Timothy P. O’Brien

Robert Tumpa ran a pizza shop in Pittsburgh, and on the night of December 22, 1984 he drank at two bars before a last drink at Chez Kimberly’s downtown, which he left at about five minutes before two. Barbara Bielevicz, who managed the shop, had not been drinking. A drink spilled in the car after they turned onto Liberty Avenue, and at about 1:55 a.m. on December 23 Officers John Dubinon and Virginia Beck stopped them, saying the car had been driven recklessly. At the Public Safety Building, after roughly an hour and a half of waiting, Tumpa took a breath test and passed it, registering .08. The officers told him he was not to drive and warned Bielevicz against driving; Beck said that if “that bitch” drove, she would be arrested too. Dubinon suggested that the two wait until the officers went around the block and then leave. Bielevicz drove, the car was stopped again at the first intersection, and both were frisked, jailed on public intoxication charges and held about three hours. As Beck locked Bielevicz’s cell she said, “Merry Christmas, Honey.” The turnkeys released them before dawn without a citation, a charge or a hearing. Their case, Bielevicz v. Dubinon, became the Third Circuit’s rule for proving that a city’s unwritten custom caused a constitutional injury, and Timothy P. O’Brien argued it.

The jury found that the officers had arrested the two without probable cause and out of ill will, and it awarded Bielevicz $14,000 and Tumpa $12,000, $10,000 of each in punitive damages. The evidence against the City ran deeper than one night. Former Chief Moore testified to an unwritten practice known as the four-hour rule, under which a person arrested for public intoxication was kept in lockup for up to four hours and released without any review, the charge serving as a pretext; he knew of it, had placed it on his agenda of abuses requiring attention, and did nothing to correct it because the department was being reorganized at the time. Dubinon testified that he had made countless such arrests and had never once appeared at a hearing, and Chief Pampena, who had led the department since June 1987, said the same of his own arrests. Sergeant James Hayes, who directed the Office of Professional Responsibility, testified that reports of illegal public intoxication arrests were the only category of complaint his office refused to accept. The trial judge nevertheless directed a verdict for the City of Pittsburgh, concluding that no jury could find a causal connection between the City’s practices and the officers’ unlawful arrests.

O’Brien argued the appeal for Bielevicz and Tumpa, against Steven H. Bowytz for the officers and Assistant City Solicitor Robert B. Smith for the City, before Judges Becker and Stapleton and District Judge Kelly, sitting by designation. The City argued that the officers had not known the department refused public intoxication complaints, so that policy could not have affected them, and that because the officers had acted out of personal ill will the City was immune. Judge Becker’s opinion of September 28, 1990 rejected both. Under Monell a city answers for its own policy or custom and never for an officer’s act alone, but a custom can be proved through the knowledge and acquiescence of policymakers even when it appears in no written order: “Such well-established custom exists only with the approval or, at the very least, with the sufferance of policymakers.” Custom without causation would not suffice. The plaintiffs still had to show a plausible nexus or affirmative link between the custom and their injury, and the court adopted the Fourth Circuit’s test from Spell v. McDaniel, asking whether the specific violation was made reasonably probable by the permitted continuation of the custom. If policymakers knew officers repeatedly jailed people on public-drunkenness pretexts and took no precaution against recurrence, causation belonged to the jury unless the link was too tenuous. The evidence supported an inference of a long-established custom and a plausible link to the arrests, and the City’s suggestion that the officers’ ill will immunized it ignored a reasonable inference the City had never refuted: that the department’s custom of tolerating unlawful public intoxication arrests had affected the officers’ decision. The Third Circuit reversed the directed verdict and returned the municipal claim for further proceedings; in the companion appeal it affirmed the judgments against Dubinon and Beck.

For five decades in Pittsburgh’s courtrooms O’Brien has litigated the questions that Section 1983 leaves open and that injured citizens most need answered. His cases separate the officer’s conduct from the municipal custom or policy that may have caused it, and both from the distinct body of law that decides whether a public entity must pay the resulting judgment. Each inquiry has its own proof, and his career has supplied controlling precedent for all three: Bielevicz for custom and causation; the 1996 suit that brought the nation’s first federal police consent decree to Pittsburgh, for the records a department must keep; and McGuire v. City of Pittsburgh, decided by the Pennsylvania Supreme Court in 2022, for who stands behind an officer’s judgment.

Knowledge and Acquiescence

Bielevicz gave civil-rights plaintiffs an evidentiary route they have followed ever since, into complaint intake, supervisory knowledge, arrest practices, repeated misconduct and what policymakers knew but left unchanged. Courts in the Third Circuit still apply it to ask whether repeated misconduct known to policymakers made a later violation reasonably probable, and the court’s Model Civil Jury Instructions for Section 1983 claims against municipalities, last revised in March 2026, cite the opinion for the rule that a plaintiff must prove the municipal practice was the proximate cause of the injury through a plausible nexus or affirmative link, and that, as long as the causal link is not too tenuous, whether the custom proximately caused the violation is a question for the jury.

