Nicholas Malfitano Apr. 22, 2015, 9:05am


PHILADELPHIA – A Chester man who claims he unjustly spent five weeks in jail and alleged his alibi wasn't investigated properly had many of his claims dismissed in federal court on Friday.

According to the lawsuit, the plaintiff, Anthony Kelly, was arrested outside his place of employment on June 6, 2012, in response to an affidavit of probable cause and a warrant in connection with an incident of alleged assault and robbery on Oct. 23, 2006, filed by Officer Demoss Jones of the Chester Police Department.

The affidavit contained no physical description of the suspect, merely the name “Anthony Kelly” and an alias of “Izzy." Officers John Gretsky and Steven Gretsky, also of the Chester Police Department, allegedly made the arrest of Kelly without determining any information beyond confirming his full name. The litigation claims the officers did not confirm whether he used the alias of “Izzy.”

Jones, who was not present for Kelly’s arrest, was notified of the situation immediately after the warrant was executed. However, Kelly insisted he could not be responsible for the alleged assault and robbery in October 2006, since he was already incarcerated during that same time period.

Kelly alleges officers Jones, John Gretsky and Steven Gretsky made no attempt to investigate his claim of incarceration during the time period when the alleged assault and robbery occurred, did not contact the victim of said assault and robbery to confirm Kelly’s identity, did not attempt to verify the suspect alias of “Izzy” and that the officers supposedly possessed a photo of the actual suspect using the “Izzy” alias, but did not refer to it.

According to the lawsuit, Kelly spent more than a month in Chester County Jail in West Chester, until the charges against him were dismissed with prejudice on July 18, 2012, by Spencer Seaton, Jr. of the Chester Magisterial Court.

Though Kelly had claimed false arrest and false imprisonment, he conceded the statute of limitations on those charges had elapsed, leaving the other listed counts to be considered by Judge Gerald Austin McHugh, Jr. of the U.S. District Court for the Eastern District of Pennsylvania.

He had claimed false arrest; false imprisonment; malicious prosecution; failure to investigate; intentional infliction of emotional distress; and failure to train, supervise or discipline on the part of three officers of the Chester Police Department,

In a 14-page opinion released Friday, McHugh analyzed Kelly’s claims before rendering his decision.

McHugh reasoned officers John Gretsky and Steven Gretsky used probable cause and acted on the basis of a warrant which satisfied the Fourth Amendment requirement to list a suspect’s full name, despite the fact that the plaintiff may not have been the exact “Anthony Kelly” sought by authorities.

“The Gretskys merely executed the warrant, and the only defect asserted—the absence of a physical description of the person to be arrested—is not a legal defect where the suspect’s name is set forth. Therefore, there are no facts pleaded which, when accepted as true, support the conclusion that the Gretskys lacked probable cause to arrest Plaintiff in executing the warrant,” McHugh wrote.

Citing federal precedent, McHugh wrote that once officers possess and act on probable cause, they are not bound by the U.S. Constitution to “continue to investigate to uncover potentially exculpatory evidence.” Therefore, the claims against the Gretskys were dismissed by McHugh.

The plaintiff’s claim of malicious prosecution was another matter.

“There are meaningful differences in the role played by an officer who merely effectuates an arrest as compared to an officer responsible for pressing charges. Although the conduct of the arresting officer results in a suspect being taken into custody, whether the suspect continues to be held stems from the decisions of the prosecuting officer, in this case Officer Jones,” McHugh stated.

The defense contended the same precedent established in Baker v. McCollan, which does not require police to further investigate exculpatory evidence once probable cause has been established, should also apply to Officer Jones as the prosecuting officer, in addition to the Gretskys as the arresting officers.

This specific point formed the basis of McHugh’s dissent.

“This ignores the fact that once a suspect has been detained, law enforcement has additional time and resources to determine whether that suspect was in fact the individual involved in the crime,” McHugh said. “On the record here, I conclude that further inquiry was required.”

McHugh said the plaintiff’s common name and lack of physical description contained in the affidavit created a “wider possibility of error” and made the probable cause detaining the plaintiff “questionable," which McHugh stated was confirmed by the later dismissal of charges against Kelly.

“There was objectively verifiable information from official sources that Officer Jones could have consulted with minimal effort: a mug shot of the suspect and criminal records that would have definitively established that the wrong person had been arrested,” McHugh opined.

“As a definitional matter, no ‘investigation’ was required, just verification of a single fact—was Plaintiff incapable of having committed the crime for which he was arrested by virtue of his previous incarceration? With Kelly safely in custody, confirmation of that fact would not have interfered with Officer Jones’ discharge of his duty or required him to do anything more than check information available to and routinely used by police.”

McHugh added, in this case, there was clearly a question as to whether the correct individual had been arrested.

“Probable cause ceases to exist when it becomes clear that the wrong person has been taken into custody—a fact that Officer Jones could have readily ascertained. And the proposition that no citizen can be imprisoned without probable cause would be self-evident to any officer,” McHugh said.

On the count of the City of Chester’s alleged failure to properly train its police officers as to their authority, McHugh explained a two-year statute of limitations barred such a charge from further consideration, since Kelly’s arrest took place on June 6, 2012 and his initial complaint was not filed until July 18, 2014.

With respect to the intentional infliction of emotional distress, McHugh’s opinion cited earlier rulings from the state Superior Court stating the conduct of a person guilty of such a charge “must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in any civilized society.”

“Although I find the police conduct alleged here deeply troubling and sufficient to rise to the level of a constitutional deprivation, it lacks the personal animus Pennsylvania cases appear to require,” McHugh wrote.

McHugh dismissed the plaintiff’s claims of false arrest, false imprisonment, intentional infliction of emotional distress and failure to train, supervise or discipline against the defendants.

However, any and all counts relating to failure to investigate were incorporated into the malicious prosecution charge and retained, specifically against Officer Jones. Through his opinion, McHugh provided his rationale for that decision.

“The warrant in question was more than five years old, contained no physical description, and specified a nickname for the suspect which Plaintiff had in fact never used,” McHugh wrote.

“On these alleged facts, where the alibi asserted would have been completely exculpatory and could have been objectively verified through an official source, I am persuaded that Plaintiff has stated a viable claim for malicious prosecution.”

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