A man who confronted an Ellwood City Patrolman about a parking ticket secretly recorded his interactions with police. Two officers can be heard on the recording telling him it is illegal to swear in public, with one officer then trying to taunt the man into physically attacking him — the encounter ends with a scuffle and a Tasing.
Perry Russell Malcolm, 33 of Patterson Township, was charged with summary disorderly conduct – obscene language, misdemeanor resisting arrest, and felony disarming a police officer after an encounter with the Ellwood City Police Department on March 5th of this year.
Malcolm provided the Beaver Countian with a copy of his recording, and said the incident started when he was given a ticket for parking too close to an intersection. He felt that he had parked far enough away from the corner and said he returned the ticket to the department in protest.
The recording begins with Malcolm starting to talk about the ticket with a man he identifies as Officer Matthew Kennedy. A search of court dockets shows Kennedy as the arresting officer in the man’s case.
After a brief discussion, Malcolm can be heard telling the officer he is going to go back to retrieve his ticket. The officer encourages him to do so, and tells the man he should pay it.
“I’m not going to pay it. I’m going to talk to Officer Kingston [a supervisor] and I’m going to wonder why you’re such an asshole,” Malcolm responds.
Officer Kennedy again tells the man he should pay the ticket.
“Not going to happen, fuckhead,” Malcolm can be heard saying in response.
The officer then confronts the man, “What did you say sir […] What did you call me?”
Malcolm responds, “Does it make a difference?”
“It does make a difference, it’s called disorderly conduct,” said the officer.
The man responds, “It’s not disorderly conduct. It’s not.”
Malcolm said he was already back at his truck getting ready to leave when Officer Robert Magnifico arrived. The two officers can be heard on the recording talking to one another.
“He wants to come down here and tell me how it is,” said Officer Kennedy. Officer Magnifico replies, “Well that’s normal for him, that’s what he always does, he thinks he knows the law better than everybody else.”
“I was trying to put up my tailgate and my latch was stuck and it kept falling back down,” Malcolm told the Beaver Countian. “I was trying to leave and it wouldn’t shut and I was like ok, great, this is just prefect. I was facing my tailgate when one officer came up on my left hand side and the other officer came up behind my right side.”
A man that Malcolm identified as Officer Magnifico can be heard berating him, “What makes you think you can talk to us like that […] Why do you think you can do that in a public street? You can’t, it’s against the law.”
Malcolm responds, “So, nobody heard me.”
“You still can’t do it,” insists the officer. “It’s public and you can’t cuss and swear in public it’s against the law […] Cite him he’s an idiot, he doesn’t know no better, he’s a dumbass and he’s always been a dumbass.”
According to Duquesne University Law Professor Bruce Ledewitz, a noted scholar of the state and federal constitutions, it was Perry Malcolm, not the police officers, who had a correct understanding of the law.
Professor Ledewitz declined to comment about the recording specifically, but spoke in general terms about the legality of swearing in public and using profanities with police.
“I think every law professor in America would tell you that you can not be convicted of [swearing in public] today,” said Ledewitz. “Every time this has been invoked in modern times, since the 1960s, the convictions have been reversed on appeal. Any time you see that statute being charged it should raise red flags […] If someone in a circumstance like this went to the ACLU I think the department would have some problems.”
Vic Walczak is the Legal Director of the American Civil Liberties Union of Pennsylvania.
“There is a long, and I stress long, line of Pennsylvania cases, including recent ones from the Pennsylvania Supreme Court, that say you can not charge someone with the use of profanity in public,” said Walczak. “For an officer not to know that reflects a serious lack of training. This goes back many years. We have filed a lot of lawsuits on this issue and we have won a lot of people a lot of money doing it.”
On the recording the man Malcolm identified as Officer Magnifico can be heard directing Officer Kennedy to issue a citation before confronting Malcolm again.
“Why don’t you say it to my face? I’m standing right here, you think you’re such a tough guy? Why don’t you say it to my face huh? Why don’t you make a move,” said the officer. “Because you can’t. Because you’d get your ass kicked that’s why, because you’re an idiot […] You have never learned one thing in your life have you.”
The Ellwood City Police Department does not have a Chief, but commanding officer Lieutenant David Kingston said he had not heard the audio recording before it was played by the Beaver Countian for him today during an interview conducted at his station’s headquarters.
Kingston confirmed the voices heard on the recording are those of Officers Kennedy and Magnifico.
“How one officer handles a case verses another officer is going to be different,” said Lieutenant Kingston. “Could the officers have de-escalate it? Possibly, but I think [Perry Malcolm] was pushing the limit.”
