113 S. Ct. 2130, 2132, 124 L. Ed. 2d 334 (1993); Ybarra, 444 U.S. at 86, 100 S. Ct. at 339; Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972); United States v. Kikumura, 918 F.2d 1084, 1092 (3d Cir. 1990). It is not unforeseeable that an officer conducting a drug search on one home may be engaged by weapon toting individuals from the neighboring porch. Indeed in the factual context of this case where simultaneous drug raids were occurring within 100 yards of one another at 5128 and 5174 Viola Street, and prior police surveillance had shown the area to be fraught with drug activity, it would not be unreasonable for police to entertain a heightened state of anxiety. But a citizen should not find his constitutional safeguards lessened because of the criminality of his neighbor. One must apply the same law to the row homes of Viola Street as to the larger tracts of suburbia.
It is clear from the trial testimony that the defendant officers did not witness anything nor were they given any information that would indicate these bystanders were involved in any criminal activity. They were not privy to any information or events indicating a relationship, even an attenuated one, between the bystanders and the suspected drug activity at 5174 Viola Street.
The court in Reid observed that: "it does not stretch the imagination too much to conjure up a fact situation where a bar patron might be a reasonable target for a "stop and frisk" notwithstanding the Ybarra precedent ..." Reid, 997 F.2d at 1579. Similarly, it is possible that a scenario would emerge where it would be reasonable to frisk bystanders or neighbors in close proximity to a crack house. However, no such scenario exists on the facts of this case. Accordingly, this court holds that the defendant officers, Jeitner, Shelton and Dominick's frisk of the plaintiffs was unconstitutional and violated the plaintiffs' Fourth Amendment right to be free from unreasonable search and seizure.
The police also conducted an unreasonable search on plaintiffs when they took off McKoy's shoes and forced the plaintiffs to empty their pockets. It is clear that this was an unjustified search for weapons and evidence. See Baker, 50 F.3d at 1194-95 (the court held that it was reasonable to detain but not to conduct a search for evidence upon the person of individuals about to enter a house upon which officers were executing a search warrant). However, plaintiffs failed to identify any of the defendant officers as an individual who conducted these searches for evidence.
1. Municipality's liability under Section 1983
A municipality is subject to § 1983 liability in cases where the plaintiff shows that the municipality itself, through the implementation of a custom or policy, causes some violation of the plaintiffs' rights under the Constitution. Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d Cir. 1993); Colburn v. Upper Darby Township, 946 F.2d 1017, 1027 (3d Cir.1991) (both citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691-95, 98 S. Ct. 2018, 2036-38, 56 L. Ed. 2d 611 (1978)). Regarding the "failure to train" allegation, the Supreme Court has held that a defect in police officer training can serve as the basis of a § 1983 claim, but only "where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 387, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412 (1989).
The plaintiffs have not shown that any of the defendants are policy makers for the City of Philadelphia, nor have they shown any evidence of City practices regarding unreasonable searches of bystanders at the site of otherwise warranted raids and searches. Therefore, plaintiffs have failed to show the City formally or informally approved a policy which resulted in the violation of their rights. Plaintiffs' accounts of what happened in this case do not establish a custom or usage of practices which would be the proximate cause of the violation of their civil rights. See Baker, supra at 1194 (citing City of Canton, 489 U.S. at 391-92, 109 S. Ct. at 1206, 103 L. Ed. 2d 412).
2. Individual officers' liability under § 1983
a. Qualified Immunity
The United States Supreme Court provided the current standard for "good faith" or "qualified" immunity in Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982):
"... government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
This circuit has adopted the approach that officials must know and apply general legal principles in appropriate factual situations. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." See Pro v. Donatucci, 81 F.3d 1283, 1291-92 (3rd Cir. 1996) (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987)). Although officials need not predict the future course of constitutional law, they are required to relate established law to analogous factual settings. See Pro v. Donatucci, supra, at 1292; see also Young v. Keohane, 809 F. Supp. 1185, 1191 (M.D. Pa. 1992). In the absence of a case applying established principles to the same facts, this court must inquire whether, in light of decided case law, reasonable officers would have believed that their conduct would be lawful. Lattany v. Four Unknown U.S. Marshals, et al., 845 F. Supp. 262, 265 (E.D. Pa. 1994).
The defendant officers do not merit qualified immunity here. While I find no fault in the officers' decision to draw their guns and detain plaintiffs, once the raided premises was secure, the right to control plaintiffs' movement ended. The defendants at no time possessed the constitutional right to frisk or search plaintiffs. They were in violation of clearly established constitutional law when they did so.
