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In a decision that could fundamentally alter the way civil rights claims are litigated, a Philadelphia Common Pleas judge has ruled that alleged victims of police abuse have the right to pursue their claims solely under the Pennsylvania Constitution, and need not always resort to a federal claim under Section 1983. The ruling comes in the case of Thomas Jones, a confessed carjacker whose alleged beating at the hands of Philadelphia police was captured on video by a TV news helicopter. According to the suit, the video, shot by WPVI-TV on Jan. 12, 2000, shows that numerous police officers immediately surrounded the car and dragged Jones out, forcing him to the ground where he was kicked and beaten In her 47-page opinion in Jones v. City of Philadelphia, Judge Lisa M. Rau rejected the city’s argument that Jones had no right to sue under Section 8 of the state constitution because the city is immune from such state constitutional claims under the Political Subdivision Tort Claims Act. “The Political Subdivision Tort Claims Act cannot, by legislative fiat, eviscerate a state constitutional right,” Rau wrote, noting that the question was one of first impression. If upheld by the Pennsylvania Commonwealth Court, Rau’s decision would effectively create a Pennsylvania analogue to the U.S. Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. In Bivens, the justices recognized an implied cause of action for money damages against federal agents for alleged violation of the plaintiff’s Fourth Amendment rights. The decision created a new category of civil rights claims now referred to as Bivens actions. Now Rau has ruled that Pennsylvania’s constitution similarly implies a cause of action for money damages against state officials. Rau found that her ruling was the first Pennsylvania decision ever to address the question, but that it was consistent with a strong trend in other states.Since 1974, she said, 13 states have recognized similar rights under their constitutions: Alaska, California, Colorado, Connecticut, Illinois, Louisiana, New Hampshire, Maryland, New Jersey, North Carolina, Ohio, Utah and Vermont.Only two states – Oregon and Texas – have implemented an outright ban against state constitutional claims seeking damages, Rau found. Rau found that Pennsylvania courts have historically interpreted the state constitution – and specifically Article I, Section 8 – as “a more powerful shield from governmental abuse than the Fourth Amendment in cases where an individual is accused of a crime.” The logic of those criminal law decisions, Rau said, remains true in the civil context. “It is logical that Article I, Section 8 should, at a minimum, provide the same protections as the Fourth Amendment in civil cases where an individual has been physically injured by excessive governmental force,” Rau wrote. “It would not make sense for Article I, Section 8 to have more power than its federal counterpart to protect people in the criminal context but no remedial power in the civil context as compared to its federal counterpart for people who have been physically injured.” Section 8′s “promise,” Rau said, “extends protections against unreasonable searches and seizures by the government to all people, not just people charged with crimes.” In the opening pages of her opinion, Rau traced the history of the Pennsylvania Constitution and found that its “Declaration of Rights” section “served as a template for many other state constitutions and for the United States Constitution.” On July 5, 1776 – just one day after the Declaration of Independence was penned – a group of 96 delegates attended the first Pennsylvania Constitutional Convention, chaired by Benjamin Franklin. Three months later, the Pennsylvania Constitution was completed, Rau noted. But Rau found that the first version of Pennsylvania’s constitution “failed to explicitly prohibit the majority of the Legislature from taking away individual rights.” Within a few years, Rau said, the state Legislature had “stripped away many of the protections embodied in the constitution.” As a result, Rau found, Pennsylvania held a second constitutional convention in 1790 and amended the Declaration of Rights “by expressly prohibiting the legislature from taking away, reducing or invading individual rights.” Article IX, Section XXVI of the second constitution is titled: “Exception from the general powers of government.” It reads: “To guard against the transgressions of the high powers which we have delegated, WE DECLARE, That everything in this article is excepted out of the general powers of government, and shall for ever remain inviolate.” Rau found that the “exception” established by Section XXVI “applied to all the rights set forth in the Declaration of Rights, including the right to be free from governmental search and seizure, and meant that the legislature could no longer take away individual rights or interfere with civil or political rights.” The 1790 revisions to the Declaration of Rights, Rau said, “have been recognized by many as the ‘model bill of rights.’” Despite three more Pennsylvania constitutional conventions since 1790, Rau found that “this language, like that mandating security from searches and seizures, has remained completely undisturbed.” As a result, Rau concluded that the Pennsylvania Legislature “did not, and could not, abrogate this highly regarded constitutional right in the Tort Claims Act.” The historical “backdrop,” Rau said, shows that the founding fathers of Pennsylvania “believed so deeply in individual rights and liberties that they made the Declaration of Rights the first article of their new constitution. When the legislative majority encroached on those rights, Pennsylvanians responded by re-asserting the importance of individual rights by taking away the government’s majority power over those rights in the Constitutional Convention of 1790.” Rau concluded that “it would take a painful distortion of history to conclude that the people of Pennsylvania risked their lives for a constitution that began with the ‘Declaration of Rights’ but meant this document to be merely laudatory with no permanence or power to enforce these rights. This court simply will not stoop to such a fiction.” Rau wrote the opinion after lawyers for the city won a ruling from the Commonwealth Court that granted them the right to take an interlocutory appeal from Rau’s denial of the city’s motion for summary judgment. In the motion, Deputy City Solicitor Jeffrey M. Scott argued that the city was entitled to pursue an immediate appeal because its immunity rights were at stake. If Rau’s decision is upheld on appeal, it will set the stage for a trial of a Philadelphia case with striking similarities to the Rodney King case in California. According to court papers, Jones had stolen a car and was being pursued by police when he crashed and attempted to flee. When several police officers sprayed him pepper spray in the face, Jones claims he at first surrendered and police determined that he was unarmed. But Jones claims in the suit that when he was standing outside a police car, one officer said “I should kill you right now,” or words to that effect, and then punched Jones in the abdomen, causing him to fall backward into the driver’s seat of the police car. At that point, the suit alleges, officer Michael Livewell reached into the police car with his gun drawn to remove Jones. In doing so, Jones claims that Livewell accidentally shot himself in the thumb. Jones’ lawyers, Federico C. Sayre and Thomas V. Perea of Santa Ana, Calif., contend in court papers that Livewell then emerged from the car and exclaimed that he had been shot. Seconds later, they contend, another officer shot at Jones, striking him several times. Within moments, eight other officers fired a total of 41 bullets “into the police car, striking or attempting to strike Thomas Jones,” according to court papers. Lawyers for the city argued that the shootings were justified because police reasonably believed Jones was armed and “posed a serious threat.” The plaintiff’s lawyers contend Jones feared for his life and sped away in the police car and led police on a wild chase. The suit alleges that Jones came to a stop at the intersection of 26th and Oxford streets when he lost consciousness. By then, the WPVI helicopter was filming the incident which showed, according to the suit, the beating Jones received. (Copies of the 47-page opinion in Jones v. City of Philadelphia , PICS No. 04-1214, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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