Malcolm said that after the officer began taunting him at his truck he knew things were about to go bad for him, “What am I supposed to do in that situation? No matter what I did I would be wrong, so at that point I knew things were about to happen.”
A struggle can then heard on the recording, although it’s unclear what exactly is occurring because the lens of Malcolm’s smartphone is obscured.
Lieutenant Kingston said his officers told him the physical altercation started after Malcolm threatened them, alleging the man said, “I’m going to kick your fucking ass.”
The Beaver Countian was unable to readily identify such a threat on the recording provided by Perry Malcolm.
Lieutenant Kingston gave the Beaver Countian a copy of his own footage of the encounter — a surveillance tape from the police station which captured video but not audio of the incident. Much of the physical altercation between Malcolm and the officers is obscured by a timestamp that could not be removed from the footage, but enhancements of the video by the Beaver Countian appear to show Malcolm struggling with police at one point as they attempted to secure him into custody.
Perry Malcolm had told the Beaver Countian that officers pinned him up against the tailgate of his truck leaving him unable to fully comply.
“They were pushing me over my tailgate and I couldn’t really do anything,” he said. “One office was telling me to turn around but the other officer’s hands were around my neck.”
Officers can be heard Tasing Malcolm. An officer then yells that the man had grabbed onto his Taser and wouldn’t let go — Malcolm can be heard begging the officers to stop shocking him. After Malcolm is heard saying he had let go of the Taser, officers can be heard shocking him again.
An officer can then be heard shouting vulgarities.
“We only escalate to the next level of force that is necessary,” said Lieutenant Kingston. “We don’t want anyone to get a hold of our weapon.”
Kingston noted that Malcolm had a prior conviction on charges of resisting arrest from 2005.
Following his arrest by Ellwood City Police in March, Perry Malcolm took his secret recording with him to the preliminary hearing in his case held on May 18th. Court records show the Lawrence County District Attorney’s Office agreed to dismiss the misdemeanor resisting arrest and felony disarming a police officer charges in exchange for Malcolm pleading guilty to the summary disorderly conduct citation for obscene language.
“I wasn’t going to plead guilty to anything, but I would have had to pay my lawyer at least another $2,000 to start going forward, so it was either pay that or the $300 fine,” said Malcolm. “Mathematically in my situation pleading guilty to disorderly conduct is what I could afford to do.”
Vic Walczak said he was deeply disturbed by what he heard on the recording of the Ellwood City Police.
“I am trying to figure out if the police were more unprofessional or more unconstitutional,” said Walczak. “I’m thinking it was probably equally both.”
Professor Ledewitz generally sympathized with the difficulties police face on the streets, but stressed that officers need to remain cognizant of the rights of the citizens they are interacting with.
“I have always told my kids, when an officer says do x, you say yes sir, and then you can fight him later in court,” said Ledewitz. “Police have a really terrible job, it’s very difficult. That’s why District Attorneys will often try to do something in a circumstance like that because they want to have the backs of the police. But while swearing at the police is not a good thing to do, it is something that needs to be protected under the First Amendment for good reason.”
Walczak told the Beaver Countian that the courts have said police need to be prepared for encounters like the one he heard on the recording, and should be trained on how to handle situations where they are being lawfully criticized in that manner.
“There is law out there in these cases that talks about the police really needing to have thicker skin, just because someone calls you a mother fucker or something like that does not mean you can get all high and mighty in response and retaliate against them,” said Walczak. “What the cases talk about is that police as professionals need to be more level-headed than the average person […] There are training programs that have been around for 20 years or more called Verbal Judo, which are designed to help officers learn to de-escalate situations. I know Pittsburgh Police Officers have that training; frankly it’s almost standard practice. What I heard on the tape was the exact opposite of that.”
Perry Malcolm told the Beaver Countian he still does not regret his choice of language from that day.
“I’m not a dummy, but I swear a lot,” said Malcolm. “I don’t find a problem with it, obviously they did because they were offended by it […] Who said bad words are bad? I think the reason curse words actually became curse words is because people from the higher money making groups wanted to distinguish themselves from the lower money making groups. If you allow words to hurt you they’re going to hurt you I guess, but they’re just words.”
Vic Walczak believes what he heard on the recording is evidence of systemic problems within the Ellwood City Police Department.
“All I have to do is hear this one incident to think this is a department that is in desperate need of good strong leadership,” concluded Walczak. “It’s also a department that is clamoring to get itself sued.”
Perry Malcolm’s Recording Provided To The Beaver Countian:
Excerpt Of Surveillance Video Of The Incident Released By Ellwood City Police To The Beaver Countian: