Jury finds undercover Pittsburgh cops used excessive force in Kopy's Bar brawl

A jury on Wednesday found that three Pittsburgh police officers working undercover at Kopy’s Bar six years ago violated a man’s constitutional rights by beating him and filing felony criminal charges against him.

But the same jury determined that that man, Frank DeLuca, was not entitled to any damages for medical bills or lost wages, and instead awarded him only a total of $70,000 — far less than the $500,000 the city offered to settle the case last week.

Still, DeLuca was satisfied with the verdict.

“I got socially profiled by dirty cops,” he said afterward.

DeLuca wanted what happened that night in the public record, he continued. Settling the case — without the facts coming out — would not have allowed that to happen.

“Anybody can [now] look up the court testimony,” he said. “They can see that they’re dirty. They lied about it — on the stand.”

The jury of five women and two men found that yes, Officers David Honick and David Lincoln used excessive force early in the morning of Oct. 12, 2018.

They also found that Officer Brian Burgunder engaged in malicious prosecution by charging DeLuca with aggravated assault, conspiracy and riot.

But, the panel also found that DeLuca was only entitled to nominal damages for his injuries — including pain and suffering, emotional distress, anguish and medical bills.

For punitive damages — meant to send a message to the officers and others about their behavior — the jurors said that Lincoln and Honick should pay $20,000 each, and Burgunder should pay $30,000.

All of those costs will be covered by the City of Pittsburgh, which, earlier in the trial, was dismissed as a defendant.

“I was happy with everything except the amounts,” said DeLuca’s attorney, James DePasquale.

His client had two fractured elbows and was out of work for 11 weeks. He had $11,000 in lost wages and $13,000 in medical bills, DePasquale said.

“I don’t know how you get nominal damages out of that.”

Last week, DePasquale said the city offered his client $300,000 this year and $200,000 next.

DeLuca instructed him to turn it down.

“He just wanted to go to trial,” DePasquale said. “He didn’t care about the money.”

The brawl

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, Honick, Burgunder, 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 chose to go to trial. The case began Monday 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.

But the jurors still had to consider the excessive force and malicious prosecution claims.

‘It’s outrageous’

During closing arguments, 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.

But attorneys for the officers said DeLuca was at fault.

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.”

None of the attorneys representing the officers would comment following the verdict.

A spokeswoman for the city said the officers were considering their appeal options.