PHILADELPHIA – The City of Philadelphia and four police officials have disclaimed responsibility for the death of an innocent bystander to a high-speed vehicle chase, refuting claims from the plaintiff they failed to follow department policy.
Wenlei Zhong (as Administrator of the Estate of Wenhao Zhong) first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 13 versus City of Philadelphia, Philadelphia Police Department Commissioner Danielle Outlaw, Captain Nashid Akil, Officer Nicholas Grant and Officer Robert Heeney.
“On or about Jan. 13, 2022 at 8:35 p.m., plaintiff was lawfully at or about the area of 1400 N. Broad Street, Philadelphia, PA. Defendants Grant and Heeney were intentionally conducting a high-speed chase of Andre Grimes. Defendants Grant and Heeney were not acting on a report of the commission of a crime. Defendants Grant and Heeney willfully violated applicable Philadelphia Police Department regulations regarding high speed chases and/or vehicle pursuits. Defendants Grant and Heeney used deadly force on the pursued vehicle,” the suit said.
“Defendants Grant and Heeney believed Mr. Grimes’s vehicle disregarded a traffic law. During the pursuit of Mr. Grimes, defendants Grant and Heeney intentionally, recklessly, or negligently caused a motor vehicle crash. Defendants Grant and Heeney sped up to Mr. Grimes’s vehicle to get his tag number. Defendants Grant and Heeney maintained a speed well above the lawful speed limit. Based upon information and belief, defendants Grant and Heeney were traveling at a speed in excess of 55 miles per hour, in a 25 mile-per-hour zone. At or near the location of the incident at 1400 N. Broad St., Philadelphia, PA, is a very densely populated area.”
The suit added that the defendant officers initially did not activate their lights, sirens or horn during the chase, but did so towards the end of the chase. It was further noted that Wenhao Zhong, the plaintiff’s decedent, was present at the time of Mr. Grimes’s motor vehicle crash.
“Mr. Zhong was struck by Mr. Grimes’s vehicle during the crash. Mr. Zhong was killed during the automobile crash. Mr. Zhong was an innocent bystander. Defendant Heeney’s body camera was active during the high-speed case and recorded audio and video of the incident. Defendant Grant’s body camera was on standby during the high-speed chase and recorded only video of the incident. Further, defendants Grant and Heeney’s actions were in direct violation of Philadelphia Police Department Directive 9.4. Vehicular Pursuits,” the suit stated.
“The conduct of defendants Grant and Heeney was intended to injure in some way which was unjustified by any government interest – the conduct of defendants Grant and Heeney shocks the conscious. Accordingly, defendant City of Philadelphia failed to train and supervise defendants Heeney and Grant regarding vehicular pursuits. At the time of the incident, defendants Outlaw and Akil, were responsible for training and supervising defendants Grant and Heeney regarding high-speed vehicle pursuits and failed to properly train and supervise defendants Grant and Heeney.”
The Philadelphia Police Department policy quoted in the suit states that an officer is justified in initiating a vehicular pursuit only when they are: “1) In close proximity to a suspect vehicle and believes a pursuit is necessary to prevent the death or serious bodily injury of another person, or 2) in close proximity to a suspect vehicle and believes BOTH the pursuit is necessary to effect the arrest or prevent escape, and the officer has probable cause to believe that the person being pursued has committed or attempted a forcible felony OR, has probable cause to believe that the person being pursued possesses a deadly weapon, other than the vehicle itself.”
Additionally, it dictates that “all marked radio patrol sedans engaged in a pursuit must have, and will operate the police vehicle with emergency equipment activated continuously throughout the pursuit, which includes both light bars and red/blue lights and sirens.”
UPDATE
The defendants filed an Aug. 2 motion to dismiss the counts of civil rights and Monell violations brought under 42 U.S.C. Section 1983, allegedly for failure to state a claim.
“Counts I and III of plaintiff’s complaint must be dismissed. First, plaintiff’s Section 1983 claim against Commissioner Outlaw and Captain Akil (Count I) fails, because the complaint does not allege that they were personally involved in the fatal crash, nor contains sufficient non-conclusory allegations that would support a claim for supervisory liability under a failure to train or failure to supervise theory,” according to the motion to dismiss.
“Second and similarly, plaintiff’s Section 1983 claim against the City (Count III) fails because the complaint lacks non-conclusory allegations that a City policy or custom was the moving force behind the constitutional violation he alleges was committed by Officers Grant and Heeney, as is required for municipal liability under Monell.”
In an associated answer to the case from the City, Grant and Heeney filed on the same day, they asserted five affirmative defenses in claiming to be immune from suit.
“Plaintiff has failed to state a claim upon which relief can be granted. To the extent plaintiff is bringing state law claims, answering defendants assert all of the defenses, immunities and limitations of damages available to them under the Political Subdivision Tort Claims Act, and aver that plaintiff’s state law remedies are limited exclusively thereto. To the extent plaintiff is bringing state law claims, law enforcement privilege shields the answering defendants from liability on plaintiff’s state law claims. Plaintiff’s claims are barred by the doctrine of qualified immunity. Plaintiff’s decedent’s own negligence caused, or contributed to, his alleged injuries, sufferings and/or damages,” those defenses read.
For counts of civil rights and Monell violations under 42 U.S.C. Section 1983, plus state law claims of negligence and vicarious liability, the plaintiff is seeking damages not in excess of $500,000, plus costs, delay damages and all other appropriate relief, including compensatory damages and such other and further relief as appears reasonable and just.
The plaintiff is represented by Brian J. Zeiger of Levin & Zeiger, in Philadelphia.
The defendants are represented by Matthew K. Hubbard and Adam Ross Zurbriggen of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-02319
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com