A traffic stop in Brentwood raises questions about cops' use of force

On the night of Oct. 3, Brentwood police pulled over a car on Route 51 because the license plate was partially blocked.

When an officer approached the driver, her friend and front-seat passenger, Devin Irwin, held up his iPhone and began recording. The only other person in the car, a back-seat passenger, remained silent.

“Excuse me, what’s the reason for the stop?” Irwin asked. “You are being recorded.”

“You’re not driving the car,” the officer responded.

“You are being recorded,” Irwin said again.

“I don’t care,” the officer shot back. “You’re being recorded, too.”

That terse exchange set the tone for an encounter that soon turned violent.

Over a span of four minutes, police warned Irwin that he was obstructing them. At least four officers arrived on the scene. They repeatedly ordered him to get out of the car.

Irwin refused.

Eventually, an officer hauled him out. Police forced Irwin to the ground, shocked him multiple times with a Taser and arrested him. Police charged him with obstruction, criminal mischief and resisting arrest.

Experts in the use of force and constitutional law who watched Irwin’s video and reviewed the criminal complaint against him at TribLive’s request saw shades of gray during the encounter. Some faulted the police for having an unnecessarily aggressive attitude and escalating the situation. Others found that Irwin was noncompliant and misstated the law.

Irwin’s experience highlights the complexities, dangers and tensions of traffic stops, one of the most common interactions between police and the public.

Each year in Pennsylvania, police pull over drivers hundreds of thousands of times — and any of those encounters can turn deadly. An advocacy group that tracks police violence nationally says nearly 1 in 10 deaths at the hands of police grew out of a traffic stop.

To Irwin, a laborer from Baldwin, who posted the video to Facebook, the incident is an open-and-shut case: He believes police violated his constitutional rights.

“There was nothing we had done,” Irwin, 37, told TribLive recently. “No crime was committed at all. They just didn’t like being recorded.”

Brentwood police and municipal officials either didn’t respond to or declined requests for comment. TribLive sought Brentwood’s policies involving Tasers, use of force and interactions with people filming or videotaping police officers, but the borough ignored the requests.

“So much really does turn on the details,” said Lauren Bonds, a former legal director with the American Civil Liberties Union who now heads the National Police Accountability Project. “All of these things, unfortunately, need to go to court to sort of see if a use of force was appropriate.”

In Irwin’s case, experts said, there’s no clear, simple line marking where his free speech ended and his alleged obstruction of justice began.

Irwin was released from Allegheny County Jail on nonmonetary bond, court records show. He waived a preliminary hearing in October and is scheduled to be arraigned Monday in Allegheny County Common Pleas Court.

Right to record

Krystal Cicchitto’s mechanic left his business card pinned to her license plate holder after fixing the alternator in her gold 2009 Cadillac. The card blocked some of the plate.

That minor infraction was enough for police to pull over Cicchitto around 8:20 p.m. in the 3200 block of Saw Mill Run Boulevard after she left a convenience store.

“Irwin immediately began to argue and question the reason of the stop,” Brentwood police Officer Carl Rech wrote in a criminal complaint.

Irwin’s video bears that out. As one officer spoke to Cicchitto, a second hovered on the passenger side next to Irwin.

“Get out of my window, please,” Irwin said as he shut the window. “Thank you.”

When the officer on the driver’s side began discussing the stop with Cicchitto, Irwin interrupted and told her to not speak with police.

“Keep your window up,” he told Cicchitto.

Experts agree that Irwin had a clear constitutional right under the First Amendment to film the officers.

“You have the right to videotape and audiotape police officers performing official duties in public,” according to the website of the ACLU’s Pennsylvania chapter. “That means you can record an officer during a traffic stop, during an interrogation or while he or she is making an arrest.”

Obstruction or not?

Less than 30 seconds after Irwin began recording and challenging their authority, police had enough.

“Get him out,” one officer said.

“No,” Irwin responded, “you have no right.”

Another officer opened Irwin’s door.

“If you don’t get out, you’re going to be under arrest for obstruction,” the office warned. “It’s simple.”

“This is unlawful. This is illegal,” Irwin said. “What crime have I committed?”

