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RUSSOLI v. SALISBURY TP.

October 20, 2000

CHARLES RUSSOLI AND MARGUERITE RUSSOLI, PLAINTIFFS,
V.
SALISBURY TOWNSHIP, SALISBURY TOWNSHIP POLICE DEPARTMENT, THOMAS E. ANDERSON, AND KEVIN J. SOBERICK, DEFENDANTS.



The opinion of the court was delivered by: Van Antwerpen, District Judge.

            OPINION AND ORDER

I. INTRODUCTION

Plaintiffs Charles Russoli and Marguerite Russoli have brought the instant action pursuant to 42 U.S.C. § 1983, alleging that the Defendants, Thomas E. Anderson, Kevin J. Soberick, Salisbury Township, and Salisbury Township Police Department, violated their rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution.*fn1 They have also brought a number of state law claims. Before the Court for disposition is Defendants' Motion for Summary Judgment on all claims, filed by the Defendants on June 26, 2000. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 1343, and 1367.

We note at the outset that the Plaintiffs failed to assert in their Complaint that this Court has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Further, while the Plaintiffs did allege that certain of their constitutional rights had been violated, they were not as specific as we would prefer in asserting either their federal or state claims. The Defendants have argued against our exercise of supplemental jurisdiction because of these alleged defects in the Complaint. Even if the Defendants had not objected to our exercise of supplemental jurisdiction, however, we are still "bound to consider [our] own jurisdiction preliminary to consideration of the merits" because federal courts are courts of limited jurisdiction, Trent Realty Assocs. v. First Federal Savings & Loan Ass'n of Philadelphia, 657 F.2d 29, 36 (3d Cir. 1981); see also Employers Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990), and we are required to undertake such an examination sua sponte, see id.

Defendants argue in their Reply Memorandum to Plaintiffs' Response against our exercise of supplemental jurisdiction, stating that the Plaintiffs have the burden of establishing jurisdiction and failed to do so in their Complaint. Defendants also argue that it is irrelevant that they failed to object earlier to our exercise of supplemental jurisdiction. We do not agree with Defendants' arguments.

Even if the Plaintiffs' method of pleading did not clearly put Defendants on notice that state law claims were made by Plaintiffs, the Third Circuit has rejected the argument that a basis for jurisdiction is waived if not alleged at the inception of the suit. See Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874 (3d Cir. 1992). The Third Circuit stated: "We know of no absolute prohibition against asserting another basis for jurisdiction in an amendment to a pleading, provided that such jurisdiction would have existed at the time the complaint was originally filed. Many circuits have held that no such prohibition exists." See id. at 887 (citing Miller v. Stanmore, 636 F.2d 986 (5th Cir. 1981); John M. Peters Constr. Co. v. Marmar Corp., 329 F.2d 421 (6th Cir. 1964); United Steelworkers of America, AFL-CIO v. Mesker Bros. Industries, Inc., 457 F.2d 91 (8th Cir. 1972); Local 179, United Textile Workers of America, AFL-CIO v. Federal Paper Stock Co., 461 F.2d 849 (8th Cir. 1972); May Department Store v. Graphic Process Co., 637 F.2d 1211 (9th Cir. 1980)). The Federal Rules of Civil Procedure allow complaints to be amended upon motion, and direct that "leave [to amend] shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). 28 U.S.C. § 1653 specifies that "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." Although the Plaintiffs have not made a motion to amend the Complaint to include § 1367(a) as a basis for this Court's jurisdiction, the fact that the courts have been instructed to liberally allow motions to amend complaints colors our decision in this case. See Berkshire Fashions Inc., 954 F.2d at 886 (directing that "the discretion [to allow amendments] should be exercised within the context of liberal pleading rules").

The Third Circuit has noted that "the district court may deny a leave to amend only where in its discretion the district court finds that the plaintiff's delay in seeking the amendment is undue, made in bad faith, prejudicial to the opposing party, or fails to cure the jurisdictional defect." Berkshire Fashions Inc., 954 F.2d at 886. See also Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) ("In the absence of substantial or undue prejudice, denial instead must be based on bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of amendment."); Tarkett Inc. v. Congoleum Corp., 144 F.R.D. 289, 290 (E.D.Pa. 1992) ("The Third Circuit has interpreted these factors to emphasize that prejudice to the non-moving party is the touchstone for the denial of a request for leave to amend."). Defendants argue that it would be prejudicial to them to add the state law claims at this point in the litigation because they have already prepared a defense to Plaintiffs' allegations and prepared a motion for summary judgment based on the federal law claims only.*fn3 This Court disagrees that the Defendants would be so prejudiced. Defendants' Memorandum of Law in Support of Defendants' Motion for Summary Judgment assumed that each of the counts, except those captioned as § 1983 counts, included both state and federal claims. Instead of addressing the claims on the merits and attempting to show that they were entitled to summary judgment, however, the Defendants merely asserted that because the Plaintiffs failed to allege that this Court has supplemental jurisdiction under 28 U.S.C. § 1367, we cannot hear the state claims. Rule 8(a) requires that the complaint contain "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Fed.R.Civ.P. 8(a). The Rule requires only a showing of jurisdictional facts, not a list of the statutory bases of the Court's jurisdiction.

