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Errick Phillips v. Tony Alsleben

March 7, 2011

ERRICK PHILLIPS,
PLAINTIFF
v.
TONY ALSLEBEN, ET AL., DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Errick Phillips filed a Section 1983 action against the officers who arrested him on October 23, 2006. He alleged violations of his First, Fourth, Eighth, and Fourteenth Amendment rights; malicious prosecution; fraud; conspiracy; gross negligence; racial profiling; racial discrimination; and cruel and unusual punishment. After this Court denied Mr. Phillips's motion for summary judgment, his case proceeded to a non-jury trial which took place on January 13 and 14, 2011. On the basis of the evidence and testimony presented, the court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. On October 23, 2006, between 9:00 a.m. and 9:30 a.m., Officer Tony Alsleben of the Allentown Police Department responded to the area of 20th and Allen Streets to investigate a complaint by Chris Gabellini -- whom Officer Alsleben knew as a member of the neighborhood crime watch -- that a suspicious looking male was walking back and forth in front of Gabellini's store and looking into its window for about an hour.

2. Mr. Gabellini reported that the first male was joined by a second male in looking into a neighbor's vehicle parked on the street.

3. Mr. Gabellini described the first individual as a male wearing a brown hooded jacket with the hood pulled up over his face, blue jeans, and white sneakers.

4. When Officer Alsleben arrived on the scene, he noticed three individuals standing by a burgundy vehicle.

5. Officer Alsleben recognized Plaintiff Errick Phillips from the description given by Mr. Gabellini.

6. After Officer Alsleben parked his patrol vehicle behind the burgundy vehicle and got out, Mr. Phillips began to walk away.

7. Officer Alsleben observed that Mr. Phillips was holding an object with a cord but could not identify the object.

8. Although Officer Alsleben told Mr. Phillips to "stop," he did not obey this direction.

9. Mr. Phillips picked up his pace, eventually breaking into a run with Officer Alsleben in pursuit.

10. While he was running, Mr. Phillips repeatedly stated "I didn't do anything wrong."

11. While he was running, Mr. Phillips also began removing the brown jacket he was wearing, eventually discarding it.

12. Officer Alsleben pursued Mr. Phillips, but lost sight of him.

13. Officer Alsleben eventually observed Mr. Phillips, who was wearing a white tee shirt, walking across Allen Street.

14. When Mr. Phillips saw Officer Alsleben, he again began running North on Lafayette Street away from Officer Alsleben.

15. Several other officers arrived to assist Officer Alsleben in his pursuit of Mr. Phillips.

16. Deputy Sheriff Eric Kester of the Lehigh County Sheriff's Office, who was in the vicinity with a partner, heard the radio dispatches concerning the incident and arrived at the scene to assist in apprehending Mr. Phillips.

17. Deputy Kester searched the back yards off Page Street, an alley North of Allen Street, and discovered Mr. Phillips hiding under a car parked behind one of the homes.

18. Despite numerous verbal commands from Deputy Kester for Mr. Phillips to show his hands, Mr. Phillips refused to comply and again attempted to flee.

19. Deputy Kester grabbed Mr. Phillips's shirt, but Mr. Phillips continued to run and pulled Deputy Kester over the hood of a car.

20. Mr. Phillips also began flailing his fists in an attempt to get away from Deputy Kester.

21. Mr. Phillips punched Deputy Kester numerous times in the arm in order to break Kester's grip.

22. Mr. Phillips's contact with Deputy Kester's arm resulted in bruising and pain to that arm.

23. Officer Alsleben observed Deputy Kester holding Mr. Phillips's shirt in an attempt to stop him from running away, and saw Mr. Phillips resisting Kester's efforts to arrest him by swinging closed fists at and punching Kester.

24. Deputy Kester grabbed Mr. Phillips's right arm in an attempt to prevent him from escaping.

25. Officer Alsleben arrived and grabbed Mr. Phillips's free arm to stop him from punching Deputy Kester.

26. Immediately after Officer Alsleben grabbed Mr. Phillips's arm, other officers arrived to assist in apprehending him.

27. Officer Alsleben and the other officers attempted to subdue Mr. Phillips, but he continued to struggle and tried to pull away, causing everyone to fall to the ground.

28. Before being taken to the ground, Officer Kevin Kennedy was twice struck in the face by Mr. Phillips's elbow on the backswing of Mr. Phillips's flailing arms.

29. While on the ground, Mr. Phillips repeatedly threw elbows and kicked his legs in an attempt to escape from the officers.

30. The officers eventually were able to pull Mr. Phillips's arms behind him and handcuff his hands behind his back.

31. In addition to the bruises to his arms, Deputy Kester sustained injuries to his hands and his left knee as a result of the fall to the ground and ensuing scuffle.

32. After Mr. Phillips was subdued and handcuffed, Officer Alsleben observed blood on Deputy Kester's face and believed the blood was caused by a punch or punches thrown by Mr. Phillips.

33. Officer Alsleben subsequently learned from Officer Kennedy that as a result of being struck in the face by Mr. Phillips, Kennedy had chipped a tooth requiring repair by a dentist.

34. Officer Kennedy's dental records reflect that he suffered chips to three front teeth.

35. Officer Kennedy also suffered a bruised eyelid as the result of being struck in the face by Mr. Phillips's elbow.

36. At no time during the struggle with Mr. Phillips did any of the Defendants strike, punch, or kick Mr. Phillips.

37. The extent of the physical force used by Defendants against Mr. Phillips was limited to that force necessary to subdue him, hold him down to prevent his escape, and pull his arms behind his back so that he could be handcuffed.

38. After Mr. Phillips was handcuffed and taken from the scene, Defendants observed a tooth on the ...


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