had yet been made as to whether the officers involved in the incident would be prosecuted. In the meantime, however, Officer Gillespie, who fatally shot Samuel Agresta, Jr., and Officer Fitzpatrick, who was involved in the chase, had finally given written statements on May 1, 1986 and May 6, 1986. According to the Agrestas, John Herron's June 23, 1986 letter confirms that the Police Department had no policy to delay Officers' statements until the District Attorney's Office completed its investigation or that the District Attorney's Office and the City were somehow involved in a deception of the Agrestas. The Agrestas rely on these events as further support of their claim that the City denied them access to the courts through an investigation laden with delay and opportunities for cover-up and collaboration among those Officers involved in the shooting and those running the investigation.
Finally, the Agrestas remind the Court of evidence before the jury that the Police Department never obtained critical forensic evidence from the shooting. There were no barium and antimony tests done on the decedent to determine if he had in fact discharged a weapon, particularly since no gun was found on him or in his car; there was no chemical analysis performed on the interior of the decedent's car; and there was no attempt to inspect the scene at 3rd and Oregon to recover gun shells. The Agrestas also find support for their denial of access claim in the Police Department's failure to procure statements from many individual witnesses along the chase route or at the tragic finale on Delaware Avenue.
After viewing this evidence in the light most favorable to the Agrestas, the Court holds that the evidence does not afford a rational basis for the jury's verdict in favor of the Agrestas. See Berndt v. Kaiser Aluminum and Chemical Sales, Inc., 789 F.2d 253, 258 (3d Cir. 1986). As stated above, the Agrestas did not sue any individuals for concealing evidence or otherwise denying them their constitutional right of access to the Court. Plaintiffs have only sued the City itself. Even assuming the City, through its policymakers, desired to conceal the true facts of Samuel Agresta Jr.'s death, the Agrestas have not proven by a preponderance of the evidence that the City, through its policymakers, had a policy, procedure, custom, or lack of policy or procedure resulting in the denial of the Agrestas' constitutional right of access to the courts.
While Officers Staunton and Philipp gave statements together to homicide investigators following the shooting, the statements were taken very soon after the incident, so there was little opportunity to fabricate a version of the facts. In any event, the two were sequestered at the trial, testified separately, and did not give identical testimony. While allowing them to give statements together may not be the best way to conduct an investigation and may constitute negligence, the evidence did not support a finding that taking the statements together was part of policy or a lack of policy leading to the denial of access to the courts. In fact, when Officers Gillespie and Fitzpatrick, who were involved in the stake-out and high speed chase of Samuel Agresta, Jr., gave their statements concerning the shooting, they gave them separately.
Police Department policy precluded Officers Gillespie and Fitzpatrick from giving statements until the District Attorney's Office completed an investigation as to whether it would prosecute the officers. This procedure had no nefarious purpose. If the District Attorney's Office decided to prosecute the officers, a statement given without Miranda warnings would be of no use and might prevent prosecution.
If the District Attorney's Office gave the officers the Miranda warnings on the ground that it was considering prosecuting them, it is highly unlikely the police officers would have given a statement. Here, both officers testified they wanted to give their statements immediately but did not to do so under instruction of counsel, provided to them by the Fraternal Order of Police, and directives of the investigating police officers. While the Agrestas put on testimony as to different procedures used by other police departments in investigating shootings by officers,
the mere existence of other investigative techniques does not make the Philadelphia Police Department's practice unconstitutional.
The Agrestas argued that the letter they received from John Herron was further evidence of an attempt to cover-up the facts and delay the Agrestas bringing suit. The Court finds this argument unpersuasive. The letter was sent to the Agrestas' attorney and is not evidence of communications between the District Attorney's Office and the Police Department as to the status of the investigation. There was no evidence that the investigating officers even knew why or when this letter was sent. The policy of waiting to take statements of shooting officers exists to give the District Attorney's Office time to investigate and determine whether criminal charges will be brought against officers; it is not designed either to assist or hinder lawsuits brought by civilians. Whether or not the District Attorney's Office here is the same as or a separate entity from the City, an issue that this Court need not decide for purposes of this case, Herron's letter does not support a finding that City policymakers had a policy, procedure or custom, or lack of policy or procedure, denying the Agrestas access to the Courts.
