Civilian Who Lost Eye in Cellphone Sting Can Sue

     (CN) – A police officer must face claims from a civilian who lost his eye while confronting a suspected cellphone thief in an alleged sting operation, a federal judge ruled.
     Elizabeth Hofmann had realized that her cellphone was missing after a night of drinking with three classmates, celebrating their graduation from the nursing program at West Chester University on Dec. 16, 2009.
     After repeatedly calling Hofmann’s number to locate the phone, her friend, Justin Kohuth, allegedly reached a man who called the situation a “big misunderstanding.” The man said he would return the phone at what Kohuth considered a well-lit location about half a block from Hofmann’s downtown apartment.
     No one met the students there, however, or at a second location, where the students allegedly found Cpl. Joshua Lee of the West Chester police department.
     In their next interaction, the person in possession of Hofmann’s phone told her to come alone to a third location with $30 in exchange for the phone.
     Lee claims that, although he tried to convince the students to simply report the phone missing, they insisted on retrieving it, so he told them to wait for him at the third meeting place and not approach anyone so that he could try to recover the phone.
     The students say, however, that Lee’s involvement was the deciding factor in going ahead to the third location. Lee allegedly told Hofmann to walk on the opposite side of the street from the others so as to appear alone, and that he would follow closely behind and eventually arrest the thief.
     As Hofmann turned a corner, putting her outside of the others’ lines of sight, a stranger, later identified as Jeremy Miles, told her to follow him to his apartment.
     As soon as Kohuth rushed around the corner to protect his friend, Miles allegedly stabbed him in the left eye with a knife, and a struggle ensued. Police arrived seconds later, Tasered Miles and arrested him.
     Kohuth lost his left eye and has suffered “nerve damage, fracture of the orbital bone, scar[r]ing, loss of taste and smell, loss of vision including depth perception, lacerations[ ] and tissue damage.”
     Miles has since pleaded guilty to multiple charges and is serving up to 16 years in prison.
     Kohuth sued Lee for state-created danger; Miles for assault, battery and harassment; and the borough of West Chester, Pa., and the borough’s police department under Monell v. New York City Department of Social Services, which leaves municipalities liable if “an individual with final policymaking authority for the municipality (on the subject in question) caused the constitutional deprivation.”
     U.S. District Judge Mitchell Goldberg let only the borough off the hook last week.
     “Here, viewing the facts in the light most favorable to plaintiff, a police officer directed a group of inebriated college students to engage in a ‘sting operation’ late at night, where obvious criminal activity was unfolding, and did not provide them with proper instruction,” Goldberg wrote. “A jury could certainly conclude that these facts ‘shock the conscience.'”
     Goldberg emphasized that similar cases involved plaintiffs who were injured after so-called stings.
     Though Kohuth’s deliberate indifference claim failed, his evidence established all elements of the state-created danger doctrine, according to the 18-page ruling.
     “Plaintiff’s testimony, the testimony of his companions, and Katsaris’ expert report tend to establish that Cpl. Lee directed four potentially inebriated students to meet someone who was engaging in illegal activity that was clearly escalating,” Goldberg wrote. “The surrounding circumstances, set out previously in great detail, create a genuine issue of material fact as to whether ‘every reasonable official would have understood’ that Cpl. Lee’s actions violated plaintiff’s constitutional rights. Therefore, summary judgment is not appropriate on qualified immunity grounds, and defendants’ motion must be denied with regard to Count I.”

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