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AGRESTA v. CITY OF PHILADELPHIA

August 11, 1992

SAMUEL AGRESTA, SR. et al.
v.
THE CITY OF PHILADELPHIA, et al.



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE III

MEMORANDUM

 BARTLE, J.

 This civil rights lawsuit arises out of the fatal shooting of Samuel Agresta, Jr. by Philadelphia Police Officer James Gillespie after a high speed automobile chase through South Philadelphia on December 19, 1985.

 Samuel Agresta, Sr. and Tina Agresta, the parents of Samuel Agresta, Jr., sought damages for the termination of their relationship with their married, adult son under 42 U.S.C. § 1983. *fn1" The Agrestas alleged that the use of excessive force against their son denied them their constitutional right to familial association with him, and that the subsequent investigation of his death caused the denial of their constitutional right of access to the courts. The named defendants to this action were Gregore Sambor and Kevin Tucker, successive Police Commissioners of the City of Philadelphia; Philadelphia Police Officers Thomas Fitzpatrick and James Gillespie; Detective Alexander Doman; Police Lieutenant Gerald Baker; and the City of Philadelphia.

 The case was tried before a jury in February and March 1992. At the close of plaintiffs' evidence, the defendants moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. *fn2" This Court granted the motion as to former Police Commissioners, Gregore Sambor and Kevin Tucker, but denied the remainder of the motion. The defendants renewed their motion for judgment as a matter of law at the conclusion of all the evidence. At that point, this Court granted judgment in favor of defendant Lt. Gerald Baker on all excessive force claims and in favor of the remaining defendants on the pendent state claim for intentional infliction of emotional distress.

 The case was submitted to the jury on special interrogatories. The jury returned a verdict in favor of Police Officers Fitzpatrick and Gillespie, Detective Doman and the City of Philadelphia on all excessive force claims. The jury, however, found the City of Philadelphia liable to the plaintiffs, in the amount of $ 825,000, because of the City's policy, procedure or custom, or lack of policy or procedure, which resulted in the denying the Agrestas access to the courts.

 After the jury's verdict, the City timely moved for judgment as a matter of law, pursuant to Rule 50 of the Federal Rules of Civil Procedure, on two grounds: (1) the plaintiffs as parents of the decedent did not have a constitutionally protected liberty interest in the companionship of their adult, emancipated and married child; and (2) the plaintiffs' proof at trial in support of their claim of unconstitutional denial of access to the federal courts was fatally deficient.

 The Agrestas, likewise, filed timely post-trial motions for judgment as a matter of law, or, in the alternative, for a new trial on the verdict rendered in favor of the defendants, Gillespie, Fitzpatrick, and Doman on the excessive force issue. They argued that this verdict was contrary to the weight of the evidence. Plaintiffs also seek a new trial on additional grounds: (1) the Court erred in granting defendants' Motion for Judgment as a Matter of Law on the claims against Lt. Gerald Baker before the jury was given an opportunity to consider his liability; and (2) the Court erred in refusing to instruct the jury on the issue of the City of Philadelphia's policy, procedure or custom, or lack of a policy or procedure, with respect to setting up or using police stake-outs or stake-out units, of which Officers Fitzpatrick and Gillespie and Detective Doman were a part.

 I. The Plaintiffs' Post Trial Motions

 The Agrestas seek a new trial as to the defendant Lt. Baker on the ground that they produced sufficient evidence to bring the issue of Lt. Baker's liability for excessive force to the jury. Rule 59(a) of the Federal Rules of Civil Procedure provides, in part, that

 
A new trial may be granted to all or any of the parties and on all or part of the issues (1) in any action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. . . .

 Fed. R. Civ. P. 59(a). The determination to grant a new trial is committed to the sound discretion of the district court. Bonjorno v. Kaiser Aluminum and Chemical Corp., 752 F.2d 802, 812 (3d Cir. 1984). Nonetheless, a new trial will not be granted merely because the court would have weighed the evidence differently and reached a different conclusion. Courts have ordered a new trial when "the verdict [was] against the clear weight of the evidence; . . . the trial was unfair; and . . . substantial errors were made in the admission or rejection of evidence or [in] the giving or refusal of instructions." Northwest Women's Center, Inc. v. McMonagle, 689 F. Supp. 465, 468 (E.D. Pa. 1988) citing 11 C. Wright & Miller, Federal Practice and Procedure § 2805 (1971). The District Court, however, may not substitute its judgment for that of a jury on the issues of credibility of witnesses. Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352 (3d Cir. 1991).

