PHILADELPHIA – Philadelphia police officers who have denied that they used excessive force on a Massachusetts man when responding to his opiate overdose and allegedly caused his death, counter that their actions are protected through qualified immunity.
Jonathon O. Dowd (as Father and Administrator of the Estate of Jonathon B. Dowd, deceased) of Pocasset, Mass. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 28 versus the City of Philadelphia and Philadelphia Police Department Officers 1-3.
At the time of his death, Jonathon B. Dowd was 28 years old and a resident of Biddeford, Me.
“Dowd arrived in Philadelphia by train on the afternoon of Feb. 12, 2020. Dowd worked for Kimball and Sons Tree Services, a corporation registered in Maine, that had a contract to remove trees in Pennsylvania,” the suit stated.
“Joshua Shumaker, a coworker of Dowd’s at Kimball and Sons Tree Services, met Dowd at the 30th Street Station in Philadelphia. He intended to drive Dowd to their shared hotel room.”
Prior to arriving at their hotel, Dowd requested that Shumaker take him to get something to eat and the two young men decided to go to a local Chinese food restaurant.
Upon arriving at the Chinese food restaurant, Dowd went into the establishment alone and remained there for some time before returning to Shumaker’s vehicle. Soon thereafter, Shumaker recognized that Dowd was in distress and that he may be experiencing an opioid overdose.
As Shumaker was not from Philadelphia and did not know where the nearest hospital was located, he proceeded to a Rite Aid pharmacy on North Broad Street, where he explained the situation to a pharmacist on site – who then called 911 and also administered Naloxone, a medicine used to reverse the effects of an opiate overdose, to Dowd.
Upon receiving the Naloxone, the suit says Dowd became “disoriented and agitated.” Dowd was 5’10” tall and weighed 151 pounds, the suit said.
“At approximately 5:20 pm, police officers arrived at the scene. Dowd was lying on the ground at the time Defendant Officer 1, Defendant Officer 2, and Defendant Officer 3 arrived. Upon seeing defendant officers’ vehicle lights, Dowd stood up and started to speak mostly unintelligible words. Defendant Officer 1 shouted directions at Dowd. Dowd approached Defendant Officer 1,” the suit stated.
“When Dowd approached defendant officers, Officer 1 grabbed Dowd by the back of the head and slammed Dowd’s head into a nearby vehicle. Officer 1 then threw Dowd to the pavement face-first. An unknown individual that previously served as a Philadelphia Police Officer happened to be at the Rite Aid at the time, and intervened to assist Officer 1 by holding Dowd in a prone position and into the pavement. Officer 2 also intervened to hold Dowd down. Officer 3 intervened to hold Dowd’s feet.”
According to the suit, Defendant Officer 2 or Defendant Officer 3 put Dowd into handcuffs. While handcuffed and lying prone on the ground, Dowd yelled to defendant officers that he could not breathe and pleaded “Help me, daddy.”
Officer 1 responded by viciously punching Dowd in the face and head four times with a closed fist.
Around this time, a team from the Philadelphia Fire Department arrived on the scene with an ambulance. Defendant officers placed Dowd prone on a gurney and moved him into the ambulance.
The ambulance left the scene and traveled to Albert Einstein Medical Center in Philadelphia. On the way to Albert Einstein Medical Center, Dowd went unconscious. A paramedic turned Dowd into a supine position and administered CPR. Though paramedics attempted to resuscitate Dowd, their efforts were in vain and he remained unresponsive.
“Dowd died in the ambulance on his way to Albert Einstein Medical Center. Dowd was pronounced dead by Dr. Shawn Sethi in the Albert Einstein Medical Center’s Emergency Room at 5:58 pm. The cause of death was blunt force trauma to the face and head,” per the suit.
“Defendant City has provided some training to some officers on the use and likely effects of Naloxone. It has not provided such training to all police officers, including defendant officers. Defendant officers continue to work for Defendant City and have not received any formal discipline for the incident.”
The City filed an answer to the complaint on July 1, denying the complaint’s charges in their entirety and putting forth seven affirmative defenses.
UPDATE
After an amended complaint was filed on July 14, defendant officers Daniel Mitchell and Lindsay Moore filed an answer to it on Sept. 23. In addition to denying the plaintiff’s charges, the officers asserted eight separate affirmative defenses.
“Plaintiff has failed to state a claim against the defendants upon which relief can be granted. Plaintiff’s claims are barred by the doctrine of qualified immunity because, at all times material hereto, the defendants were carrying out their duties in a proper and lawful manner and in the exercise of good faith. Plaintiff’s claims are barred, in whole or in part, to the extent that he has failed to take reasonable measures to mitigate any or all damages. Plaintiff’s claims are barred, in whole or in part, insofar as defendants purported actions or omissions were not the proximate cause of any alleged injury, loss, or damage incurred by the plaintiff,” the defenses stated.
“At all times material to this civil action, defendants acted in a reasonable, proper and lawful manner. Plaintiff’s claims are barred by the applicable statute of limitations. To the extent plaintiff is bringing state law claims, law enforcement privilege shields the defendants from liability on plaintiff’s state law claims. Defendants assert all of the defenses, immunities, and limitations of damages available under the Political Subdivision Tort Claims Act and aver that plaintiff’s remedies are limited exclusively thereto.”
For counts of violation of the Fourth Amendment for excessive force resulting in death, for failure to intervene, for failure to train in exhibiting deliberate indifference, assault and battery under state law, survival and wrongful death, the plaintiff is seeking compensatory and punitive damages, attorney’s fees and costs, pre- and post-judgment interest, other relief that the Court deems just and proper under either law or equity and a trial by jury.
The plaintiff is represented by Adam T. Wolfe of Shollenberger Januzzi & Wolfe in Enola, and Scott P. Stedjan of Killian & Gephart, in Harrisburg.
The defendants are represented by Andrew Pomager of the City of Philadelphia’s Law Department and Nicholas A. Cummins of Bennett Bricklin & Saltzburg, all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-01945
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com