Plaintiff claimed collarbones, ribs were broken when he was arrested on Jan. 1 as he was walking from hospital, only medical gown, pants. He received mental health treatment. City defended police.
Raul Rosa, 41, sued in federal court in Erie in February, claiming police officer unlawfully injured him, violated his rights
City responded that officer did nothing wrong
City's insurance carrier settled the case in mediation
The man was walking on Peach Street in the late morning of Jan. 1. He was wearing a hospital gown and hospital pants.
Depending on the account, he had checked himself out of Millcreek Community Hospital or had been asked to leave because of his behavior.
The Erie police said he had been at the hospital because he was suicidal and in need of a psychiatric examination.
After leaving Millcreek Community Hospital, at 5515 Peach St., the man had walked about 1½ miles north on Peach Street when Erie police encountered him near the intersection of Liberty Street around noon.
What happened next was the subject of a federal lawsuit that has settled for more than $260,000.
The man, Raul A. Rosa, 41, claimed that a police officer used excessive force and broke both his collarbones and several ribs during his arrest. Rosa's lawyer, John Mizner, called the police's treatment of Rosa "outrageous" in the lawsuit, filed in U.S. District Court in Erie.
The city countered that the officer, Hayden C. Foltz, did nothing wrong. The city said that Rosa had created a dangerous situation by running in and out of traffic and hitting cars on Peach Street, and that Rosa had tried to hit Foltz.
"Officer Foltz used only the necessary use of force to defend himself and to subdue Mr. Rosa," Patrick Carey, the lawyer for the city's insurance carrier, wrote in an answer to the suit in court.
Rosa was charged with the misdemeanors of resisting arrest and disorderly conduct and the summary of failure to comply with a police officer, according to court records. The criminal case is pending.
The claims made in the civil case will not receive more scrutiny in federal court. No extensive litigation or trial will provide more clarity about Rosa's injuries and arrest.
In swift fashion, the city of Erie and its insurer paid $262,500 to settle the lawsuit in late June.
The city paid $10,000 toward the settlement, and its insurer picked up the rest, based on the city's insurance deductible of $10,000 in the case.
The case settled five months after Rosa, 41, sued Foltz, the police officer. Rosa filed the civil rights complaint in U.S. District Court in Erie on Feb. 11.
'Sole discretion' for insurance carrier
The city's insurance carrier settled the suit without the city first asking a judge to dismiss the case in what as known as summary judgment, a typical defense strategy in such cases.
Court records also show that the city and Mizner, Rosa's lawyer, settled the case in mediation after the city provided Mizner with the police body camera video of Rosa's arrest and Mizner provided the city with Rosa's medical records.
But the case did not include an extensive gathering of evidence, including the deposing of witnesses, before it settled, another unusual aspect of the case.
The city's insurance carrier, Travelers, was primarily responsible for the settlement, based on the terms of the city's insurance policy, according to the city.
"Under the policy, the insurance carrier has sole discretion to settle the case when the deductible has been or will be exhausted," Assistant City Solicitor Catherine Doyle, a member of Mayor Joe Schember's administration, said in an email.
She said City Council was not required to vote on the settlement because of the insurance carrier's authority to settle the case. The $10,000 deductible included defense costs, Doyle said.
Though the mediator filed a one-page court document on June 24 stating that the case had been resolved, the settlement agreement, signed on June 23, was not filed as part of the record in the case, assigned to U.S. District Judge Susan Paradise Baxter. The Erie Times-News obtained the settlement through a Right-to-Know-Law request it filed with the city.
The four-page agreement states the terms of the settlement, including the payment of the $262,500. The agreement also prohibits the parties from commenting on the case, beyond releasing the settlement agreement under the Right-to-Know Law.
"The parties have agreed that there will be no public comment regarding any matters pertinent to this lawsuit," according to the agreement.
The two sides are abiding by that clause in the agreement.
"Mr. Rosa and I have agreed not to comment as part of the settlement," Mizner said.
Erie Police Chief Dan Spizarny also said he could not comment on the lawsuit.
The settlement agreement states that the settlement should not be considered an admission of liability, and that the city has denied and continues to deny liability in respect to Rosa's claims.
Millcreek Community Hospital, which was not sued, declined to comment on the claims about Rosa leaving the hospital. A spokeswoman said the hospital cannot comment on a patient's medical care due to federal privacy laws.
Lawsuit's claims
Rosa's suit included five counts. It claimed that Foltz, an Erie police officer since July 2018, violated Rosa's Fourth Amendment rights, regarding unlawful searches and seizures, and his Fourteenth Amendment rights, regarding due process.
The suit also named another police officer as a defendant, with Rosa unable to identify that person. The defendant is named only as John Doe in the suit.
The other three claims in the suit were for intentional affliction of emotional distress, assault and battery. The suit, which includes photographs of Rosa, claimed that he suffered broken left and right clavicles, "numerous right and left rib fractures" and "massive bruising." Rosa had to get surgery on his collarbones and still suffers from tremors in his hands, according to the suit.
The suit claimed that the events leading up to the arrest started on Jan. 1, when Rosa was admitted to Millcreek Community Hospital. Shortly before 9:15 a.m., after believing his drink had been drugged the night of Dec. 31, Rosa, according to the suit, received IV fluids and spent about an hour at the hospital before he "checked himself out against medical advice, and left still wearing his hospital gown."
