Judge dismisses complaint by mother of slain Phila. cop

By Jon Campisi | Mar 1, 2013

A federal judge has dismissed a civil rights complaint filed against the Pennsylvania

Board of Probation and Parole, its chairman, and two parole agents by the mother of slain Philadelphia Police Officer Moses Walker, Jr.

U.S. District Judge Harvey Bartle, III, who sits in the Eastern District of Pennsylvania, granted defense motions to dismiss the Section 1983 lawsuit that had been filed by Wayne S. Lipscomb following the death of her son, who was off duty when he was shot and killed on the streets of North Philadelphia after his shift at the local police district had ended back on Aug. 18 of last year.

Attorney Robert J. Mongeluzzi, of the firm Saltz, Mongeluzzi, Barrett & Bendesky, filed suit on behalf of Lipscomb following Walker’s death over claims that his killer, Rafael Jones, should not have been on the streets at the time he committed the murder because of prior parole violations.

The plaintiff alleged that her son died because of failures on the part of the parole board to have in place “proper and effective policies and procedures to protect the citizenry at large, and, in particular, police officers, including Officer Walker…”

The complaint had maintained that Jones violated the terms of his parole when he committed a prior robbery, and that he should have been under home confinement at the time of Walker’s murder, but he hadn’t been because the home he was staying in had no telephonic landline, which is required for home monitoring.

The complaint had accused the Board of Probation and Parole of a “systemic breakdown” that ultimately culminated in Walker’s shooting death.

This past December, lawyers representing the board filed a motion to dismiss the claim that asserted Lipscomb had failed to state a claim under Pennsylvania’s Wrongful Death and Survival Act.

“This is a classic case reflecting the harsh realities that law does not require that government ensure the safety of its citizens from private violence and that not every tragedy results in governmental financial compensation to the victim,” Chief Deputy Attorney General Barry N. Kramer had written at the time.

In his Feb. 27 memorandum and order, Bartle wrote that while the death of Walker was indeed tragic, the defendants simply cannot be held liable for his death under the circumstances alleged.

Bartle noted that Lipscomb’s complaint does not argue that the state-created danger was directed specifically at Walker, but rather the plaintiff contended that the danger was directed at a “discreet class of persons of whom Walker was a part as a ‘police officer acting in the line of duty who could be expected to draw his weapon in an effort to protect and serve the public when confronted with a violent felon wielding a loaded gun,’” the memorandum states.

The judge, however, wrote that he disagrees that the complaint describes any threat directed at a discreet class of people, in this case police officers, and that there is no allegation in the complaint that the defendants did anything that made Jones a special danger to a specific group including the cops, or that Jones was more likely to cause harm to a discreet class of people than to the public in general.

“No reasonable inference can be drawn that Jones while on parole was more inclined to target police officers as his victims than anyone else in Philadelphia or beyond,” Bartle wrote. “If anything, it is more probable than not that Jones would shy away from encounters with law enforcement officials as a group.”

Bartle noted that the complaint does not aver that Walker was in uniform at the time of his death or that Jones knew Walker was a police officer.

Aside from the state Board of Probation and Parole, the other defendants named in the lawsuit were the board’s chairman, Michael C. Potteiger, and parole agents Jose Rodriguez, Rosa Hernandez and Michelle Rivera.

All three had been sued in both their official and individual capacities.

The judicial memorandum notes that after receiving notice of the defendants’ dismissal motions, the plaintiff agreed to dismiss the claims against the Board of Probation and Parole and the action against Potteiger and Rodriguez in their official capacities, as well as all state law claims against Potteiger and Rodriguez in their individual capacities.

Since Lipscomb had not responded as to Hernandez, Bartle wrote, the court assumed that the plaintiff was treating that defendant as she had Potteiger and Rodriguez.

That left for decision only the Section 1983 claim against Potteiger, Rodriguez and Hernandez in their individual capacities.

Bartle wrote that assuming that all other elements necessary for a Section 1983 action against Potteiger, Rodriguez or Hernandez have been satisfied, “any threat they created was to the general population and not simply to a discreet individual or discreet class of individuals.”

Therefore, the judge determined, Lipscomb cannot move forward with her complaint under Section 1983 of the Civil Rights Act against the three named defendants.

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