The first major application came from Pittsburgh itself. On October 31, 1993 Robert Beck left a Halloween party on the South Side and skidded on sleet into a vacant lot, where Officer Anthony Williams blocked the exit, ordered him out and, Beck alleged with the support of his witnesses, struck him in the face six to eight times with his gun and kicked him in the ribs before charging him with drunken and reckless driving. The Office of Professional Standards found the complaint unfounded, as it had declined to sustain five earlier complaints against Williams between 1990 and 1994, none of which led to discipline; the office treated each complaint as an independent event, kept no system for tracking prior complaints, considered an officer’s history only after a sustained complaint, sustained about 3.4 percent of use-of-force complaints from 1990 through 1994, and conceded in its own 1991 year-end report that actual discipline for excessive force was very low. The district court took the case from the jury under Rule 50. On July 22, 1996 the Third Circuit, in an opinion by Judge Rosenn, reversed, citing Bielevicz for the rule that a plaintiff must simply establish a municipal custom coupled with causation and for the proposition that continued official tolerance of repeated misconduct facilitates similar unlawful actions, and finding that the office itself “was structured to curtail disciplinary action” and “stifle investigations into the credibility of the City’s police officers.”

In January 2019 the Third Circuit relied on the same passages when it revived the municipal claim of the estate of Adriano Roman Jr. against the City of Newark, quoting Bielevicz for the definition of a custom so well-settled and permanent as virtually to constitute law, for the rule that a plaintiff need not identify a responsible decisionmaker in the pleadings, and for the inference that it is logical to assume a city’s continued official tolerance of repeated misconduct will facilitate similar unlawful actions in the future. O’Brien’s argument had moved a case about two officers beyond those officers and into complaint intake, supervisory knowledge, arrest practice and what the department had learned but left unchanged, and that is where the cases built on it have gone.

Sixty-Six Plaintiffs

Beginning in 1993 the ACLU’s Pittsburgh office, with the NAACP, collected its own file of citizen complaints against the police after its director noticed how few were sustained after investigation; by 1996 the file held 400 complaints. Witold J. Walczak, the ACLU’s Pittsburgh director, later put the department’s record in one sentence: “In the ten years preceding the decree, the City did not discharge a single officer because of a civilian complaint.” A 1997 audit by the city comptroller found 1,600 complaints over ten years with no disciplinary action. Public anger had been building since April 1995, when Jerry Jackson, fleeing police in a stolen car, was killed by gunfire from four officers, and October 1995, when Jonny Gammage died after five officers from suburban departments beat and suffocated him during a traffic stop. In 1996 the ACLU and the NAACP sued the City of Pittsburgh in the Western District of Pennsylvania for 66 people, most of them Black, who said officers had violated their civil rights and that city leaders and police commanders had covered it up. Ernest Williams was the lead plaintiff, the Pittsburgh Branch of the NAACP and Parents Against Violence sued alongside the individuals, and the case, Williams v. City of Pittsburgh, Civil Action No. 96-560, went to Judge Robert J. Cindrich. O’Brien was lead counsel, with Jere Krakoff, James W. Carroll Jr. and Walczak, and he was the lead lawyer on the damages claims, appearing alone for plaintiffs such as Stephanie and Dorothy Wimbs and with Krakoff for others.

The plaintiffs sued in 1996 and 1997, and the names filled pages of the caption. Their individual encounters were assembled as evidence about the systems through which a department either corrects its officers or fails to: force review, searches, arrests, complaints, discipline and supervision. “The ACLU and NAACP sued the City in 1996 largely because the internal affairs system failed to fairly and zealously investigate civilian complaints of police misconduct,” Walczak said. “Full, fair and timely internal affairs investigations are the linchpin of a good police department. Unless management knows how its officers are behaving in the streets, they can neither control nor correct improper behavior.” The pattern, in the ACLU director’s view, showed a lack of management control, and the suit was grouped as a class action.

April 16, 1997

In April 1996 investigators from the Justice Department’s Civil Rights Division came to Pittsburgh at the ACLU’s invitation and opened a pattern-or-practice investigation of the Bureau of Police under Section 210401 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, the first the Department had ever pursued against a city police department under the authority Congress created in that Act. The Williams suit had spurred it. After nearly a year, Deval L. Patrick, the Assistant Attorney General for Civil Rights, wrote to City Solicitor Jacquelyn Morrow that the City, the Bureau and the Department of Public Safety had violated the statute: officers engaged in a pattern or practice of excessive force, of false arrests and improper stops, searches and seizures, and of racial epithets and racially insensitive language directed against African-Americans; the Office of Professional Standards closed an investigation if a complainant failed to provide the names of witnesses, did not fully collect the evidence and gave greater weight to the statements of its officers; officers were rarely disciplined, and then usually for minor infractions, the more serious allegations in complaints were ignored, no one monitored complaints to detect problems before they occurred, and no performance evaluations were conducted. The letter cited the City’s own Flaherty Report on the low rate of discipline and the significant number of sustained complaints that produced no discipline at all. The Division had authorized a suit and would defer filing it if the City negotiated a consent decree.

City officials, Mayor Tom Murphy among them, at first planned to fight, united in their frustration and disbelief that Pittsburgh had been singled out. Three things changed their minds: a new reform-minded chief, record keeping so poor that the City could not adequately defend against the charges, and a planned database that would let the City produce its own statistics on misconduct and bias. The city solicitor recommended settlement. On February 26, 1997 the Department and the City signed the agreement, and the Department filed its complaint and the joint application for the decree the same day as United States v. City of Pittsburgh, No. 97-354; Isabelle Katz Pinzler, the Acting Assistant Attorney General, said the measures “will help ensure that the Pittsburgh police department becomes one of the best in the country.” The City denied any and all allegations advanced by the United States, and the decree disclaimed any admission of liability. Allen Brunwasser’s motion to intervene was denied, the Fraternal Order of Police, Fort Pitt Lodge No. 1, took part in the hearings, and after a final hearing on April 16, 1997 Judge Cindrich entered the decree, which made Pittsburgh the first city in the nation to place its police bureau under such an agreement and converted the investigation into enforceable department-wide reform.

