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DIJOSEPH v. CITY OF PHILADELPHIA

October 22, 1996

ANDREW DIJOSEPH, et al., Plaintiffs,
v.
CITY OF PHILADELPHIA, et al., Defendants.



The opinion of the court was delivered by: BRODY

MEMORANDUM

 Anita B. Brody, J.

 October 22, 1996

 Plaintiffs Andrew and Barbara DiJoseph *fn1" bring this action under 42 U.S.C. § 1983 against the City of Philadelphia, Police Commissioner Richard Neal, and police officers Deborah Mattiacci, George Hairston, and Carmen Vuotto. DiJoseph alleges violation of his Fourth and Fourteenth Amendment rights under the United States Constitution for the events surrounding the shooting of plaintiff Andrew DiJoseph on September 22, 1993. DiJoseph also alleges supplemental state tort claims against defendants for the same incidents. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, each of the defendants has moved for summary judgment. I will grant the motion with respect to Officers Mattiacci and Hairston, Police Commissioner Neal, and the City of Philadelphia. I will deny the motion with respect to certain claims against Officer Vuotto and will grant the motion with respect to others.

 I. Facts

 As the facts are in dispute, I will recite the material facts in a light most favorable to the plaintiffs. On September 22, 1993, Officers Mattiacci and Hairston of the Philadelphia Police Department responded to a radio report of a burglary at 6524 Dorel Street, Philadelphia, DiJoseph's residence. Dep. Deborah Mattiacci at 10. When the officers arrived, they were greeted by DiJoseph who was in possession of a gun. *fn2" Dep. George Hairston at 13. DiJoseph claimed that someone was trying to break into his home. Id. Officer Hairston disarmed DiJoseph, and afterwards the officers inspected the premises. Id. The officers found no evidence of a break-in. Id. Concerned for DiJoseph's well-being and anxious demeanor, Officer Hairston telephoned Barbara DiJoseph, DiJoseph's wife, at work regarding the sensibility of DiJoseph's possession of a handgun. Id. at 14. Ms. DiJoseph told the officers that it was safe for her husband to possess a gun despite his behavior and that her husband had a permit for the gun. Id. at 18. Ms. DiJoseph also advised the officers, however, that DiJoseph suffered from psychological problems, was on medication *fn3" and in therapy, and that he had been carjacked approximately one week before and that he had been acting more paranoid ever since. Barbara DiJoseph Aff. P 2. Although the officers returned the gun to DiJoseph before leaving, they nevertheless visited Ms. DiJoseph at her workplace to discuss further the anxious behavior of her husband. Dep. George Hairston at 19.

 Based upon DiJoseph's irrational behavior, Lt. Guidice declared DiJoseph to be a "barricaded man." *fn5" Dep. Anthony Guidice at 23. As a result, the StakeOut Unit of the Philadelphia Police Department was called for reinforcement, and Officers Carmen Vuotto and Thomas Dorsey of StakeOut Unit Sam 101 responded. The StakeOut Unit is a support unit that responds to barricaded person, hostage, and high-risk warrant situations. Dep. Corporal DeJarnette at 8.

 Upon arriving at the scene, Officers Vuotto and Dorsey were assigned to cover the rear of DiJoseph's residence for containment purposes. Id. at 21. Officer Vuotto took cover behind a tree, one hundred and eight (108) feet from the rear of DiJoseph's house. *fn6" Pls.' Police Diagram. About fifteen minutes later, DiJoseph appeared at the rear, third floor window, approximately twenty feet above the ground. Dep. Carmen Vuotto at 84. Officer Vuotto observed a white, heavy-set male, Andrew DiJoseph, holding a stainless steel revolver in his right hand. Id. at 90. DiJoseph opened the window with both hands -- palms up -- with the gun beneath the window frame. Id. at 88. As the window did not have a screen or storm window attached, there was nothing separating DiJoseph from the outside. Id. at 89. From the window, DiJoseph advised the officers that he could not leave his house because he was detaining an intruder. Id. at 107. The officers unsuccessfully attempted to persuade DiJoseph to put his gun down. Id. at 108. DiJoseph repeatedly told the officers that he would not come out of his house but rather they would have to come into his home. Id. at 109. The officers believed, however, that DiJoseph wanted their help. Dep. Thomas Dorsey at 26.

