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REED v. MARKER

April 24, 1991

HELEN REED, ET AL., PLAINTIFFS,
v.
DAVID B. MARKER, DEFENDANT.



The opinion of the court was delivered by: D. Brooks Smith, District Judge.

MEMORANDUM ORDER

On September 7, 1990, plaintiffs filed a civil rights complaint seeking monetary damages alleging that on September 8, 1988, Trooper David B. Marker of the Pennsylvania State Police applied for a search warrant and, with six to eight unknown law enforcement officers, executed it on their residence in Somerset County in violation of their constitutional rights. The Commonwealth of Pennsylvania and Trooper Marker in his official capacity filed a Motion to Dismiss under Fed.R.Civ.P. 12(h)(1) and (6), asserting that this Court lacked jurisdiction over them because of the Eleventh Amendment, and that they were not persons who could be sued under 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). We granted the motion to dismiss the official capacity claims on October 25, 1990, and directed the plaintiffs to file an amended complaint.

Plaintiffs' Amended Complaint was filed on November 16, 1990, against Trooper Marker only, in his individual capacity, alleging that he violated the rights of the plaintiffs to be secure against unreasonable searches and seizures under the Fourth Amendment, to be informed of the nature and cause of the accusation against them under the Sixth Amendment, and to procedural due process, substantive due process, and equal protection of the laws under the Fourteenth Amendment.

The defendant has filed a motion to dismiss, asserting that the complaint fails to state claims for violation of any rights, Fed.R.Civ.P. 12(b)(6), and in the alternative for summary judgment on the grounds of qualified immunity. See Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987). We grant the motions to dismiss the Sixth Amendment, due process, and equal protection claims, and grant the motion for summary judgment on the Fourth Amendment claim, in part. Because at this stage of the proceeding there is an insufficient factual record to resolve in its entirety the issue of qualified immunity, we deny the motion for summary judgment on the Fourth Amendment claim, in part.

Initially, we grant the motions to dismiss all of the non-Fourth Amendment claims. The Sixth Amendment right "to be informed of the nature and cause of the accusation" plainly does not apply where plaintiff alleges that no "accusation", i.e., criminal charge, was ever filed or even contemplated against plaintiffs. Amended Complaint, ¶ 20. The equal protection clause of the Fourteenth Amendment is likewise irrelevant to plaintiffs' Amended Complaint, because there is no allegation of any action taken by the defendant toward the defendants as members of any constitutionally identifiable class.

Formerly, a historically appealing argument could have been made that plaintiffs' allegations state claims under the Fourteenth Amendment's due process clause, but the Supreme Court has recently brought some order to the earlier ad hoc jurisprudence of substantive due process:

   [A]ll claims that law enforcement officers have used
   excessive force — deadly or not — in the
   course of an arrest, investigatory stop, or other
   "seizure" of a free citizen should be analyzed under
   the Fourth Amendment and its "reasonableness"
   standard, rather than under a "substantive due
   process" approach.

Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989) (emphasis in original). Cf. Gilmere v. City of Atlanta, 774 F.2d 1495, 1500-01 (11th Cir. 1985), cert. denied sub nom. Sampson v. Gilmere, 476 U.S. 1124, 106 S.Ct. 1993, 90 L.Ed.2d 673 (1986) (substantive due process claim).

Similarly, the Supreme Court's application of the Fourth Amendment's specific textual requirement of "probable cause" to applications for search warrants, see e.g. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), displaces plaintiffs' reliance on the general Fourteenth Amendment right to procedural due process alleged to have been violated by Trooper Marker in his application for the search warrant. We therefore measure the plaintiffs' allegations concerning Trooper Marker's application for a search warrant against the Fourth Amendment's specific requirement of probable cause. See Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).*fn1

Conceivably, the procedural component of the Fourteenth Amendment's due process clause could be relevant to a claim by plaintiffs that, whatever the motivation behind Trooper Marker's actions, Pennsylvania denies them due process because it provides plaintiffs no avenue of redress under state law. See 42 Pa.C.S. § 8522(b) (listing exceptions to sovereign immunity). The Supreme Court has not spoken clearly on this subject. Compare Parratt v. Taylor, 451 U.S. 527, 537-544, 101 S.Ct. 1908, 1913-17, 68 L.Ed.2d 420 (1981) (suggesting existence of state tort remedy is relevant to adequacy of process), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Ingraham v. Wright, 430 U.S. 651, 673, 682, 97 S.Ct. 1401, 1413, 1418, 51 L.Ed.2d 711 (1977) (same), with Martinez v. California, 444 U.S. 277, 281-82, 100 S.Ct. 553, 557-58, 62 L.Ed.2d 481 (1980) (immunity of state officials from suit not deprivation without due process)(dictum); Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979)(state immunity doctrines not matters of federal interest); Daniels v. Williams, 474 U.S. at 342, 106 S.Ct. at 680 (Stevens, J., concurring). If plaintiffs had raised this procedural due process claim, we would have denied it on the basis of Martinez and Davidson v. O'lone, 752 F.2d 817, 830 (3d Cir. 1983)(en banc), aff'd on other grounds sub nom. Davidson v. Cannon, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

Plaintiffs' Amended Complaint alleges facts relevant to two distinct Fourth Amendment claims. First, plaintiffs allege that Marker provided "incorrect, erroneous information" in his application for a search warrant, that he "neglected to make a reasonable and necessary factual investigation of the information provided to him," and that he failed to take reasonable measures to ensure that the residence described in the warrant was the residence intended to be searched. Amended Complaint, ¶ 13. These claims must he examined under the standard announced in Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98, 89 L.Ed.2d 271 (1986):

    Only where the warrant application is so lacking in
  indicia of probable cause as to render official belief
  in its existence unreasonable will the shield of
  immunity be lost.

Secondly, plaintiffs' allegations that the warrant was executed at 1:15 a.m. by seven to nine officers who broke down the door to the residence so that the 72 year-old Helen Reed was knocked unconscious as she was attempting to let the officers enter, Amended Complaint, ¶ 16, and who aimed loaded shotguns and revolvers at the pajama-clad plaintiffs, two of them teenage girls, for approximately one hour while they searched the house, id., ¶¶ 15, 17-19, must be examined under Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct, 1865, 1872, 104 L.Ed.2d 443 (1989):

  [T]he question is whether the officers' actions are
  "objectively reasonable" in light of the facts and
  circumstances confronting them, without regard to
 ...

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