The decree required written reports for every use of force, for most warrantless searches and seizures and for body-cavity and strip searches, with the officers’ names and badge numbers, injuries, the people involved, witnesses, contraband, arrests or citations, date, time and location, signed by officer and supervisor and reviewed by the supervisor, and for every traffic stop a record of the officer, the driver’s race and gender, the time, the location and any frisk, contraband, arrest or citation. It required an automated early warning system, operational within twelve months, tracking citizen complaints, officer-involved shootings, commendations, discipline, training, reassignments, criminal and civil matters, arrests with the race of the arrestee, searches and seizures, uses of force and traffic stops, with each officer’s data kept through employment and for three years after. It revised investigation and discipline from intake onward. Complaints could be filed in person or by telephone, mail or fax, without a form, without visiting a police building, anonymously or by someone other than the victim; no OMI staff member had discretion to refuse one, a case could not be closed because the complainant withdrew, officers could not settle complaints informally without OMI’s approval, OMI had final authority over dispositions on a preponderance of the evidence, and the finding “Not Sustained” became “Not Resolved.” Officers were to be trained annually on relating to people of different races, ethnicities, religions and sexes, in integrity, ethics and cultural diversity, and in verbal de-escalation as an alternative to force, with the academy curriculum opening on those subjects; officers with multiple complaints were to receive additional training; and an independent auditor, paid by the City and acting as an agent of the Court, was to report on compliance quarterly and check at least half of the OMI investigations completed each quarter. The City could move to end the decree only after five years and after two years of substantial compliance, with the burden on the City if the United States objected.

The decree required complaint histories and supervisory decisions to be recorded so that conduct could be compared across officers, units and time, converting individual grievances into a record a court could supervise. The Williams action and the federal enforcement case proceeded separately before the same judge, both examining how Pittsburgh reviewed force, searches, arrests, complaints, discipline and supervision. Bielevicz supplied a rule for proving custom in court; the decree created systems capable of recording the custom before the next trial. It was the Special Litigation Section’s first consent decree under the 1994 law, it became the national template for federal oversight of local policing, and Mayor Murphy, who had planned to fight it, was soon promoting it as a model.

Three Complaints in Two Years

After reviewing the quarterly reports and an officer’s complaint history, the City had to provide an appropriate response—remedial training, assignment to a field training officer, counseling, transfer or reassignment—when the officer had three or more complaints alleging similar types of misconduct, or five or more complaints of any kind, within the last two years. The thresholds applied whether or not the complaints were sustained. Each sustained complaint was to bring discipline as soon as possible after OMI’s disposition, with remedial training or counseling unless the officer was terminated, and an officer’s prior complaints and discipline had to be considered, and the factors documented, in setting the penalty.

Chief McNeilly and his team had the system custom-built, because existing products tracked too few categories, and built it to flag good performance as well as problems; the chief wanted a name other than early warning system, which he thought officers would find threatening, and they settled on the Performance Assessment and Review System, PARS. It tracks eighteen categories, among them complaints, use of force, traffic stops, searches, arrests, sick time and discipline, and compares each officer with peers in the same command and shift: an officer whose figures fall one or more standard deviations from the peer average is indicated and reviewed at a quarterly command-staff meeting. Complaints, about 300 a year before the decree, reached about 800 a year by 1998, because the decree had made them far easier to file. The Bureau was in operational compliance from August 1999, and the auditor, James D. Ginger, who set substantial compliance at 95 percent and wrote a manual breaking the decree into steps, filed 29 quarterly reports over the life of the case. By 2002 the Vera Institute of Justice found no increase in sick time, discipline or separations, no decline in summons rates, a downward trend in arrests that predated the decree, improved public opinion of the police, and an apparent under-use of force documented through the Subject Resistance Report that now recorded every force incident; police officials and civil-rights groups alike generally regarded the decree as a success in increasing accountability and improving training.

Stay the Course

On November 4, 1999 Mayor Murphy announced that he would ask the Justice Department to end the decree halfway through its five-year term, which could not expire before April 2002. Thirteen days later a coalition of twenty community and national organizations wrote to the Department urging it to reject the request, keep the full term and enforce the decree vigorously, and to meet with them if it met with city and police officials about modifying it. O’Brien signed the letter as lead counsel for the plaintiffs in Williams, alongside the ACLU of Pennsylvania’s Greater Pittsburgh Chapter, the Pittsburgh NAACP, Parents Against Violence, the Urban League of Pittsburgh, Citizens for Police Accountability, the National Black Police Association, Amnesty International and State Representative William R. Robinson. “The Pittsburgh community needs DOJ to stay the course and not abandon the reform effort prematurely,” the groups wrote. Tim Stevens, the president of the Pittsburgh NAACP, said, “It took Pittsburgh many, many years to achieve the depths of police misconduct which earlier existed,” and Walczak warned that without the decree nothing would prevent those forces from repealing the recent reforms.

