FILED 11 AUG 2014 09:04 pm Civil Administration . OSTROWSKI Exhibit Case ID: 130300152 Control N0.: 14081207 D. Joseph Griffin - Telephone Director of Public Safety Emeritus 7 231?963?2332 12 Westland Road Randolph, MA 02368 March 15, 2014 Robert J. Levant, Esq. Levant Martin 320 North 18th Street Philadelphia, PA 19103 RE: Walter Johnson v. Drexel University; et a1. Dear Attorney Levant: Please accept this letter as my report for the above referenced case. I reserve the right to amend or supplement this report should additional information become available. QUALIFICATIONS I am Director of Public Safety Emeritus from Northeastern University in Boston, MA. Northeastern University is a. private, comprehensive, urban, doctoral degree granting institution with an enrollment of approximately 24,540 students. The main campus of the University is located in the heart of the City of Boston. The University also has Graduate campuses in Charlotte, NC and Seattle, WA. The nine colleges and schools of the University offer bachelors, masters and doctoral degrees in a wide variety of academic disciplines and professional areas. I served as the Director of Public Safety/ Chief of Police at Northeastern University for forty (40) years and I retired at the end of February, 2014. In that capacity I was responsible for administering a comprehensive public safety and security program in an urban university environment. My responsibilities ineluded the planning, organizing and directing of all campus law enforcement functions for a diverse community of approximately 30,000 including 8,900 resident students. As Director, I led a full?time staff of 91, compbsed of 66 sworn police of?cers, 19 community service of?cers, 3 ?re safety officers and 3 administrative support staff. In addition, I coordinated a supplemental staff of approximately 45 contract security of?cers as well as 20 30 student employees. In my role as Director, I was responsible for overseeing and apprciiviug all training lin'ograms, reviewing and approving all investigations (criminal and internal) and discipline within the Public Safety Division. The Northeastern University Police Department is ?Accredited? by the Massachusetts Police Accreditation Commission and it was my responsibility as the Director to approve all policies and directives to ensure that the Division met the approved standards of professional law enforcement. Case ID: 130300152 Control No.: 14081207 Capt. Carbonara, the ranking commander of the patrol division, who is the person ultimately responsible for the actions of the uniformed of?cers, conducted no investigation. whatsoever and was unaware of whether an internal investigation had been initiated at any time. While he acknowledges having viewed some of the video in this case, he displayed no initiative whatsoever with regard to the conduct of DUPO Allen in this matter. ANALYSIS AND CONCLUSIONS A. Law of the Use of Force A university campus police officer?s right to use force typically derives from two sources of authority: (1) state law; and (2) police department directive. In this case, as the incidents in question occurred in Philadelphia, law controls the limits of force the Drexel University police were entitled to deploy during their investigation. law concerning police use of force is set forth at Title 18, Section 508 of the Code which is titled ?Use of Force in Law Enforcement.? Section 508 states, in relevant part: Peace Of?cer?s use of force in making anest- (1) a peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist'from efforts to make a law?ll arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he believes to be necessary to effect the arrest and of any force which ?he believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person, or when he believes that such force is necessary to prevent the arrest from being defeated by resistance 01' escape; and (ii) the person to be arrested has committed or attempted to commit a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he \rvill endanger human life or in?ict serious bodily injury unless arrested without delay. The DUPD has adopted a code of conduct for all of its police personnel. All personnel of the DUPD are responsible for all applicable written directives and the failure to comply with any applicable directive may be cause for disciplinary action, ranging from of?cial 26 - Case ID: 130300152 Control No.: 14081207 reprimand to dismissa (DUPD Code of Conduct Under the Code of Conduct, DUPD personnel shall not commit any act which constitutes a violation of the written directives of the DUPD (Code of Conduct 3 Further, the DUPD directives require DUPD police personnel to obey all the laws of the United States and of any state or local jurisdiction (DUPD Code of Conduct DUPD Directive 1 addresses use of force by Drexel Police.5 Directive 1 states that It shall be the policy of the Drexel University Police Department (DUPD) to employ only the amount of force that is reasonable and necessary to overcome the resistance offered in order to effect a lawful arrest, and/or accomplish the lawful performance of duty while protecting the public. The use of unreasonable, unnecessary force, and/or the failure to provide proper medical treatment following the use of force shall, in every case, result in certain and severe disciplinary action against those who use or allow the use of