Lawsuit is one of three filed in U.S. District Court in Erie against the same police officer. Another cases also settled. Third is pending. City says officer acted properly in making the arrests.
The city of Erie was confident it would win a federal lawsuit that a Black motorist filed in December 2019, claiming that a police officer used excessive force by punching him during his arrest following a traffic stop earlier that year.
"It is the City's position that plaintiff's case has little merit and will likely not survive summary judgment," a lawyer for the city said in a court filing in 2020, in which the lawyer predicted the case would get thrown out due to lack of evidence.
The case has ended with the city paying $50,000 to the motorist, Davaughn Tate-Johnson, to settle his suit against the police officer.
The payment represents the second time in less than two years that the city has paid a settlement to end an excessive force federal lawsuit against the same police officer, Joshua Allison, who has been on the force since 2015.
The city in January 2022 paid $35,000 to another Erie resident, Raimond Hansbrew, who sued in May 2020. He claimed Allison used excessive force by slamming him to the pavement as Allison investigated a report of a domestic disturbance that Hansbrew's girlfriend made against him in May 2018. The city said Allison did nothing wrong.
A third lawsuit against Allison is pending. In that case, filed in June 2020, Erie resident Anthony Dabrowski claims Allison was among a half dozen officers who beat him during an arrest in July 2018, after Dabrowski said he called in a report of a van he believed to have been stolen near the Erie County Prison's work-release center on East 16th Street. Allison was the arresting officer in the case. Dabrowski claims he suffered two broken ribs. The city says police did nothing wrong.
All three cases were filed in U.S. District Court in Erie. The city has also recently settled other excessive force lawsuits that were filed in federal court.
Davaughn Tate-Johnson, seen in 2020, when he was 31, has received $50,000 to settle a lawsuit that claimed an Erie police officer, Joshua Allison, used excessive force by punching Tate-Johnson during an arrest following a traffic stop in January 2019.
The city settled Tate-Johnson's lawsuit in June, according to court records. The settlement agreement was not filed in the case, but the Erie Times-News recently obtained it from the city in a request under the Pennsylvania Right-to-Know Law.
The $50,000 settlement also covers a lawsuit that Tate-Johnson filed against another police officer, Anthony Fatica, over his arrest, according to the settlement. Tate-Johnson sued Fatica in 2021, and that case was consolidated with the case against Allison.
The city was not named as a defendant in either case. But the city's lawyers and the lawyers for the city's insurance carrier, Travelers, represented the two police officers. The deductible in the case was $50,000, meaning that the city spent $50,000 of its own money in legal fees and other costs before the insurance company paid the $50,000 to settle the case, according to the city.
Travelers settled the suit without the city first asking a judge to dismiss the case through summary judgment, a typical defense strategy in such cases. A hearing on summary judgment would have allowed the lawyers for the city and Tate-Johnson to go over details of the case before a judge in open court.
Confidentiality clause bars city, plaintiff from discussing deal
The city is prohibited from commenting on the settlement, according to a confidentiality agreement that is included in the agreement. Also prohibited from commenting is Tate-Johnson and his lawyer, John Mizner, according to the agreement. Mizner and the solicitor for the city of Erie, Ed Betza, cited the confidentiality requirement and declined to comment on the settlement to the Erie Times-News.
"The parties have agreed that there will be no public comment related to any matters pertinent to this lawsuit," according to the agreement.
It also states that the settlement is not an admission of liability, and that the two police officers sued in the case "have denied and continue to deny liability to the Plaintiff with respect to his claims."
"Neither party is a prevailing part in this matter and neither Plaintiff nor defendants will be considered a prevailing party for any purpose," according to the statement.
Plaintiff claims officer punched him in stomach
With Mizner as his lawyer, Tate-Johnson, now 35, sued Allison in January 2019. Tate-Johnson claimed Allison's actions violated Tate-Johnson's constitutional rights.
Tate-Johnson claimed Allison punched him three times in the stomach while two other officers restrained him outside his SUV at about 2:50 a.m. on Jan. 4, 2019, at East 26th Street and East Avenue. Because he was restrained, Tate-Johnson was "unable to move or shield his body from the blows," according to the suit.
The city responded in court records that Tate-Johnson — then 30 years old and weighing 225 pounds and 6 feet, 1 inch tall, according to court records — was "argumentative, combative and non-compliant," and that Allison "utilized two-three control strikes to Mr. Tate-Johnson's midsection" to bring him under control.
Tate-Johnson in his suit also contended that the other officer who was sued, Fatica, "placed his knee directly upon Mr. Tate-Johnson's neck" after the police officers — five in all, according the lawsuit — helped handcuff Tate-Johnson and took him to the ground. The city denied that claim, according to court records.
Tate-Johnson sought damages, claiming that the police's "intentional acts were objectively excessive and wanton, given the circumstances," according to the suit. It claimed the incident caused Tate-Johnson to suffer post-traumatic stress disorder, neck and back pain, numbness in the left hand, "recurring nightmares" and other ailments.
Tate-Johnson faced charges related to the arrest. He pleaded guilty in February 2019 to a misdemeanor count of possession of drug paraphernalia and summary counts of disorderly conduct and compliance with a police order.
Other charges, including resisting arrest and driving under the influence, were withdrawn when Tate entered the plea, according to court records. Tate-Johnson paid a $100 fine and court-related costs. He was not sentenced to prison.
Tate-Johnson's lawyer brings up race in lawsuit
Mizner highlighted Tate-Johnson's race in the case. During a dispute with the city over the city's refusal to release Allison's internal affairs file to him, Mizner said the city was more transparent in how it handled the case of Hannah Silbaugh, a 21-year-old white woman. An Erie police officer kicked her in the shoulder as she sat in the middle of State Street during a protest in Perry Square over George Floyd's death in Minneapolis in May 2020.