The decree could end only after two consecutive years of substantial compliance, and in January 2002, as the five-year minimum approached, the ACLU and the NAACP, whose Pittsburgh executive committee had voted unanimously to join, asked that monitoring continue until both the Bureau and OMI had gone two years without problems; Ginger’s October 2001 report had warned that OMI’s backlog threatened the City’s ability to attain and retain compliance with a wide variety of the decree’s requirements. The damages claims had waited through all of it. Ten of the 66 plaintiffs had withdrawn after the decree was signed, and Judge Cindrich split the remaining claims into 43 separate cases and set April 22, 2002 for the start of 43 jury trials involving 54 plaintiffs and more than 75 police officers, to be tried by a four-lawyer team of Walczak, O’Brien, Krakoff and Carroll, with O’Brien leading the damages cases. “The people who filed this lawsuit deserve tremendous credit for seeking to reform the department’s practices,” O’Brien said, “because in so doing they actually delayed their day in court for getting damages. These folks were not only courageous, but sacrificed their own interests to help the community.” Walczak gave Chief McNeilly credit for implementing the decree in both letter and spirit: “Today’s Pittsburgh Police Bureau is not the same one we sued in 1996–it is better in almost every way.”

On August 29, 2002 the Justice Department and the City jointly asked the court to relax the monitoring, ending some provisions and barring the auditor from reporting statistics on force, searches and seizures and traffic stops. Eighteen community groups, the ACLU and the NAACP among them, petitioned the court to keep every provision in place, to take OMI out of the Law Department’s management because of the conflict of interest and put it under an independent outside manager such as a special master, and to preserve the auditor’s statistical reporting. Walczak, who wrote the brief, said that countless officers, including some with long histories of abuse, continued to patrol the streets with serious misconduct allegations pending against them, that the system to investigate misconduct was still broken and, in the auditor’s view, getting worse, and asked why the Department was proposing to lift federal oversight when the City’s compliance was at an all-time low. The stipulated order Judge Cindrich signed on September 30, 2002 recorded the auditor’s finding of operational compliance with the Bureau of Police provisions from August 1999 through February 2002 and released those paragraphs, but kept OMI under the decree: it had to clear every case open more than 120 days by February 28, 2003, hold such cases afterward to 5 percent of its caseload, keep at least sixteen investigators until the backlog was gone, and report monthly to the auditor and the Department. The federal case closed on April 7, 2005, when Judge Arthur J. Schwab granted the parties’ joint motion to terminate the decree after eight years of monitoring and the staged termination.

Ward Street, September 28, 2013

Teresa Brown had lived on Ward Street in Oakland for more than fifteen years, had worked for the Pittsburgh Water and Sewer Authority for more than twenty and was an elected constable. At about 7:30 on the evening of September 28, 2013 she, her daughters Monica Jackson and Pamela Brown and her neighbor Anthony Grace, all of them African-American, were on or near her porch when they saw young men fighting across the street on Oakland Court. Brown crossed and broke it up. Officer Elizabeth Vitalbo, who is white, arrived after a neighbor’s call, walked the way Brown pointed, came back within minutes, told the group to shut up, accused Brown of lying about where the fight had been, and threatened to arrest her and to label her house a nuisance property. Brown said she was a constable and that they were on the same side. “I don’t give a shit who you are,” Vitalbo answered. Jackson picked up her phone to record Vitalbo and stopped after Vitalbo threatened to take her to jail unless she put it down; Jackson said she knew her rights, Vitalbo repeated the threat, and the phone went down. Vitalbo called for backup, and about seven cars carrying fifteen to twenty Pittsburgh and University of Pittsburgh officers came to the house. One of them grabbed Grace, slammed him against the porch railing, ordered his hands behind his head and frisked him; told to sit, he sat. When Pamela Brown asked a University officer for Vitalbo’s name so she could file a complaint, Vitalbo said she was about to be aggressive, and when Jackson tried to read her badge she gave her name as “Ms. Smith.” The officers left at about nine. The three had been held about an hour, and no citation issued that night.

The next day Vitalbo returned with seven or eight police cars asking for Jackson, would not say why and left her card; Brown was frightened enough to spend the night at her daughter’s. Around September 30 all four filed complaints with the Office of Municipal Investigations, on October 16 with the Citizens Police Review Board, sworn five days later. On December 18 the ACLU of Pennsylvania wrote to Acting Chief Regina McDonald, and on January 27, 2014 Assistant City Solicitor Michael Kennedy replied that, so far as the Law Department knew, no investigation had been conducted. On March 28, 2014 OMI’s manager, Deborah Walker, closed the false-identification, verbal-misconduct and harassment allegations as unfounded and the recording allegation as not resolved because the accounts conflicted. By then the citations had arrived. Vitalbo had filed summary disorderly-conduct citations for unreasonable noise under 18 Pa. Cons. Stat. § 5503(a)(2) with the court on October 4, 2013; the summonses issued on March 10, 2014, more than five months after the encounter and after the complaints to the oversight agencies. Brown’s citation said she had been ordered several times to lower the noise and could be heard using vulgar language from almost a block away. Vitalbo testified at the summary trial in Pittsburgh Municipal Court that she filed the citations because the three were using profanity and that she always files citations rather than issuing them on the spot. The judge found all three not guilty.

