PHILADELPHIA – Pursuant to mutual stipulation between the family of a transgender woman who was shot and killed inside their own home by members of the Malvern Police Department during a wellness check last year, as well as the Department, the Borough of Malvern and the police officials involved in the incident, several claims have been withdrawn from the lawsuit connected to it.
Rebecca Hofmann (as Administrator of the Estate of Maddie Hofmann, deceased) of Lansdale filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 13 versus the Borough of Malvern, the Malvern Police Department, its Police Officers Jason Listmeier and Joseph Capuano, Corporal Patrick M. Dougherty and Chief Louis M. Marcelli, all of Malvern.
“On May 19, 2022, a call was made by a co-worker of Maddie, to the Malvern Police Department. In that call, advised Malvern P.D. that Maddie was having mental health issues and was also in the process of transitioning from a male to a female. [The caller] further advised that the purpose of the call was for Malvern P.D. to perform a welfare check on Maddie. Immediately upon arriving, Maddie began screaming from behind the closed door to their home. Upon opening the door, Maddie immediately and clearly advised the officers, ‘I am in a crisis situation.’ Maddie, at said time, was in possession of a firearm,” the suit stated.
“The officers retreated, each to a protected position and commenced speaking to Maddie. Then, as Officer Capuano began to approach Maddie, Maddie stated, ‘Do not touch me’ and ran back into their home. However, rather than simply stand his ground in his protected position, Officer Capuano decided to give chase to Maddie and ran into Maddie’s home. When Officer Capuano entered Maddie’s home, he did so without either a search warrant, an arrest warrant or exigent circumstances to permit a warrantless arrest and/or entry. Maddie had not committed any crime in the presence of the officers. Officers were not in ‘hot pursuit’ of Maddie. There was no risk that Maddie would destroy evidence. Maddie was not a fleeing felon.”
The suit continued that inside the home, Officer Capuano and Maddie began grappling, as Maddie’s hand was on their firearm while Officer Capuano had Maddie in a restraint. But the suit makes clear that “at no time did Maddie point the firearm at Officer Capuano nor any other officer on scene.”
The suit added that within moments, Corporal Dougherty had also rushed into Maddie’s home and advised Officer Capuano to get out of the way, issuing this directive” despite the fact that Officer Capuano had Maddie in restraint, was behind Maddie and was resolving the situation without use of a firearm.”
The suit maintained that “Corporal Dougherty’s directive to get out of the way and Officer Capuano’s ability to comply, thereby giving Corporal Dougherty a window to shoot Maddie, reflects that Maddie posed no imminent threat of death or serious physical injury to the officers.”
“Corporal Dougherty then proceeded to shoot Maddie three times – hitting Maddie in the face and the chest. At no time did Corporal Dougherty give Maddie any warning before he proceeded to fire his firearm and strike Maddie with three deadly shots. Corporal Dougherty opened fire almost immediately upon entering Maddie’s home. Attempts were made to save Maddie; however, those efforts would be unsuccessful. As a result, Maddie would succumb to the injuries inflicted upon them by the shots fired from Corporal Dougherty’s firearm. Officer Capuano’s forcible entry into Maddie’s home, was a leading force in the encounter that resulted in Maddie’s death. Maddie legally owned and possessed their firearm,” the suit said.
“Maddie’s mere possession of a legally-owned firearm did not constitute a threat of death or serious physical injury to Officer Capuano, Officer Listmeier, Corporal Dougherty, nor any other individual. Maddie’s conduct leading up to Officer Capuano’s forcible entry and Corporal Dougherty’s unlawful use of a firearm – dropping their fireman during the police encounter, and turning their back and running away from the officers – did not constitute a threat of death or serious physical injury to Officer Capuano, Officer Listmeier, Corporal Dougherty, nor any other individual. Upon information and belief, plaintiff anticipates defendants may have engaged in spoliation of evidence, which if proven may shift plaintiff’s burden of proof with respect to some claims. There are several notable inconsistencies in the Malvern P.D. Investigation Report and the Chester County District Attorney’s Press Release, which both contain inaccurate and untruthful depictions of what occurred in order to protect defendants Malvern, Malvern P.D., Corporal Dougherty, Officer Capuano and Officer Listmeier from civil liability and potential criminal prosecution.”
In that June 2, 2022 press release from the Chester County District Attorney’s Office, authorities arrived at the conclusion that a lawful use of force had taken place, due to Maddie allegedly having had their finger on the trigger of their weapon while it was pointed at the officers.
“In Pennsylvania, a law enforcement officer’s use of deadly force is governed by Section 508 of the Pennsylvania Crimes Code. A law enforcement officer is ‘justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person.’ In addition, the use of deadly force by law enforcement officers is justified to defeat the escape of a person and the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay,” the press release stated.
“Based on the totality of the circumstances, it was apparent that the subject proceeded to take actions that placed all officers in imminent danger of death or serious bodily injury. By waving their firearm with her finger on the trigger while struggling over the gun, they jeopardized the lives of all present. The subject created a situation where the police officer had a reasonable belief that his life and the lives of others, were in danger of serious bodily injury or death, thereby justifying the use of deadly force according to 18 Pa. C.S.A. Section 508.”
The press release further maintained that this conclusion was the result of an independent investigation conducted by Chester County police detectives, who “interviewed numerous officers and witnesses and reviewed police body cam footage, various police reports, 911 calls and other evidence collected at the scene.”
UPDATE
On Jan. 16 and per mutual stipulation between the parties, several claims were dismissed from the case. After the parties discussed the issues raised in the defendants’ prepared motion to dismiss, they came to a resolution that “eliminates the need for the defendants to file the motion to dismiss and other unnecessary litigation.”
“The plaintiff agrees to withdraw the following claims: A) All claims against Malvern Borough Police Department with the parties’ understanding that the Malvern Borough Police Department is part of the Borough of Malvern and not separately subject to suit; B) All claims against defendants Marcelli, Dougherty, Capuano & Listmeier in their ‘official capacity’ with all claims as against these defendants in their individual capacities remaining; C) Count II (ADA Claim) against individual defendants Marcelli, Dougherty, Capuano & Listmeier,” the stipulation stated.
“The defendants agree to forgo filing the motion to dismiss and file and answer the complaint without the necessity of any further amendment by plaintiff. In light of the above-referenced agreement, the parties agree to extend the deadline for the defendants to file an answer to the complaint to Jan. 23, 2024.”
For counts of violating 42 U.S.C. Section 1983 through failure to train and supervisory liability, violating the Americans with Disabilities Act of 1990, violating Monell through municipal liability, violating the Fourth Amendment to the U.S. Constitution through unlawful seizure and excessive force, survival, wrongful death and assault and battery, the plaintiff is seeking compensatory damages against all defendants, including but not limited to, pain and suffering, loss of life’s pleasures, disfigurement, emotional distress, loss of past and future wages, past and future medical bills/costs and all damages permitted under Pennsylvania’s Survival and Wrongful Death Acts, exemplary and punitive damages against all defendants, interest as the law permits, attorney’s fees and costs pursuant to 42 U.S.C. Section 1988 and such other and further relief as the Court deems just and equitable.
The plaintiff is represented by Michael Farber and Daniel Schneider of Farber Schneider Ferrari in New York, N.Y., plus Ian V. Gallo of The Town Law, in Philadelphia.
The defendants are represented by Andrew M. Rongaus and Theodore T. Speedy Jr. of Siana Law, in Chester Springs.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-04450
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com