“Get out of the car or you’re drug out of your car,” an officer said after repeated warnings.

State law says someone can be charged with obstruction if “he intentionally obstructs, impairs or perverts the administration of law … by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act.”

In the video, Irwin didn’t threaten officers or physically block them from the driver.

It is not illegal for Irwin to have an attitude, said Vincent A. Colianni, a Pittsburgh-based civil rights attorney who is involved in pending litigation against Brentwood and three other South Hills police departments in which officers killed a mentally ill man in Upper St. Clair.

“(Irwin) might have been obnoxious, but that certainly isn’t obstructing their investigation,” Colianni said.

But Ashley Heiberger, a retired police captain from Lehigh County who works as a police practices adviser, pointed to Irwin telling the driver not to speak to police.

“If a man was standing 20 yards away, yelling to the driver not to talk to police, I think that would be protected” by the First Amendment, Heiberger said. “But when he’s in the passenger seat … he’s likely interfering with the officers’ ability to talk with the driver.

“My impression is they were giving him every opportunity to comply — and compliance would have avoided the offense.”

‘I’m the passenger’

As he refused officers’ commands, Irwin claimed he didn’t have to exit the car.

“I don’t have to get out,” he said. “I’m the passenger.”

That’s incorrect.

The U.S. Supreme Court in 1997 affirmed the right of a police officer making a traffic stop to order a passenger out.

In deciding a case about a Maryland traffic stop, the court pointed to its 1977 ruling about a traffic stop in Philadelphia — Pennsylvania v. Mimms — that Brentwood police explicitly cited in the criminal complaint against Irwin.

“In this case we consider whether the rule of Pennsylvania v. Mimms, that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well,” the late Chief Justice William Rehnquist wrote in Maryland v. Wilson. “We hold that it does.”

Irwin invoked the Constitution, citing the Fourth Amendment, which protects Americans against illegal searches.

Irwin and Cicchitto allege Brentwood police searched Cicchitto’s vehicle without permission.

“They were so rude — they kept screaming, telling us he was my boyfriend,” said Cicchitto, 36, of Pittsburgh’s Mt. Washington neighborhood. “It was crazy — this is a traffic stop.”

After about 2½ minutes of going back and forth, the police were done. An officer yanked Irwin out of the car without saying a word.

In the video, the officer can be seen lifting Irwin off the ground, swinging his legs into the air and then bringing him down to the pavement. Irwin said police body-slammed him.

Another officer told Cicchitto to keep her hands up.

Taser use

Even as three police officers held him down, Irwin kept talking as Cicchitto continued to film.

“Record this,” Irwin said. “Record this now. Illegal. Illegal.”

Four police officers are named in the criminal complaint — Rech, Sgt. Josh Scott and Officers Collin Kelly and Kyle Taylor.

After Irwin was restrained, Taylor sat on top of him, then pressed his Taser into Irwin’s torso and shocked him several times using a tactic known as a “drive stun.”

Only Irwin’s lower legs were visible in the video because of Cicchitto’s vantage from the driver’s seat, so it’s unclear what Irwin was doing.

The Allegheny County District Attorney’s Office refused a TribLive request to turn over video from officers’ body-worn and dashboard cameras.

“Irwin continued to actively resist, not complying and refused to place his hands behind his back,” the criminal complaint said.

Tim O’Brien, a veteran civil rights lawyer in Pittsburgh who has sued police departments numerous times, said “there was absolutely no reason to forcibly remove that man from the car, throw him on the ground, then Tase him.”

“Everything they did in this stop was, at a minimum, questionable and possibly unconstitutional,” O’Brien said.

Colianni said the police didn’t have to grapple with Irwin.

“You would think the police would have de-escalated it — and they didn’t,” Colianni said. “What these officers did was unnecessary.”

A New Jersey-based use-of-force expert, however, said police followed the letter of the law.

“They did have the right to have him exit the vehicle,” said Corey Jones, a law enforcement consultant who served as a police officer for 25 years in Mt. Laurel, N.J., retiring in 2018 as a sergeant. “Before they used force to get him out of the car, they told him he was under arrest, told him to comply and showed the Taser. He refused to comply.”