Under Congress's codification of supplemental jurisdiction, "The district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a). In its seminal decision on supplemental jurisdiction, the Supreme Court held that "in order for the district court to exercise `pendent' jurisdiction over Gibbs' state law claim, the state and federal claims must derive from a common nucleus of operative fact . . . such that [the plaintiff] would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). As we explained previously, Counts II through VIII allege both federal and state law claims, and each count is based upon the arrests of Mr. and Mrs. Russoli, the events surrounding the arrests, and the aftermath of the arrests. Because each state law claim arises from the same or related facts as a federal law claim, the complaint sufficiently alleges the necessary jurisdictional facts. Therefore Defendants will not be prejudiced by our exercise of supplemental jurisdiction, and we will exercise it.

II. STANDARD OF REVIEW

The court shall render summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Anderson I"). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. See id. at 248, 106 S.Ct. 2505. All inferences must be drawn and all doubts resolved in favor of the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).

On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrates the absence of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). 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.*fn4 See id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see also First Nat'l Bank of Pa. 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 I, 477 U.S. at 249, 106 S.Ct. 2505.

III. FACTUAL BACKGROUND

We will review the facts with the foregoing rules in mind. There are a number of areas of conflict in the factual background.

On Tuesday, May 19, 1998, Scarlet Brenfleck, a neighbor of Plaintiffs, told Mr. Russoli that she had heard popping noises coming from her mailbox, and she asked him to look at it. (C. Russoli Dep. at 10; see also S. Brenfleck Dep. at 8.) He did so, found an empty plastic tube approximately ten inches long and two inches wide that appeared to be an expended firecracker, removed it, and placed it in the street. (C. Russoli Dep. at 10, 12-13.) There was no damage to or marks inside the mailbox from the device. (Id. at 13.) He then checked neighboring mailboxes and found no other explosive devices. (Id.; S. Brenfleck Dep. at 8-9.) Another neighbor, Dale Smith, came outside and said that he had heard a pop, checked the mailboxes, and called the police. (Id. at 11.) Mr. Smith also stated that he had seen a young person dressed in a black costume with a skull mask fleeing the scene. (Id.) Mr. Russoli then returned to his residence and went inside. (Id. at 14.)

Salisbury Township Police Officer, Defendant Thomas E. Anderson, was called to the scene (T. Anderson Test., Commonwealth v. Russoli, 6/30/98, at 24-26), and he was later joined by Defendant Officer Kevin Soberick (K. Soberick Test., Commonwealth v. Russoli, 7/2/98, at 331). Officer Anderson stated that as he drove to the scene, he received a description of the suspect, the young person in black seen fleeing the area. (T. Anderson Test. at 10.) When he arrived at the scene, two people later identified as Mrs. Brenfleck and Mr. Smith were near the mailbox in which the device had been located and near where the device now lay on the ground. (Id. at 11.) Mr. Smith explained that Mr. Russoli had taken the device out of the mailbox after they had hear a fizz and a pop from it. (Id.) Officer Anderson ordered them to get away from the device and told them that they needed to leave the area. (Id.) Officer Anderson then contacted Officer Soberick, who was Salisbury Township's bomb officer, and advised him of the situation. (Id. at 12.) Officer Anderson said that the device looked like an incendiary explosive device, which could potentially be set off by cell phone or radio communications, so he used Mr. Smith's telephone to relay the information to the police communication center. (Id. at 13.) He then told Mrs. Smith to stay in her house, and she did so. (Doris Smith Dep. at 8.) Officer Anderson had had some training in dealing with a suspected explosive device, and even though Mr. Smith had already heard a fizz and a pop, Officer Anderson felt he could not be certain that the device was now safe. (T. Anderson Test. at 14.) Officer Anderson was also concerned about the possibility of a second device. (Id. at 15.) Because of concerns about the safety to the public and the need to secure the crime scene, Officer Anderson requested that fire police block off vehicular and pedestrian access to the area. (Id. at 15-16.) Officer Anderson stated that the Wescosville Fire Police blocked off the area "[e]xcept for an occasional person that adamantly wanted to get to their residence and they refused to listen to the fire police request to stay out of the area." (Id. at 16.) Officer Anderson went to several houses in the area and asked the residents to leave, and they complied. (Id. at 17.) Officer Anderson then approached Mr. Russoli, who was outside near his garage, and told him that he needed to leave the area. (Id. at 18.) Mr. Russoli responded, saying that Officer Anderson was overreacting, that the bomb had already gone off, and stated that he had taken the device out of the mailbox. (Id.) Officer Anderson again told Mr. Russoli that he needed to leave the area because the police were evacuating the houses in the neighborhood near where the device was located. (Id.) Mr. Russoli said that he couldn't leave because his wife was ill, and Officer Anderson repeated that Mr. Russoli should get his wife and they needed to leave the area immediately. (Id. at 18-19.) Officer Anderson asserts that Mr. Russoli said that he needed a few minutes to get his wife, and that they would then leave.*fn5 (Id. at 19.)

