PHILADELPHIA – Litigation connected to the death of an innocent bystander to a high-speed vehicle chase leveled against the City of Philadelphia and two of its police officials has been settled.
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, 2022 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 stated 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.”
The defendants filed an Aug. 2, 2022 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.
In a Dec. 5, 2022 memorandum opinion, U.S. District Court for the Eastern District of Pennsylvania Gene E.K. Pratter granted the defendants’ partial motion of dismissal, and removed from the case counts under 42 U.S.C. Section 1983 against Outlaw and Akil and under Monell against the City.
“The allegations of deliberate indifference on the part of Commissioner Outlaw and Captain Akil are wholly conclusory, with the only factual allegation being that the policies they put in place were inadequate. Second, the complaint does not allege any specific policy that Commissioner Outlaw and Captain Akil should have enacted but did not, nor does it explain how the failure to enact such a policy directly caused the alleged harm. To the contrary, the complaint acknowledges that the Philadelphia Police Department had a policy on vehicular pursuits in place which Officers Grant and Heeney allegedly violated,” Pratter said.
“Mr. Zhong’s allegations that Commissioner Outlaw and Captain Akil failed to properly train or supervise Officers Grant and Heeney are similarly deficient. To establish Section 1983 liability for a failure to train or supervise, the failure ‘must demonstrate deliberate indifference to the constitutional rights of those whom the officers may come into contact…’ Again, though the complaint does not allege any specific training that Commissioner Outlaw and Captain Akil failed to provide, not any specific inadequacy of the training that actually was provided. Nor does the complaint provide any non-conclusory allegations to support a finding of deliberate indifference. Without specific allegations of…prior misconduct, this allegations cannot state a failure to supervise claim.”
As to the Monell claim, Pratter felt it was similarly pled in an inadequate fashion.
“This count suffers the same fatal flaws as the supervisory liability claim against Commissioner Outlaw and Captain Akil – it alleges no specific policy or custom that exhibited deliberate indifference to constitutional rights of persons in the city. Nor does it allege facts to support an inference that a ‘policy or custom of [the City] was the moving force behind’ the alleged constitutional violation. Rather, as noted above, the complaint alleges that the City had a vehicular pursuit policy, but that Officer Grant and Heeney violated the policy. Likewise, Count III does not state a failure to train or supervise claim because, as discussed above, the complaint does not allege any specific training that the City failed to provide to Officers Grant and Heeney, nor any facts to support a finding of deliberate indifference. The Court will therefore dismiss Count III as well,” Pratter said.
UPDATE
Counsel for all parties filed a letter with the Court on Oct. 30 that the parties had reached a settlement in the matter, and looked to dismiss the case under Local Rule of Civil Procedure 41.1(b). The very same day, Pratter officially dismissed the suit.
“It having been reported that the issues among the parties in the above action have been settled and upon Order of the Court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court, it is hereby ordered that the above action is dismissed with prejudice, pursuant to agreement of counsel without costs,” Pratter stated.
The plaintiff was represented by Brian J. Zeiger of Levin & Zeiger, in Philadelphia.
The defendants were 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