O’Brien filed the federal suit as volunteer counsel with Sara J. Rose and Walczak of the ACLU of Pennsylvania on September 22, 2015, against Vitalbo and the City. The claims were intimidation and First Amendment expressive conduct for Jackson, First Amendment retaliatory prosecution for all three, and a Fourth Amendment unreasonable seizure and force for the hour on the porch, with compensatory damages, punitive damages against Vitalbo and fees under 42 U.S.C. § 1988. Against the City the claim was the one Bielevicz had made available: a failure to adopt any policy recognizing the public’s First Amendment right to record police and to train officers on it, which, with no finalized policy or training materials as of January 17, 2014, evinced a deliberate indifference to the risk that officers would arrest or threaten to arrest people for recording; a practice of letting officers file citations after the fact instead of issuing them when feasible, contrary to Pennsylvania Rule of Criminal Procedure 410, which increased the likelihood of retaliation; and a widespread custom of escalating innocuous encounters through intimidation, baseless threats and unwarranted force, of which complaints and prior lawsuits had put the City on notice. O’Brien and the ACLU lawyers pleaded the arrests of Nicholas Gerhold on June 22, 2013 and of Dennis Henderson, a Homewood teacher, four days later for recording or trying to record police, a Justice Department statement of interest on the right to record, and Palla v. City of Pittsburgh, in which a Court of Common Pleas jury had returned a verdict in May 1996 against Officer Ronald Nagy and the City. That verdict was O’Brien’s. Charles Palla Jr., a photographer freelancing for the Associated Press, had been arrested by Nagy while photographing the arrest of a homeless man in a parking lot, charged with obstruction of justice and disorderly conduct, and had his film confiscated and returned three days later with more than twenty frames exposed; the charges were dismissed in 1992 for insufficient proof, and the jury awarded him $101,001 and costs, finding, as O’Brien described the verdict, that Nagy had acted improperly and that the City acquiesced in known police misconduct. Henderson’s own case, brought by the ACLU, had settled in December 2014 for $52,500, with the City agreeing to adopt a policy acknowledging the public’s right to videotape police and to train its officers.

“This incident reflects the unfortunate and unconstitutional custom and practice of Pittsburgh police,” O’Brien said when the suit was filed, of officers who unnecessarily and illegally misuse their authority to intimidate and coerce innocent, law-abiding people who question or challenge improper police behavior. “I’ve never felt so humiliated and disrespected in my life,” Brown said. “I don’t expect to be treated this way from someone who is supposed to protect me.”

On July 7, 2017, in Fields v. City of Philadelphia, Judge Ambro wrote for the Third Circuit: “Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.” Richard Fields had been arrested for photographing officers breaking up a house party from a public sidewalk and Amanda Geraci pushed against a pillar while trying to record an arrest, and the court sent the City of Philadelphia’s liability back for trial. Pittsburgh’s training obligations now rested on constitutional footing the officers could no longer mistake. On February 6, 2018 Pittsburgh City Council approved a settlement of $40,000, including attorneys’ fees, and the ACLU of Pennsylvania encouraged the City to adopt a recording policy and train its officers. The result complemented the Third Circuit’s ruling and tied individual compensation to municipal training, a recording policy and constitutional accountability. Brown said there are some citizens who care about what happens in their neighborhoods, and added, “I hope that this settlement will lead to improvements in police-community relations.” Jackson’s phone could have preserved an account independent of the police report. In O’Brien’s earlier cases he had examined what supervisors knew after complaints accumulated; in Brown he examined whether residents could create the evidence needed to challenge an officer’s account.

Four Days in October 2015

Jules Williams had identified as female since her teens and carried a birth certificate and a state identification card that said so. She was incarcerated several times at the Allegheny County Jail between 2015 and 2017, and the abuse began at intake, when a sergeant told other inmates she was transgender and the vulgar comments and physical and sexual threats followed. After she complained she was moved to protective custody, and from October 1 to October 4, 2015, despite her repeated requests for a single cell, she was housed with Djamal A. Eleam, a lifetime registered sex offender with a record of violent sexual offenses, in a cell they shared about 23 hours a day. He raped and sexually assaulted her repeatedly over the four days. She pleaded for help through the cell’s electronic communication system and in complaints to a named jail official, and officers ignored her; local law enforcement declined to investigate, and surveillance footage that might have captured the assaults was destroyed. Her lawyers later wrote that at all relevant times Eleam was a known predator to the County’s corrections staff. She said the assaults left her with post-traumatic stress disorder. “It was something that I have nightmares about,” she said, and she tries to put it behind her and move past it.

The ACLU of Pennsylvania and the Law Offices of Timothy P. O’Brien filed suit for her on November 6, 2017 in the Court of Common Pleas of Allegheny County, No. GD-17-013369, against the County and its jail administrators, with O’Brien, Margaret Coleman and Alec Wright for the firm and Rose, Walczak and Dylan Cowart for the ACLU. Williams alleged that the jail repeatedly housed her with men and failed to protect her, and that its refusal to house her with female inmates was its standard practice with transgender women, in violation of the Fourteenth Amendment; federal regulations had required since 2012 that jails individually assess transgender people at intake to decide housing and safety, and the jail followed a categorical practice instead, with no such policy in 2015. She sought damages and changes to jail policy. Of about twenty transgender women in the state prison system at the time, one was housed with the female population. The County removed the case to the Western District of Pennsylvania on November 30, 2017, both sides demanded a jury, and the County and its officials contested the claims.

The case ran four and a half years. Mediations before Kenneth J. Benson in 2018 and in September 2020 did not resolve it, the case passed from Judge Joy Flowers Conti to Judge Marilyn J. Horan in October 2018, and an amended complaint followed in February 2020. Housing records, requests for protection and cell assignments were the center of the claim, the paper trail of decisions that placed a vulnerable person in danger. Jury selection was set for November 1, 2021, postponed, and reset for April 18, 2022; in February 2022 the court declared the case ready for trial and referred it to Judge Robert J. Colville for settlement conferences, held on March 23 and 25. At the second the parties reached agreement on liability. On April 12 the court cancelled the April 18 jury selection and trial, and on May 17 it dismissed the motions in limine as moot in light of the settlement, with counsel fees left to the firm and the County to work out and, failing agreement, to the court.

