with homicide. All charges were subsequently acquitted or dropped.
READ MORE — Ben Mannes: Krasner lets criminals loose to offend again
Five of the officers charged filed federal lawsuits against her for false arrest, false imprisonment, defamation and false light on claims that “Mosby’s comments in the press confirm that the charges brought against the officers, were politically motivated and not supported by evidence to establish probable cause,” said Michael E. Glass, attorney for two of the officers. While U.S. District Court judge Marvin J. Garbis rejected Mosby’s initial immunity claims against the multimillion-dollar lawsuit in 2017, the US Court of Appeals later dismissed the lawsuit citing Mosby’s “Absolute Immunity” as an elected prosecutor. Mosby has since been indicted on federal fraud and tax charges and has lost her reelection bid.
Thompson changed the landscape and Philadelphia could become a venue for law enforcement unions to pursue such a claim on behalf of their members since Krasner has made the prosecution of Philadelphia Police officers a campaign promise. Recently, Krasner was excoriated by the Pennsylvania Supreme Court for manipulating the grand jury process to charge police officer Ryan Pownall for shooting a fleeing felon with a firearm. Notably, Pownall was the first officer charged by Krasner, even though the Attorney General’s Office declined to prosecute the case. Pownall has been facing murder charges since 2017, and has yet to have his day in court.
This is why Krasner was sued by Philadelphia Police Detective Derrick Jacobs, who claimed Assistant DA Tracy Tripp tried to coerce him into changing sworn statements pursuant to the Pownall investigation, which he was to assigned as one of the founding members of the city’s officer-involved shooting investigation unit (OISIU).
“Krasner’s Office retaliated against me because I was a black detective exposing his illegal arrest of Police Officers, mostly white, to cause race issues in the City of Philadelphia for political gain,” said Jacobs, referring to threats made by ADA Tripp and police officials to terminate or even prosecute him following his refusal to change his sworn statement.
Jacobs lawsuit has since secured depositions that further bolster this pattern of behavior with other minority detectives assigned to the OISIU, as well as describing a pattern in which Krasner’s office has continued to classify officer-involved shootings cleared by police investigations as “ under investigation” years after the incident, while Krasner’s former law colleagues pursue civil claims against the department.
As anti-law enforcement sentiments increased following the 2020 killing of George Floyd by a Minneapolis Police Officer, prosecutions of police officers became a political talking point for Krasner. This led to cases against Philadelphia Police Officers that have resulted in acquittals and/or dismissals. In examining charges against Philadelphia Police Inspector Joe Bologna for assaulting a George Floyd protester who tried to steal his police-issued baton, not only did Krasner charge Bologna with striking the unlawful protester, but also charged him with possession of a weapon for using his police-issued baton. In the same set of protests where Philadelphia SWAT Officer Richard Nicoletti was charged with deploying chemical munitions against protesters who illegally seized Interstate 676 in an area where hospitals are located; after Nicoletti was ordered by his superiors to deploy such munitions.
As crime continues to rise, Philadelphia Police need to feel their rights under the constitution are protected. If they fear the District Attorney more than the criminals they pursue, then attrition rates will continue to rise.
These cases bring about Equal Protection questions when considering that Krasner dropped charges for upwards of 95 percent of arrests made against the violent protestors which caused police to be deployed following Floyd’s death.
In the cases of Bologna and Nicoletti, charges were dropped in preliminary hearings — but reinstated after Krasner sought their refiling before a rookie judge elected from his political base. Even when cases like these are dismissed, the lives and finances of the officers, their families, and their respective reputations are tarnished for life. Worse, in looking at Krasner’s prosecutorial track record, there is seemingly no opportunity missed to “throw the book” at a law enforcement officer, while scores of cases against violent, repeat felons are not pursued, or have charges dropped or dismissed.
This brings is the case of DeVonte Douglass, who shot and killed male prostitute Vernon Harris following a public tryst in a cemetery. Douglass, who was appointed by Krasner as a “Gun Violence Coordinator” with the Philadelphia District Attorney’s Office was not charged with homicide by Attorney General [and current gubernatorial candidate] Josh Shapiro ‘s office, even though the shooting had occurred pursuant to the ancillary crime of prostitution, trespassing, and public indecency.
Shapiro’s investigation concluded that both men were armed, but Harris’s weapon was still tucked inside his waistband after he was killed by Douglass. Since then, Krasner’s office charged Police Officer Edsaul Mendoza with first-degree murder for shooting and killing Thomas Siderio, a twelve-year-old suspect who was recorded shooting at Mendoza and three other officers before fleeing, where he tossed his weapon on a dark street before Mendoza turned the corner and returned fire, killing him.
This raises a viable equal protection question: if Douglass wasn’t charged for shooting Harris following the commission of a crime ( prostitution in a cemetery in broad daylight), without Harris’ gun drawn; then why was Officer Mendoza charged for firing at a fleeing suspect immediately after being fired upon?
Making the case against Krasner would require proving a novel legal theory. “With absolute immunity for prosecutors, police officers are in a very difficult position if they are wrongfully charged by a politically motivated district attorney,” said former Chester County District Attorney Thomas Hogan. “There is an interesting theory that prosecutors might be subject to a pattern-and-practice action by the U.S. Department of Justice, but that standard is high and the legal question is unsettled.”
Journalist Ralph Cipriano agrees. “Since the day he took office Larry Krasner has waged a war against police officers. He’s indicted them on trumped up charges, and trampled on their constitutional rights, as the state courts ruled with his do-not-call list,” said Cipriano, who has covered these cases extensively at BigTrial.net “Krasner gives everybody else a pass except cops. He frees demonstrators who illegally blocked the Vine Street Expressway during rush hour, in favor of prosecuting the cops who were following the orders of their superiors to clear that highway. He needs to be impeached for having two standards of justice, one for cops, and one for everybody else.”
As crime continues to rise, Philadelphia Police need to feel their rights under the constitution are protected. If they fear the District Attorney more than the criminals they pursue, then attrition rates will continue to rise. Philadelphians should watch the courts for further developments.
A. Benjamin Mannes, MA, CPP, CESP, is a Subject Matter Expert in Security & Criminal Justice Reform based on his own experiences on both sides of the criminal justice system. He has served as a federal and municipal law enforcement officer and was the former Director, Office of Investigations with the American Board of Internal Medicine. @PublicSafetySME
Originally published at https://broadandliberty.com on September 7, 2022.
