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WERRY v. HORTON

August 6, 1987

David Werry, Plaintiff,
v.
Edward E. Horton, individually and as a police officer of the City of Pittsburgh; William H. Freiss, individually and as a police officer of the City of Pittsburgh; Albert W. Parente, individually and as a police officer of the City of Pittsburgh; John Buch, individually and as a police officer of the City of Pittsburgh; Joseph Wind, individually and as a police officer of the City of Pittsburgh; R. Lawrence Morgan, individually and as a police officer of the City of Pittsburgh; William Kaufman, individually and as a police officer of the City of Pittsburgh; Robert J. Coll, Jr., individually and as a police officer of the City of Pittsburgh; Robert J. Coll, Jr., individually and as the Superintendent of the Police Department of the City of Pittsburgh; Richard S. Caliguiri, individually and as the Mayor of the City of Pittsburgh; and the City of Pittsburgh, a municipal corporation, Defendants



The opinion of the court was delivered by: ZIEGLER

 ZIEGLER, District Judge

 Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and § 1988 and the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. Jurisdiction is based upon the aforementioned provision, 28 U.S.C. § 1331 and § 1343(1), (3) and (4). Plaintiff also invokes the pendent jurisdiction of this court to adjudicate the claims arising under state law. All defendants have filed motions for summary judgment. Plaintiff has filed a motion for summary judgment against the Municipal Defendants: Robert J. Coll (Coll), Richard S. Caliguiri (Caliguiri) and the City of Pittsburgh (City).

 History of the Case

 Defendants, William H. Freiss (Freiss) and Edward E. Horton (Horton), are police officers employed by defendant, City of Pittsburgh. On November 16, 1983, Freiss and Horton were assigned to plain clothes duty in the No. 3 Police Station. Freiss and Horton were given a description of a suspect in a series of armed robberies in the area and patrolled the area in the unmarked, personal vehicle of Freiss.

 At approximately 6:35 p.m., Freiss and Horton received a radio broadcast that a convenience store had been robbed and described the suspect as a male with a dark ski mask and burgandy ski-type jacket of thin material. Complaint at para. 25. There is a dispute regarding whether additional reports were audible over the walky-talky type radio in Freiss' car.

 Freiss and Horton saw plaintiff in the vicinity of the reported crime. He was walking down the street, wearing a maroon baseball jacket. Freiss, the driver of the car, pulled up alongside plaintiff and Horton, clad in an army jacket, stated that he was a detective and that he wanted to question him. Complaint at para. 29. Plaintiff continued to walk and the officers got out of the vehicle, ordering plaintiff to stop. Plaintiff did not stop. He alleges that the officers displayed no identification to indicate to him that they were police officers. Complaint at para. 34. Defendants deny this allegation. Answer at para. 34.

 The events that took place upon plaintiff's refusal to stop are material facts which are hotly disputed by the officers and Werry. Plaintiff claims that when he refused to stop, Horton pointed his.38 caliber service revolver at him. Complaint at para. 31. After a brief verbal exchange, Werry contends that he ran away in fear, heard someone yell, "Freeze," and then Horton willfully aimed and fired his weapon, striking plaintiff's left buttock. Complaint at para. 32. After taking a few steps, plaintiff collapsed in the street. Werry alleges that Freiss then kneeled on him with his revolver drawn and proceeded to choke him. Complaint at para. 35.

 The officers' perception of what led to the shooting is dramatically different. They contend that as plaintiff fled, he suddenly turned to face them, uttering obscenities at them. Believing that he was in danger, Horton fired. Answer at para. 33. Freiss went over to Werry when he collapsed in the street and allegedly used only the amount of force he believed was reasonably necessary to make certain that plaintiff would not attempt to escape. Answer at para. 35.

 As a result of the shooting, plaintiff suffered injuries which required surgery several times over the eight months following the shooting. He sustained permanent damage to his urethra, rectum and pelvis. Complaint at para. 38. Claims for damages include medical expenses of $ 50,326.01 and lost wages of $ 3,712.00. Plaintiff's Narrative Pre-Trial Statement.

 Plaintiff was never charged with a robbery and he alleges that there was no probable cause to believe that he had committed the reported robberies. Complaint at para. 39. Horton and Freiss contend that they had probable cause to believe that plaintiff committed one of the robberies because he fit the general description, attempted to flee when requested to stop and made threatening remarks. Answer at para. 39. Plaintiff was unarmed, but the officers claim that plaintiff made threatening movements. Answer at para. 40.

 Following the shooting, Horton and Freiss filed charges against plaintiff, alleging that he made terroristic threats. Plaintiff contends that the filing of these charges was a ploy on the part of Horton and Freiss to exonerate themselves of any civil or criminal liability or internal discipline. Complaint at paras. 41-42. Horton and Freiss deny these allegations and contend that they had a basis for filing the complaint that plaintiff had made terroristic threats. Answer at paras. 41-44. Defendant Coll, Superintendent of the Police Department at the time of the shooting, withdrew the officers' charges against Werry because he found that they were not substantiated by the facts of the case. Complaint at para. 44; Answer at para. 44; Coll at para. 27.

 Officer Parente, also a defendant, interviewed plaintiff in the Emergency Room of the treating hospital following the shooting incident. There, plaintiff alleges that Parente made a report containing false and inaccurate statements in order to assist his fellow officers, Horton and Freiss, by corroborating the fabricated account of the shooting that the two officers had given him. Complaint at para. 46. Horton, Freiss and Parente allege that the report was true and accurate. Answer at para. 46.


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