WILKES-BARRE — A minute-long video clip obtained by the Times Leader appears to show a city police officer kicking a handcuffed suspect in the head while the man was face-down on the ground during an arrest last year.
Officer Kevin Novackowski has been cleared by two internal investigations.
Video of the incident, in which Novackowski can be seen kicking Eric Conahan, came under scrutiny when it was played during an arbitration hearing over Officer Marc Labar’s suspension for use of force on a detained woman in an unrelated case.
The union that represents Wilkes-Barre police presented the video to demonstrate not only that Labar’s actions were appropriate, but that there were clear disparities in the way officers were treated under the administration of then-Chief Marcella Lendacky.
In the view of a nationally recognized criminal justice consultant who reviewed the clip at the newspaper’s request, the video demonstrates an excessive use of force by Novackowski that was condoned by a hierarchy which failed to discipline him.
Letters were sent to Lendacky, Novackowski and former commander Ron Foy seeking comment. As of Sunday, they had not responded.
City Administrator Ted Wampole, who sat in on the Labar arbitration when the video was shown, expressed surprise Thursday when informed that the newspaper had a copy. He said the arbitration was a personnel matter and not something he could speak about.
“I won’t have any comment on it,” Wampole said, adding he doubted anyone else within the administration would speak on the record.
As reported at the time, police found Conahan and a woman later identified as his wife, Sherrielee, in a red Jeep Cherokee parked in the lower lot of the Wilkes-Barre Lodge on Kidder Street just after 1 a.m. on April 21, 2017.
An officer deemed the situation “suspicious,” saying in an affidavit that the Jeep was parked in a “high drug, crime and prostitution area.”
Court documents show Conahan fought with officers during his arrest and was finally subdued by two Taser zaps and Novackowski’s left foot.
A video clip provided to the Times Leader by a source shows Conahan’s head darting sideways from the disputed kick.
The source feared the entire recording, which is longer than the 63-second segment given to the newspaper, would be destroyed, leaving no visible proof to support complaints Foy, former chief Lendacky and the city administration imposed discipline unfairly within the department.
Wilkes-Barre Police K9 Officer Joseph Homza also is visible in the video. He made first contact with Conahan in the parking lot and eventually filed charges of resisting arrest, obstruction of the administration of law, disorderly conduct and possession with intent to use drug paraphernalia.
Conahan, 27, of Trucksville, pleaded guilty to resisting arrest and on Nov. 17, 2017, was sentenced to 12 months in prison.
The other charges were withdrawn.
Sherrielee Conahan, 25, said she witnessed her husband’s arrest and attempted to obtain a copy of the motel’s video.
“The cops came and took all copies of the video because they knew they did wrong,” Sherrielee said.
She said she has been in contact with an attorney about a possible lawsuit.
“What would be another word for removing something from somebody’s mouth using your boot?” lawyer Anthony Caputo asked Foy, then the department’s second-in-command, during a May 8, 2017, arbitration hearing at City Hall.
“Kicked it away,” Foy responded, according to a transcript excerpt provided by another source.
The back-and-forth focused on a spent Taser cartridge allegedly clenched in Conahan’s jaw while he lay on his stomach.
Caputo, an attorney for the Wilkes-Barre Police Benevolent Association, was questioning Foy about Novackowski’s actions and the department’s response.
The black-and-white video of Conahan’s arrest, captured on a motel security system, had been played shortly before on a monitor in the room.
“He kicked the subject in the face,” Caputo replied to Foy.
“I believe I said he kicked it away,” Foy responded.
“OK, where did he kick?” Caputo asked.
“I don’t know,” Foy responded.
“Did he kick the subject or did he kick the cartridge on the ground?”
“I don’t know,” Foy responded again.
The hearing wasn’t about Novackowski, however, but Labar.
The union filed a grievance over the five-day suspension without pay given to Labar on Aug. 19, 2016, by then-chief Lendacky for the improper use of force on a woman detained in March of that year.
As reported in arbitration documents, Donetta White refused to comply with Labar’s commands that she take off her shoes before going into a holding cell. Labar forcefully struck her with a push or shove before taking her to the floor with a leg sweep, removing her shoes and dragging her into the cell.
The arbitrator, attorney Ralph Colflesh Jr., ultimately determined Labar’s conduct was unnecessary, but the punishment was excessive. Colflesh reduced the suspension to two days and required Labar to attend three days of training on the use of force. He noted the union offered other cases, including Conahan’s, that showed officers in physical altercations with suspects. But they differed from Labar’s case because the suspects at some point physically resisted, Colflesh pointed out.
During the hearing, Caputo was contrasting Labar’s actions and discipline with Novackowski’s actions and the department’s decision not to discipline him.
Novackowski, who was not the subject of the arbitration, has been cleared in two internal investigations. One was conducted before the arbitration and the other after the police union presented the video as evidence at Labar’s labor proceeding.
In a prepared statement to the Times Leader, the PBA said the union members “involved in this incident have been cleared of any wrongdoing on more than one occasion by the former police administration. Therefore, at this time, we feel there is no need to comment on the specific actions of the members involved.”
However, the PBA also said that upon learning of the video, it made sure the former police administration was aware of the incident. The union further used it at the arbitration hearing to show Labar’s actions were “appropriate and/or there were disparities in the treatment of officers under the former police administration.”
Labar’s is not the only case in which departmental discipline under Lendacky’s administration has come under scrutiny.