Mr. Russoli claims that Officer Anderson came to the Russoli residence, screaming that Mr. Russoli had to evacuate the area because of pipe bombs, and said that everybody is evacuating. (C. Russoli Dep. at 15.) Mr. Russoli says he attempted to inquire whether Officer Anderson was referring to the firecracker that he had already looked at, but Officer Anderson repeated his command to evacuate the area. (Id.) Mr. Russoli told Officer Anderson that it would be difficult to leave because his wife was ill and asked Officer Anderson how long he would have to remain away. (Id.) Officer Anderson stated that he should stay away for half to three-quarters of an hour, and then Mr. Russoli returned to his house. (Id.)

Officer Anderson asserts that he next went back to Mr. Smith's house and told him that he needed to leave. (T. Anderson Test. at 20.) Mr. Smith requested to remain in his backyard, and Officer Anderson told him that would be acceptable until the bomb squad arrived, at which time he would have to leave the area. (Id. at 20-21.) Mr. Smith agreed that he would leave later as requested. (Id. at 21.)

After Mr. Russoli returned to his house, he told Mrs. Russoli about the order to evacuate, and she told him that she had been on the telephone with the Smiths, who lived across the street and were in the home closest to the mailbox with the exploded firecracker. (C. Russoli Dep. at 15-16.) The Smiths told Mrs. Russoli that the police had told them that they may remain in their house or in the backyard.*fn6 (Id. at 16.) The Russolis deduced that if it were acceptable for the Smiths to remain, it would also be acceptable for the Russolis to remain, too. (Id.)

Officer Soberick arrived at the scene and took command, and Officer Anderson briefed him on the situation. (T. Anderson Test. at 21; K. Soberick Test. at 332.) Then Officer Anderson checked the houses at which he had not received a response, in case there were others who still needed to evacuate. (T. Anderson Test. at 21.) Officers Anderson and Soberick set up a command post to deal with the various emergency personnel. (Id. at 23.) Officer Soberick communicated with Captain Grim of the Allentown Bomb Squad and briefed him on the situation. (K. Soberick Test. at 334.) Captain Grim requested that the house that had the device in front of it, as well as the houses next to it and across the street from it be evacuated, and both fire department personnel and paramedics be on the scene. (Id. at 335.)

Officers Anderson and Soberick were looking at the device through binoculars from approximately 100 feet away when Officer Anderson noticed that Mr. Russoli was outside his garage, near his car. (T. Anderson Test. at 23.) This was about forty-five minutes after Officer Anderson and Mr. Russoli first spoke. (C. Russoli Dep. at 16-17.) Officer Soberick asked Officer Anderson to talk to Mr. Russoli and "see why he was outside, or why he hasn't evacuated the area." (K. Soberick Test. at 338.)

Mr. Russoli, clad only in shorts and sandals and carrying a glass containing an alcoholic beverage, proceeded to retrieve an item from his car, which was parked in the driveway approximately fifteen feet from the garage. (Id. at 15-17; T. Anderson Test. at 23.) Officer Anderson approached Mr. Russoli and insisted that he leave the area, and then Mr. Russoli became loud, verbally abusive, and belligerent:

I approached Mr. Russoli who was standing in his driveway and asked him why he hasn't left. At that point Mr. Russoli stated to me, "I'll fucking leave when I want to leave." And I stated to him he either leave now or he was going to be placed under arrest, and there was no debate, and there was no argument about it, this was an official order for him to leave. At that point Mr. Russoli stated, just a couple of fucking minutes, and then he turned his back on me and refused to answer any more questions on me, and told me I was overreacting.

(T. Anderson Test. at 24-25.) Officer Anderson also stated that Mr. Russoli had an on-the-rocks glass that he had taken a drink out of, that he could smell the odor of an alcoholic beverage on Mr. Russoli's breath, and Mr. Russoli's eyes were red and watery. (Id.) Officer Anderson testified as to his reasons for then arresting Mr. Russoli:

Based on him refusing to comply with my orders I felt that Mr. Russoli wasn't — wasn't fully aware of the magnitude of the circumstances, that he was blowing it off that the bomb had already went off and there was no big deal. I felt that he had to be removed from the area because he was putting himself and he was putting others in the area in risk of injury for having to go back and asking him to leave again.

(Id. at 27.) Mr. Russoli had his back to Officer Anderson and the Officer placed his left hand on Mr. Russoli's shoulder and his right hand on Mr. Russoli's wrist, and then warned Mr. Russoli that this was his last chance to leave or he would be arrested. (Id. at 27.) Mr. Russoli jerked his hand away, and said "Now wait a minute," and then Officer Anderson arrested him. (Id. at 27-28.) Officer Anderson asserts that he told Mr. Russoli that "he was being arrested for disorderly conduct for refusing to leave, and creating an offensive condition that was putting ourselves in jeopardy, and the fire personnel, and the rest of the personnel at risk for having to ask him several times to leave and he refused to do so." (Id. at 28.)

