Troopers’ suit against D.A. Hogan allowed to proceed

A Common Pleas Court judge will allow a lawsuit against Chester County District Attorney Tom Hogan to proceed, ruling against the top prosecutor’s motion to dismiss the complaint by a state troopers’ group on procedural grounds.

In a one-page order signed Monday, Judge Edward Griffith ruled that the Pennsylvania State Troopers Association, the union that represents all of the troopers stationed in the county, has the right to sue Hogan over his use of a socalled “do not use list,” even though the subject of the latest inclusion on the list no longer works as a state trooper.

Attorneys for the D.A. had argued in a motion to dismiss that because former Lt. Brandon Daniels, one of the plaintiffs in the case, had retired from the state police last year, the issue of whether Hogan’s use of the list — which excludes certain police officers from being called to testify in court by the D.A.’s Office because of alleged difficulties with their credibility — was moot. The union, he argued, lacked standing in the case.

“However, the complaint alleges that (Hogan) threatened to place other members of the State Troopers Association on his ‘do not use list,’ thereby subjecting them to having their reputations tarnished,” Griffith wrote in his decision overruling Hogan’s request that the suit be dismissed. “At this stage, we find that the complaint sufficiently states grounds for standing with regard to the association.”

The association had argued in its lawsuit — a rarity between police and prosecutors — that Hogan, as district attorney, should be required to notify any of its members of his intent to place them on the do not use list, and give the troopers a chance to respond or object to that decision. The suit claims that not giving the troopers a chance to argue their case against inclusion unconstitutionally damages their reputation and denies them the right to fight the decision.

Daniels is now the head of the Owen J. Roberts School District police department. He retired in October from the state police as head of the Troop J Criminal Investigation Unit.

David Kennedy, president of the troopers’ association, praised the ruling in a statement issued Tuesday.

“We applaud the decision by the judge,” Kennedy said. “State troopers in Chester County and across the commonwealth are consummate professionals who are dedicated to seeking justice. District Attorney Hogan’s misguided policy unfairly tarnished the reputation of a good trooper,” referring to Daniels.

“We look forward to establishing at trial that such policies, without the due process that all Americans enjoy, will not be tolerated,” Kennedy said.

Attorney Michael Pullano of the Wayne law firm of Lewis Brisbois, who is representing Hogan, said only that Griffith’s decision was not based on the merits of the complaint against him, but only on whether it passed legal muster at this stage. “We will continue litigating this matter until the claims against District Attorney Hogan are dismissed with prejudice,” he wrote in an email.

The lawsuit erupted in 2018 after a shooting incident in southern Chester County that involved troopers from the Avondale barracks. That incident came after Hogan had issued orders to police departments, municipal and state, in the county declaring that his office, through the Chester County detectives, would supervise all “officer-involved” shooting investigations here.

But in May 2018, Daniels convened and supervised an investigation into the shooting at a Coatesville man suspected of drunk driving. The driver, Brian Touchton, allegedly tried to strike troopers with his car during a chase after they attempted to stop him in London Grove. No one was injured in the shooting, and Touchton was eventually taken into custody. He remains in Chester County Prison awaiting trial.

The suit had the unintended consequences of bringing to light not only the dispute between Daniels, the troopers union, and Hogan over the shooting but also the existence of a “no call list” kept by the D.A.’s Office. The latter came as news to defense attorneys practicing in the county, many said. Such lists are kept by some law enforcement agencies as a way to protect against tainted testimony being given in court by police whose credibility has been called into dispute.

Hogan disclosed the list’s existence in a 16-page memo written in July to the acting commissioner of the state police, Lt. Col. Robert Evanchick; the commander of the PSP Troop J, Capt. James Fisher; and the state director of Homeland Security, Marcus L. Brown. The memo was highly critical of the state police’s handling of the shooting, saying Daniels had failed to follow his policy concerning officer-involved shooting, and made statements at the time that Hogan said were not credible.

In his memo, Hogan identified Daniels and former Troopers Jose LeBron and John Sromovsky, both of whom were convicted of criminal offenses, as being the only state troopers included on the list. He did not specify how many police officers are on the list, except to note that being blackballed in this way, “happens very infrequently in Chester County.”

Daniels and the troopers union filed suit against Hogan in September asking the court to direct Hogan to give any troopers whose names were set to go on the list an opportunity to present reasons why that action should not be taken. The suit said not doing so deprived them of their constitutional rights.

In his motion to dismiss, Hogan argued that he, as D.A., had an absolute right to not only keep the list but to decide who would be included. There are extremely limited avenues for people to take in suing an elected official such as a D.A., he

said, especially when they are acting in their official capacity.

In his order, Griffith said that Hogan may have reason to handle the do not use list as he sees fit. But, the judge ruled, those defenses were ones that could be raised at trial, and not in the preliminary stages of the litigation.

Hogan now has 20 days to file an answer to the association’s lawsuit, and then to proceed with discovery. No trial date has been set.

Interestingly, the state police have seemingly acquiesced to Hogan’s policy of having the county detectives conduct all investigations of trooper involved shootings. That agency led the review of a shooting in West Bradford in September which a Glenmoore man shot at his ex-wife, killed his elderly parents, and finally turned a gun on himself after a chase by troopers from Embreeville. The review found the use of deadly force justified.

Additionally, the detectives are heading the investigation into a shooting in West Nottingham on Feb. 1 in which troopers tried to stop a suspect’s vehicle, chased him, and then shot him when he got out of his car and pointed what appeared to be a gun at them. The weapon later turned out to be a BB-gun.

Hogan is currently seeking election to an unprecedented third full term as district attorney, and was earlier this month endorsed by the Chester County Republican Committee. He is expected to be opposed on the ballot in November by Democrat Deborah Ryan, a former prosecutor with the county DA’s Office.