There was no physical force in former Officer Dan Duffy’s case, which led to the veteran lawman losing his job.
Duffy — vice president of the police union, an instructor at the Lackawanna College Police Academy and a former Scranton chief of police — was fired from the department on Oct. 18, 2017, for sending an email containing an alleged threat to Mayor Tony George and city Administrator Wampole.
Duffy and the PBA president, Sgt. Phil Myers, have sued the city, claiming they were disciplined in retaliation for their attempts to make public examples of mismanagement of the police department. The union also filed a grievance in an effort to get Duffy reinstated.
Due to the pending litigation, Duffy declined to comment.
Lendacky and Foy no longer hold management positions within the department after an independent review requested by city council and conducted by the Pennsylvania Chiefs of Police Association said they lacked the professional qualifications to hold the top spots on the force.
Lendacky retired in June. The mayor eliminated Foy’s job as commander in May and demoted him to detective.
The city unsuccessfully conducted a search for a new chief, and the mayor designated Commander Joseph Coffay to run the department.
Novackowski, who joined the department in February 2014 at age 28, took to social media a few months ago to express his displeasure over the reassignment of K9 dog Skoty to another officer.
Novackowski worked with Skoty and said he would consider suing to have the dog retired and returned to him. The reassignment was the result of a settlement of an arbitration over an error in the scoring for the K9 officers.
George Kirkham, of Palm Beach Gardens, Fla., a nationally recognized expert in police standards and procedures, was quick to offer his assessment of Novackowski’s actions after being provided copies of the video and transcript for review.
“This is gratuitous excessive force,” said Kirkham, Ph.D., professor emeritus of the College of Criminology and Criminal Justice at Florida State University.
The police administration’s failure to discipline Novackowski equated to “rubberstamping” his actions the night of the arrest, Kirkham said. “It encourages this type of behavior.”
In the video, Novackowski is seen alongside Conahan, then kicks the man while he is on his back in the parking lot. Conahan flails his right arm and Novackowski, with his flashlight shining on the ground, stands over him.
Conahan rolls to his left side and raises his right arm first, then both arms as he turns back to the ground. Novackowski leans over him and as Conahan begins to sit up, Novackowski steps on him, pinning him to the ground. Conahan extends both of his arms out, perpendicular to his body, at this point.
Novackowski’s back is to the camera and his left foot obscures the head and face of the supine Conahan.
Details in dispute
The location of Novackowski’s foot was not agreed upon, according to the transcript of the arbitration hearing.
“All right. What’s Officer Novackowski doing now?” Caputo asked Foy.
“He’s got his foot on his chest holding him down while …” Foy responded.
“Is that on his chest or his neck,” Caputo pressed Foy.
“Looks like his chest, on his shoulder,” Foy said.
Foy and Caputo further differed on what was presented in the video.
“Is it your opinion that Officer Novackowski engaged in some type of choke hold or choke … or neck restraint,” Caputo inquired, after noting department policy prohibits their use.
“No,” Foy said.
“Because you’re saying he wasn’t stepping on his neck,” Caputo said.
“To me it does not look that way. When I … on the front I said it looked like the upper chest, on the back I said he might have been stepping on the upper back, lower neck … back of the neck a little bit,” Foy said.
“Not enough to qualify as a neck restraint,” Caputo asked.
“Not in my opinion, no,” Foy said.
The video shows Homza move next to Conahan and across from Novackowski. Homza brings the leashed dog close to Conahan and the animal bites him in the right knee area, causing Conahan to jerk his outstretched arms.
Novackowski maintained his stance with his left foot on Conahan, who moves his arms to his side. Another officer approaches and from behind his back retrieves handcuffs. He grabs Conahan’s right arm and wrist and begins to roll him over.
Novackowski takes his foot off Conahan and the other officer turns him over to his stomach. Novackowski bends down to assist the officer who is searching for Conahan’s left arm to apply a handcuff. Once the officer has control of the left arm and applies the handcuff, Novackowski again steps on Conahan who is prone on the pavement.
When the other officer has secured Conahan’s hands in the cuffs and his arms are behind his back, Novackowski takes his left foot off Conahan. As Novackowski walks away, he kicks Conahan, whose head jerks to the left from the contact.
“A picture is worth a thousand words, a video ten thousand,” Kirkham said.
Even if the video is a snippet of a longer recording, it accurately presents the actions of Novackowski that raised concerns, according to Kirkham.
“This is what it is at that point,” he said.
Training standards for police officers nationwide include a use-of-force continuum with guidelines on the amount of force applicable for a given situation, Kirkham explained.
The continuum is color-coded, often with red at one extreme for force applied to vital areas that can cause serious bodily harm or death. At the other extreme, blue, for instance, refers to no force at all in which the mere presence of an officer can lead to a resolution or deter someone from committing a crime.
“The head and the neck are considered red zones,” Kirkham said.
The subject is handcuffed in the video and no longer resisting, so the force applied by an officer at that point is different from the force used to get to that point, according to Kirkham.
“Over is over,” Kirkham said. In addition, the K9 on scene serves as a “powerful deterrent,” to continue resisting, he said.
As for Foy’s statement that Conahan had the spent Taser cartridge in his mouth, Kirkham reacted incredulously.
“Come on,” he said.
Reach Jerry Lynott at 570-991-6120 or on Twitter @TLJerryLynott.