According to Mr. Russoli, Officer Anderson saw Mr. Russoli, accosted him on his own property, screamed at him, and berated him for not evacuating the area, even though the Officer could not have known whether Mr. Russoli had evacuated and returned or had simply failed to evacuate. (C. Russoli Dep. at 19.) Officer Anderson also stated that Mr. Russoli would have been too drunk to drive to evacuate, so he must not have done so. (Id. at 21.) Mr. Russoli stated in his deposition:

With that I said "Look, number one, you said that I could be back in half-an-hour or three-quarters of an hour. I told you my wife was sick. Thirdly, you told the neighbors that they could stay in their house or their backyard, and last but not least if there is any danger, and I don't think there is, but if there is, it's in the front of the house removed from where I'm at in my house." And he listened to all of this, and I said to him "You know what? You're really being unreasonable." With that he said "That does it. You're under arrest."

(Id. at 19.) Mr. Russoli also asserts that at no time did he direct obscenities toward Officer Anderson. (Id. at 22.)

Officer Anderson asserts that Mr. Russoli resisted the Officer's attempts to handcuff him, and that he had to knock a glass out of Mr. Russoli's hand in order to handcuff him, because he was afraid that one of them might fall on the glass or that Mr. Russoli might use it as a weapon. (T. Anderson Test. at 28.) Mr. Russoli continued to resist Officer Anderson's attempts to take him into custody, and they ended up next to Mr. Russoli's car with Mr. Russoli almost sitting in the trunk. (Id. at 28-29.) At that point Officer Anderson yanked Mr. Russoli out of the trunk and walked him alongside the car, and Mr. Russoli kept trying to swipe at Officer Anderson's hand to prevent Officer Anderson from handcuffing him. (Id. at 29.) Then Officer Anderson yelled to Officer Soberick for assistance in taking Mr. Russoli into custody. (Id.) As Officer Soberick approached, he saw Officer Anderson struggling with Mr. Russoli and Mr. Russoli trying to kick Officer Anderson. (K. Soberick Test. at 340.) Mr. Russoli continued to resist being taken into custody and being handcuffed, so Officer Anderson

took him to the ground on his driveway, and once he was on his chest, Officer Soberick was able to grab his other hand and get it behind him, and we handcuffed the other hand. Mr. Russoli continued to kick at us. And he did not comply with orders to stop resisting. And then Officer Soberick then put a hobble on him, which is a nylon restraint system that's attached to his ankles, and then to the handcuffs, that if he were to continue to kick it tightens up and prevents him from kicking us.

(T. Anderson Test. at 29-30; see also K. Soberick Test. at 340-41.) The Officers then brought Mr. Russoli over to the grass on the side of his driveway and continued to tell him to stop resisting. (T. Anderson Test. at 30; K. Soberick Test. at 341.) At that point Mrs. Russoli exited the house, wearing a housecoat, walked up to the Officers, and said "What the hell are you doing, you motherfuckers." (T. Anderson Test. at 30; see also K. Soberick Test. at 342 (stating that Mrs. Russoli came out and said "what the fuck are you doing")). Officer Anderson told her to back off or she would be arrested, and she replied "You're a fucking asshole." (T. Anderson Test. at 31.) Mrs. Russoli "clenched her right fist and bumped chest to chest" with Officer Anderson. (Id.; see also K. Soberick Test. ("Mrs. Russoli approached Officer Anderson, went directly just chest to chest and face to face with him and called him a motherfucker.")). Officer Anderson again asked Mrs. Russoli to step back and leave the immediate area, but instead she "bumped chest to chest" with Officer Soberick. (T. Anderson Test. at 31). Officer Soberick did not testify to having any contact with Mrs. Russoli, instead stating that "I had gotten her attention and said, you need to go back to your home. And she turned towards me and started approaching me. I took a step back, and told her numerous times, along with Officer Anderson, she needed to step back and go back into her home. At that point she eventually did." (K. Soberick Test. at 343.)

Mr. Russoli was still lying on his stomach on the grass with his head turned to one side, restrained by the Officers. (T. Anderson Test. at 31.) The Officers asked Mr. Russoli if he would be willing to walk to the car, but they received no response, so they picked him up, each holding him under an arm. (Id. at 30-31.) Then Mr. Russoli stated that he would walk, and when asked, he stated that he would behave; therefore the Officers removed the hobble, and the three of them walked over to the police car. (Id. at 31; see also K. Soberick Test. at 344.) Only after Mr. Russoli was in the police car did the bomb squad arrive at the scene. (Id. at 33; K. Soberick Test. at 346.)

