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Taser Tackle Cover-up Claims May Stick to Cops

(CN) - A man who says he fell off a highway bypass after police Tasered him can pursue claims that the police threatened witnesses and said he voluntarily jumped, a federal judge ruled.

Ernest Martin says Officer Brian Errington allegedly attacked and Tasered him on April 19, 2012, causing him to fall from the West Shore Bypass and land on the concrete about 40 feet below. At the time Errington was allegedly on duty with Police Capt. Damon Kloc in West Reading, Pa.

Reading Police Chief William Heim, together with Pennsylvania State Police Captain Dante Orlandi, Trooper Michael Pavelko, and several others, soon investigated the fall.

Despite knowing that Martin was Tasered, the officers told local media outlets, including the Reading Eagle Newspaper and Channel 69 Television News, the man had intentionally jumped off the bridge, Martin claimed in the Eastern District of Pennsylvania months later.

The police filed criminal charges against Martin in the Court of Common Pleas of Berks County weeks after the incident, including theft by unlawful taking (movable property); receiving stolen property; flight to avoid apprehension, trial, or punishment; recklessly endangering another person; resisting arrest; fleeing or attempting to elude an officer; accident involving damage to attended vehicle or property; failure to stop at red signal; unsafe movement (passing on right); and reckless driving.

Martin, who says he was hospitalized for several months after the fall, waived his right to a trial days later and was sentenced to one to three years in prison for the theft and flight counts.

He claims the defendants not only failed to preserve physical evidence and eyewitnesses' names and contact information at the scene, but even threatened a witness with criminal perjury charges if he refused to uphold the officers' version of the events.

Martin asserts claims for Fourth, Eighth, and 14th Amendment violations for deliberate indifference, obstruction of justice, and improper interference with an official investigation; as well as state-law claims for assault, battery, emotional distress, defamation, and false-light invasion of privacy. He seeks compensatory and punitive damages, declaratory and injunctive relief, and attorney fees and costs.

Several defendants moved to dismiss, and U.S. District Judge James Knoll Gardner did dismiss claims against Orlandi in January.

Last week, however, Gardner refused to fully dismiss the complaint, holding that Martin's nolo contendere pleas do not constitute an admission of guilt.

Martin's claims against Pavelko also survived, unlike those against an arresting officer in a similar case from 1999, Bush v. City of Philadelphia.

"Plaintiff alleges that he was seriously harmed by the allegedly excessive force used and the alleged agreement among, and subsequent actions by, defendants to cover up that purported misconduct," Gardner wrote. "Moreover, the docket entries in plaintiff's state-court criminal proceeding (initially provided as Exhibit A by Trooper Pavelko, and since supplemented by the parties) demonstrate that, at least in part because of Trooper Pavelko's conduct, plaintiff was arrested, held in custody, charged with numerous criminal offenses, and is serving a term of imprisonment after entering pleas of nolo contendere to certain of those criminal charges. Accordingly, I conclude that Bush does not provide persuasive support for the motion to dismiss of Trooper Pavelko."

The judge also declined to suspend the case pending resolution of Martin's criminal case, as in the 1971 decision, Younger v. Harris.

"Plaintiff did not file a direct appeal concerning his state court sentence; nor has he filed a collateral attack on his state sentence," Gardner wrote. "Accordingly, at this time, plaintiff's state court criminal proceedings are no longer ongoing. Therefore, the first requirement for Younger abstention is not satisfied."

The court dismissed the state-law claims against Pavelko based upon sovereign immunity, however, as well as Martin's Eighth Amendment claims.

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