force, or fail to provide the care of persons in custody. Police of?cers are responsible for the review and knowledge of law on the authority for the use of force as contained in Title 18, Chapter Five, ?General Principles of Justi?cation?; speci?cally police officers are governed under sections 505, 506, 507 and 508. DUPD Directive 1, II- Policy V. Procedures A. Authorization for the Use of Force (CALEA ref. 1.3.2 and 74.3.1) 5 All DUPD departmental directives directly reference directives set forth by the Commission on Accreditation for Law Enforcement Agencies standards. CALEA is an agency which oversees an accreditation program - for law enforcement agencies. The program provides agencies an opportunity to voluntarily demonstrate that they meet an established set of professional standards which: 1) require an agency to develop a comprehensive, well thought out uniform set of written directives. This is one of the most successful methods for reaching administrative and operational goals, while also providing direction to personnel; 2) provide the necessary reports and analysis a C150 needs to make fact based, informed management decisions; 3) require a preparedness program be put in place- so an agency is ready to address natural or manmade critical incidents; 4) are a means for deveIOping and improving upon an agencies relationship with the community; 5) strengthen an agencies accountability both within the agency and the community, through a continuum of standards that clearly de?ne authority, performance and responsibilities; 6) can limit an agency?s liability and risk exposure because it demonstrates that internationally recognized standards for law enforcement have been met, as veri?ed by a team of independent outside CALEA trained assessors; and 7) facilitates an agency?s pursuit of professional excellence. See, Standards Manual for the CALEA Law Enforcement Accreditation Program. Introduction. The directives are all signed ?by order of Edward Spangler, director of police operations". 27 Case ID: 130300152 Centrol No.: 14081207 (I) When consent or an emergency is not present, and there is not probable cause to make an arrest, the noneonsensual touchng by a police of?cer may constitute a crime, as well as result in civil liability. Where probable cause exists, criminal and civil liability may still occur if the limits of the law are exceeded. C. Authorized Use of Deadly Force (CALEA ref. 1.3.2) (1) Deadly force refers to any physical force~ not only the use of a ?rearm- that under the circumstances is readily capable of causing death or serious physical injury. An of?cer may use deadly force only when the officer reasonably believes that the action is: in defense of human life, including the of?cer?s life; in defense of any person in immediate danger of serious physical injury; or in the apprehension of a ?eeing felon only when in a defense of human life, including the officer?s, or in defense of any person in immediate danger of serious physical injury. Directive defines ?deadly force? as the ?use of an implement or technique in a manner that is reasonably likely to result in death or serious bodily harm. Examples include ?rearms, motor vehicles and impact weapon strikes to the head or throat.? Directive 1 de?nes ?reasonable belief? to be ?[w]hen the facts or circumstances the of?cer knows, or should know, are such to cause an ordinary and prudent person to act or think in a similar way under similar circumstances.? As it particularly relates to the facts and circumstances of this case, Directive 1 limits the use of force by means of a motor vehicle. Subpart states: Officers must be aware, and acknowledge, that in many instances, the motor vehicle can be viewed as an instrument of force. Intentional collisions,- partial or complete roadblocks, the use of spikes or sharp instruments, 01' other similar methods, teclmiqucs, oraetions have been ruled to be the use of force and sworn of?cers of the DUPD are prohibited from using these methods except as a last resort as de?ned in this directive. The use of these methods, techniques, or actions has a high probability of causing death or serious physical injury. B. DUPO Allen Used Deadly Force Without Lawful Justi?cation 28 Case ID: 130300152 Control No.: 14081207 In the present case, it is apparent that DUPO Allen not merely applied unreasonable force in violation of Directive 1, he applied deadly force upon Walter Johnson through the operation of his police vehicle in violation of both Section 508 of the Criminal Code and Directive 1 of the DUPD Directives and Code of Conduct. The testimony of the of?cers involved in the investigation of Mr. Johnson and Mr. Demby, as well as the testimony of Tiffany Augustine, the DUPD dispatcher who witnessed the crash as it occurred re?ect the fact that DUPD Allen had been dispatched to investigate two men who were ?checking? doors of Drexel University buildings. There was no report of criminal conduct at the time DUPD Allen, Rebstock and Gregg made contact with Mr. Johnson and Mr. Demby who were walking in the area of Ludlow and 31 Streets on the Drexel campus. DUPO Rebstock and Gregg arrived at the scene first and confronted Mr. Johnson who ran because, according to Mr. Johnson but unbeknownst to the officers at that time, he had left a halfway house placement while under a criminal sentence without permission. It is evident