The Russolis' accounts of the force used by the Officers during the arrest of Mr. Russoli differ significantly from the accounts of the Officers. After Officer Anderson told Mr. Russoli that he was under arrest, Officer Anderson grabbed the glass from Mr. Russoli's hand, threw it to the ground, and without warning grabbed Mr. Russoli, handcuffed his right wrist, spun him around, and handcuffed the left wrist. (C. Russoli Dep. at 19-20.) Mr. Russoli asserts that he did not resist at all, including attempting to kick the Officers, and everything happened too quickly to try to resist anyway.*fn7 (Id. at 20, 23-24.) Officer Anderson pushed Mr. Russoli along the length of the car, approximately sixteen feet, kicked his feet and legs out from under him, and threw him to the ground, face first. (Id. at 20; M. Russoli Dep. at 19.) Mrs. Russoli, clad only in her bedclothes due to her illness, exited the house and approached the Officers to inquire about her husband. (M. Russoli Dep. at 15.) Officer Soberick then joined Officer Anderson and both Officers then applied ankle restraints to Mr. Russoli. (C. Russoli Dep. at 20; M. Russoli Dep. at 20.) The Officers started to lift Mr. Russoli, and Officer Anderson then threw Mr. Russoli. (C. Russoli Dep. at 20; M. Russoli Dep. at 15.) Then Mr. Russoli was face down, with his face away from his wife, and Officer Anderson had his knee on Mr. Russoli's back. (C. Russoli Dep. at 20; M. Russoli Dep. at 15.)

Mrs. Russoli asked the officers what they were doing, but received no response. (M. Russoli Dep. at 15.) Then she said "What the hell are you doing? My husband has had lung surgery and you have your knee right on the side where he had the lung surgery and where he has had a rib removed" but still she received no response. (Id.) Finally, deciding that she needed to speak the Officers' language, she said, "What the fuck are you doing," which seemed to get their attention. (Id.) Then Officer Anderson screamed at Mrs. Russoli that she should get back in her house. (Id.) Mrs. Russoli denied that she "chest-butted" the Officers at this point, stating: "When you get migraines and you have four screws in your spine and you're on a heart medication and you've had a double mastectomy, you don't go around chest butting six foot guys weighing two hundred pounds as they stated. . . . What would I chest butt them with?" (M. Russoli Dep. at 20-21.)

Both Officers pulled Mr. Russoli up, shoved and dragged him, without giving him a chance to walk, for about fifteen to twenty feet before they removed the ankle restraints at Mrs. Russoli's request. (C. Russoli Dep. at 20-21.) Mrs. Russoli then went back into her house. (M. Russoli Dep. at 15.) The Officers pushed Mr. Russoli several hundred feet to a police cruiser and placed him in the back seat, where he remained, handcuffed, for approximately two hours. (C. Russoli Dep. at 21.) Mr. Russoli asserts that the car was parked in the sun with the windows rolled up, and it was a hot day. (Id.) The Defendants assert that the car was parked in the shade, the front windows were rolled down, and one of the officers or other emergency personnel checked on Mr. Russoli every fifteen to twenty minutes. Mr. Russoli further asserts that the police car was at about the same distance to the alleged threat of the firecracker as the arrest site on his own property, and that on his property there were shrubs and trees between him and the device, but there was nothing between him and the device when he was sitting in the police cruiser. (Id. at 21.) Defendants assert that Mr. Russoli was approximately twenty yards from the device, within a clear line of sight, with nothing to protect him, when he was outside his house at his car. (T. Anderson Test. at 23.)

After the Officers arrested Mr. Russoli, and after the bomb squad arrived and was briefed by the Officers, the Officers saw Mrs. Russoli exit her house. (T. Anderson Test. at 33.) Mrs. Russoli walked up to Officer Anderson with an index card and a pencil, telling him to call her attorney, whose phone number was on the card. (Id.) Officer Anderson refused to do so, and then Mrs. Russoli started waving the pencil within about four inches of Officer Anderson's face and eyes. (Id.) Then Mrs. Russoli called Officer Anderson a "motherfucker," and he yanked the pencil out of her hand and placed it in a nearby tree. (Id.) Officer Soberick testified, on the other hand, that Mrs. Russoli was pointing the pencil at Officer Anderson's face and holding the card up, called Officer Anderson a son of a bitch, and asked "What the fuck have you done?" (K. Soberick Test. at 351.) Officer Anderson then told Mrs. Russoli to refrain from using profanity towards the Officers and swearing at them, but she then called Officer Anderson a "fucking son of a bitch." (T. Anderson Test. at 33-34.) Officer Soberick informed Mrs. Russoli that she was under arrest. (K. Soberick Test. at 352.) Then Officer Anderson grabbed her right arm and Officer Soberick grabbed her left arm and walked her to the back of the ambulance. (T. Anderson Test. at 34.) Mrs. Russoli told Officer Anderson that she had just had surgery and had pneumonia, therefore the Officers did not handcuff her. (Id. at 34.) Instead, they simply told her that she was under arrest and had her seated in the back of the ambulance so that the medical personnel could monitor her. (Id.)

Paramedic Eric Trubilla stated that the encounter with Mrs. Russoli "degraded into a shouting match on her end, some obscenities were said. From there they removed the pencil, which, to me, was being used in a threatening manner." (E. Trubilla Test., Commonwealth v. Russoli, 7/1/98, at 246.) Trubilla testified that the Officers escorted Mrs. Russoli to the back of the ambulance after they told her that they were taking her into custody, but he did not remember the exact manner in which they escorted her, nor did he see what happened at the back of the ambulance. (Id. at 280.) The account of fire-fighter Steven Schneider is similar. (S. Schneider Test., Commonwealth v. Russoli, 7/1/98, at 298.) He was about five feet away from the Officers and Mrs. Russoli, and no members of the public were there. (Id. at 323.) He also testified that Mr. Russoli's legs were restrained by a strap until he arrived at the squad car. (Id. at 314.)

