PENNSYLVANIA RECORD

A Philadelphia man who claims he spent 31 months in prison awaiting trial on what turned out to be bogus charges stemming from a case in which he was mistakenly identified for a criminal has filed a federal civil rights lawsuit against the city and the police officers involved in his arrest.

Attorneys David Rudovsky and Dana Bazelon, of the Philadelphia firm Kairys, Rudovsky, Messing & Feinberg, filed the lawsuit Feb. 14 at the U.S. District Court for the Eastern District of Pennsylvania on behalf of Martin Burrus.

The defendants named in the civil action are the City of Philadelphia, as well as Police Officer Ernest Brown and Police Officer Sumter, for whom no first name is given.

The lawsuit accuses the defendants of malicious prosecution and false imprisonment of an innocent person, “accompanied by an unconstitutional suggestive identification procedures, use of fabricated evidence and unconstitutional City policies and practices.”

The case stems from Burrus’ 31 months of pretrial incarceration and other hardships he endured following an arrest in which he claims he was falsely accused of trying to run down officers with his vehicle.

On Feb. 28, 2008, officers with the police department’s Narcotics Field Unit set up a “buy” operation in the area of 52^nd and Pentridge streets in Philadelphia after they got word from an informant that cocaine was being sold in the area, according to the complaint.

Later that night, officers observed a Dodge Ram truck that the informant stated would be involved in a narcotics transaction.

The officers attempted to intercept the vehicle, but it fled, the suit states.

At one point during the chase, the van reversed direction and struck a police vehicle.

The driver fled; the passenger was apprehended.

The van belonged to Burrus, but it had been stolen earlier that day, a theft that was reported to the police department by Burrus on Feb. 29, as soon as he had realized the van was missing, the lawsuit states.

Nevertheless, defendant Officers Brown and Sumter were able to obtain the license plate number of the van and use this information to obtain the owner’s information from the Bureau of Motor Vehicles, the suit states.

The two then viewed this single photograph of Burrus at the direction of the investigating detective, and based on this “highly and unnecessarily suggestive identification procedure, they made a knowingly incorrect identification of plaintiff Burrus as the driver of the van,” the lawsuit states. “In fact, Mr. Burrus was not the driver and produced strong alibi and other evidence of his innocence in the criminal proceedings.”

The officers and detective on the case then set forth a “false factual narrative” in which they asserted that the detective, who is now deceased, accessed the photo of Burrus on Feb. 29, not Feb. 28, which is when it actually occurred, and that the detective didn’t tell the other officers he obtained the photo from the Bureau of Motor Vehicles, the suit claims.

The lawsuit also accuses police of relying on a single photograph rather than a more commonly used “photo spread procedure.”

“This practice and custom is unconstitutional and there is no factual or empirical basis for the underlying assumption, and even if there was, it is clearly established that the showing of a single photograph of a suspect, is highly suggestive, and is unnecessary absent exigent circumstances (none of which are present in this case),” the lawsuit states.

Burrus was arrested on March 17, 2008, “based on the impermissible and unconstitutional identification procedure,” the lawsuit states.

He was held in custody pending the resolution of the criminal charges, which took more than a year.

During the criminal proceedings, the suit states, the true facts of the case were disclosed to and discovered by the plaintiff and made known to the court, after which the officers failed to appear at several court hearings and the matter was dismissed in early June 2010 for violation of the speedy trial rights of the plaintiff.

But the damage was already done, the complaint contends, and Burrus suffered 31 months of pretrial incarceration, loss of income from his job as a computer specialist at the Head Start Learning Tree in Philadelphia, and “serious emotional trauma and pain and suffering associated with the false charges, malicious prosecution and incarceration.”

The lawsuit contains federal constitutional claims and state law claims.

Burrus seeks unspecified compensatory and punitive damages, attorney’s fees and other court relief.

A jury trial has been demanded.

The federal case number is 2:12-cv-00776-CMR.