Mizner in a court filing noted that Erie Mayor Joe Schember and Erie Police Chief Dan Spizarny publicly described the investigation of the officer in the Silbaugh case and said he had been suspended for three days without pay. In the Tate-Johnson case, Mizner said in the same court filing, the city was refusing to release information on Allison. Mizner sought the information during the evidence-gathering process known as discovery.
Davaughn Tate-Johnson's lawsuit against an Erie police officer was filed in federal court in Erie.
Mizner said in the filing: "The depth of the City of Erie's systematic refusal to correct, or cooperate with efforts to correct, police violence against black men cannot properly be understood unless it is contrasted with the City's response when a police officer is accused of violence against a white person."
The city responded that its refusal to release Allison's internal affairs file was based in the law and was due to confidentiality concerns. The city also said disclosure was unwarranted because, in its view, Tate-Johnson's case was frivolous and "has little merit."
U.S. District Judge Susan Paradise Baxter, who presided over the Tate-Johnson case, ordered the city to turn over the unredacted internal affairs file to Mizner in an order she issued in 2021. The release of the information was also subject to a confidentiality order that prohibited public dissemination of the contents of the file.
However, court records also show that the city did not discipline Allison in the Tate-Johnson case. The disclosure came in an affidavit that Spizarny signed and that the city filed in 2020 as it tried to prevent the release of the unredacted internal affairs file to Mizner.
Spizarny in the affidavit said the information in the file was privileged under the law and that, in the Tate-Johnson case, "Officer Allison did not receive any disciplinary action as a result of this incident." The affidavit and other court records show that Tate-Johnson filed a citizen's complaint over his arrest, and that, according to the affidavit, "an Internal Investigation was completed and Plaintiff was notified that the Complaint was unsustainable."
In the Silbaugh case, the city settled her federal lawsuit for $45,000 in 2022. Records the Erie Times-News obtained under the Right-to-Know Law showed the officer who kicked Silbaugh in the shoulder, Marc Nelson, was never suspended. The Erie Fraternal Order of Police union grieved his three-day suspension, and a mediator set it aside in November 2020, before Nelson had served any of the suspension.
Witness recorded video of incident that led to lawsuit
In the Tate-Johnson case, police had stopped him on Jan. 4, 2019, based on a report of a burgundy Chevrolet Suburban driving at high speed, according to the criminal complaint police filed against him. Police in the complaint said officers located a vehicle matching that description with no headlights on at a red light at East 26th Street and East Avenue.
A strong odor of marijuana and alcohol was coming from the Suburban and Tate-Johnson had bloodshot eyes and refused to step out of the SUV according to the complaint.
Police also said in the complaint that Tate-Johnson continued reaching for his waistband until officers had to "pry his hand" to place him in handcuffs, and that Tate-Johnson kicked his legs when police tried to search him and attempted to crawl under the SUV to resist complying with the officers.
In the lawsuit, Mizner claimed that "none of these claims are truthful," referring to the allegations that Tate-Johnson resisted arrest. A "third-party video" that a witness took of the arrest "demonstrates their falsity," Mizner also claimed in the suit.
Mizner posted a nine-second portion of video on his law firm's website. The snippet shows Tate-Johnson getting pulled out of the SUV and getting punched three times in the stomach as he shouts, "Is you serious?" at the police. One of the officers can be heard shouting at him to "get on the ground."
The city, in its response, said in court records that the video "corroborates that the Plaintiff refused to follow police commands, kicked at officers, refused to provide his hands to officers and attempted to resist attempts by officers to gain control."
Mizner in the suit also claimed Tate-Johnson had refused to get out of the SUV because he was scared. Tate-Johnson reiterated that position in an article on his case published in the Erie Times-News in June 2020.
Tate-Johnson said he kept his hands on the steering wheel because he did not want the officers to claim he was reaching for something.
"The wrong move gets you killed," Tate-Johnson said. "So I wasn’t trying to make the wrong move."
Tate-Johnson, who said he has an associate degree in criminal justice from what was formerly called the Tri-State Business Institute, said in the interview that he wanted Erie police officers to start wearing body cameras.
"It's just not saving me, it’s saving them, also," Tate-Johnson said in the June 2020 article. "It works hand in hand. I think if they would have had body cameras that night it would have never happened."
The Erie police started wearing body cameras in October 2020.
City, in previous remarks, says lawsuits do not define an officer
Allison is a decorated police officer.
In 2017, his second year on the job in the city, he and another officer were awarded the City of Erie Combat Cross and received commendations for their actions during a January 2017 incident in which a city man was shot by the officers after he fired numerous gunshots at them on the grounds of the Pennsylvania Soldiers’ & Sailors' Home, at the foot of Ash Street.
In the June 2020 articled on the Tate-Johnson case, city officials declined to discuss what were then the three federal lawsuits pending against Allison. But the officials said an officer being sued repeatedly doesn’t necessarily mean a problem exists.
“Some officers are more active," Mark Sanders, then the Erie police's head of internal affairs, said at the time. "Some, because of their assignment, are more exposed to cases like that."
The existence of multiple lawsuits doesn’t prove an officer has acted improperly, he said.
Betza, the city solicitor, agreed.
"We don’t make decisions based on how often somebody is sued," he said in the June 2020 article. "We make decisions based on the actions of the individual."
Original Article By: Ed Palattella at epalattella@timesnews.com. Follow him on X @ETNpalattella.