Nicholas Malfitano May 7, 2015, 1:11pm


PHILADELPHIA – On April 30, a federal judge dismissed claims excessive and deadly force, assault and battery, wrongful death and a failure to properly train officers to respond to “mentally disturbed individuals,” against both the City of Philadelphia and Officer Thomas Dempsey.

The April 2014 litigation was filed by Geraldine Johnson, estate administratrix for her late brother, Kenyado D. Newsuan, in U.S. District Court for the Eastern District of Philadelphia.

Newsuan, 31, was killed in an altercation with police in the Olney section of Philadelphia in the early morning hours of April 22, 2012.

The complaint says Officer Dempsey encountered Newsuan that morning in the midst of having a bad reaction to drugs he had ingested. After taking the drugs, Newsuan had stripped naked and went outside of his house.

When Dempsey responded to the scene, he was allegedly told by Newsuan’s girlfriend Christina La Torre he should call for backup and not deal with Newsuan alone.

The officer, who allegedly replied he “had it under control,” ended up firing his Taser gun at Newsuan – although the shock apparently had no effect, the lawsuit states.

“Mr. Newsuan was just standing there naked, with a dazed look on his face, when Officer Dempsey again called to the decedent to come to him. Mr. Newsuan was naked, unarmed and he did not pose a threat to the Defendant or anyone else,” the complaint read.

When Newsuan approached Dempsey, the complaint stated Dempsey then opened fire on the man, which the lawsuit claimed was “excessive and unreasonable force,” pursuant to Newsuan’s rights under the Fourth Amendment to the U.S. Constitution.

However, Dempsey and neighbors who witnessed the altercation paint a different picture, according to court records.

Eyewitness testimony indicated when Newsuan approached Dempsey, he did so in a hostile manner, tried to slam his head into a parked police car and attempted to reach for the service weapon in Dempsey’s holster.

In the ensuing struggle for the gun, Dempsey was able to gain control of the weapon and fire two initial shots, which did not stop Newsuan, then fired two more, witnesses said. At that point, Newsuan was neutralized by the officer’s fire.

An autopsy conducted by the Medical Examiner’s Office concluded Newsuan died from injuries connected to two bullet wounds to his chest and one to his abdomen. A toxicology report produced by the same office confirmed Newsuan was under the influence of PCP at the time of his death.

Counsel for the defendants filed a motion for summary judgment in February, claiming the “undisputed facts” of the case showed Dempsey was justified in his use of lethal force against Newsuan.

In evaluating the accounts and claims presented by both sides, Judge William H. Yohn, Jr. opted to grant their motion for summary judgment last week and dismiss all claims against the defendants, deciding Dempsey did “not act unreasonably” in the altercation with Newsuan.

Citing precedent from the U.S. Court of Appeals for the Third Circuit, Yohn opined, “It is unreasonable for an officer to use deadly force against a suspect unless the officer has good reason to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

Because “undisputed facts” showed Newsuan’s movement towards Dempsey was not stopped by a Taser, Newsuan succeeded in slamming Dempsey’s head into a patrol car and did attempt to reach for Dempsey’s gun, Yohn stated “any reasonable police officer” would believe they were in jeopardy of death or serious bodily injury.

Yohn further found no violation of Newsuan’s Fourth Amendment rights – therefore, the judge did not feel the plaintiff’s subsequent claims of excessive and deadly force, wrongful death or a Monell violation held up.

In addition, Yohn cited the Pennsylvania Political Subdivision Tort Claims Act in recognizing Dempsey’s actions, performed through the scope of his employment as a police officer, granted him immunity from any liability on the assault and battery claim.

“For the reasons set forth above, I will enter judgment for defendants on all claims,” Yohn wrote on April 30.

The plaintiff sought damages relating to Newsuan’s funeral, burial and estate administration expenses, in addition to compensatory damages in excess of $175,000, plus interest, costs, legal fees and punitive damages.

The plaintiff was represented by Alan E. Denenberg, of Abramson & Denenberg in Philadelphia.

The defendants were represented by John J. Coyle of the City of Philadelphia Law Department, also in Philadelphia.

United States District Court for the Eastern District of Pennsylvania case 2:14-cv-02331

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