Man shot by Philly police files federal civil rights claim

By Jon Campisi | Sep 30, 2011

An Upper Darby man who claims he was shot by a Philadelphia police officer without provocation is suing the city of Philadelphia and the officers involved in last summer’s incident.

Philadelphia attorney John Rightmyer filed the federal civil rights lawsuit Sept. 26 at the U.S. District Court for the Eastern District of Pennsylvania on behalf of Derrick Berthau.

Aside from the city, the lawsuit names as additional defendants two city police officers identified only as John Doe #1 and John Doe # 2.

According to the complaint, Berthau was a passenger in the front seat of his own car, along with three other occupants, when it was pulled over by the defendant officers on June 7, 2010, in the vicinity of the 300 block of South 56th Street in Philadelphia.

In his complaint, Berthau claims that the driver of his car decided to pull over before police initiated their vehicle stop because he believed the cops were about to make contact with the plaintiff’s vehicle.

After the driver of the plaintiff’s vehicle pulled over and rolled down the windows in an attempt to show cooperation, the police proceeded to activate their emergency lights, pulled in front of and behind the plaintiff’s vehicle, and then approached the plaintiff and the others with guns drawn, the suit states.

The driver of Berthau’s car was then physically pulled out of the vehicle before he was able to place the car in park, meaning it was left idling in gear, the suit claims. It was then that Berthau, in an attempt to stop the car from rolling forward and striking a police car, reached over with his left hand, all the while keeping his right arm in plain view, and attempted to put the car in park, the complaint states.

It was during this time that Defendant John Doe # 1 shot Berthau through the left arm, the suit claims. Another officer who was standing with his/her gun drawn behind the first officer then fired his/her gun as well, though why, and at what exactly, the plaintiff doesn’t know.

The lawsuit alleges that while Berthau admitted to not having seen which officer shot him, he did turn to see Defendant Doe #1’s gun pointed at Berthau with what appeared to be smoke coming from the muzzle.

Berthau was eventually taken to the emergency room for treatment of his gunshot wound before being taken back to the 18th Police District for booking. All the while, nobody ever told Berthau what criminal acts he was being charged with, the lawsuit claims.

While in police custody, Berthau again had to be taken to the hospital for treatment after complaining of extreme pain, and eventually was brought back to the police station.

Berthau was soon released, but he claims to have discovered money missing from his wallet, which was in police custody while he was inside a jail cell, the suit states. However, Berthau didn’t press the issue because of his physical pain and desire to leave police custody.

“While he was arrested and in police custody, Plaintiff doesn’t recall anybody, not officers, detectives or Internal Affairs personnel ever having interviewed or questioned him at all about the traffic stop, shooting or much of anything, nor did any of Defendant City officers say why it was he had to be arrested and put in a cell for hours after being shot by Defendant Doe #1 needlessly,” the lawsuit states.

A press statement issued that day by a police department spokesman said the plaintiff’s vehicle had been pulled over by officers for running a red light, the complaint states. Furthermore, the spokesman said, the shooting occurred after a “confrontation” during the traffic stop.

A press release issued the next day said Berthau was shot in the arm after the vehicle in which he was a passenger “failed to comply” with officers’ demands, the suit states. The police statement also claimed that the plaintiff’s vehicle “rammed” into a police squad car and two officers.

The officer who shot Berthau may have done so because he/she believed Berthau was reaching for something in his waistband during the encounter, the officer told police superiors, according to the complaint.

After being released from police custody, Berthau went to retrieve his vehicle, which he found to have sustained significant damage, and seemed to be missing items, such as a backpack and GPS unit, the suit claims.

Neither Berthau nor the other occupants of his vehicle had any illegal substances or weapons on them at the time of the incident, the suit states.

Berthau's gunshot wound caused him to lose a finger on his left hand, and also caused him to sustain other physical injuries, such as radial nerve palsy, significant wasting/atrophy of the left wrist extensors and left brachioradialis, scarring and other problems, the suit claims.

Berthau had to wear a wrist splint for more than nine months and the injuries caused him to experience a loss of function of his left hand, the suit claims.

He still hasn’t regained the use of his left wrist despite surgical intervention.

To date, Berthau doesn’t know the whereabouts of his missing money, GPS unit and backpack, and he has not been compensated for the damage to his vehicle, the suit claims.

In addition to the civil rights violations, the lawsuit also accuses the defendants of assault and battery, as well as false arrest and false imprisonment.

Berthau seeks unspecified compensatory and punitive damages, treble damages, and other court relief.

He is demanding a jury trial.

The federal case number is 2:11-cv-06034-HB.

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