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Quiet Police Chase May Leave Borough Liable

(CN) - A town and police chief may be liable for the deaths of pedestrians struck by a car fleeing an officer who was not using his emergency siren, a federal judge ruled.

It had been approximately 9:30 p.m. on Dec. 9, 2011, when Mark McNeill and Michael Taylor were struck by a car driven by Marquis Thompson in Glenolden, Pa.

At the time of the accident, Officer Michael Fiocco had allegedly been pursuing Thompson's car at speeds in excess of the local limit and without the use of his emergency siren.

Taylor was pronounced dead at the scene, while McNeill died the next day in the hospital.

In a federal complaint, the administrators of those men's estates alleged civil rights conspiracy under U.S. Code Section 1985 against Police Chief Robert Ruskowski; state-created danger in violation of the 14th Amendment's due process clause against the borough of Folcroft and its police chief; and state-law claims for negligence, wrongful death, and survival against all three defendants.

The families alleged that Folcroft lacked a high-speed pursuit policy at the time of the accident, and that Ruskowski failed to properly hire, train, or supervise officers, as well as failed to conduct an internal investigation.

The defendants moved to dismiss all but the negligence claims against the borough and Fiocco.

U.S. District Judge Harvey Bartle III partially denied the motion Nov. 22, upholding the Section 1983 claims against the borough and chief.

"Plaintiffs have adequately pleaded that Ruskowski, as police chief, with deliberate indifference, maintained a policy of not instructing his officers on the proper conduct of high-speed chases and that as a result Mark Richard McNeill and Michael J. Taylor died," Bartle wrote.

The negligence claim against Ruskowski for failure to train and investigate failed.

"Ruskowski neither operated the vehicle that allegedly struck decedents nor drove the police vehicle implicated in the pursuit," Bartle wrote. "Ruskowski did not have any personal involvement in the tragic events described in the complaint."

The judge later added: "Neither a failure to report and investigate nor a failure to maintain records of police pursuits falls within any of the eight categories where the Tort Claims Act waives immunity. Accordingly, plaintiffs' state law claims against Ruskowski for negligence and under the Pennsylvania Wrongful Death and Survival statutes will be dismissed."

The plaintiffs also failed to support their "conclusory allegation" that Ruskowski consorted and conspired with "other Folcroft Borough officers," the court found.

"In our view, nothing Ruskowski did qualifies as a 'fairly direct' cause of the harm to the decedents," Bartle wrote. "He was not present during and did not direct the chase and knew nothing about it as it took place. Decedents were not foreseeable victims of anything he did or members of any discrete class of persons subject to potential harm. They were merely 'member[s] of the public in general.' Finally, Ruskowski is not alleged to have 'affirmatively used his [] authority in a way that created a danger to the citizen...' At most, he failed to train his officers about the proper way to conduct a high-speed chase." (Parentheses, emphasis and ellipses in ruling.)

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