Jon Campisi Feb. 12, 2014, 8:32am


A judge has refused to grant summary judgment to the Philadelphia School District and one of its police officers in a case brought by a former student who says the security agent used excessive force when trying to get the plaintiff, who was pregnant at the time, to leave her school’s library.

Theresa Zorbah is suing over claims that school police officer Adrienne Holmes used too much force when trying to remove her from the library at Fels High School in early June 2010.

The plaintiff had obtained permission from her teacher to go to the library to inquire about a service program called City Year.

When she arrived, however, she was told by Holmes, who had been watching over the library at the time, that no students were allowed inside in the room.

From there, the two became embroiled in an altercation, records show.

Following the tussle, Zorbah was taken by Philadelphia police officers to a local police station, where she was booked on charges of aggravated assault, simple assault and recklessly endangering another person.

The charges were later dropped.

Meanwhile, the plaintiff, who was pregnant during the encounter with Holmes, delivered a healthy baby in September 2010.

Zorbah’s lawsuit contains allegations of Fourth Amendment excessive force violations as well as state law claims for assault and battery.

In seeking summary judgment, lawyers for the defendants argued that Zorbah failed to prove her allegation of Fourth Amendment excessive force because her claim does not meet the “shocks the conscience” standard applicable to such claims.

This standard, which is more stringent than the reasonableness standard, requires that the force applied “caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than merely careless or unwise excess of zeal that it amounted to a brutal and inhume abuse of official power literally shocking to the conscience,” U.S. District Judge Thomas O’Neill noted in his Feb. 10 memorandum.

The judge wrote that summary judgment on the excessive force claim is inappropriate at this stage of the litigation because there is genuine dispute surrounding the circumstances of what actually occurred in the library.

Both sides have offered conflicting statements about the exact nature of the altercation and how it unfolded.

“The dispute of facts regarding the [sic] both parties’ actions, the amount of force Holmes used, and the purpose and duration of the force applied, renders summary judgment inappropriate,” O’Neill wrote.

The judge ruled similarly on Holmes’ motion seeking summary judgment because of qualified immunity.

“In the instant case, I have already found that the facts are in material dispute as whether plaintiff suffered an excessive force injury,” the judge wrote. “Similarly, disputed facts also control the resolution of whether defendant Holmes is entitled to qualified immunity.”

Holmes’ version of the facts indicate she was subject to a “violent student who pushed, clutched her collar and kicked her in order to gain entrance to the library,” and that the officer grabbed the plaintiff’s hair to keep the girl from hurting her any further, the judge noted.

The plaintiff, however, maintains that she was nonviolent and willing to leave the library, and that she had her hair pulled and was bent over her stomach during which the officer allegedly professed indifference to the student’s pregnant condition.

“Viewing the facts in light most favorable to plaintiff, a reasonable jury could believe her version of the incident and conclude that defendant’s use of force was unreasonable in light of the circumstances,” O’Neill wrote. “I will therefore deny defendant Holmes the privilege of qualified immunity at this stage of the proceedings.”

Lastly, the judge refused to grant summary judgment to the defendants on the assault and battery claims, determining that there is enough genuine dispute of material facts to allow those claims to move forward.

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