 Soon thereafter, DiJoseph started swinging his gun around, with his arm extended out the window. Id. at 27-28. At the same time, DiJoseph positioned himself in the window such that Officer Dorsey could not see him very well, and ultimately, Dorsey could only see DiJoseph's gun extended out from his arm. Id. at 30-31. DiJoseph aimed his gun at what appeared to be Officer Vuotto's position. *fn7" Id. at 32. At that point, Officer Vuotto fired one shot. Id. at 32. DiJoseph retreated into the room and then swung his gun around again out the window. Id. Officer Vuotto then fired the second shot and the third shot within a couple seconds of each other. Id.

  Based upon Officer Dorsey's testimony, DiJoseph alleges that Officer Vuotto used excessive force against DiJoseph in violation of the Fourth Amendment. More specifically, DiJoseph contends that Officer Vuotto could not have seen his face at the time he shot DiJoseph, and therefore Vuotto could not have observed him look down his right arm -- seemingly aiming through a rifle scope -- and point the gun directly at the officer. *fn8" DiJoseph relies upon the fact that the officers stood approximately one hundred and eight (108) feet away from DiJoseph and twenty (20) feet below him, and furthermore, that the medical evidence reveals that DiJoseph had a gunshot wound in his right lower back, just above the buttocks -which seemingly contradicts Officer Vuotto's account of the incident. Hence, DiJoseph argues that such force could not have been "objectively reasonable" because Officer Vuotto could not have been reasonably threatened by the actions of the plaintiff.

 In March 1994, DiJoseph was prosecuted for his involvement in the foregoing incident and pleaded guilty to the criminal charges of aggravated assault in the first degree, in violation of 18 Pa. C.S.A. § 2702, and possession of an instrument of crime, in violation of 18 Pa. C.S.A. § 907. The guilty plea has neither been overturned nor appealed.

 II. Discussion

 Against Officers Mattiacci and Hairston, DiJoseph brings an action for violations of his Fourth and Fourteenth Amendment rights for failing to take the necessary action to properly secure him. Against Officer Vuotto, DiJoseph alleges an excessive force claim in violation of the Fourth Amendment. Against Police Commissioner Neal, DiJoseph brings an action for violation of his Fourth and Fourteenth Amendment rights for Neal's responsibility for the incident as the top policymaker for the Philadelphia Police Department. Against the City of Philadelphia, DiJoseph alleges violation of the Fourteenth Amendment substantive due process rights for failing to provide adequate training to its police officers regarding the difference between "mentally disturbed" individuals and barricaded persons. Furthermore, against each defendant, DiJoseph alleges violation of state law. I will discuss each of the claims against each of the parties.

 A. Officer Mattiacci and Officer Hairston

 DiJoseph alleges that Officers Mattiacci and Hairston violated his Constitutional rights under the Fourth and Fourteenth Amendments for "failing to take the necessary action to properly secure Mr. DiJoseph by taking the handgun from him, and by taking him to be examined for his mental incapacity." Pls.' Answer to Defs.' Mot. Summ. J. at 19 ("Pls.' Answer"). I will analyze DiJoseph's claim under each Amendment in turn.

 1. Fourteenth Amendment Claim

 DiJoseph claims that Officers Mattiacci and Hairston violated his substantive due process rights under the state-created danger doctrine of the Fourteenth Amendment. Pls.' Answer at 10, 22-24. He contends that this violation occurred when the officers returned his handgun to him in his noticeably agitated state thereby increasing his risk of harm. *fn9" In their defense, officers Mattiacci and Hairston plead qualified immunity.

 The first step in analyzing a defense of qualified immunity is determining whether the plaintiff has alleged a violation of a constitutional right. Siegert v. Gilley, 500 U.S. 226, 232, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991). The next step is determining whether the alleged conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." ...


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