Judge: No immunity in Pa. troopers urination case

By Joe Mandak

Associated Press

Published: Monday, Jan. 9 2012 4:48 p.m. MST

PITTSBURGH — A judge has refused to dismiss the lawsuit of a western Pennsylvania woman who claims state troopers pepper sprayed and later urinated on her while she was shackled hand and foot, saying the troopers' claim of sovereign immunity doesn't apply because the alleged misconduct is outside the scope of their official duties.

Derena Marie Madison, 40, of Smithfield, sued five troopers from the barracks near Uniontown in August for conduct she claims occurred when she was riding in her car while a friend was stopped for drunken driving on Feb. 3. Madison named two of the troopers, Chad Weaver and Cpl. Michael Zampagona, but doesn't know the names of the others.

The attorney general's office, representing the troopers, asked that the lawsuit be dismissed under the doctrine of sovereign immunity which, essentially, contends that law enforcement officers are immune from being sued for actions "within the scope of their employment."

But Chief U.S. District Judge Gary Lancaster, in a decision last week, found that "when a suspect is in custody and fully restrained, the acts alleged here do not serve any purpose of the police or constitute the kind of conduct police are employed to perform. Certainly, troopers serve no legitimate law enforcement purpose by urinating on a person in custody." The judge's decision was first reported by the Courthouse News Service.

Lancaster, in issuing the ruling, is not saying the allegations are true — only that Madison's lawsuit can go forward because, at this juncture, he must legally assume they are true.

Madison, who was cited 11 days later for public drunkenness and disorderly conduct for fighting with the troopers, was eventually found guilty of both.

Her criminal attorney in those cases didn't return a call for comment Monday. But Joel Sansone and Jonathan Gesk, attorneys who represent her in the civil lawsuit, said that nothing the woman could have done, especially when she was restrained, warranted the treatment she received. Madison claims she didn't "strike or kick any defendant, including defendant Weaver" during the entire incident.

"There's no circumstance on earth that would justify her being urinated on," Sansone said.

Online court records show Madison has a long arrest record, dating to 1999, mostly for public drunkenness, harassment and various types of disorderly behavior.

Nils Frederiksen, a spokesman for the attorney general's office, referred questions for comment to the state police, saying "It's not appropriate for the attorney general's office to comment on the actions of another state agency."

A state police spokeswoman in Harrisburg said only that Weaver and Zampagona are not on restricted duty, but the agency doesn't otherwise comment on litigation.

Madison contends she was in the passenger seat of her car when the driver was charged with drunken driving and claims she was arrested after protesting about her car being towed.

Once at the barracks, Madison said, she was handcuffed behind her back and had her legs shackled to a bench so she could not get up. She contends she was pepper sprayed twice, then taken out in the snow and doused with cold water before someone urinated on her.

Deputy Attorney General Robert Willig, in asking that the lawsuit be dismissed, argued that the troopers were within their rights to use force in making the traffic stop and dealing with an "out-of-control person."

Judge Lancaster noted that "even unauthorized actions taken by an employee can fall within the scope of his or her employment if they are 'clearly incidental' to his or her employer's objectives." But the judge found that once Madison was allegedly cuffed and shackled to the bench in the police barracks, anything afterward dealing with pepper spray, water or urine "were not related to 'subduing' her and were not examples of necessary force."

"Plaintiff's allegations of assault outside the police barracks suggest personal motivation, rather than intent to serve the Commonwealth of Pennsylvania. Therefore, defendants are not entitled to sovereign immunity" based on court documents filed so far, the judge wrote, though he said the troopers may raise the issue later if warranted.

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