Allegheny County paid Williams $300,000 in damages under a nine-page agreement signed on May 24, 2022 and announced on June 2, which gave the County ninety days to pay and left her free to advocate for jail reform. By the time of the settlement the jail had adopted policies intended to protect vulnerable people, including transgender detainees, through individualized housing and safety decisions. “This settlement gives Ms. Williams much-deserved closure without having to relive her trauma through trial,” Wright said. Rose said the ACLU was pleased that the County had agreed to compensate her for the harm she suffered at the jail, and Reggie Shuford, the ACLU’s executive director, said no amount of money could undo the trauma she had suffered there.

Color of Law and Scope of Duties

On the night of November 2, 2012, Shane McGuire, sixteen, and his friends smashed pumpkins and stacked bricks on the doorstep of a house in his Pittsburgh neighborhood of New Homestead. The homeowner was Officer Colby Neidig, who arrived with his wife and children while the teenagers were there. McGuire banged on the door and ran, tripping over his own brick booby trap. Neidig, off duty, out of uniform, without badge or gun and never identifying himself as an officer, chased him for roughly half a mile, caught him in the woods, knocked him down, punched him in the face and broke his nose, then called 911 and held him until Officer David Blatt arrived. McGuire was never convicted of anything. “It was a teenage prank,” his father, Patrick McGuire, said later, and a couple of pumpkins did not call for the violence Neidig put on his son.

McGuire sued Neidig, Blatt and the City in the Western District of Pennsylvania on November 7, 2014, for excessive force under Section 1983 and for assault and battery. The City was no longer a defendant when the case reached the jury. On March 2, 2017 the jury found that Neidig had acted under color of state law, used unreasonable force and committed assault and battery, and awarded McGuire $75,000; with attorney’s fees of $160,575 the molded judgment came to $235,575. Neidig had testified that he had no badge or gun and was protecting his family from what he took for a home invasion.

The City refused to pay the judgment, contending that an officer off duty at his own home was not its responsibility. On June 12, 2017 Neidig assigned McGuire his right to indemnification under the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8548(a), which requires a local agency to indemnify an employee for a judgment arising from an act that was, or that the employee in good faith reasonably believed was, within the scope of his office or duties, in exchange for McGuire’s agreement not to collect further from him. O’Brien took the assigned claim to the Allegheny County Court of Common Pleas in a declaratory judgment action filed July 7, 2017, litigating whether the City had a separate obligation to pay the officer’s judgment, a question the federal verdict had not answered, and the question went to a jury from August 12 to 15, 2019. By then McGuire was in the Navy and serving overseas. “We have a young man who’s over in Afghanistan serving this country,” O’Brien said in November 2019. “He’s fighting for us and the city is here fighting against him.”

O’Brien appealed, and said of his client: “This is a man who is over there fighting for us, defending our constitutional rights, and he can't get justice for his constitutional rights at home.” On March 10, 2021 the Commonwealth Court, in an opinion by Judge Anne E. Covey, settled the threshold questions in McGuire’s favor: nothing in the Tort Claims Act prohibits an assignment of rights, and McGuire, standing in Neidig’s shoes, was aggrieved by the City’s failure to indemnify Neidig and had standing to sue. The Pennsylvania Supreme Court granted review, and O’Brien’s appeal placed a recurring Section 1983 question before Pennsylvania’s highest court: whether a federal jury’s finding that an officer acted under color of state law is itself a judicial determination that he acted within the scope of his office or duties, so that the City must pay. Margaret Coleman argued it for McGuire on April 13, 2022, with McGuire, by then stationed at Fort Bragg, listening online. She argued that the two phrases mean the same thing, that the question was one of pure law that should never have gone to a second jury, and that the City’s continued participation in the federal case after its own dismissal suggested it had already determined Neidig was entitled to indemnification, a point Justice Christine Donohue pressed from the bench. Julie Koren argued for the City that Neidig had acted as a private citizen and that a federal color-of-law finding does not establish action within the scope of his office or duties; Justice Donohue noted that Neidig had detained McGuire, and Koren pointed to his call for on-duty officers to make the arrest. The Fraternal Order of Police had paid for Neidig’s trial defense, and he had left the city’s police by the time of the argument.

On November 23, 2022 the court, in an opinion by Justice David Wecht joined by Chief Justice Todd and Justices Dougherty and Brobson, distinguished action “under color of state law” for Section 1983 purposes from the separate “scope of office or duties” inquiry under Pennsylvania indemnification law. The color-of-law inquiry, Wecht wrote, turns on whether the public employee purported to exercise official state authority, and Section 1983 imposes liability on state officials for conduct taken within, as well as without, the scope of their authority; the Tort Claims Act applies the Restatement (Second) of Agency’s scope-of-employment test, as the sovereign immunity statute does. “A police officer may sometimes act both ‘under color of state law’ and beyond the scope of his or her employment,” he wrote, and because the federal jury had never considered whether Neidig acted within the scope of his office or duties, the questions about submitting the issue to a second jury were moot. Justice Donohue, joined by Justice Mundy, concurred in the result but wrote separately that scope of office and scope of duties cannot mean the same thing if every word of the statute is to be given meaning, that scope of office may reach officials whose authority comes from their office while scope of duties covers hired public workers, and that what scope of office means under Subsection 8548(a), and how it bears on a color-of-law finding for a sworn officer, remained open because the record was not developed on that narrow legal issue and the lower courts had not weighed in on the question.