While the City may not have conducted certain forensic tests on the decedent when the autopsy was done on December 20, 1985, the body was released to the parents within three days. The Agrestas, in fact, had an independent autopsy done on December 24, 1985, five days after the shooting, although they themselves had none of these forensic tests done on the decedent's hands. Forensics experts testified that even had the Police Department conducted antimony and barium tests on the decedent's hand there was no guarantee that if the decedent had fired a gun the tests would have revealed the presence of barium and antimony. As to the physical inspection of the shooting scene, although the City may not have inspected the parking lot at 3rd and Oregon Streets immediately after the incident, the scene on Delaware Avenue where Samuel Agresta, Jr. was shot to death was inspected.
The police may not have interviewed all potential witnesses to the incident; however, the Agrestas were not prevented from doing so. In fact, they did interview many and called them as witnesses, including the wife of Police Sergeant Anthony Buchanico who testified as to what she observed of the high speed chase and who contradicted her husband's testimony.
Here, the City never denied that officers shot Samuel Agresta, Jr. The interpretation of the events leading up to his death conflict, but that does not mean that any policy or lack of policy on the part of the City, through its policymakers, led to a cover-up of the truth about the death of Samuel Agresta, Jr. or denied the Agrestas access to the courts. The only policy that seemed to be in effect having any bearing on the issues here was that of refusing to interview the involved officers until after the District Attorney's Office investigated whether or not it would charge the officers with criminal conduct. This, however, does not rise to a level sufficient to impute liability to the City for denying the Agrestas access to the Courts. Nothing prevented the Agrestas from instituting this action and taking the depositions of the involved officers.
The Court finds that the Agrestas have not proven by a preponderance of the evidence anything more than negligence on the part of the City or its policymakers, even viewing the evidence in the light most favorable to the Agrestas. Negligence, of course is not sufficient to establish a claim under 42 U.S.C. § 1983. See Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991). The evidence is insufficient to establish that policymakers demonstrated any deliberate indifference in the investigation of Samuel Agresta, Jr.'s death. There was no evidence that a lack of written directives on investigative procedure was a deliberate practice on the part of the City to hinder investigations. Errors, mistakes, and misjudgments may have occurred in the investigation. However, negligence by individuals investigating a shooting is not the same as callous disregard, deliberate indifference or intentional misconduct on the part of the City or its policymakers. The Agrestas have not proven that the City had a policy, procedure or custom, or lack of policy or procedure, intending to deny the Agrestas their constitutional right of access to the Courts. Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991).
This Court finds the evidence insufficient to support the jury verdict in favor of the Agrestas on their claim of unconstitutional denial of access to the courts. The City's Motion for Judgment as a Matter of Law will be granted.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 801 F. Supp. 1464.
AND NOW, this day of August, 1992, it is hereby ORDERED:
1. The motion of plaintiffs Samuel Agresta, Sr. and Tina Agresta for judgment as a matter of law on the liability of individual defendants Detective Alexander Doman, Police Officer Thomas Fitzpatrick, and Police Officer James Gillespie is DENIED.
2. The motion of plaintiffs Samuel Agresta, Sr. and Tina Agresta for a new trial on the liability of individual defendants Detective Alexander Doman, Police Officer Thomas Fitzpatrick, and Police Officer James Gillespie is DENIED.
3. The motion of plaintiffs Samuel Agresta, Sr. and Tina Agresta for a new trial on the liability of defendant Police Lieutenant Gerald Baker is DENIED.
4. The motion of plaintiffs Samuel Agresta, Sr. and Tina Agresta for a new trial based on error in the Court's instruction to the jury is DENIED.
5. The motion of the defendant City of Philadelphia for judgment as a matter of law on the standing of plaintiffs Samuel Agresta, Sr. and Tina Agresta's to institute the action under 42 U.S.C. § 1983 is DENIED.
BY THE COURT:
Harvey Bartle III J.
AND NOW, this 11th day of August, 1992, it is hereby ORDERED that the motion of the defendant City of Philadelphia for judgment as a matter of law with respect to the $ 825,000 jury verdict in favor of the plaintiffs Samuel Agresta, Sr. and Tina Agresta on the claim for denial of their constitutional right of access to the courts is GRANTED. Judgment is entered in favor of the defendant City of Philadelphia and against the plaintiffs Samuel Agresta, Sr. and Tina Agresta.
BY THE COURT:
Harvey Bartle III J.