The suit claimed that an Erie police cruiser pulled up to Rosa at about 10:30 a.m. on Jan. 1, as he was walking near the Auto Express Mazda dealership at 4021 Peach St., near Liberty Street.
The suit claimed that Rosa told the officers that he was walking home from Millcreek Community Hospital. Rosa lives near West 32nd and Raspberry streets, about a mile from where the police encountered him, according to the suit and other records.
The suit claimed that Rosa was never told he was under arrest and was not charged with a crime, but that Foltz and the unnamed officer "physically engaged Mr. Rosa which included lifting him off the ground, slamming him down on the pavement and striking his midsection."
Rosa claimed in the suit that he was in pain and knew that his collarbones had been broken and that he told officers that he was hurt, but that police refused to take him to a hospital and jailed him at the police station instead. Rosa claimed he was let out of the police station after dark on Jan. 1, and, still wearing the hospital gown, was admitted to Millcreek Community Hospital — for the second time in two days — shortly before 1 a.m. on Jan. 2.
Other recent settlements
The city of Erie's $262,500 settlement with Raul Rosa is in the mid-range of recent settlements in other federal lawsuits that claimed Erie police officers used excessive force.
In March 2020, the city reached a $400,000 settlement with plaintiff Tyrone Morrow, who claimed that police officers illegally stopped him and used excessive force during a July 2016 incident near a bar at East 10th and Parade streets. Morrow, who said his neck was injured, was not charged. He claimed that police took him to the ground while searching for someone else who was suspected of possessing a handgun.
In January 2019, the city reached a $125,000 settlement with plaintiff Montrice M. Bolden, who suffered facial fractures and a concussion during his arrest outside an East 12th Street bar in June 2016. He was charged with crimes including aggravated assault and disarming a law enforcement officer, but was acquitted of the most serious charges at a trial in August 2017. In April 2017, the U.S. Department of Justice said it would not bring criminal civil rights charges against the police officers in the case.
Rosa was at Millcreek Community Hospital for five days, "during which time he received mental health treatment," according to the suit. The suit claimed that a doctor told Rosa that he had suffered 19 fractures to his collarbones and ribs, and that he would need surgery. Rosa was released from the hospital on Jan. 7, according to the suit, and the police filed criminal charges against him the next day.
According to the criminal complaint, which Foltz wrote as the affiant in the case, Rosa, the defendant, had been walking "in and out of traffic and hitting cars." Foltz wrote that Rosa was offered a ride home, and that Rosa, "unprovoked, attempted to strike your affiant with a left jab."
"The Defendant was then taken to the ground and refused to place his hands behind his back," according to the complaint. "The Defendant refused to comply with this officers commands to place his hands behind his back. It then took two officers to place the Defendant into custody."
In the suit, Mizner, Rosa's lawyer, claimed that the police had used too much force. "Even if Mr. Rosa took an 'unprovoked' swing at either officer, which he does not recall or admit, the use of force was clearly excessive and intended to inflict unnecessary pain and suffering on Mr. Rosa," according to the suit.
The suit also claimed, "the highly generic and implausible criminal charges which Officer (Foltz) filed seven days after assaulting Mr. Rosa are a mere pretext, to cover up and justify the excessive and outrageous use of force which has left Mr. Rosa with lasting injuries."
The city's answer
The city denied Rosa's claims in an answer it filed in court on April 13. The city said Rosa was initially admitted to Millcreek Community Hospital the morning of Jan. 1. The city said police received a 911 call around 8:30 a.m. call that a person, later identified as Rosa, was suicidal and had a pair of scissors.
The police found Rosa near Buffalo Road and Broad Street, in Erie, and, with Rosa's consent, took him to Millcreek Community Hospital "for the purposes of a psychiatric evaluation and/or voluntary commitment," according to the city's answer.
The city said the hospital's security staff later that morning asked Rosa to leave the hospital "because of his behavior," and that Rosa, wearing a hospital gown and hospital pants, started walking north on Peach Street.
The answer claimed that police received a 911 call shortly before noon on Jan. 1 that a man wearing a hospital gown was "running in and out of traffic" and kicking and jumping into cars. Police identified the man as Rosa.
The answer claimed that Foltz encountered Rosa shortly after noon on Jan. 1. Police learned that Rosa had been admitted to Millcreek Community Hospital earlier that morning, and Foltz offered him a ride home, the city said. Foltz opened the back door to his cruiser and he did not handcuff Foltz and told him he was not in trouble, according to the answer.
"Abruptly and without warning," according to the answer, "Mr. Rosa attempted to punch Officer Foltz and was taken to the ground. With an aid of another officer, Mr. Rosa was handcuffed. He was then placed in the back of a police vehicle."
The answer claimed that Rosa never told Foltz he was injured or needed medical attention. Foltz acted appropriately, the city said.
Foltz throughout his encounter with Rosa "was engaged in the investigation of reports of unsafe and potentially dangerous conduct on the part of the Plaintiff," according to the answer.
Rosa's trial in the criminal case has been scheduled for this coming Monday, but was postponed on Thursday to give the defense more time to review information, according to court records.
No new trial date had been set as of Friday.
Original Article By: Ed Palattella at epalattella@timesnews.com. Follow him on Twitter @ETNpalattella.