Jon Campisi May 25, 2012, 9:13am

A Philadelphia Common Pleas Court judge has, for the second time, denied a bid by two city police officers to dismiss a wrongful death lawsuit against them by the family of a homeless man killed by one of the cops three years ago.

In a May 15 order, Judge Frederica A. Massiah-Jackson denied a motion for reconsideration that had been filed by Philadelphia Police Officers Michael Wexler and Clarence Irvine.

The two officers were named as defendants in a civil case initiated back in November 2010 by the family of the late Baron D. Adams, a 22-year-old homeless man who was shot and killed by Irvine in the summer of 2009 after Adams allegedly took the officer’s service pistol.

The incident occurred on the fronts steps of Adams’ parents' house.

According to the lawsuit, Wexler and Irvine responded to complaints of a wandering homeless man, later identified as Adams, who was meandering around the 6100 block of Marshall Street, which is within the boundaries of the defendant officers’ 35th Police District.

Upon arrival, the complaint states, the officers discovered Adams laying on the ground masturbating, the suit states.

The officers soon realized Adams had a prior 302 commitment, which is the code for involuntary psychiatric evaluation, and they also learned he was not allowed to be near his parents’ residence.

Philadelphia police had apparently visited the house in the past for alleged complaints.

Adams told the officers he was at the house because he was having trouble breathing and needed to retrieve medication, the suit states.

The complaint states that at this point the officers should have realized they were dealing with a mentally ill individual, and thus should have proceeded as per department policy regarding such individuals.

Namely, the suit claims, the officers should have attempted to de-escalate the situation and not take aggressive action.

However, Wexler attempted to handcuff Adams, the suit states, at which time the man, a diagnosed paranoid schizophrenic, “felt threatened and tried to defend himself.”

It was at this point that Irvine pulled his service weapon on Adams. A struggle soon ensued and Adams ended up being shot to death.

Adams’ estate contends the officers did not properly handle the situation.

In addition to the personal injury/wrongful death complaint filed in late 2010 at Philadelphia’s Common Pleas Court, a separate civil rights matter is pending at the U.S. District Court for the Eastern District of Pennsylvania, court records show.

The City of Philadelphia and city police Commissioner Charles H. Ramsey are named as additional defendants in the federal litigation.

Common Pleas Court Judge Massiah-Jackson’s May 15 order denying the two officers’ motion for reconsideration comes about a month after the jurist denied the defendants' motion for summary judgment in the case.

The prior motion was denied on April 16.

“The Defendants-Police Officers continue to assert that there is a legal basis for a ruling as a matter of law in favor of their Motion,” Massiah-Jackson’s most recent order states. “This Court does not agree.”

The judge said it will be up to a jury to decide whether or not the circumstances of the case give rise to “willful misconduct” and/or “gross negligence.”

Massiah-Jackson further wrote that oral testimony alone of the moving party or the moving party’s witnesses, even if un-contradicted, is insufficient to establish the absence of a genuine issue of material fact.

“It is not the province of the Court to assume that the testimony from the moving party’s witnesses are true,” the order states.

Massiah-Jackson wrote that exceptions to immunity from civil and criminal liability must be “narrowly construed.”

“This Court is unable to conclude that either our statutes or the facts herein mandate a determination that judgment as a matter of law is appropriate,” the judge wrote. “Police Officers Wexler and Irvine have been unable to distinguish this case which involves the interplay between the MHPA and the Political Subdivision Tort Claims Act from well-established precedent involving the interplay between the MHPA and the Sovereign Immunity Act or the interplay between the MHPA and the Mental Health Retardation Act.”

The MHPA is short for the state’s Mental Health Procedures Act.

The civil trial is expected to begin this coming fall, the court docket shows.

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