The opinion now provides distinct analyses for constitutional liability and for a municipality’s payment obligation, so that neither inquiry silently decides the other, and it gives litigants a precise test for when civil-rights liability and municipal payment follow different legal paths. A federal color-of-law finding opens the courthouse door; the indemnification question decides who ultimately stands behind the judgment. The City’s position, pressed by its solicitors from 2017 to 2022, was that an officer could be a state actor for the Constitution and a private citizen for the city treasury in the same half-mile chase; O’Brien and Coleman carried the contrary position through three courts over five years for a client who was serving overseas while his judgment waited at home.

Twelve and a Half Million in Punitive Damages

Sandra Robertson, 48, of German Township, was a supervisor at Hunter Panels, a maker of thermal insulation panels in Smithfield owned by Carlisle Construction Materials, and was paid less than the man she replaced. Her male fellow supervisors regularly swore at her, joked at her expense and undermined her authority. Eight days after she complained to the human resources manager about the sexist language she was disciplined for reasons that were apparently trumped up, and about seven months after a second complaint the company ran an investigation she called biased, concluded she should be fired for performance and terminated her; a counselor the company sent her to said she did not need counseling and was simply an assertive woman they did not know how to deal with. O’Brien was one of her three lawyers in the Western District of Pennsylvania, where she sued for sex discrimination, hostile work environment and retaliation. On Friday, April 17, 2015 the jury returned more than $13 million: $12.5 million in punitive damages and $950,000 in compensatory damages, including $170,000 in back pay and $350,000 in front pay. It was one of the largest verdicts ever returned in the Western District of Pennsylvania and is believed to be the largest employment discrimination verdict ever awarded there. “This case is a very compelling story about this woman who really took it on the chin,” O’Brien said. Robertson said she had thought the company might have a good old boys’ club and that they went insane over that, and that the verdict “restored my faith in humanity. I could not believe the unconscionable lies that these defendants got up there and told.”

Walter Mikulan started as a guard at the Allegheny County Jail in 1984 and was promoted in 2002 to major, the third-highest rank, with consistently positive ratings and a single verbal warning in his file. In October 2012 Warden Orlando Harper said he believed employees were abusing leave under the Family and Medical Leave Act and would fire those who did, and he made remarks about Mikulan’s absences; in January 2013 Mikulan was diagnosed with severe depression and anxiety from the work and prescribed intermittent FMLA leave; he was disciplined for a paperwork violation right after returning from leave while another major with the same offense was not, reprimanded in July 2013 over unsigned property forms that belonged only to employees who were on vacation, sick or unavailable, and on August 13, 2013, at 58 and after nearly thirty years, told by Harper that he could resign or be fired. He refused and was fired without a stated reason. O’Brien and Margaret Schuetz Coleman represented him in Mikulan v. Allegheny County, No. 2:15-cv-01007, before Magistrate Judge Cynthia Reed Eddy in the Western District. The trial began on a Monday, and at about 8:30 on the night of Thursday, June 8, 2017 the eight-person jury found that the County had fired him because of his age and because he took protected leave, and awarded $842,119: $239,169 in back pay, $277,950 in five years’ front pay and $325,000 in compensatory damages, the largest employment discrimination verdict ever returned against Allegheny County. O’Brien expected the figure to reach about a million and a half once the judge added interest, fees and the other federal damages.

“He had two bull’s eyes on him,” O’Brien said. “One said, I’m too old. The other said, FMLA.” There was not a single document anywhere in the file, he said, in which anyone had concluded that Mikulan was insubordinate. “The warden, to cover up the real reason for the firing, claimed these frivolous disciplinary actions constituted insubordination on Walter’s part,” he said. “When a person grows old doing a job, they shouldn’t be fired for being too old to do the job. And nobody who takes leave from a job should lose that job when the leave is protected under federal law.” Mikulan said the single most important thing to him was that his reputation had been vindicated. The County paid $1.15 million: $283,052 to Mikulan as wages and $283,052 for his other claims, $432,580 to the Law Office of Timothy P. O’Brien for fees and costs, and $151,316 to Stember Cohn & Davidson-Welling for its fees and costs.

Section 1983: Con Law in Action

O’Brien was admitted to the Pennsylvania bar on November 10, 1975 and opened the Law Offices of Timothy P. O’Brien in Pittsburgh that year; the firm became O’Brien Coleman & Wright in 2022, with Margaret S. Coleman and Alec B. Wright as his partners, and practices from 116 Boulevard of the Allies after years in the Allegheny Building at 429 Forbes Avenue. He earned his B.A. from Missouri Valley College and his J.D. from Duquesne University School of Law, holds Basic and Advanced Certification from the U.S. Army Judge Advocate General School, and has been admitted to practice before the Supreme Court of the United States since 1978, as well as before the Third Circuit, the Western District of Pennsylvania and the Pennsylvania Supreme Court. His practice spans constitutional claims, police misconduct including excessive and deadly force, false arrest and malicious prosecution, employment discrimination, the reemployment rights of veterans, and personal injury, and the firm takes the employee’s side in discrimination, retaliation, wrongful-termination and unpaid-wage cases against employers of any size. He was elected to the Academy of Trial Lawyers of Allegheny County in 1992 and helped establish and chaired its Diversity Committee; he co-founded and chaired the Allegheny County Bar Association’s Civil Rights Committee, served as a vice president of the Association’s Board of Governors and was elected to its Judiciary Committee; and he sits on the legal committee of the ACLU of Pennsylvania and belongs to the American and Pennsylvania bar associations and the Western Pennsylvania and National Employment Lawyers associations.