both from the video recordings of the incident and testimony of DUPO Allen and Rebstock, that Allen observed Mr. Johnson running from the scene of the stop and decided to chase after him in Allen?s DU police SUV. DUPO Allen directed his car in an eastbound direction on Ludlow Street in pursuit of Mr. Johnson. The video shows that as DUPO Allen causes his vehicle to pass Mr. Johnson, he immediately turned the vehicle in a sharp leftward direction pointing the vehicle in a direction to cross Mr. ohnson?s line of travel. Officer Allen?s action of turning his assigned police cruiser left from Ludlow Street and driving up onto the sidewalk was clearly a deliberate act. The operation of the vehicle indicates a volitional left turn done in a manner that virtually assured that Allen?s vehicle would strike Mr. Johnson. Given the size and structure of DUPO Allen?s vehicle (4,000+ lbs), the direction in which it Was turned and the likelihood that a collision with Mr. Johnson would throw him or pin him against the wall of an adjacent building, there is a substantial likelihood that the collision would result in serious bodily injury or the death to Mr. Johnson thus qualifying Allen?s use of his vehicle as a use of deadly force. Although the crash diSplays an obvious use of deadly force, DUPD Chief Spangler and those under his command kept Philadelphia police away from the . crash, treated it as though it were an unfortunate accident and directed all future investigation away from a use of force inquiry. Notwithstanding the fact that he had probably committed a criminal act of assault by applying deadly force against Mr. Johnson without justification and with catastrophic results, he was given a two day suspension (for failing to control his vehicle) and returned to duty without any further training or instruction about the proper use of deadly force. The video evidence clearly contradicts Allen?s statement of November 14, 2012 in which he claims that his vehicle pulled to the left after it struck the curb. The video shows a seamless line oftravel throughout the turn and crash. Reillarkably, at his deposition, VP Ceccanecchio, who stated that he reviewed the video several times, repeats this apparent ?ction as part of his conclusion that the incident was an accident as opposed to a use of force. 18 Pa. C.S.A. 501 defines deadly force as ?force which, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury.? DUPD Directive mirrors that de?nition. It is self?apparent that applying the force of a SUV, even if it were at a 29 Case ID: 130300152 Control No.: 14081207 low rate of speed, against the body of a human being is reasonably likely to cause death or serious bodily injury. When the victim of the crash is pinned against a wall, the likelihood of serious harm rises further. Indeed, it is notable that DUPD Capt. Carbonara, who conducted no investigation of the incident himself, testi?ed after having viewed the video, that he believed it was reasonably likely that death or serious bodily injury could occur in the manner in which Allen drove his vehicle in this instance. DUPO Rebstock also acknowledged that Officer Allen?s operation of the vehicle as re?ected in the video of the crash was likely to lead to death or serious bodily injury (page 73). Lt. further concluded that DUPO Allen?s operation of his vehicle constituted the use of deadly force. Marshmond Dep. at 34. From my review of the video, it is hard to reach any conclusion other than that rendered by Capt. Carbonara and DUPO Rebstock, namely that DUPO Allen?s operation of his vehicle with respect to Mr. Johnson was the application of deadly force. Section 508 only justifies the use of deadly force where an of?cer 1) believes that such force is necessary to prevent death or serious bodily injury to himself or such other person; or (2) he believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon or otherwise indicates that he will endanger human life or in?ict serious bodily injury unless arrested without delay. None of the circumstances that might justify the use of deadly force are even remotely present in this case. The radio call from the dispatcher indicated that two men were ?checking doors? and there was no indication that either man possessed weapons or endangered anyone whatsoever. Further, neither DUPO Allen nor any of his fellow officers observed Mr. Johnson engaged in any criminal act or threatening conduct. Finally, the video itself depicts no evidence of threatening behavior by Mr. Johnson. Under DUPD Directive 1, DUPO Allen deployed deadly force as it is de?ned therein: ?the use of an implement or a technique in a manner that is likely to result in death or serious bodily injury.? Directive l, specifically contemplates that motor vehicles may be utilized as an instrument of force and places particular prescriptions 011 their use in that manner. Much like Section 508 of the Code, Directive 1 states that an officer may only use deadly force when he reasonably believes that action is needed to defend human life, including the of?cer?s, in defense of another person in immediate danger of serious physical injury, or in the apprehension of a fleeing felon when in defense of human life or in defense of a person placed in danger of immediate danger of serious physical injury. Again, none of those circumstances were present in this case where police were not even