Though the officers “were clearly emotional and somewhat angry,” Jones said, nothing from the video or criminal complaint “shows that they violated any laws or used excessive force.”

The presence in the car of the third person — who declined to speak with TribLive — might have affected the officers’ response. Jones said an additional passenger heightens how officers perceive a possible threat.

O’Brien maintained that, because officers didn’t address the third passenger in the video, there’s a stronger argument that officers were targeting Irwin and violating his constitutional rights.

Drive-stun controversy

Some groups and federal officials have raised concerns about drive-stunning, which causes pain but does not incapacitate a suspect.

Brentwood police used the technique against Irwin “to gain compliance,” the complaint said. Irwin maintains he did not resist arrest.

In 2011, a national study recommended that police avoid drive-stunning and discouraged its use “as a pain compliance tactic.”

“Using the (Taser) to achieve pain compliance may have limited effectiveness and, when used repeatedly, may even exacerbate the situation by inducing rage in the subject,” said a report by the Justice Department and the Police Executive Research Forum, a policy group.

In a 2007 report, the human rights group Amnesty International said drive-stunning “makes (Tasers) inherently open to abuse.”

A policy guiding Pittsburgh police, the largest municipal police force in Western Pennsylvania, says drive-stunning is “not a preferred method” because of the likelihood of burning a suspect’s skin.

The mystery baggie

The National Police Accountability Project, a nonprofit legal group that fights police misconduct, advocates against traffic stops for minor violations like an obstructed license plate that could escalate to a use of force.

“Officers are more trained than they’ve ever been, but we still have more police deaths in the U.S. than we’ve ever had before,” Bonds, the group’s executive director, said. “It just comes down to the fact that there should be no contact here in the first place.”

Questions remain about the encounter that the video cannot resolve.

Police said they removed Irwin from the car after an officer “observed a clear plastic baggie” near Irwin’s foot. They said they feared Irwin was trying to destroy contraband in or near the baggie.

Irwin maintains there was no baggie.

“They never mentioned that on the video,” Irwin told TribLive. “You can see: There’s no mention of contraband or, ‘What’s that baggie near your foot?’”

The criminal complaint does not mention drugs or drug paraphernalia.

If police had a reason to suspect Irwin had contraband, however, that might have given them “additional justification to remove him from the vehicle — whether he wanted to be or not,” Jones said.

The use-of-force experts said it’s unclear in the video if or how Irwin resisted arrest, making it tough to determine whether Taser use was justified.

The law enforcement experts and civil rights attorneys noted, though, that the officers in the video failed to de-escalate the situation.

“They just went to the window, and it was, ‘Get out of the car, get out of the car, get out of the car!’” Jones said. “You could hear their emotional level was high.”

O’Brien, the civil rights attorney, called Irwin’s encounter “a situation that, under modern police practice, calls for (police) restraint.”

Past histories

Irwin served nearly five years in prison until 2014 for shooting a man in the foot outside a bar, according to court records and the state Department of Corrections.

But he said having a record doesn’t quash his constitutional rights or give police the authority to mistreat him.

“I just want them to be held accountable for their actions,” Irwin said. “It’s disgusting. … They’re supposed to follow the law, not make up the law.”

Brentwood officers have been involved in two fatal use-of-force cases this year.

An Upper St. Clair woman sued four South Hills police officers, including one from Brentwood, who fatally shot her 48-year-old son in January when he was in the midst of a mental health crisis.

In June, a Brentwood police officer fatally shot a man that he said stole a car and led police on a chase on Route 51.

Brentwood police Chief Adam Zeppuhar and borough Solicitor Gavin Robb declined to comment for this story. Borough Manager George Zboyovsky didn’t respond to multiple phone calls, emails or an in-person visit to Brentwood’s municipal building.

Rech, the officer who wrote the criminal complaint on the traffic stop, walked away, without speaking, when a TribLive reporter tried to talk to him at a Baldwin Borough district court.

The police response that night was disproportionate to any threat Irwin might have posed, Cicchitto said.

“It’s unacceptable,” she said. “You’re supposed to feel safe when cops are around.”