Mrs. Russoli's account of her arrest differs from that of the Officers. After Mrs. Russoli went back into her house after her husband's arrest, she telephoned the Smiths, who told her that they had seen the Officers place Mr. Russoli in a police car. (M. Russoli Dep. at 16.) Then Mrs. Russoli spoke to her attorney, who asked that she give the Officers his phone number and ask them to call him. (Id.) Mrs. Russoli then exited her house, carrying a pencil and a paper with her attorney's phone number, approached the Officers, and asked them to call her attorney. (Id.) Officer Anderson said that he would not call anybody, and he took Mrs. Russoli's pencil and threw it to the ground. (Id. at 17.) Mrs. Russoli denies ever waving her pencil in Officer Anderson's face. (Id. at 24-25; see also Doris Smith Dep. at 13-14 ("[W]e saw Margie go over to . . . where the two officers were standing . . . and she was talking to him. . . . she never put her hands up to their face.")) Mrs. Russoli told Officer Anderson that he doesn't have any regard for other people's property, asked to have her pencil back, and Officer Anderson told her that she could crawl on her knees to find it. (Id.) Then Officer Anderson screamed at her to go back into her house. (Id.) Mrs. Russoli noted that if she was in harm's way, so was Officer Anderson, because they were standing next to each other. (Id.) Mrs. Russoli and Officer Anderson argued about Anderson watching too many police shows on television, and Mrs. Russoli, for the second and last time during the incident, directed profanity at Officer Anderson, saying "You just proved my point you fucking asshole." (Id. at 18.) Mrs. Russoli has asserted that none of the neighbors near the scene could have heard her, because she cannot speak very loudly because her vocal cords were damaged at birth. (Id. at 25-26; see also Doris Smith Dep. at 13 (stating that she could see part of the arrest of Mrs. Russoli, but could not hear anything being said)). Officer Anderson again told her to get back home, and she said that she would not leave until she made sure that her husband was okay, because she did not trust the officers. (M. Russoli Dep. at 18.) Then Officer Anderson told Mrs. Russoli that she was under arrest, and each Officer grabbed one of her arms and threw her against the side of an ambulance. (Id. at 18, 28-29.) Officer Soberick then let go of her arm, and Officer Anderson twisted the skin on both of her arms with a grip so hard that there were fingerprints on it for three weeks. (Id. at 19, 29-30.) Officer Anderson threw her against the back of the ambulance, and at no time did the Officers tell or ask Mrs. Russoli to go to the back of the ambulance; Officer Anderson merely threw her there. (Id. at 19, 30.) Mrs. Russoli then sat in the back of the ambulance and eventually asked for her heart medication in response to Officer Anderson's inquiry whether she needed medical attention, but Officer Anderson told her to just stay there. (Id. at 31.) Only after three requests and after the Officers were taking the Russolis to the police station did they grant Mrs. Russoli's request to go to her house to get her heart medication. (Id. at 32-33.)

At some time after Mr. Russoli was placed in the police car, an officer came to the Smith residence for the second time. (Doris Smith Dep. at 9.) The officer told her that she and her husband should stay in their backyard or in their house, but then repeated that they should stay in their backyard. (Id.) The officer also told them that Mr. Russoli was drunk, but Mrs. Smith didn't believe him, and also stated "can't someone have a drink in their own house?" (Id. at 9-10.)

Mr. Russoli asserts that he was forced to take a breathalyzer test at the police station, and Officer Anderson said that the reading was .03. (C. Russoli Dep. at 35-36; M. Russoli Dep. at 35.) Defendants, on the other hand, claim that Mr. Russoli requested that a breathalyzer test be performed on him. Then Officer Anderson told Mr. Russoli, in general terms, that he was under arrest for disorderly conduct and failing to obey a directive of the police. (C. Russoli Dep. at 36.)

The Russolis were released without being charged after about forty-five minutes at the police station. Mr. Russoli went to the emergency room at Lehigh Valley Hospital, arriving sometime between 8:30 and 9:00. (Id. at 38.) Mr. Russoli's ribs had started to hurt, and he also wanted to have a blood alcohol test. (Id.) The test results showed that Mr. Russoli's blood alcohol level was .027. (Id.)

On May 21, 1998, The Morning Call newspaper reported on the bomb incident, stated that Plaintiffs were "cited for disorderly conduct after a dispute with police over leaving the area," and quoted Salisbury Township Police Chief Allen Stiles as saying "Everybody else in the area got out." Police News, The Morning Call (Allentown, Pa.), May 21, 1998, at B3. Chief Stiles has testified that he did not inform the newspaper that the Russolis were cited for disorderly conduct. (A. Stiles Dep. at 65-67.)