responding to criminal conduct nor witnessed any 011 the part of Mr. Johnson or Mr. Demby. DUPO Allen gave no statement or testimony that he believed that either he or anyone else was at risk from Mr. Johnson when he was pursued and struck by DUPO Allen. DUPO Allen?s testimony that the collision was the result of an accident caused in part by his vehicle being pulled to the left as it hit the curb is not supported by the visual evidence. The video of the crash does not reflect that 30 Case ID: 130300152 Control No.: 14081207 the trajectory of the SUV was in any way affected by contact with the curb. There are no records that would lead one to believe that the vehicle somehow malfunctioned or that DUPO Allen suffered a medical episode while driving the vehicle. DUPO Rebstock?s completed accident report indicated that the road was dry, it was dusk and that there were no Enviromnental/Roadway Potential factors and there were no possible vehicle failures. It is my opinion, based 011 47 years of experience as a police of?cer and police commander, within a reasonable degree of professional certainty, that DUPD Allen utilized his police vehicle as an instrument of deadly force on December 30, 2011 when he turned it off the road, onto the sidewalk and into Mr. ohnson?s path of travel, striking him and causing him grievous injuries. It is also my opinion, within a reasonable degree of professional certainty, that the force applied was deadly force as defined by ?508 of the Code and the DUPD Directives. Finally, it is my further opinion that the use of deadly force by DUPO Allen under these circumstances was wholly without justification and constituted egregious conduct by a police of?cer. It is evident that he willfully violated both the rules controlling the use of deadly force by a police officer under statutory law and the DUPD Directives. Had this incident occurred under my command, DUPD Allen would have been immediately suspended from any further patrol and the incident addressed as a use of deadly force investigation. The matter would have been subject to an internal. affairs review by my department and would have been referred to the local municipal police department for investigation as to whether any state or municipal laws were broken. The failure of DUPD commanders to perform anything other than a cursory investigation and their failure to involve Philadelphia police investigators in the case is a gross breach of proper police practice and the DUPD Directives. C. DUPD Should Have Summoned Philadelphia Police and Established a Crime Scene at the Scene of the Crash. The events on Drexel University?s campus on December 30, 2011 warranted the establishment of a crime scene pursuant to DUPD Directive 1 and 9 as wellas standard police investigatory practices. Sergeant Santiago was the ?rst, and only, supervisory of?cer to arrive at the scene cf the crash and the stop of Mr. Johnson and Mr. Deinby. Sergeant Santiago surveyed the scene and contacted the DUPD chief of police who, according to DUPD Directive 21, has ?nal authority and responsibility for DU police activity. Sergeant Santiago testi?ed that within a very short time after arriving at the scene and talking to Chief Spangler, it was concluded that the actions of DUPD Allen constituted an automobile accident and not a use of force. This conclusion was reached notwithstanding the fact that no one had viewed the video of the crash, nor had anyone interviewed dispatcher Tiffany Augustine who contemporaneously observed the incident as it occurred even though she was still on duty. Supervisors who had authority to review recorded video, which include Investigator Lis and Chief Spangler, made no attempt to perform this critical investigatory function on the night in question before making key decisions about the course of the investigation. The decision to treat the crash as an accident lacked any basis in objecti?able evidence. For example, there is no evidence of skid marks or anything that would have caused DUPO Allen?s vehicle to veer off the road, onto the sidewalk, and come to rest against the building wall in the manner that it did other than Allen?s having directed the vehicle to the position it was in. Chief Spangler and Sergeant Santiago precipitously determined that the matter would be treated as a relatively minor automobile accident. 31 Case ID: 130300152 Control No.: 14081207 screwdrivers that were allegedly in the men?s possession. Detective Manko was not shown any of the video recorded by Drexel University?s closed circuit surveillance camera network that night. Based upon the information he did receive from DUPD, Detective Manko recommended attempted burglary charges to the of?ce, which approved them. Mr. Johnson and Mr. Demby were then charged. At some later time, some of the video that captured Mr. Johnson and Mr. Demby trying a number of doors was presented to Det. Manko and/or the DA. There was substantial additional video that depicted Mr. Johnson and Mr. Demby walking in areas of the campus preceding their contact with the Drexel University dispatcher and police that was not turned over to Det. Manko. That video showed the men engaged in no criminal conduct and in possession of no tools of any sort. In all of the video, neither man is seen approaching the door with the pry marks. This other video, which was not turned over to the Philadelphia