Lawsuit against Phila. and police for Second Amendment violations mostly dismissed; judge allows amended complaint to be filed

By Jon Campisi | Jul 6, 2012

A man who sued the Philadelphia Police Department and a handful of officers back in

March for allegedly depriving he and others of their Second Amendment rights has had his suit mostly dismissed for technical reasons.

Jeff Lavalliere, an African American male from Philadelphia, sued the city’s law enforcement agency and various cops for a variety of constitutional rights violations, claiming that the city’s constant and longstanding assault on the Second Amendment is turning Philadelphia into a “police state.”

Lavalliere, who had been employed as an armed security guard, cited three separate incidents in his complaint in which Philadelphia police officers harassed him, unlawfully arrested him and seized his firearm and ammunition, carry license and Act 235 card.

The latter refers to armed guard certification.

Lavalliere’s 43-page lawsuit, which was filed at the federal court in Philadelphia on March 15, and subsequently reported on by the Pennsylvania Record, also labeled Mayor Michael Nutter as a “malicious and vocal advocate of abolishing the Second Amendment rights of citizens like Mr. Lavalliere.”

In a June 29 memorandum, U.S. District Judge Berle M. Schiller dismissed claims against two officers who had been named in the suit, Velez and Cartagena, (no first names were given), for failure to state a claim.

Schiller determined that those claims were time-barred since the statute of limitations had run out.

Those two claims were dismissed with prejudice.

The claims related to the first incident outlined in the complaint, which occurred on March 25, 2009, and had to do with the two cops allegedly unconstitutionally stopping, searching and seizing Lavalliere while he was on his way to his security job.

The lawsuit had claimed that Velez and Cartagena also illegally took Lavalliere’s handgun and filed “false and malicious” criminal charges against him.

Lavalliere subsequently successfully defended himself against the criminal charges, although he claims his gun and ammo have not been returned to him to date.

Schiller wrote that those two claims could not proceed, but not necessarily because they don’t have merit; the statute of limitations had simply run out, since the incident in question took place in the spring of 2009 and the lawsuit wasn’t filed until mid-March of this year.

The judge also dismissed a Section 1983 false arrest and false imprisonment claim against the police department and its officers, as well as a malicious prosecution claim against Officers Velez and Cartagena, ruling that they, too, were time-barred.

The judge also granted the defendants’ motion to dismiss an invasion of privacy claim for similar reasoning.

Schiller wrote that that claim, relating to the first two incidents, in March 2009 and November 2010 respectively, is subject to a one-year statute of limitations under Pennsylvania law.

Lavalliere contended that his invasion of privacy claim was timely based on the continuing violation doctrine and the discovery rule, claiming he was forced to continually protest his innocence for more than 175 days and, to this day, his criminal record contains false entries of crimes he never committed.

The continuing violation doctrine, Schiller wrote, relates to when a defendant’s conduct is part of a continuing practice. In this case, an action would be timely as long as the last act evidencing the continuing practice falls within the statute of limitations period.

In the Lavalliere case, Schiller determined, the doctrine does not apply, since the plaintiff’s invasion of privacy claims arise out of three separate incidents involving different police officers.

“The fact that he claims different individuals violated his privacy on different dates does not render the conduct part of a continuing practice,” the ruling states. “If three different individuals wrote different defamatory statements regarding Plaintiff on three separate occasions, the fact that one took place within the statute of limitations would not breathe life into the other two.”

Schiller further wrote that the fact that Lavalliere’s record remains blemished does not save his claims because a “continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.”

Schiller wrote that the discovery rule also fails to revive Lavalliere’s claims, since the rule tolls the statute of limitations only when a plaintiff is unable, despite exercising due diligence, to know of his injury or its cause.

Thus, if a plaintiff suffers an injury, the statute of limitations doesn’t begin to run until he knows, or reasonably should know, that he has been injured, and that his injury has been caused by another party’s conduct, the memorandum states.

The party seeking to invoke the discovery rule must show that he acted with “reasonable diligence” in attempting to unearth the fact and cause of his injury but was still unable to ascertain it, the ruling states.

Lavalliere had suggested that part of his injury related to the fact that he was denied employment because of his criminal record.

The judge, however, didn’t buy this argument, writing that if accepted, the plaintiff’s argument would “eviscerate the statute of limitations and lead to absurd results.”

“If the statute of limitations of his invasion of privacy claim was tolled until Plaintiff no longer felt the brunt of its effects, it would be open-ended,” Schiller wrote. “He could sue twenty years after his privacy was invaded if he was, for example, denied employment based on his false criminal record many years from today.

“Plaintiff was clearly aware that Defendants portrayed him in a false light when they wrongly accused him of criminal behavior,” the ruling continues. “He is not permitted to see how far the damage caused by Defendants conduct extends before suing.”

The only bit of good news for Lavalliere, it seems, is that while Schiller also dismissed a Title VI discrimination claim against the defendants, the judge did allow Lavalliere leave to amend his complaint to add a viable Title VI claim, provided he can do so in good faith.

A Title VI claim relates to discrimination based upon race, color or natural origin.

Lavalliere’s complaint references a city policy in which police officers allegedly selectively pull over and search African Americans.

If Lavalliere chooses to file an amended complaint, he must do so by July 13, the judge ruled.

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