 Lt. Baker, of the Philadelphia East Detective Division, became involved in this tragic series of events on December 19, 1985 when he interviewed Thomas Spurka, an individual who had had a business relationship with Samuel Agresta, Jr. Spurka had reported to the police that he feared for his safety because of physical threats made against him by Agresta earlier that day. Lt. Baker arranged for the deployment of a stake-out unit in order to apprehend Agresta. He first sent the stake-out unit, *fn3" accompanied by a 25th District Burglary Team, to the Halfway House Tavern parking lot at 3940 "G" Street where Spurka was to meet Samuel Agresta, Jr. However, the scheduled meeting location was changed to the Oregon Diner at 3rd and Oregon Streets. Lt. Baker sent the stake-out unit to that location to await Agresta's arrival. He did not accompany the unit.

 The Court granted Lt. Baker's Motion for Judgment as a Matter of Law at the close of all the evidence in the case for two reasons: (1) there was no evidence that Lt. Baker was personally involved in the use of excessive force against Samuel Agresta, Jr; and (2) Lt. Baker was not a policymaker with the City of Philadelphia. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 693-94, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

 The Agrestas argue that Baker knew that the stake-out unit is a specially trained and armed unit that is used for extraordinary operations. According to the Agrestas, Baker's decision to deploy the unit was inherently a decision to use excessive force, and, as a supervisor, he is liable for any excessive force used.

 The evidence at trial demonstrated that Gerald Baker ranked relatively low in the chain of command at the Police Department and was not a policymaker. This Court had determined that Police Commissioner Gregore Sambor *fn4" was the relevant policymaker, not Lt. Baker. The identification of the officials whose decisions constitute the official policy of the local government unit is a legal question to be resolved by the trial judge before the case is submitted to the jury. Jett v. Dallas Independent School District, 491 U.S. 701, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989); Simmons v. City of Philadelphia, 947 F.2d 1042, 1062 (3d Cir. 1991). The Court finds no reason to alter its determination.

 Plaintiffs' argument that Lt. Baker is responsible for the use of excessive force by the stake-out unit is without merit. He did not order weapons to be used against Samuel Agresta, Jr. He was not involved in any way when the police officers first confronted Agresta at 3rd and Oregon in South Philadelphia, nor did Baker participate, either in person or by radio, in the high speed automobile chase which ended with the fatal shooting of Samuel Agresta, Jr. on Delaware Avenue. While Baker made the decision to deploy the stake-out unit that evening, any liability as a supervisor for the unit must be based on his own acts or omissions, not those of the individual officers in the stake-out unit. Respondeat superior is not a basis for a supervisor's liability under § 1983. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 693-94, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Jett v. Dallas Independent School District, 491 U.S. at 735. This Court holds, as a matter of law, that Gerald Baker was not responsible for the use of any excessive force against Samuel Agresta, Jr. In any event, since the jury exonerated Detective Doman and Officer Fitzpatrick as well as Officer Gillespie, who actually killed Samuel Agresta, Jr., on the use of excessive force, it could not have found Lt. Baker liable for excessive force.

 In support of their argument that a supervisor is liable for conduct or inaction amounting to a reckless or callous indifference to the constitutional rights of others, the Agrestas cite Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989). This reliance is misplaced. In Gutierrez-Rodriguez, the driver of an automobile, who was injured when shot by police officers in a rounds squad, *fn5" sued the officer in charge of the squad, others in the squad, the officer's supervisor, and the police chief for civil rights deprivation. Plaintiffs draw an analogy between the supervisor in the Gutierrez-Rodriguez case, who was found liable, and Gerald Baker. However, in Gutierrez-Rodriguez the supervisor was a friend of Officer Soto, the officer in charge of the squad, and had knowledge of Soto's character and Soto's propensity for violence. The supervisor, who had the authority to assign Soto to a desk job, had continued to send Soto out as a squad supervisor despite a number of complaints that had been filed about Soto, and also had the responsibility of evaluating the officers in the squads. The court in Gutierrez-Rodriguez found that the supervisor's position, responsibilities and conduct not only demonstrated reckless or callous indifference to the constitutional rights of others, but also was affirmatively linked to the officer's misconduct. 882 F.2d at 562. Here, while Gerald Baker called for and deployed the stake-out unit, there was no evidence that Baker was responsible for supervising and disciplining the individual members of the unit or that he had authority to reassign members of the unit. The plaintiffs have not produced any evidence that Lt. Baker's conduct demonstrated reckless or callous indifference to the constitutional rights of others and have not provided an affirmative link between Baker's conduct and the alleged misconduct of the officers at the stake-out.

 The plaintiffs also filed a motion for judgment as a matter of law on the issue of the excessive force allegedly used by the individual police officers and Detective Doman against Samuel Agresta, Jr. The Agrestas, however, did not move for a judgment as a matter of law at the conclusion of their case nor at the ...


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