PHILADELPHIA – The City of Philadelphia contends that a local man who claimed he was the victim of excessive force from a member of the Philadelphia Police Department two years ago, when an officer shot him three times during his suffering of a mental health episode, has not properly pled a municipal liability claim against the City and the officer involved.
Jose Cerda first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Dec. 9 versus the City of Philadelphia and Philadelphia Police Department Officer Gerald Murphy. All parties are of Philadelphia.
“On Dec. 9, 2020, plaintiff was a resident at the property located on the 4700 block of Rorer Street in the City and County of Philadelphia, when Officer Murphy and two backup officers responded to a call of a ‘person with a weapon’ at the premises. By way of background, plaintiff has a long history of mental illness, is a native Spanish speaker and does not speak English,” the suit said.
“Upon arrival, Officer Murphy observed plaintiff with a large knife in his right hand. Officer gave verbal commands to plaintiff to drop the knife, but plaintiff did not understand the verbal commands due to not speaking English and/or his mental illness. Officer Murphy had actual and/or constructive knowledge of plaintiff’s mental illness. Officer Murphy had actual and/or constructive knowledge of the fact that plaintiff did not speak English. Plaintiff advanced towards Officer Murphy with the knife due to the mental health crisis he was experiencing.”
The suit added Murphy was not equipped with a non-lethal device, such as a Taser, and instead discharged his service weapon three times at the plaintiff – leading him to fall to the ground, lifeless and foaming at the mouth. Due to the shot, the plaintiff lost consciousness, was not breathing and did not have a pulse, but was still handcuffed by police.
The plaintiff was then treated by Philadelphia Fire Rescue and transported to Temple University Hospital in critical condition, with his heart having been stopped and his brain having been deprived of oxygen for more than 30 minutes. He was monitored under 24-hour surveillance by local police for the duration of his hospital stay, the suit said.
“In an effort to cover up their unlawful, excessive and unauthorized use of police force against the plaintiff, the defendants manufactured charges against the plaintiff, charging him with aggravated assault and possession of an instrument of crime, simple assault and recklessly endangering another person. Each of these charges was baseless and there existed no probable cause for such charges, a fact known to each of these defendants. These charges were eventually withdrawn by the Philadelphia District Attorney’s Office after defendant went through mental health court,” the suit stated.
“As a result of the aforementioned assault and battery, plaintiff has suffered both serious mental and physical injuries, including but not limited to, cardiac arrest, anoxic brain injury, traumatic brain injury, memory loss, leg dysfunction, severe scarring and disfigurement, post-traumatic anxiety and depression, severe damages to his nerves and nervous system and various other ills and injuries which the plaintiff yet suffers, and may continue to suffer for an indefinite period of time into the future.”
The suit added that the Philadelphia Police Department did not implement standards recommended from a U.S. Department of Justice report issued in 2015 and failed to train, supervise and discipline officers.
UPDATE
An attorney from the City wrote a letter to the Court on Jan. 6, requesting a pre-motion conference and arguing that the plaintiff did not properly plead a Monell violation against both defendants.
“Plaintiff’s complaint discusses a 2015 Department of Justice report that recommends changes for the electronic control weapon (ECW) policy enforced by the Philadelphia Police Department. However, this report and policy appear untethered to the incident underlying plaintiff’s complaint and not relevant to the injuries that he claims. Allegedly, the report states that PPD’s ECW policy would help limit the misuse of ECWs if it contained more detail articulating the limited circumstances when ECWs should be employed,” the letter from defense counsel and Assistant City Solicitor Michelle V. Barone read, in part.
“But plaintiff does not assert that Officer Murphy misused an ECW/taser. Instead, plaintiff claims he suffered injuries after the officer discharged his firearm. Nor does plaintiff allege that the 2015 report recommended the use of an ECW/taser in circumstances such as those alleged in this case. As such, plaintiff has not plausibly alleged that PPD’s ECW policy is the source of plaintiff’s injury. Plaintiff’s alternative theory of Monell liability against the City argues that the City failed to train/supervise/discipline police officers – specifically, a failure to train Officer Murphy. The City’s understanding of this argument – though, not explicitly pleaded – is a claim of failure to train/supervise/discipline officers on appropriate use of force.”
Barone added that in this action, the plaintiff “has made no allegation regarding a relevant City policy, practice, or custom, nor has he identified a policymaker and established his/her deliberate indifference”, and that a complaint alleging municipal liability must include “specific factual allegations referencing the conduct, time, place, and persons responsible for any official municipal policy or custom.”
Barone explained that the plaintiff’s claims for failure to supervise and failure to train were also pled improperly.
“Monell liability and includes the phrase ‘deliberate indifference,’ but fails to offer the underlying factual support to substantiate these claims. Conclusory allegations that merely parrot the elements of Monell liability are insufficient to support a claim. Further, plaintiff concludes that the City was particularly aware of Officer Murphy’s alleged deficient training, however, does not identify a single prior incident of conduct that would have put the City of the deficient training. Thus, plaintiff has failed to state a Monell claim based on a failure to train, supervise or discipline police officers,” Barone stated.
“Finally, plaintiff asserts that PPD has a ‘policy’ to file criminal charges against individuals who were assaulted by police officers, and that there was no probable cause for plaintiff’s arrest. Plaintiff offers no support for this assertion, does not identify this alleged policy he references, and fails to identify any prior instances of such conduct. But more significantly, the injuries plaintiff claims are not related to his arrest – they are explicitly linked to the gunshot wounds sustained. Plaintiff has not brought claims of malicious prosecution or false arrest – instead, as described in the complaint, he elected to participate in a diversionary program – Mental Health Court – and successfully completed the program, earning a dismissal of the charges. As such, even if plaintiff had plausibly alleged the existence of such a policy, he cannot plausibly allege that such policy caused his injuries.”
For counts of excessive force and a Monell violation, the plaintiff is seeking compensatory and punitive damages in excess of $150,000, plus attorney’s fees, costs and such other, further relief the Court shall deem appropriate.
The plaintiff is represented by Emeka Igwe of The Igwe Firm, in Philadelphia.
The defendants are represented by Michelle V. Barone of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-04918
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com