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January 31, 1995

Karen Hartman, individually and as the administratrix of the estate of Douglas Paul Hartman, deceased, Plaintiff,
David Bachert, Ronald Miller, and the City of Allentown, Defendants.

The opinion of the court was delivered by: J. FRANKLIN S. VAN ANTWERPEN


 January 31, 1995

 Plaintiff commenced this action against the City of Allentown, and Officers David Bachert and Ronald Miller, both of the Allentown Police Department, alleging that they are liable under 42 U.S.C. § 1983 for violating the Constitutional rights under the Ninth and Fourteenth Amendments of Deputy Sheriff Douglas Paul Hartman of the Lehigh County Sheriff's Department. The complaint further alleges that defendants are liable under state wrongful death, survival action, and civil rights laws. *fn1" The gravamen of plaintiff's allegations is that defendants violated Hartman's federal and state rights by failing to protect him adequately during the course of his duties as a Lehigh County Deputy Sheriff. Deputy Hartman, while serving a warrant with the assistance of members of the Allentown Police Department, was killed by the third party upon whom he was serving the warrant. Defendants previously filed a Motion to Dismiss, which this court denied on April 13, 1994. Presently before the court is defendants' Motion for Summary Judgment, filed on November 22, 1994, to which plaintiff filed a reply on December 15, 1994. This court has jurisdiction pursuant to 28 U.S.C. § 1331.


 Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment where the:

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

 "The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case." In Re Phillips Petroleum Sec. Litig., 881 F.2d 1236, 1243 (3d Cir. 1989). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 n.3, 106 S. Ct. 2548, 2552 n.3, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(e)); see also First Nat'l Bank v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986).


 Discovery is now closed and the relevant facts, as gleaned from plaintiff's Amended Complaint and Reply, are as follows. On the morning of July 7, 1992, Deputies Douglas Hartman and Ronald Atwell, of the Lehigh County Sheriff's Department arrived at 1943 East Dent Street in Allentown, a multi-unit apartment building, to serve an arrest warrant upon an individual known as Larry Parker. Deputy Hartman knocked on the door of Parker's second floor apartment several times, identifying himself as a Deputy Sheriff. Although he heard movement inside the apartment, no one responded.

 Back outside a few minutes later, Hartman and Atwell saw a man they thought to be Parker attempting to exit the building through the roof, but he soon reentered his apartment. Plaintiff's Brief in Response to Motion for Summary Judgment at 1 (hereinafter "Plaintiff's Reply"); Deposition of Ronald Atwell at 79-80 (hereinafter "Atwell Deposition"). In response to this probable escape attempt, at approximately 9:40 a.m, Hartman and Atwell called the Allentown Police Department as well as the Lehigh County Sheriff's Department to request assistance in serving the warrant. At approximately 9:47 a.m., defendant Officers David Bachert and Ronald Miller of the Allentown Police Department arrived at the scene, while two Deputy Sheriffs from the Lehigh County Sheriff's Department arrived soon thereafter. Apparently, Officer Miller, upon arrival, ordered Officer Bachert to accompany Deputy Hartman in attempting to serve the warrant while Officer Miller accompanied Deputy Atwell to the rear of the building, in case Parker attempted to escape again. Amended Complaint at P 12. Hartman and Bachert then approached the front door of Parker's apartment and knocked again several times. Again they received no response, although they heard movement inside.

 Sometime between 9:47 and 9:52 a.m., the door to the apartment swung open unexpectedly and Parker appeared, pointing a handgun directly at Deputy Hartman. A young woman with a baby was also in the apartment. Deputy Hartman grabbed at Parker's wrists in an attempt to wrest the gun from his control. He and Parker struggled for the next minute, and several gunshots were fired, although none struck either Hartman or Parker. Officer Bachert was situated behind Hartman on the stairway and called in on his radio to report that shots had been fired and to request backup. Amended Complaint at P 17. Plaintiff alleges that Officer Bachert remained at the entryway of the apartment during the struggle. Amended Complaint at P 19.

