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Case remains in limbo against York City cop accused of mocking George Floyd's death

Liz Evans Scolforo
York Dispatch

A York City police officer accused of reenacting the death of a Black man in police custody remains on unpaid leave as the fight continues over whether a York County judge has the authority to review the case.

Three people allege that Clayton Swartz and his fiancee's uncle, Christopher Owens, role-played the May 25 Minneapolis Police-custody death of George Floyd during a graduation party in the York City home of the fiancee's family. 

Floyd died after a police officer kneeled on his neck for about eight minutes as Floyd repeatedly said he couldn't breathe.

Swartz was 26 years old at the time of the May 30 party; Owens was 48.

A three-officer internal York City Police trial board cleared Swartz of wrongdoing Sept. 10. Its decision came after a nine-hour hearing Aug. 19.

On Sept. 16, York City appealed the trial board's ruling to the York County Court of Common Pleas, where it remains.

The last action in the case was on Oct. 14, when Common Pleas Judge Kathleen Prendergast was assigned to the case, according to court records.

"Both sides have submitted their motions and briefs, and we are awaiting direction from the court at this time," York City Chief of Staff Philip Given told The York Dispatch on Friday.

York City Police Chief Troy Bankert, left, and Officer Clayton Swartz as officials investigate a fatal shooting reported near the corner of South West and West Princess Streets in York City, Wednesday, Sept. 26, 2018. York City Mayor Michael Helfrich said the shooting resulted in the death of an adult male and an injured juvenile who was transported to York Hospital. Dawn J. Sagert photo

Given confirmed that Swartz remains on unpaid leave.

The White Rose Lodge of the Fraternal Order of Police has filed a grievance against York City, demanding Swartz be reinstated with full back pay, according to court records.

Defense says no re-do: Swartz's legal team on Oct. 6 filed a brief in York County Court arguing that a county judge doesn't have jurisdiction to review the case. York City, in its Oct. 13 reply, argues a county judge does have jurisdiction.

Swartz's attorneys, Ed Paskey and Doug France, maintain that the York City Police union contract states the trial board's decision is binding and not subject to appeal. They're asking the court to strike down the city's petition for review.

Neither Paskey nor France responded to a message seeking comment Friday.

"The City's Petition for Review is nothing short of a thinly veiled attempt to circumvent its own general orders, to change the finding of Not Guilty to Guilty contrary to the general orders and change the language of the collective bargaining agreement to make the findings of the Trial Board 'non-binding' on the parties," their brief states.

They're also arguing that when former city Police Commissioner Osborne Robinson III accepted one of the trial board's three findings, he "waived any right to contest any Alleged Deficiencies Procedures/Findings of the Trial Board."

More:York City appeals not-guilty finding for cop accused of reenacting George Floyd's death

More:Union: York officer 'proven' not guilty of mocking George Floyd's death, says city can't appeal

More:Trial board clears York City police officer of wrongdoing

Robinson on Sept. 15 sent a letter to Swartz stating he accepted the trial board's not-guilty ruling on the allegation of excessive use of alcohol off duty, but rejected its findings of not guilty on the counts of conduct unbecoming an officer and not being truthful.

What York City says: Attorney Joe Rudolf, representing York City, notes in his reply brief that the county judge must resolve "whether the decision of a York City Police Department Trial Board … to find a fellow Officer Not Guilty of serious misconduct is unassailable and beyond challenge."

The position that the trial board "may never be questioned, gives license to Police Officers to quash allegations of serious misconduct no matter the quality and quantity of evidence presented during the administrative hearing," the city's petition argues.

Just as the defense is arguing several points that it says make the trial-board ruling unchallengeable, York City also has submitted several legal arguments as to why it is, including that "Commonwealth Court has already held that the decisions of police disciplinary 'trial boards' are subject to appeal under the Local Agency Law."

The city maintains Swartz's pending FOP grievance doesn't affect the court's jurisdiction and also that York City didn't waive its right to appeal because it accepted one of the trial board's three not-guilty findings.

The background: Two of the three people who made the accusation against Swartz have recently reiterated that they stand by their allegations and confirmed that they weren't asked to attend or testify at the trial-board hearing, or even told about it by city officials. The third accuser could not be reached.

More:York City cop accused of acting out George Floyd's death at party

Swartz told an internal-affairs inspector he didn't reenact or mock Floyd's death, according to court documents. Owens told investigators and The York Dispatch that he made the comment "I can't breathe" while lying on a couch, but that Swartz — who was standing next to him — did nothing but "chuckle" in a placating way at Owens, who is biracial.

Two women allege Swartz put his knee against Owens' neck and asked him if he could breathe and if he was dead yet while Owens convulsed on the couch.

Both sides point to what they say are inconsistencies and issues regarding statements made by witnesses on the other side. 

— Reach senior crime reporter Liz Evans Scolforo at levans@yorkdispatch.com or on Twitter at @LizScolforoYD.

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