PHILADELPHIA – A local man who alleged that a Philadelphia police officer committed a brutal assault against him during his participation in protests surrounding the Minneapolis killing of George Floyd last year, contends that the City of Philadelphia has not met the burden of proof for the dismissal motion it filed in the case.
Adam Al-Asad of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 29 versus the City and Philadelphia Police Officer Brian Belli.
“On Saturday, May 30, 2020, plaintiff, Adam Al-Asad, asserted his rights under the First Amendment of the United States Constitution by joining George Floyd/Black Live Matter Protests in Philadelphia, Pennsylvania. Plaintiff was invited to join the protest by a friend,” the suit said.
“On May 30, 2020, Al-Asad arrived in Center City, Philadelphia, Pennsylvania around mid-day. Upon his arrival, Al-Asad observed the crowd of protesters and could hear the police sirens. Al-Asad and a friend joined the protest march in the area of Broad Street and Race Street in Center City, Philadelphia. Shortly after joining the protest, Al-Asad witnessed police officers beating protesters with batons and spraying the protesters with pepper spray.”
Al-Asad added that while peacefully protesting with many others in the area of Broad Street and Race Street, he was struck in the face with pepper causing his eyes to burn. The plaintiff said he immediately fled from the intersection of Broad Street and Race Street to Dilworth Plaza, outside of City Hall.
While standing with a crowd of onlookers, Al-Asad said bicycle officer Belli, without just cause or legal justification, struck him in the back with a metal pole, and that the force of the blow caused the plaintiff to fall to his injured knee.
As he was suffering from pain in his back and knee, Al-Asad said he turned to see defendant Belli staring at him. Once the plaintiff was on his feet, he observed the metal pole on the ground.
“After Al-Asad in the back with a metal pole, Belli joined the line of officers surrounding the [nearby] Starbucks and started speaking to a police supervisor. Al-Asad approached the defendant to talk to him about what happened. Defendant Belli and the police supervisor both laughed at Al-Asad and ignored his request for an explanation as to why he was assaulted. Al-Asad then requested medical assistance for his injury and both defendant Belli and the unknown police supervisor refused to call for medical assistance,” the suit stated.
“Eventually, Al-Asad was taken to Jefferson Hospital by a friend. Once at Jefferson Hospital, Al-Asad was treated for a bruised tailbone and bruises on his lower back. As the result of the actions by defendant Belli, Al-Asad suffered physical injuries to his lower back, pain and suffering, psychological and emotional distress, some of which may be permanent.”
The City filed a motion to dismiss the complaint on Dec. 22, for failure to state a claim upon which relief could be granted.
“Here, the plaintiff has failed to plead any facts to establish a pattern of behavior by Officer Belli or any other police officer that would form the basis for such a claim. Furthermore, plaintiff fails to adequately plead a municipal liability claim under Section 1983 because his complaint includes only conclusory statements about the City’s alleged policy, practice or custom, with no supporting factual allegations. Plaintiff also fails to identify a municipal policymaker. Finally, plaintiff fails to allege prior instances of misconduct to support a failure-to-train or discipline based Monell claim,” the City’s dismissal motion stated.
“Additionally, plaintiff fails to state a failure-to-train or discipline claim because the complaint Bellis not identify prior instances of misconduct caused by allegedly inadequate training. Although the failure of a municipality to train its employees may support a Monell claim, such a theory represents the most ‘tenuous’ sort of municipal liability under Section 1983. Here, plaintiff fails to plead any facts that would suggest a pattern of unconstitutional conduct by untrained employees. Rather, plaintiff relies wholly on unsubstantiated and conclusory allegations, which are insufficient to state a failure to train claim. Such pleading deficiencies necessitate the dismissal of plaintiff’s Monell claim against the City.”
UPDATE
In a response to the dismissal motion filed on Jan. 27, counsel for the plaintiff argued that he properly pleaded his case, and that the City did not meet the burden of proof required in its dismissal motion.
“Based on a close examination of the plaintiff’s complaint in this case, it is clear that the plaintiffs have met the plausibility requirement. It should be noted that the factual allegations set forth in the complaint establish that plaintiff, Adam Al-Asad was a peaceful participant in a protest protected by the First Amendment,” the response brief stated.
“Although the complaint did not specifically identify Directive 10 which is the Use of Force Policy, the reference to the ‘use of force policy’ is explicitly referenced in the complaint, along with the allegation that the City has failed to enforce the police and has allowed officers to disregard the policy as the direct cause of the excessive force committed by the defendant Belli in this case. The fact that the City has failed as a matter of practice and/or custom to ensure that their officers were adhering to the protocols set forth in the use of force policy is a clearly stated factual assertion in the complaint.”
Plaintiff counsel argued that the discovery process must proceed, in order for their client’s case to be proven, and that the City had not provided a compelling enough argument to have the case thrown out.
“An investigation into defendant Officer Belli’s background may support a Monell claim based on the Police Department’s failure to discipline. The defendant City of Philadelphia should not be insulated from liability on a Monell claim based upon failure to supervise and discipline by avoiding disclosure of the background of the defendant Officer Belli through a motion to dismiss. Without the benefit of discovery on this separate claim of failure to discipline, granting the defendant’s motion to dismiss would undermine the process of litigation and a just result based on a full exploration of the background of the defendant officer,” the response stated.
For counts of excessive force, retaliation against free expression, common law assault and battery and civil rights violations, the plaintiff is seeking compensatory damages, punitive damages, reasonable attorney’s fees and costs and such other and further relief as appears reasonable and just.
The plaintiff is represented by Paul J. Hetznecker in Philadelphia.
The defendants are represented by Assistant City Solicitor Kathryn Faris, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-05242
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com