On May 26, 1998, Plaintiffs filed their Complaint, and Defendants were served on June 1, 1998. On June 8, 1998, Plaintiffs were charged with Disorderly Conduct, stemming from the May 19 incident.*fn8 From June 30, 1998 through July 3, 1998, a Summary Trial was held on the Disorderly Conduct charges, and at the close of the Commonwealth's case-in-chief, after testimony of Defendants Anderson and Soberick, and others, District Justice Crawford dismissed the charges against the Russolis. On December 9, 1998, Plaintiffs filed an Amended Complaint, adding claims for abuse of process, malicious prosecution, defamation, and violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution.

IV. CLAIMS UNDER 42 U.S.C. § 1983

A. Analytical Framework

Our analysis begins with a discussion of the requirements for establishing a constitutional claim under 42 U.S.C. § 1983. Section 1983 reads, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 does not create substantive rights; instead "it provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). A plaintiff seeking to establish a claim under Section 1983 "must demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law." Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).

If the Plaintiffs have made out a prima facie case for the deprivation of a federal right under color of state law, we must then determine which of the Defendants, if any, must proceed to trial. The individual Defendants can be held liable unless they are entitled to qualified immunity for their actions. See Part IV. B. 2. a., infra.

In Section 1983 actions, police departments cannot be sued in conjunction with municipalities, because the police department is merely an administrative arm of the local municipality, not a separate judicial entity. See, e.g., Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992); Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991), cert. denied, 502 U.S. 1032, 112 S.Ct. 872, 116 L.Ed.2d 777 (1992); Open Inns, Ltd. v. Chester County Sheriff's Dept., 24 F. Supp.2d 410, 417 (E.D.Pa. 1998); Irvin v. Borough of Darby, 937 F. Supp. 446, 451 (E.D.Pa. 1996); Regalbuto v. City of Philadelphia, 937 F. Supp. 374, 377 (E.D.Pa. 1995). Because Salisbury Township Police Department is merely an arm of Salisbury Township, we will grant summary judgment to the Police Department on all § 1983 claims.

Salisbury Township may be liable under § 1983 only for acts implementing an official policy, practice or custom of the municipality. Monell v. Dept. of Social Services, 436 U.S. 658, 690-691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff must identify the challenged policy, attribute it to the municipality itself, and show that the execution of the policy caused the injury suffered by the plaintiff. Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).

B. Unlawful Arrest Claims

In addition to Plaintiffs' general averments in their First Amended Complaint that their Fourth and Fourteenth Amendment rights were violated and the nonspecific § 1983 claim of Count I, Plaintiffs state that Count II is a claim for "Unlawful Arrest/Imprisonment" and Count VI is a claim for the "Illegal Search and/or Seizure of the Plaintiffs' Persons and/or Property." In this section we will address the propriety of the arrests of the Russolis under federal law, thus dealing with the Unlawful Arrest portion of Count II and the Illegal Seizure of Plaintiffs' Persons portion of Count VI, which are federal claims via § 1983.*fn9

1. Prima Facie Case

It is clear that the arrests of the Russolis were made under color of state law. Officers Soberick and Anderson were acting in their official capacity after being dispatched to investigate reports of a suspected explosive device. Actions by an officer in his official capacity are under color of law even if they are not in furtherance of state policy and even if they violate state law. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

The next step in evaluating any § 1983 claim is to identify the specific constitutional right allegedly infringed. See Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). The Fourth Amendment, which proscribes unreasonable searches and seizures, U.S. Const. amend. IV, is applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and therefore governs the constitutionality of arrests by state as well as federal officials.*fn10 See County of Sacramento v. Lewis, 523 U.S. 833, 842-43, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

Arrests made by police officers are classic seizures within the meaning of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person."). Warrantless public arrests do not violate the Fourth and Fourteenth Amendments if they are based upon probable cause that the person arrested has committed a felony, or if based upon probable cause that the person has committed a misdemeanor in the officer's presence. See United States v. Watson, 423 U.S. 411, 422-24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); see also Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). If a person is on his property but outside the curtilage of the property, he is in an "open field" and therefore in public. See Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

Plaintiffs were arrested without a warrant, and later charged with a summary offense,*fn11 for conduct outside the curtilage of their home and in the presence of one or both Defendant police officers. Mr. Russoli was arrested in his driveway. (C. Russoli Dep. at 18-19; T. Anderson Test. at 23-28.) The parties do not dispute that Mr. Russoli was outside the curtilage of his home. Mrs. Russoli was not on her property when she was arrested. (M. Russoli Dep. at 16-18; T. Anderson Test. at 33-34.) Plaintiffs allege that the arrests were made without probable cause and therefore were unlawful. It is well established in the Third Circuit that "the existence of probable cause in a Section 1983 action is a question of fact" and therefore must be decided by the jury. Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997); see also Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995) (reversing summary judgment as to issue of probable cause); Deary v. Three Un-Named Police Officers, 746 F.2d 185 (3d Cir. 1984) (same); Patzig v. O'Neil, 577 F.2d 841, 848 (1978) (holding that "the question of probable cause in a Section 1983 damage suit is one for the jury"). Therefore we must deny summary judgment as to the substance of the § 1983 claims against the Officers for unlawful arrest. We will now address whether the officers are nevertheless immune from suit on this claim under the doctrine of qualified immunity.

