Nicholas Malfitano Apr. 6, 2016, 1:33pm


PHILADELPHIA – On March 30, the City of Philadelphia was granted summary judgment via sovereign immunity in a wrongful death lawsuit brought by the mother of Darrell T. Banks, who was fatally shot by the Philadelphia Police Department in 2013.

On Jan. 4, 2013, Officer Jeffrey McMahon and several other officers responded to a radio call about a possible home invasion by a 5’7”-tall African-American male wearing all-black clothing, who also may have been armed with a silver handgun. When the officers surveyed the area, they saw only Banks – a 6’0”-tall African-American male wearing differently-colored items of clothing – knocking on the door of a different home than the one referenced in the original radio call.

A separate officer, Officer Montanez, approached Banks and identified himself as the police, at which time Banks began to run away. The officers gave chase and caught up to Banks as he entered an alley. Officer McMahon exited his car while telling Banks to “show me your hands.” Banks, who Officer McMahon estimated was eight to ten feet away from him and reaching into his waistband while running into the alley, began to turn around.

Officer McMahon asserted he saw a black object in Banks’s right hand and fired two shots at him, but admitted he did not at any point see Banks holding a weapon or throwing anything. After he was shot, Banks stated he had been reaching for his cell phone.

Banks died from his injuries that same night.

On Jan. 3, 2014, Banks’ mother, plaintiff Marie Banks, filed a lawsuit against the City and various John Doe police officers, containing the following counts: Federal constitutional violations against the City; federal constitutional violations, assault and battery, and reckless disregard of safety against John Doe police officers; plus wrongful death against the City and those same John Doe police officers.

The City filed a motion for summary judgment on March 2, 2015.

Marie then filed a motion for time to conduct additional discovery, to answer the motion for summary judgment, and also filed a motion to amend the complaint by substituting the name of the officer involved.

On Aug. 17, the Court denied these motions, holding Marie “had not demonstrated good cause to alter the Court’s scheduling order.” Subsequently, the Court also dismissed counts one, two, three, and four of Marie’s complaint, leaving the only remaining claim as count five: wrongful death against the City.

“Defendant argues that plaintiff’s wrongful death claim is barred by Pennsylvania’s sovereign immunity provisions, which make the City and its employees immune from most suits brought under state law,” Robreno said, noting statutory exceptions for negligence and willful misconduct.

“Plaintiff may well be right that, viewing the facts in the light most favorable to her, a reasonable jury could conclude that Officer McMahon acted with willful misconduct. But Officer McMahon is not a defendant in this case, only the City is,” Robreno added. “So the question is whether Section 8550 [of Pennsylvania state law] operates to strip the City of its immunity as a result of Officer McMahon’s alleged willful misconduct.”

Section 8550 provides, “In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime…the provisions of Sections 8545 (relating to official liability), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply.”

Robreno stated while Officer McMahon may be precluded from the sovereign immunity protections due to Section 8550 if he were a defendant in this suit, the City retained its sovereign immunity despite claims that arguably rise to willful misconduct on the part of Officer McMahon.

“The City can be sued only for negligent conduct falling into one of the eight exceptions listed in Section 8542,” Robreno said. “As plaintiff concedes that none of those exceptions apply to her wrongful death claim, the Court will grant defendant’s motion for summary judgment and grant judgment to the City as to this claim.”

The plaintiff is represented by Sandra I. Thompson in York.

The defendants are represented by Armando Brigandi of the City of Philadelphia’s Law Department.

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-00082

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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