PHILADELPHIA – The City of Philadelphia and one of its police officers have opposed allegations from a local man who claimed he was the victim of excessive force two years ago, when that same officer shot him three times during his suffering of a mental health episode.
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
The City filed a motion to dismiss the case on Feb. 16, for failure to state a claim upon which relief could be granted.
“Plaintiff fails to allege a cognizable claim of municipal liability against the City under Section 1983 because he pleads no facts regarding a specific policy or custom that is the moving force behind an alleged constitutional violation. Instead, plaintiff refers to a policy that bears no nexus to the injuries alleged and attempts to impermissibly raise a claim against the City under a theory of respondeat superior. Monell liability must be founded upon evidence that the government unit itself supported a violation of constitutional rights, while identifying the policymaker and establishing his/her deliberate indifference. Proof of a single incident or unconstitutional activity is not sufficient to impose liability under Monell,” the dismissal motion stated.
“Courts have ‘recognized a two-path track to municipal liability under Section 1983, depending on whether the allegation is based on municipal policy or custom.’ A policy occurs when a decision-maker with final authority ‘issues an official proclamation, policy, or edict,’ while a custom occurs when practices are ‘so permanent and well-settled as to virtually constitute law.’ It is not enough for a plaintiff to simply identify an offending City policy or action. Plaintiff must also ‘demonstrate a direct causal link between the municipal action and the deprivation of federal rights.”
The City further argued that the taser in question was not the source of Cerda’s injuries.
“Plaintiff’s complaint discusses a 2015 Department of Justice report that recommends changes to the ECW policy enforced by the City. 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 the City’s ECW policy would help limit the misuse of ECWs if it contained more detail articulating the limited circumstances when ECWs should be employed. But plaintiff does not assert that Officer Murphy misused an ECW or taser. In fact, plaintiff concedes that Officer Murphy was not equipped with an ECW. Instead, plaintiff claims he suffered injuries after the officer discharged his firearm. Plaintiff fails to illustrate any link between the ECW policy and the claimed constitutional violation,” the motion stated.
Defendant Murphy filed an answer in the matter on the same day, Feb. 16, denying Cerda’s allegations and providing seven affirmative defenses on his own behalf.
“Plaintiff has failed to state a claim against answering defendant upon which relief can be granted. Plaintiff’s claims are barred by the doctrine of qualified immunity because, at all times material hereto, answering defendant was carrying out his 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 they have failed to take reasonable measures to mitigate any or all damages,” according to these defenses.
“Plaintiff’s claims are barred, in whole or in part, insofar as answering defendant’s purported actions or omissions were not the proximate cause of any alleged injury, loss, or damage incurred by the plaintiff. Plaintiff was privileged in the use of any force applied to plaintiff. Plaintiff’s claims are barred and/or limited by the doctrine of assumption of the risk. In the encounter with plaintiff, answering defendant exercised only such force as was reasonable and necessary under the circumstances in order to effectuate the arrest and/or protect himself and others from harm.”
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