''Hero'' Rewarded With Police Brutality
On 2/13/08 DH, 44 yr old disabled vet, went to get mail. He heard a lady across street screaming for help. He went to her screened porch & saw an older man punching her about the head. He yelled at him to stop & the guy told him to ''get the 'F%K' outta here or I'll kill you''. DH suggested police or atty if he had a problem w/the lady but the guy went to screen & tried to stab DH thru it w/an icepick! DH yelled for lady to go in, lock door & call 911 but guy kicked in door, went in icepick raised. DH ran up, grabbed guy by back collar, pulled him back on porch, got him down & hit guys arm on ground til he let icepick go. Then DH held him down, guys arms behind his back, til PA troopers came. Guns drawn, they ordered DH off - he did, sat w/hands open in front of him. W/no ?'s, they threw DH face down, cuffed him. Lady yelled they had wrong guy but they told her 'Shut Up'. One trooper then ''stomped'' on DH's head (broke nose, split lip). T#2 kicked him (broke rib) to ''move him out of the way''. IA invest. confirmed, initiated prosecution. Atty took case (against State) but said no hurry to file, NOW says DH CAN'T sue State, just the cop. He's dropped ball w/other things (i.e. witness dep. before ''amnesia''). New law? Any hope? Advice?
Re: ''Hero'' Rewarded With Police Brutality
Sorry to hear of your injuries.
Disclaimer: I have no idea whether Pennsylvania law allows a tort suit for assault and battery against the State for the tort of its police officer (excessive force in an arrest). Some states do allow such claims. It appears that your atty is telling you that Penn. relies on some form of "sovereign immunity" to deny liability for such conduct. Check with another Penn. atty to get this cleared up.
The Federal (US) US Govt allows such claims against the Govt, under the Federal Tort Claims Act for excessive force by its law enforcement officers, but your situation does not involve a federal officer, but a State trooper, so the FTCA does not help you.
If Penn. state law does not permit a tort suit for excessive force against the State, your atty may have been pursuing a civil rights claim against the State based on its vicarious liability for the trooper's violation of your 4th Amendment (US Constitution) right to be free from an unreasonable seizure (arrest) due to the excessive force (applicable to State officers under the 14th Amendment). Unfortunately, such a claim usually requires a showing that the State either had a policy of allowing such civil rights violations, or ratified or approved the misconduct by the officer. [See the annotations under 42 U.S. Code Annotated, Sec. 1983.] Otherwise, the remedy lies against the officer only, who may be judgment proof (not able to pay out of personal assets) and without professional liability insurance.
If you really think your atty has mishandled the case, you should seek another Penn. lawyer with experience in civil rights cases to take over. If your current atty's acts or omissions have led to the loss of your claim against the individual trooper (say, if a statute of limitations was blown), I suppose you could consider a malpractice suit.
