Jon Campisi Dec. 26, 2012, 10:14am

A federal civil rights complaint filed by a Pennsylvania woman on behalf of her teenage

daughter over claims that a police officer inappropriately stunned the youngster with a Taser gun can move forward, but only in part, a judge has ruled.

U.S. District Judge Lawrence Stengel, sitting in the Eastern District of Pennsylvania, filed a memorandum and order Dec. 20 that allows certain claims in Victoria Geist’s Section 1983 civil rights action against the City of Allentown and Police Officer Jason Ammary to move forward.

At the same time, the federal jurist granted a defense motion to dismiss certain aspects of the suit.

The case has its roots in the Sept. 29, 2011, incident outside of Dieruff High School in Allentown, Pa. in which Keshana Wilson, the plaintiff’s daughter, was allegedly physically abused by Ammary and subsequently used excessive force when he shot the teen in the groin with a Taser gun.

The incident was caught on school surveillance video.

The girl attempted to roll on her side after being shot with the less-than-lethal device so as to keep the Taser barbs from pressing further into her abdomen and pelvic area, the lawsuit states, but Ammary nevertheless forced Wilson to lie on her stomach while he handcuffed her, which caused the girl additional pain.

Geist filed her lawsuit in early December of last year, a few months after the alleged incident occurred.

The suit claimed that Wilson’s seizure constituted “an unlawful arrest without probable cause.”

In addition to the federal civil rights claims, the complaint also contained state law claims of illegal arrest, retaliatory filing of charges, excessive use of force, and failure to control a rogue officer.

The plaintiff claimed that Ammary attempted to cover up the incident by issuing to Wilson “unfounded” charges of aggravated assault and reckless endangerment.

In his ruling, Stengel noted that Wilson was adjudicated delinquent on a charge of failure to disperse, which is the juvenile equivalent of a conviction.

As such, the judge granted the defendants’ motion to dismiss the plaintiff’s false arrest claim.

“To maintain a false arrest claim, a plaintiff must show that the arresting officers lacked probable cause to make the arrest,” Stengel wrote. “Ms. Wilson was adjudicated delinquent on the charged conduct giving rise to the arrest. This alone is sufficient to show that the officer had ‘some reasonable basis to believe [she] had committed a crime.’”

As for the retaliatory filing of charges count, Stengel similarly agreed to dismiss this portion of the lawsuit, again writing that the fact that Wilson was found delinquent on certain criminal charges that gave rise to the arrest proves the “claims were well-supported and demonstrates a sufficient basis for the filing of the ‘felony-like’ charges.”

Stengel, however, did allow the excessive use of force claim to move forward, writing that he could not conclude on a motion to dismiss at this point given the facts in the complaint and the lack of evidence pertaining to the initial contact between the officer and the young teen.

The judge added that in order to ultimately succeed on the excessive force claim, the plaintiff must show that the officer’s actions were unreasonable in light of the circumstances of the arrest.

The last two claims were the failure to control a rogue officer count against the City of Allentown and the qualified immunity claim against both defendants.

Stengel allowed the first claim to proceed, writing that the allegations in the complaint appear sufficient to survive the motion to dismiss.

“If Plaintiff can prove that Defendant had policies or customs that condoned the use of excessive force in effectuating seizures of suspects, the municipality could be liable,” the judge wrote. “Plaintiff identifies a ‘policy and practice’ which potentially constitutes deliberate indifference to the constitutional rights of citizens, namely, failing to create a policy or train officers regarding the proper Taser gun use and deployment.”

The judge ruled that the plaintiff is entitled to proceed to discovery on the municipal liability claim to determine whether her allegations of inadequate training and corrupt policy are true.

Lastly, Stengel ruled that it is premature to rule on the qualified immunity issue at this point.

“As discussed above, the Court finds that Plaintiff alleged sufficient facts at the motion to dismiss stage of the litigation to demonstrate that Ms. Wilson’s Fourth Amendment rights may have been violated when the Defendant stopped and arrest her,” Stengel wrote. “Accordingly, Officer Ammary is not entitled to qualified immunity at this time but may raise the defense on a later motion or at trial.”

More News