 Parker gained control of his gun and retreated into another room. As Deputy Hartman retreated toward the bathroom on his knees, Parker pointed his gun at him from across the room. Officer Bachert was in close proximity to Deputy Hartman at this point but did not enter the apartment. Amended Complaint at P 20. Shortly thereafter, Officer Bachert exited the apartment building. *fn2" Deputy Atwell and another Deputy Sheriff who had arrived later both attempted individually to enter the apartment but were directed by Deputy Hartman to leave. Atwell Deposition at 98-100. By this time, more members of the Allentown Police Department, including members of the SWAT team, had arrived on the scene. They began to set up equipment and to query the men who had seen parts of the Parker apartment to get a sense of the layout. Atwell Deposition at 53-58. Between approximately 9:54 and 10:10 a.m., a gun battle ensued between Deputy Hartman and Parker, resulting in the deaths of both men. Amended Complaint at PP 23 and 24.


 Section 1983 provides for the imposition of liability on any person who, acting under color of state law, deprives another of rights, privileges, or immunities secured by the Constitution or the laws of the United States. It "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989). Consequently, plaintiff brings her claim under the Ninth and Fourteenth Amendments to the Constitution.

 To state a claim under § 1983, plaintiff must show both that (1) the offending conduct was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiffs of rights secured by the Constitution. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912-13, 68 L. Ed. 2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). In this case, no party disputes that defendants were acting under color of state law. The issue we must turn to first, then, is whether the facts surrounding Deputy Hartman's death, as alleged in plaintiff's amended complaint, give rise to a viable Fourteenth Amendment substantive due process claim under 42 U.S.C. § 1983. *fn3"

 The Due Process Clause of the Fourteenth Amendment provides in relevant part "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. This phrase has been understood to encompass both a procedural and a substantive element. See Planned Parenthood v. Casey, -- U.S. --, 112 S. Ct. 2791, 2804, 120 L. Ed. 2d 674 (1992) ("Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years . . . the Clause has been understood to contain a substantive component as well . . . ."). The procedural element, which is not at issue here, guarantees that a state may not effect a deprivation of life, liberty, or property without certain procedural safeguards. The substantive element of the clause has a twofold interpretation. First, the clause selectively incorporates provisions of the Bill of Rights, and protects these rights from infringement by state and local governments. Second, the clause bars "certain government actions regardless of the fairness of the procedures used to implement them." Daniels, 474 U.S. at 331. The substantive element of the clause "prevents the government from engaging in conduct that 'shocks the conscience,' or interferes with rights 'implicit in the concept of ordered liberty.'" U.S. v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 2101, 95 L. Ed. 2d 697 (1987) (quoting Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 209, 96 L. Ed. 183 (1952)).

 Recently, in DeShaney v. Winnebago County Department. of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), the Supreme Court examined the strictures of substantive due process. *fn4" Prior to DeShaney, federal circuit courts were divided over the issue of when, if ever, the failure of state or local governmental authorities to provide an individual with adequate protective services constitutes a violation of the individual's due process rights. The Third and to an extent the Fourth Circuits had endorsed the proposition that if the State is aware of danger to an individual from a third party and undertakes to protect him from that danger, a "special relationship" may arise that imposes an affirmative constitutional duty to provide adequate protection. See Estate of Bailey by Oare v. County of York, 768 F.2d 503 (3d Cir. 1985) (applying this proposition to the context of a child abuse case); Jensen v. Conrad, 747 F.2d 185 (4th Cir. 1984), cert. denied, 470 U.S. 1052, 105 S. Ct. 1754, 84 L. Ed. 2d 818 (1985). The First, Sixth, Seventh, Eleventh, and D.C. Circuits, however, had taken the position that the Due Process Clause of the Fourteenth Amendment does not require a state or local governmental entity to protect its citizens from private violence or "other mishaps not attributable to the conduct of its employees." DeShaney v. Winnebago, 812 F.2d 298, 301 (7th Cir. 1987); see also Estate of Gilmore v. Buckley, 787 F.2d 714, 720-23 (1st Cir.), cert. denied, 479 U.S. 882, 107 S. Ct. 270, 93 L. Ed. 2d 247 (1986); Bradberry v. Pinellas County, 789 F.2d 1513 (11th Cir. 1986); Janan v. Trammell, 785 F.2d 557 (6th Cir. 1986); Washington v. District of Columbia, 802 F.2d 1478, 1481-82, 256 U.S. App. D.C. 84 (D.C. Cir. 1986).

 In DeShaney, the Supreme Court affirmed the position of the latter group of circuits, holding that the Due Process Clause does not give rise to an affirmative duty on the part of a State to protect its citizens. The Court rejected the argument advanced by the petitioner that because the State was aware of the abuse of Joshua by his father and had made clear an intention to protect him, a special relationship was created that affirmatively obligated the State to protect the child:

Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means . . . . Its purpose was to protect the people from the State, not to ensure that the State protected them from each other . . . .

