PHILADELPHIA – The City of Philadelphia is seeking to dismiss a lawsuit concerning alleged conduct from two of its police officers, officers who were said to have indiscriminately fired their energy weapons and struck the plaintiff’s two-year-old son in the chest and eye, causing him permanent blindness and other injuries.
Sareeda Simmons (parent and natural guardian of A.S., a minor child) first filed suit in the Philadelphia County Court of Common Pleas on March 5 versus the City of Philadelphia, Philadelphia Police Department Officers Crystal Harris and Gerald Rahill and John Doe/Jane Doe/ABC Corp. All parties are of Philadelphia.
“On Feb. 11, 2023, plaintiff was at her residence located at 2426 North 17th Street. At approximately 7:45 p.m., defendant Officers Crystal Harris and Gerald Rahill approached the residence and knocked on the door purporting to investigate a domestic incident at the residence. At the time that the defendants approached the residence, they were wearing official uniforms provided to members of the Philadelphia Police Department’s Highway Patrol Unit. Both defendants were carrying Philadelphia Police Department-issued Conducted Energy Weapons. A Conducted Energy Weapon is a device that delivers low-amperage electrical current into its target, temporarily impacting the sensory and motor nervous system,” the suit said.
“Such weapons are routinely used by law enforcement officers as less lethal alternatives to weaponry capable of causing death such as firearms. Conducted Energy Weapons use compressed nitrogen to propel two barbed probes (which are sometimes referred to as darts) outwards. Electricity travels along thin wires attached to the probes. When successfully deployed, the darts will puncture the skin and deliver electronic current into the body of a subject, resulting in the sensory and nervous impacts described above. If the barbs puncture the sphere of an eye, there is a high likelihood that blindness will result. For this reason, Conducted Energy Weapons should be fired toward the body of a suspect and in any event, never in the direction of anyone’s face. Nor should Conducted Energy Weapons ever be used on toddlers.”
The suit continued that when Rahill and Harris knocked on the door, Simmons answered and told Rahill and Harris that their assistance was not needed, leading another resident named Maurice Sanders to come downstairs and try to close the door.
“In response, defendants Harris and Rahill forced the door open and forcefully entered the property. While inside of the property, Harris and Rahill physically assaulted Sanders and brought him to the ground. During the ensuing commotion, several minor children including A.S. came downstairs and were observing what was occurring while sitting on the staircase. While these minors were on the staircase, both defendants Harris and Rahill discharged their department-issued Conducted Energy Weapons one or more times. On at least one occasion, the weapons were discharged in the direction of the minors sitting on the steps,” the suit stated.
“A.S. was struck by one or more of the discharges in his left chest and right eye. As a result, A.S. sustained serious and painful injuries which have resulted in scarring and disfigurement, total blindness, emotional trauma, pain and suffering and have required medical attention and services. The episode horrified and traumatized A.S. It is further asserted that these injuries will require future medical treatment, including but not limited to cosmetic surgery, the removal of A.S.’s eye and the placement of an ocular prosthesis as well as counseling. After the incident, the defendants prepared police department paperwork which incorrectly attributed A.S.’s injuries to the conduct of Sanders.”
On April 3, the City removed the case to the U.S. District Court for the Eastern District of Pennsylvania, citing the plaintiff’s reference to alleged violations of federal civil rights laws.
UPDATE
In its motion to dismiss filed on April 25, the City countered that the plaintiff’s Monell claim was not properly supported on multiple fronts.
“Plaintiff fails to state a Monell claim because the allegations fail to identify a municipal policy-maker involved in the formation of a custom or policy or a municipal decision-maker who acted with deliberate indifference. The Third Circuit has consistently held that a complaint which neglects ‘to allege conduct by a municipal decision-maker’ cannot survive a motion to dismiss its Monell claim. The complaint must plead factual averments that an official with the power to make policy (i.e. a municipal ‘policy-maker’) is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom.
Here, plaintiff makes no factual allegations about the conduct of an official policy-maker or decision-maker that either ratified an unconstitutional policy or was deficient in training or disciplinary practices. Therefore, the Court should dismiss plaintiff’s claim against the City. Plaintiff fails to adequately plead that the City had an unconstitutional policy. It is unusual that a municipality will adopt policies that permit constitutional violations, the majority of Monell jurisprudence examines a custom or practice theory of liability. Plaintiff does not aver that the written policy identified by plaintiff’s complaint is facially unconstitutional, nor does she aver that the policy in question instructs municipal employees to violate constitutional rights of citizens. Indeed, she could not make such averments based upon the plain language of the Police Directive,” the dismissal motion stated.
“Thus the Police Directive stands in marked contrast to the offending policy identified in Monell. Instead, plaintiff merely claims the policy is insufficient, which is not a theory of municipal liability supported by Monell or its progeny. Even more staggering, though, is the fact that the language of the Police Directive blatantly contradicts the plain averments in plaintiff’s complaint. Contrary to plaintiff’s averment that the policy fails to specifically state deployment may not be used against children, the directive specifically instructs that officers shall not use their Conducted Energy Weapons against young children. Contrary to plaintiff’s averment that the policy fails to advise or mandate that deployment should not be aimed at an individual’s face, the policy specifically instructs officers not to intentionally target sensitive areas such as the head, neck or groin. Contrary to plaintiff’s averments that the policy does not contemplate bystanders, the directive narrowly empowers officers to use only the minimal force necessary when confronted with a threat and further limits that authorization to only situations where the subject is “physically aggressive or assaultive and there is an immediate likelihood that they may injure themselves, the officer or others.’ As a result, plaintiff’s claim that the City has an unconstitutional policy is not only unsupported by Monell and its progeny, the claim also blatantly misrepresents the allegedly offensive policy. Such pleading deficiency necessitate dismissal of the claim against the City.”
The dismissal motion further asserted that the defendant officers or other similarly untrained employees were not shown to have “engaged in a pattern of unlawful conduct, similar to that alleged by plaintiff.”
“A Monell claim can only proceed if the well-founded, factual allegations of the complaint establish that a policy-maker was aware of similar unlawful conduct in the past but – with deliberate indifference – failed to take precautions against future violations, the failure of which directly led to the plaintiff’s injury. A failure to train theory represents the most ‘tenuous’ sort of municipal liability under Section 1983. The allegations in plaintiff’s complaint fall woefully short of the requirement to plead ‘similar unlawful conduct in the past,’ such that a policy-maker or decision-maker – though still unnamed – would be on notice of the need for precautions against a future constitutional violation similar to that which is alleged by plaintiff’s complaint. For this additional reason, plaintiff’s Monell claim against the City must be dismissed,” the dismissal motion.
“Plaintiff has failed to set forth sufficient factual allegations in the complaint to support her Section 1983 claim against the City of Philadelphia. For the reasons set forth above, the City of Philadelphia respectfully requests that this Court grant the instant motion and dismiss plaintiff’s complaint against it with prejudice.”
For counts of battery, unreasonable search and seizure and violating Monell, the plaintiff is seeking damages in excess of $50,000.
The plaintiff is represented by Jason Javie of Levin & Javie, in Philadelphia.
The defendants are represented by Kathryn Faris of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-01395
Philadelphia County Court of Common Pleas case 240300442
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com