DA, is exculpatory and should have been produced to the DA so it could have been turned over to Mr. Johnson?s defense attorney. Investigator Lis was aware of the existence of this video. Both Lis and Spangler were both aware that Mr. Johnson and Mr. Demby are not depicted near the door with pry marks. Lis, nonetheless, withheld the video contrary to his duty to turn over all exculpatory evidence to an accused. The Philadelphia Of?ce has con?rmed that it did not receive any Drexel University video surveillance footage with the materials transmitted to its charging unit in late December, early January, 2012, prior to the preliminary hearing held on March 28, 201201' prior to arraignment held on April 18, 2012. - A compact disc containing certain Drexel University video surveillance footage was received by the Of?ce at some point prior to July 11, 2012. That CD contained the following limited ?les viewable on the Intellex Viewer: 12/30/2011 Cat Courtyard 2 <12/30/2011, 16:57:00, 6m:0s> 12~30?11 31St Ludlow <12/30/2011, 17:00:02, 311157s> 12?30-2011 Ludlow (3) <12/30/2011, 16:58:03, 4mi57s> The DA has con?rmed that at no time prior to the date that its of?ce made its motion to withdraw prosecution on this case did it receive any other Drexel University video footage. After DA supervisors conducted a thorough review of the video surveillance footage that was supplied by Drexel University and all other case ?le materials in the case, it determined that the case lacked probable cause to sustain any charges which were brought against Mr. Walter Johnson with regard to As a direct result of the no probable cause determination all criminal charges against Mr. Johnson were withdrawn. ?1361's! {lip?U 8101's} It is my professional opinion that DUPO Robert Allen employed deadly force tln'ough the operation of his police vehicle on December 30, 2011, and he did so without justification. He responded to a radio call to investigate two men checking doors on Drexel campus, pursued Mr. Johnson and directed his vehicle into his path of travel creating a high likelihood of a crash that would result in serious bodily injury. Although DUPO Allen has tried 39 Case ID: 130300152 Control No.: 14081207 evidence to support that claim and then withheld exculpatory video evidence that would support the Opposite conclusion: that Johnson and Demby had not attempted to pry those doors. It is my professional opinion that if DUPD had followed their own directives and properly investigated the incident including providing Philadelphia police with possible exculpatory evidence that it had in its possession, that the charges against both Mr. Johnson and Mr. Demby would not have been filed. Detective Manko acknowledged in hisdeposition that he would not have proposed criminal charges if he had viewed the video. The Philadelphia DA office has also acknowledged that had it received all of the video in a timely manner as well as accurate police reports from DUPD, it would not have approved charges for Mr: Johnson as there was no probable cause to arrest him. - DUPO Allen?s conduct in this case is cause for alarm and he should have been sanctioned and, if retained, retrained. More disturbing, however, is the abject failure of DUPD commanders and investigators to pursue anything close to an appropriate investigation in this case. Their attempt to steer the Crash away from a full Philadelphia police investigation, followed by their own willful failure to conduct anything other than a pro forma investigation can only be explained in one of two ways. First, a police department comprised of command personnel with decades of experience in urban police worksuddenly and inexplicably. forgot how to do its job in a competent manner 'or simply abandoned their sworn duty. This conclusion seems highly unlikely. The second explanation is that commanders sought to avoid official scrutiny of a seriously unjusti?able conduct on the part of one of their patrolmen; scrutiny that could bring discredit upon the officer, themselves, the department and the University. All of the key DUPD commanders as well as the university administration through VP Cecchineccio were engaged in the management of this event from nearly the very firstinstance. It was their reSponsibility that the incident he handled in a professional and appropriate manner pursuant to law, DUPD Directives, the Memdrandum of Understanding between the DUPD and PPD and proper .police practice. Their decisions in this case caused the unjustified arrest of Mr. Johnson and Mr. Demby and have endangered the community by returning a police officer to duty who engaged in an unjusti?ed use of deadly force and continues to demonstrate a misunderstanding of his use of force authority. Finally, it is my professional opinion that all of the aforementioned misconduct and failures constituted a substantial deviation from long?established professional guidelines and standards applicable to law enforcement agencies such as DUPD. Moreover, the defendants? outrageous actions and omissions, outlined above, demonstrate a reckless disregard for the value of human life'and liberty and were the direct and factual cause of the injuries and damages suffered by Mr. Johnson. I reserve the right to supplement my opinions and this report should new information be made available to me. agwaaz D. GRIFW A . 41 Case ID: 130300152 Control No.: 14081207