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CITY HARRISBURG v. RICHARD PICKLES (05/07/85)

decided: May 7, 1985.

CITY OF HARRISBURG, APPELLANT
v.
RICHARD PICKLES, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Richard Pickles v. City of Harrisburg, No. 2626 S of 1983.

COUNSEL

Judith Brown Schimmel, with her, Nathan H. Waters, Jr., for appellant.

P. Richard Wagner, for appellee.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Williams, Jr., did not participate in the decision in this case. Concurring and Dissenting Opinion by Judge Rogers.

Author: Doyle

[ 89 Pa. Commw. Page 157]

This is an appeal by the City of Harrisburg (City) from a decision and order of the Court of Common Pleas of Dauphin County which reversed a decision of the Harrisburg City Council (Council) dismissing police officer Richard L. Pickles (Officer Pickles) from his position with the Bureau of Police of the City of Harrisburg, effective June 24, 1983.

The following factual scenario was uncontradicted in the record. At approximately 1:45 a.m. on December 4, 1982 Officer John T. Spicer of the Harrisburg City Police observed an automobile which had been reported as stolen. The automobile, which was stopped at a traffic light, had no headlights on. Officer Spicer, who was in uniform and driving a marked patrol car, followed the automobile to Williams Street in Harrisburg, at which point he activated his emergency lights, exited his patrol car, and approached the operator's side of the suspect vehicle. As Officer Spicer approached, the operator of the suspect vehicle observed him and drove away. Officer Spicer followed in his vehicle; again the suspect car stopped and when Officer Spicer approached the operator he again sped away in his vehicle. Officer Spicer continued in "hot pursuit" as the cars barreled through controlled intersections at speeds of up to eighty miles an hour. The suspect vehicle, still with its lights out, turned into a one way street (Seneca Street) and forced another vehicle out of its lane of travel. During the course of the pursuit Officer Spicer had

[ 89 Pa. Commw. Page 158]

    radioed that the suspect vehicle was one reported to have been stolen and that it had sped away after being stopped. After the suspect vehicle turned up the one way street, Officer Spicer broke off his direct pursuit and other officers who had heard his radio message, including Officer Pickles and Officer Richard Mowrey, (each of whom was driving an unmarked car) took up the chase. Meanwhile, Officer Darnell Bowman, in a marked patrol car with the bar light flashing, was also closing in. The chase continued (with the suspect vehicle's lights still out) at speeds in excess of eighty miles an hour down Front Street in Harrisburg through two red lights. Finally, at the intersection of Front and State Streets, the suspect vehicle came to a stop with Officer Mowrey's vehicle cutting it off in the front and Officer Pickles' car to the rear. Officer Mowrey exited his vehicle and ran toward the left front headlight area of the suspect vehicle shouting "City Police, you're under arrest, put your hands up." The suspect ignored the command and attempted to start his vehicle. Officer Mowrey, fearing that he might be run down, moved toward the curb. At that point Officer Mowrey observed Officer Pickles approach the window on the operator's side of the suspect vehicle. The window was open. Officer Pickles shouted twice to the suspect that he was a police officer and ordered the suspect to "get his hands up." The suspect continued attempting to again start the car. Officer Mowrey then observed Officer Pickles reach inside the suspect vehicle with a "batting motion". At that time Officer Mowrey believed that Officer Pickles was attempting to prevent the suspect from again starting the car. Officer Mowrey moved toward the car. He saw Officer Pickles move and arch his back away from the driver, and then saw a gun flash.

[ 89 Pa. Commw. Page 159]

Officer Pickles had reached into the car to pull the suspect's hand off of the ignition at which point the suspect reached under the dashboard with both hands and turned toward Officer Pickles with what Officer Pickles believed to be an automatic weapon. Officer Pickles had attempted to block the object but the suspect "kept bringing it up". Officer Pickles yelled to Officer Mowrey that the suspect had a gun. Officer Pickles fired his own weapon striking the suspect, Leon Marks, in the head and killing him.

Moments later Officer Lindsey Deppen arrived at the scene and opened the door of the suspect vehicle. What Officer Pickles had thought to be a weapon was actually an automobile rear view mirror. The mirror was between the victim's legs clutched in both his hands with only the dark side and the handle or grip visible. Officer Deppen was unable to identify the object as a rear view mirror until he examined it from only a few inches away.

Subsequent to this tragic incident, Council, by amended letter dated March 17, 1983, informed Officer Pickles that he was being charged with various infractions as follows:

You are being charged with the following violations of the Disciplinary Code of the Harrisburg Police Bureau . . .:

ARTICLE I -- Conduct Unbecoming an Officer

Section 1.12 -- Repeated violations of departmental rules and regulations or other course of conduct indicating that a member has little or no regard for his/her responsibility as a member of the Bureau of Police.

ARTICLE IV -- Neglect of Duty

Section 4.05 -- Failure to comply with any Police Chief's or Director of Public Safety Orders,

[ 89 Pa. Commw. Page 160]

Directives, Regulations, etc., or any oral or written orders of superiors.

ARTICLE V -- Disobedience of Orders

Section 5.09 -- Improper use, handling or ...


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