dispute that decedent exited his residence rather than surrender to the police, armed with a knife, a pistol and a shotgun, having earlier shot and wounded two S.E.R.T. members, and refused to drop his weapons or stop his movement.
Plaintiff also contends defendants knew or should have known decedent suffered from some mental disability that, presumably, would have rendered him amenable to some treatment under applicable mental health procedures which would have obviated the need to serve an arrest warrant. Plaintiff's evidence of decedent's mental condition that should have alerted police to use mental health procedures consists solely of decedent's letter of December 7, 1992, and his telephone conversations the day of his attempted arrest and death. Plaintiff's Statement of Material Facts, P 15. Moreover, in response to interrogatories, plaintiff stated the decedent did not suffer from and had never been treated for any mental illness or disability. State Police Defendants' Statement of Material Facts, P 15.
Plaintiff claims, principally, that alternative methods of apprehending Fortunato should have been attempted, such as mailing a copy of the criminal complaint to him or seeking to have him committed through the Pennsylvania Mental Health and Mental Retardation Act of 1966 procedures. Had such alternative procedures been tried, decedent would not have been placed in a position whereby he would feel so threatened that he would have to shoot his way out. However, "the Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases." Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994), (emphasis added) citing, inter alia, Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. 2d 65, 103 S. Ct. 2605 (1983) (rejecting estate's argument that police officers used poor judgment in setting up a hostile coercive confrontation which provoked decedent to come at officer with a poker, prompting the officer to shoot and kill him.)
As Judge Lewis observed in City of Philadelphia, it is not the province of the courts in scrutinizing alleged police misconduct "to provide alternatives to unlawful police action. Instead, we are to evaluate the lawfulness of what did occur. . ." City of Philadelphia, 49 F.3d at 981. See, e.g., Plakas, 19 F.3d at 1149-50 ("We do not believe the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of deadly force is reasonable under Garner. . . and Graham. . . . We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Reconsideration will almost always reveal that something different could have been done if the officer knew the future before it occurred. This is what we mean when we say we refuse to second-guess the officer."); Carter v. Buscher, 973 F.2d 1328, 1329, 1332 (7th Cir. 1992) (although police officers' "dubious" scheme to arrest decedent was described as "stranger than fiction . . . like the script from Keystone Cops," Court of Appeals quickly rejected argument that the dubious scheme violated the Fourth Amendment because it unnecessarily created the confrontation which led to use of deadly force; court holds that "pre-seizure conduct is not subject to Fourth Amendment scrutiny; a "contrary holding would create a cottage industry wherein the federal courts would be called upon to second guess police officers as to every discretionary decision regarding time and place of arrest."); Bella v. Chamberlain, 24 F.3d 1251 (10th Cir. 1994), quoting Carter ("We do not look to events that occurred approximately one hour prior to Mr. Bella's actual seizure to determine if the seizure was reasonable."). See also Schulz v. Long, 44 F.3d 643 (8th Cir. 1995) (district court properly excluded evidence of pre-seizure, pre-deadly force police conduct; "evidence that officers . . . created the need to use force by their actions prior to the moment of seizure is irrelevant"); but cf. Alexander v. City and County of San Francisco, 29 F.3d 1355 (9th Cir. 1994) (fact question precluded summary judgment for police officers on claim of excessive, deadly force where officers accompanying local health department inspectors stormed house of elderly, half-blind recluse who had threatened to shoot anybody who attempted to enter his home).
The Court finds that the decision to use the State Police S.E.R.T. to execute the warrant objectively was quite reasonable: the Indiana Borough police were authorized to serve an arrest warrant for communication by harassment and terroristic threats,
decedent had threatened his attorney, district attorney Handler and members of Handler's staff; Fortunato had allegedly resisted arrest and assaulted a police officer in January of 1992 with a knife; and police received an anonymous telephone call informing them that decedent had a gun and would shoot anyone who tried to arrest him. Furthermore, since Fortunato had failed to appear at his jury trial as required by the criminal summons of December 4, 1992, and served notice he had no intentions of ever attending the "'Court House Club' party," it was reasonable to assume that any attempt to serve a criminal complaint through the mail would not have been successful. In light of this history of threats, Fortunato's prior assault of a police officer, and the nature of the crimes charged in the arrest warrant, defendants reasonably could have concluded that Fortunato would pose an immediate threat to the safety of any officers seeking to execute an arrest warrant, as proved to be the reality. Obviously, the defendants did not violate any "clearly established law," Harlow, in implementing the plan of arrest by S.E.R.T.
To the extent plaintiff alleges defendants violated Fortunato's Fourth Amendment rights by fatally shooting him rather than using other means of apprehending him once he had exited his residence, this theory of relief cannot be sustained on the record before the Court. The Supreme Court set down the parameters under which deadly force may be used in Tennessee v. Garner :
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.