2. Qualified Immunity of the Officers

a. Background

The United States Supreme Court has repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation because "[t]he entitlement is an immunity from suit rather than a mere defense to liability." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). The Supreme Court has established that qualified immunity shields state officials performing discretionary functions from suit for damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In evaluating the Officers' claims of qualified immunity, we "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999); see also Wilson v. Layne, 526 U.S. at 609, 119 S.Ct. 1692; Wilson v. Russo, 212 F.3d 781 (3d Cir. 2000). If a clearly established right has been violated, we must determine whether a reasonable officer would have known that his conduct violated the right; if a reasonable officer would have so known, then an officer is not entitled to immunity for such actions. See Harlow, 457 U.S. at 813-20, 102 S.Ct. 2727; Bartholomew v. Commonwealth of Pennsylvania, 221 F.3d 425, 428 (3d Cir. 2000).

As discussed in Part IV. B. 1., supra, Plaintiffs have alleged that they were arrested without probable cause in violation of their Fourth Amendment rights. The Supreme Court has mandated that courts decide whether a right has been violated before determining whether officers have qualified immunity. See Wilson, 526 U.S. at 609, 119 S.Ct. 1692; Conn, 526 U.S. at 290, 119 S.Ct. 1292. The Third Circuit has noted that "tension exists as to the proper role of the judge and jury where qualified immunity is asserted." Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997). Such tension exists in the instant case because while "the application of qualified immunity is a question of law," Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), the existence of probable cause in a § 1983 action is a question of fact, see Sherwood, 113 F.3d at 401; Groman, 47 F.3d at 635. Because Plaintiffs must show that they were arrested without probable cause, the existence of probable cause is an issue that the jury must decide. There are genuine and material factual disputes concerning the existence of probable cause, and we cannot decide at this time whether the Russolis' rights were violated when they were arrested. If the jury decides that the Officers did have probable cause, then the Officers are immune. But even if the jury decides that the Officers did not have probable cause to arrest the Russolis, and the Russolis' constitutional rights were violated, the Officers could still have qualified immunity.

Once plaintiffs have alleged the violation of an actual constitutional right, the determination of "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. 3034 (quoting Harlow, 457 U.S. at 818-819, 102 S.Ct. 2727). The Supreme Court has explained that the meaning of "clearly established" depends on "`the level of generality at which the relevant "legal rule" is to be identified.'" Wilson, 526 U.S. at 614, 119 S.Ct. 1692 (quoting Anderson, 483 U.S. at 639, 107 S.Ct. 3034). The Court further explained that

[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has been previously held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Id. at 614-15, 119 S.Ct. 1692 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). To determine whether an objectively reasonable person in the Officers' position would have known that his conduct violated clearly established rights, we must evaluate "the objective (albeit fact-specific) question whether a reasonable officer could have believed . . . [the arrests] to be lawful, in light of clearly established law and the information the officer possessed." Anderson, at 641, 107 S.Ct. 3034. Under this standard, immunity is based on whether the officials' "actions could reasonably have been thought consistent with the rights they are alleged to have violated," not on their subjective understanding of the law. Anderson, 483 U.S. at 639, 107 S.Ct. 3034; see also Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

Although the police may make stops and conduct searches with less than probable cause to believe a crime has been committed, see, e.g., Vernonia School District v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (upholding the warrantless, suspicionless testing of public school athletes for drug use); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (upholding suspicionless roadblock stops of motorists for purpose of finding drunk drivers); Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (upholding the warrantless search of probationer's house by probation officer on the basis of "reasonable grounds"); O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (allowing public employer to make a work-related search of employee's workplace based on individualized suspicion); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (upholding search of public school student's purse based on reasonable suspicion); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (upholding investigatory stop and frisk for weapons based on reasonable suspicion), the requirement of probable cause before the police may arrest a person is clearly established, see, e.g., Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); United States v. Watson, 423 U.S. 411, 422-24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) ("The requirement of probable cause has roots that are deep in our history."). The Supreme Court, however, has held that "[e]ven law enforcement officials who `reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." Hunter, 502 U.S. at 227, 112 S.Ct. 534 (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). A court should not deprive police officers of their immunity unless the law existing at the time clearly proscribed the action they took. See Mitchell, 472 U.S. at 528, 105 S.Ct. 2806.

Probable cause exists when the facts and circumstances personally known by an officer and of which he had reasonably trustworthy information are sufficient to warrant the belief by a prudent person that the person to be arrested has committed or was committing an offense. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In this case, the appropriate question is the objective inquiry of whether a reasonable officer could have believed that he had probable cause to arrest persons for disorderly conduct when they refused to evacuate from their own property or refused to stop using profanity directed against the officers, in a situation in which a suspected explosive device was present, in light of clearly established law and the information the officers possessed.

The Pennsylvania disorderly conduct statute provides that:

A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture; or (4) creates a hazardous or ...

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