He also serves as a principal neutral through JUSTUS ADR Services, with forty hours of mediation training and certification by the Western District of Pennsylvania as a mediator, early neutral evaluator and arbitrator, bringing more than forty-five years of trial judgment to the evaluation and resolution of disputes. That work draws on a docket in which value and leverage often depend on procedural posture as much as on the underlying event: whether a right was clearly established, whether the municipal proof is sufficient, whether a settlement can include policy changes, and whether an individual judgment reaches the government entity behind the employee. As an adjunct professor at the University of Pittsburgh School of Law he teaches Section 1983: Con Law in Action, a two-credit course on litigation against public officials and local governments—color of state law, absolute and qualified immunity, government liability, damages and injunctions, structural reform litigation and attorney’s fees—taught through the cases its instructors litigated, carrying the doctrine he helped build into the classroom.

In each of these cases he has identified the evidence needed to move from an individual act to public responsibility. In Bielevicz, complaint histories and policymaker knowledge supported a municipal-custom theory; in Williams, reporting and early-warning systems became enforceable terms of a consent decree; Brown concerned the public’s ability to make an independent record; the Jules Williams case turned on housing records and ignored requests for protection; McGuire tested the separate statutory route by which a judgment might reach a city treasury. The outcomes differ because the legal questions differ. A constitutional violation by an officer does not by itself establish a municipal custom, a failure to train or a duty to indemnify, and his cases take each step on its own: what happened in the encounter, whether a municipal policy or custom caused it, whether training or the available relief is at issue, and which law determines who must pay the judgment. Civil-rights doctrine is built from exact distinctions—custom and isolated act, state action and scope of employment, settlement and adjudication—and he has spent five decades litigating those boundaries in Pittsburgh’s streets, jails, police files and appellate courts, giving each inquiry its own law and injured citizens a clearer path through all of them.

Who Amongst Us Is Safe

Ryan Kingston, a senior resident assistant in Tower A at the University of Pittsburgh and later a second lieutenant in the Army, and Nathan Poloni, a freshman visiting friends in the Quad, were arrested outside Litchfield Towers on September 24, 2009 during the G-20 summit; Kingston was handcuffed and forcibly searched while bent over a stone wall in front of Cornerstone Church on Fifth Avenue for about an hour, Poloni was put in a choke hold and thrown to the ground trying to get back to the towers, and both were charged with failure to disperse, Kingston with disorderly conduct as well, charges all dismissed before suit. O’Brien sued for them in November 2010, pleading that students who had no role in any protest had been placed under “de facto martial law,” swept off the street, assaulted and imprisoned for hours, and in October 2011 the City settled for $60,000, paid by the insurer it had hired for the summit; City Solicitor Daniel Regan called settling for that sum the most prudent decision.

David Williams, a state trooper from Plum who worked undercover investigations and had served in Iraq, went to the Gateway Clipper fleet in September 2014 after a fight at his brother’s wedding, where a waitress’s boyfriend had punched the groom, and was arrested for allegedly ignoring orders to stand back and fighting the officers. Police surveillance video showed Williams arriving to check on his brother, being pushed away and, after a discussion, wrestled to the ground; O’Brien said he was thrown down, punched in the head and kicked in the groin and then charged with crimes he had not committed to justify the force. “These officers’ false reports destroyed my reputation, traumatized my family,” Williams said. “If I hadn’t discovered the surveillance videotape, I might never have been able to clear my name.” Prosecutors dropped the charges, O’Brien filed the federal suit in March 2015, and on April 17, 2017 the jury found Officers Erick Baker and Brendan Nee liable and awarded $55,000. “If this can happen to a state police officer who was an Iraq war veteran, then who amongst us is safe,” O’Brien said. “His reputation has been restored. Whether or not it will stop what police do in the future remains to be seen.”

Souroth Chatterji, an Army veteran of two tours in Iraq who had joined the Pittsburgh police in 2012, was ordered in 2015 to investigate software the Bureau had bought from B-Three Solutions of Plum, was then harassed, passed over for sergeant though he was the top-qualified applicant, and resigned in June 2018; Wright and O’Brien brought his federal whistleblower suit, and in October 2020 City Solicitor Yvonne Hilton recommended a $250,000 settlement to City Council. On June 29, 2020 Coleman, with the Abolitionist Law Center and the Elzer Law Firm, filed a federal class action over the force police used at the June 1 protest in East Liberty, for clients including a thirteen-year-old boy, his mother and her fiancé, a dance instructor, a nonprofit worker, an international peace observer and a man shot with rubber bullets, seeking to bar the City from declaring peaceful protests unlawful and using chemical agents and projectiles on peaceful protesters, as well as damages.

John Connors of McKees Rocks, 33, was video recording the police downtown on May 30, 2020, in a shirt that read “Blue Lives Murder,” objecting to what he saw. Near the Wood Street T station at about five o’clock he asked an officer about a dispersal route; a SWAT officer threw a chemical canister that struck his leg, fired a projectile into his right hip, and with two other SWAT members threw him to the ground and handcuffed him. He spent three days in the Allegheny County Jail before he made bond, charged with failure to disperse and disorderly conduct at Smithfield Street and the Boulevard of the Allies, where he had not been while he was recording; every charge was dismissed. O’Brien filed his suit in October 2021 against the three officers and the City, for false arrest, malicious prosecution and First Amendment retaliation under the Bureau’s customs and policies and for a failure to train, the same claims he had pleaded for Teresa Brown and Monica Jackson. On January 10, 2023 City Council voted 8 to 0 to settle for $90,000. “It’s an excellent resolution of the case,” O’Brien said. “It’s a recognition that what happened to him should not have happened to him and shouldn’t happen to any citizen.”