Jon Campisi Jan. 3, 2013, 8:46am

The state agency being sued by the family of slain Philadelphia Police Officer Moses

Walker, Jr. is asking a federal judge to dismiss the wrongful death action.

Lawyers for Pennsylvania’s Board of Probation and Parole, which is being sued by Wayne S. Lipscomb, Walker’s mother, filed a motion to dismiss the claim in late December at the federal court in Philadelphia, which is where the civil action was first filed in mid November.

Lipscomb claims in her lawsuit that her son’s murder, which occurred when Walker was off-duty, and walking home from a shift at the local police district in North Philadelphia, was the result of a failure on the part of the parole board to have in place “proper and effective policies and procedures to protect the citizenry at large, and, in particular, police officers, including Officer Walker …”

Specifically, the complaint says that Walker’s alleged shooter Rafael Jones, had violated the terms of his parole when he committed a prior robbery, and that he technically should have been held on home confinement under electronic monitoring at the time he allegedly pulled out a pistol and gunned down Walker in the street.

The home where Jones was staying did not have a telephonic landline, and thus electronic monitoring couldn’t be set up, leaving Jones to be free to roam the streets.

The complaint accuses the Pennsylvania Board of Probation and Parole of a “systemic breakdown” that culminated in Walker’s death.

In the motion to dismiss, the board’s attorneys wrote that Walker’s mother has failed to state a claim under Pennsylvania’s Wrongful Death and Survival Acts, since under state law the two actions are not “substantive and independent causes of action; rather they provide a vehicle through which plaintiffs can recover for unlawful conduct that results in death.

“This is a classic case reflecting the harsh realities that law does not require that government ensure the safety of its citizens from private violence and that not every tragedy results in government financial compensation to the victim,” states the defense motion, which was filed Dec. 20 by Chief Deputy Attorney General Barry N. Kramer.

The defendants are also seeking to have the complaint dismissed for lack of federal court jurisdiction.

The Eleventh Amendment of the U.S. Constitution, the motion reads, bars suits for damages under Section 1983 of the Civil Rights Act in federal court by a private party against states, state agencies and state officials acting in their official capacities.

In addition to the Board of Probation and Parole, the other defendants named in the lawsuit are Michael C. Potteiger, the board’s chairman, as well as board agents Juan Rodriguez, Rosa Hernandez and Michelle Rivera.

The motion to dismiss states that the complaint fails to allege that Potteiger was personally involved in the events that gave rise to the litigation, and that the legal concept of “respondeat superior” does not apply to Section 1983 actions.

In such suits, the defense filing states, a defendant must have “personal involvement” in the alleged wrongs.

“Plaintiff sues Potteiger only because he is Board Chairman, and, therefore, managerially responsible for the operations and management of the Board, its decisions on parole and its supervision of parolees,” the board’s attorneys wrote. “Plaintiff does not allege that Potteiger had any knowledge of Jones or of the events giving rise to the litigation until after Officer Walker’s murder.”

The filing also states that the Constitution’s Due Process Clause does not impose an affirmative action on the state to protect its citizens from private violence.

The state-created danger theory does operate as an exception to that rule, the motion reads, but specific elements must be present to satisfy the exception, none of which are apparent in this case, the defense attorneys contend.

The motion states that the complaint lacks any factual allegations showing that it was foreseeable to Potteiger that upon release, Jones would kill a citizen or a police officer, “let alone Officer Walker.”

“While alleged that Jones had a criminal record … it is not alleged that he had a history of violent offenses against persons or any specific animosity toward law enforcement in general or Officer Walker in particular,” the motion reads. “Neither is it alleged that Chairman Potteiger had any actual knowledge or awareness of Jones or Walker prior to the tragedy or that he was aware of any circumstances suggesting some foreseeable harm to Officer Walker.”

The defense attorneys also argue that Potteiger, the board members and the board itself are barred from suit because of sovereign immunity.

The plaintiff is being represented by attorneys from the high-power Philadelphia-based personal injury firm of Saltz, Mongeluzzi, Barrett & Bendesky.

The plaintiff’s attorneys have not yet filed a response to the dismissal motion, however, they posted some comments to the firm’s website that stressed the litigation will move forward, despite an apparent inaccurate report recently in the Philadelphia Inquirer that stated the lawsuit had been dismissed.

“Be assured that on behalf of the Walker family, we will vigorously oppose the attempt by the outgoing Pennsylvania Attorney General to have the case dismissed as it relates to the actions of the Chairman of the PBPP, and will oppose any other efforts to prevent this case from being tried before a jury in Federal court,” the firm’s statement reads.

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