Officers Jeitner, Shelton and Dominick testified that when they began their pat down search and before the police removed McKoy's shoes and asked Mckoy and Willowby to empty their pockets they did not have any suspicion that the plaintiffs or any of the bystanders were engaged in any criminal activity, or that the bystanders were armed or dangerous. They testified that at no point did they develop such a suspicion. Furthermore, officer Jeitner testified that when he commences a drug raid, as he did here, he assumes every one has a gun until he has searched individuals to convince himself otherwise. There is no constitutional law that would prohibit officers from proceeding cautiously in a drug raid because they have such an assumption. However, in light of Terry and Ybarra, a reasonable officer would not conclude that it is constitutionally permissible to search bystanders located on a porch of a home next door to a house subject to a warranted search without something more than that assumption. Therefore, in accordance with Harlow, the conduct of the individual defendants does not merit qualified immunity.
b. Supervisory liability
In order to render a supervisor personally liable under § 1983, the plaintiffs must show that he participated in violating their rights, or that he directed others to violate them, or that he, as the person in charge of the raid, had knowledge of and acquiesced in his subordinates' violations. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Plaintiffs have not shown that Mander or Young knew of or acquiesced in the frisk and search of the plaintiffs. Both Mander and Young entered the suspect house, 5174, before the bystanders were detained and searched and did not emerge from the house until the search was concluded. Both were occupied with tasks in 5174 that would preclude them from seeing a search of the plaintiffs as they stood against the wall of 5176.
Furthermore, neither Sergeant Mander nor Officer Young directed the defendant officers to act in a way that violated the plaintiffs' civil rights. Mander ordered his men to secure individuals on the premises adjacent to 5174. There is no doubt that Mander was referring to the bystanders on the porch and steps of 5174. However, in order to conclude that Mander directed his men to search the plaintiffs, I must find that he intended that the officers under his supervision search those individuals or knew that they would interpret his instruction as a direction to do so. The facts here do not support such a conclusion. While Mander's order seems susceptible to varying interpretations, I conclude that, with regard to the bystanders, he was directing his men to keep the bystanders from harms way and prevent them from interfering with police activity for the safety of the bystanders and the officers. Accordingly, neither Mander nor Young will be assessed any supervisory liability for the conduct of the other defendant officers.
As the Supreme Court held in Memphis Community School District v. Stachura, 477 U.S. 299, 306, 106 S. Ct. 2537, 2542, 91 L. Ed. 2d 249 (1986), "when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts." The Court in Stachura held that "compensatory damages may include not only out-of-pocket loss and other material harms, but also such injuries as 'impairment of reputation ..., personal humiliation, and mental anguish and suffering.'" Stachura, 477 U.S. at 307, 106 S. Ct. at 2543 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S. Ct. 2997, 3012, 41 L. Ed. 2d 789 (1974)).
Having concluded that the defendants violated the plaintiffs' Fourth Amendment rights by unreasonably detaining and searching them, I find that each plaintiff is entitled to an award of damages. While the constitutional insult is of some magnitude, the injuries suffered by plaintiffs are slight. Neither plaintiff suffered physical injury and the trauma they suffered dissipated shortly after the incident; more so in Willowby's case than in McKoy's. Both plaintiffs testified that they now fear and do not trust police officers as a result of the incident. McKoy also suffered from nightmares and public embarrassment in his neighborhood as a direct result of the incident. In light of these facts I find that Tyrone Willowby is entitled to compensatory damages in the amount of $ 500. I find that Robert Mckoy is entitled to compensatory damages in the amount of $ 1000. An appropriate order follows.
AND NOW, to wit, this 15TH day of NOVEMBER, 1996, following non-jury trial, and in accordance with my Findings of Fact and Conclusions of Law, it is hereby ORDERED that:
1. JUDGMENT is entered in favor of defendants City of Philadelphia, Police Officer Marvin Young and Sergeant Michael Mander, and against plaintiffs Tyrone Willowby and Robert McKoy, a minor, by his guardian, Bernice McKoy.
2. JUDGMENT is entered in favor of plaintiffs Tyrone Willowby and Robert McKoy, a minor, by his guardian, Bernice McKoy, and against defendants Police Officer William Jeitner, Police Officer Richard Dominick and Police Officer Charles Shelton.
3. Compensatory damages are AWARDED to plaintiff Tyrone Willowby in the amount of $ 500.00.
4. Compensatory damages are AWARDED to plaintiff Robert McKoy, a minor, by his guardian, Bernice McKoy, in the amount of $ 1,000.00.
BY THE COURT:
CHARLES B. SMITH
UNITED STATES MAGISTRATE JUDGE