York City appeals not-guilty finding for cop accused of reenacting George Floyd's death
The City of York is asking a York County judge to review a police trial board's finding that city Officer Clayton Swartz is not guilty of two internal accusations against him.
In June, three people accused Swartz of reenacting the police-custody death of George Floyd.
After a nearly nine-hour hearing on Aug. 19, the internal trial board — composed of three officers — cleared Swartz of conduct unbecoming an officer, excessive use of alcohol off duty and not being truthful. The decision was announced Sept. 10.
It was up to York City Police Commissioner Osborne "Moe" Robinson III to make the final determination about Swartz's future with the department, according to officials with the Fraternal Order of Police's White Rose Lodge, which represents city officers.
Osborne notified Swartz in a letter dated Tuesday, Sept. 15, that he rejected the trial board's findings of not guilty on the counts of conduct unbecoming an officer and not being truthful. That letter is attached to the petition.
Robinson accepted the trial board's not-guilty finding regarding the excessive use of alcohol charge, the letter reads. The petition states the city is not challenging Robinson's determination.
York City's petition, filed Wednesday, is 1,286 pages long, including attachments. The bulk of those pages are the transcript from the Aug. 19 trial board hearing.
It states the appeal stems from "the failure of a York City Police Department Trial Board to justify its conclusions of 'Not Guilty' on charges of misconduct by issuing a decision without specific findings of fact and without any explanation for how their decision was reached."
'Sufficient evidence': The petition, filed by attorney Joe Rudolf, continues:
"Moreover ... the record in this case clearly contains sufficient evidence to more than support a conclusion that Officer Swartz engaged in the misconduct for which he is charged."
Reached for comment Wednesday afternoon, attorney Ed Paskey, who represents Swartz on behalf of the FOP, provided this statement:
"I have not been served with a copy of the appeal. It wouldn't be appropriate for me to comment on something I have not yet read or to reveal any legal strategy we intend to utilize to address the appeal."
Swartz's three accusers presented "a coherent reasonable description of events" after the alleged reenactment of the police-custody death of George Floyd, according to York City's petition for review.
"They exhibited immediate revulsion by voicing their concern to the participants and to friends on the porch, then they left the residence to collect themselves and make new plans to get home because of their hasty departure," the petition states.
"On the other hand, the version put forth by Officer Swartz and his future in-laws contains internal contradictions on material issues and does not comport with normal human behavior," the petition alleges. "Under this version, a three word utterance, 'I can't breathe,' followed by one person, or possibly two, laughing would never elicit the reaction consistently described by multiple third party witnesses as well as Complainants."
Effort to conceal? The petition states that trial board testimony indicating there were no conversations among Swartz's future in-laws about the allegations in the immediate aftermath of the party were "demonstrably untrue" and "strongly suggests a concerted effort to conceal the true nature of what occurred that evening.
"The contention that three Complainants' reactions were some pre-planned protest does not match the facts," the petition argues. "It is inconceivable that they would have, or could have, fabricated the incident within a few minutes."
According to the petition, "the only logical and credible finding supported by substantial evidence is that Officer Swartz participated in a reenactment of George Floyd's death while he was drunk at a party and such misconduct violated the City of York Police Department's Code of Conduct."
The petition asks a county common pleas judge to review the trial board's decision.
Complainants India Maldonado, Lexxus Brown and Marley Dahlheimer were not called to testify during the internal trial board hearing, Paskey has said.
Dahlheimer subsequently told The York Dispatch that no one from the city asked them to testify before the trial board.
Unpaid leave: Swartz remains on unpaid administrative leave, according to White Rose FOP President Matt Irvin, who also is a York City police officer.
Irvin has said Swartz is truthful, a good investigator and takes pride in his job.
"He's respected and liked by his fellow officers and by the community," Irvin said.
Trial boards are disciplinary tribunals and follow procedures outlined in the collective bargaining agreement between the White Rose FOP Lodge and the York City Police Department.
Witnesses testified before the trial board regarding what they heard or saw at a May 30 college graduation party that Swartz attended at the Spring Garden Township home of his fiancee's parents, according to the petition.
The allegations: Maldonado, Brown and Dahlheimer previously told The York Dispatch they were at the party and witnessed Swartz and another man reenacting the May 25 killing of Floyd by Minneapolis Police, one of whom knelt on Floyd's neck until he was dead.
The accusers said Swartz put his knee against the neck of a man lying on a couch and said, "Can you breathe? Are you dead yet?" while the man convulsed and pretended he was dying. Two of the women are Black and said they believe Swartz pantomimed Floyd's death for their benefit.
The man on the couch, Christopher Owens, has said the allegations aren't true.
He said he is biracial and acknowledged saying "I can't breathe" as he was lying on a couch, but he said Swartz never put a knee on his neck.
Owens maintains he was lying on his sister's couch when Swartz came up to him and shook his chest to get him to rejoin the party and that "nothing else occurred."
Read the full account of the women's allegations here:
Punishment for general misconduct can range from counseling to termination, the police commissioner has said. He noted that the standard for guilt in an administrative process such as an internal investigation is not the same as in a criminal case.
Swartz was hired in June 2017 and is the son of Spring Garden Township Police Chief George Swartz, who is a retired York City police officer.
— Reach senior crime reporter Liz Evans Scolforo at email@example.com or on Twitter at @LizScolforoYD.