 489 U.S. at 195. The Court acknowledged that in some instances a "special relationship" between the State and certain individuals could give rise to an affirmative duty on the part of the State to protect that individual. However, they indicated that such an exception would arise only when the State had so restricted an individual's liberty that he was unable to care for himself, as is the case when one is in the State's "custody." Id. at 199. The only instance when a State would owe an affirmative duty to an individual in a noncustodial setting, the Court indicated, would be if the State had created or exacerbated the danger faced by the individual in some way. Id. at 201. However tragic the child's situation was, the DeShaney Court held, it did not fall within the scope of either one of these two narrow exceptions. Consequently, there had been no affirmative duty on the part of the State to protect the child from the violence of a third party, in this case his father.

 It is under these exceptions set forth in DeShaney that plaintiff presses her claims. First, s he argues that a special relationship arose between Deputy Hartman and defendants, such that defendants owed Deputy Hartman an affirmative duty of protection. Plaintiff alleges that this relationship arose both by reason of defendants' knowledge of the dangerous situation and their assumption of control when arriving at the scene as well as their statutory obligations under 42 Pa.C.S.A. § 8952. *fn5" Officer Bachert, she continues, transgressed this duty by failing to take action to assist Deputy Hartman in his struggle against Parker, and by "abandoning" the apartment in the midst of a life-threatening situation. *fn6" She also avers that her claims fit within the second DeShaney exception, arguing that these same actions created or exacerbated the danger faced by Deputy Hartman. See, supra n.6; Plaintiff's Reply at 20-26. Finally, plaintiff alleges that the City of Allentown breached its duty of care by directing Officer Bachert to provide "back-up" protection, despite the city's knowledge that he lacked experience in dealing with violent persons. *fn7"

 A. Collins v. City of Harker Heights

 Although both parties in their respective memoranda engage in substantive discussions of the applicability of DeShaney and its progeny, we find that the case of most relevance to this situation is the Supreme Court's recent decision in Collins v. City of Harker Heights, 503 U.S. 115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). Collins applied the substantive due process analysis established in DeShaney to a factual situation very similar to the one at hand and consequently is instructive to our analysis of plaintiff's claims, to say the least. In Collins, the Court addressed the question of whether § 1983 provides a cause of action for a governmental employee alleging a violation of his substantive due process rights against the municipal government because it failed adequately to assure his safety or protection from harm during the course of his employment. Id. at 1064. The petitioner's husband, a sanitation worker employed by the city, died of asphyxia after entering a manhole to unstop a sewer line. Petitioner's complaint alleged that the city was on notice of the dangerous conditions in the manholes because her husband's supervisor had been rendered unconscious several months earlier. Id. at 1064 n.1. She brought a § 1983 action against the city, alleging that by "following a custom and policy of not training its employees about the dangers of working in sewers and not providing safety equipment and warnings," the city had violated her husband's substantive due process right "to be free from unreasonable risks of harm . . . ." *fn8"

 The Court understood the petitioner's claim as advancing two separate theories: First, "that the Federal Constitution imposes a duty on the city to provide its employees with minimal levels of safety and security in the workplace," or second, "that the city's 'deliberate indifference' to Collins' safety was arbitrary Government action that must 'shock the conscience' of federal judges." 112 S. Ct. at 1069. The Court rejected the first theory on the grounds that the Due Process Clause does not require a state to provide minimum levels of safety and security. Justice Stevens, writing for a unanimous court, cited the Court's previous decision in DeShaney, and observed that,

neither the text nor the history of the Due Process Clause supports petitioner's claim that the governmental employer's duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause . . . . Petitioner's submission that the city violated a federal constitutional obligation to provide its employees with certain minimal levels of safety and security is unprecedented.

 Id. at 1069. The Court distinguished petitioner's claim from those in which the State did have a "continuing obligation to satisfy certain minimal custodial standards," by finding that petitioner could not maintain that the city deprived him of his liberty interest "when it made, and he voluntarily accepted, an offer of employment." Id. at 1070.

 The Court noted as significant the fact that petitioner had not alleged that decedent was "deliberately harmed" by the city nor that he was "instructed to go into the sewer when the supervisor knew or should have known that there was a significant risk that he would be injured." Id. at 1069. Instead, petitioner claimed that the city's ...

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