approximately 6:30 p.m. when she heard a noise from Potts' house
and saw him raising one of the windows on the second floor of his house.
(Laughinghouse Investigation Interview Record, dated 11/18/99). She
watched as Potts placed his right hand out the window. She reported that
Potts was holding a black object and pointing it in her general
direction. Laughinghouse did not know whether he was pointing it at her
or not. She then saw two flashes go off near Potts' hand and heard a loud
bang. She shouted to neighbors across the street that Potts was firing a
gun out of his window. At that point, Laughinghouse observed Potts close
the window and turn off the lights. Laughinghouse instructed her daughter
to call the police. (See id).
After Laughinghouse, Detective Land interviewed Justin Foster. Foster
told Detective Land that at approximately 6:45 p.m. he was standing in
his front doorway, across the street from Potts' house, when he saw a
flash and heard a shot from the second floor window of Potts' house. A
light was on in the room and he saw a person but could not identify who
it was. Upon hearing the shot, Foster's mother pulled him away from the
doorway and inside their house. (Foster Investigation Interview Record,
Based on these interviews, Detective Land recommended to the District
Attorney's Office that Potts be charged with Recklessly Endangering
Another Person ("REAP"). (Dep. of Det. Land, 28). Detective Land did not
interview plaintiff. In making charging decisions, Land typically does
not interview suspects because he does not have enough time. (See id. at
9). Land sent the relevant documents to the District Attorney's Office
which makes the final determination as to whether to charge someone who
has been arrested. (See id. at 28). Detective Land also sent plaintiff's
gun permit along with some type of documentation that Potts had been
arrested to the Gun Permit Unit, the unit that oversees the issuance of
firearm licenses for the City. (See id). Detective Land had no
involvement in how Potts was treated in the holding cell; the cell room
is in charge of persons arrested and placed in custody. (See id. at 21).
The District Attorney's Office decided not to charge Potts with a
criminal offense. Potts was released at approximately 10 p.m. on November
19, 1999, almost 30 hours after he was arrested. (Dep. of Plaintiff,
Potts returned to the police station days later to retrieve his gun,
gun permit, bullets, and hunting knife. Detective Land refused to return
the items to Potts and told him to "go get a lawyer." (Amended
Complaint, ¶ 18).
At some point in the days following Potts' arrest, Detective John
Pelosi of the Gun Permit Unit received from Detective Land both Potts'
gun permit and some type of notification that Potts had been arrested.
Based on the report received from Detective Land that Potts had been
arrested, Detective Pelosi made the determination to revoke Potts' gun
permit. (Dep. of Det. Pelosi, 27). Pelosi did not interview any
witnesses. (See id). According to Pelosi, "when a sworn officer notifies
me in verbal or written that he had arrested somebody, that is good
enough for the police commissioner to have [the person's gun permit]
revoked." (See id. at 28). It is not necessary that the person be
convicted of an offense before the Gun Permit Unit may revoke a license.
Detective Pelosi prepared and sent to Potts a gun permit revocation
notice. Dated November 23, 1999, the notice stated:
This is to advise you that your license to carry a firearm is hereby
REVOKED in Accordance with SECTION 6109 of the Uniform Firearms Act. Your
license to carry a firearm was TERMINATED
and/or REVOKED for good cause as follows:
1) Your character and reputation is such that you
would be likely to act in a manner Dangerous to public
2) Your conduct during an incident in which you were
involved on and for which you were arrested and
charged with REAP.
3) Such other reasons as may become known to [sic] us
during our investigation of this revocation.
YOU ARE ADVISED THAT YOU HAVE AN ABSOLUTE RIGHT TO APPEAL THIS
DECISION. IF YOU WISH TO APPEAL THIS DECISION YOU MUST DO SO WITHIN
THIRTY (30) DAYS OF THE APPEAL DATE OF THIS NOTICE. APPEALS ARE TO BE
FILED AT THE BOARD OF LICENSES AND INSPECTIONS REVIEW BOARD DURING NORMAL
IT IS FURTHER ADVISED THAT AS OF THIS TIME YOU AR NOT LICENSED TO
CARRY A FIREARM AND ARE SUBJECT TO ARREST FOR CARRYING A FIREARM
WITHOUT A LICENSE SHOULD YOU DO SO.
(11/23/99 Notice). The notice was signature stamped from Philadelphia
Police Commissioner John Timoney ("Timoney") and listed Detective
Pelosi's name and badge number at the bottom. (See id).
Potts timely appealed the permit revocation. (Notice of Appeal). The
Board of Licenses and Inspections Review ("the Board") scheduled a
hearing on Potts' appeal for April 4, 2000. On April 4, 2000, the hearing
was continued by joint request of the parties so that the Board could
look into the matter further. (Board of Licenses and Inspections Review,
Transcript of 4/4/00 Hearing). The next hearing was scheduled for June
13, 2000. Witnesses Laughinghouse and Foster failed to appear at the June
13, 2000 hearing. (Board of Licenses and Inspections Review, Transcript
of 6/13/00 Hearing). As a result, the Board concluded that it did not
"have sufficient competent evidence to put this hearing on. Therefore, we
will issue [Potts'] permit." (See id). Potts received a reinstated gun
permit in the mail "a couple of weeks later." (Dep. of Plaintiff, 56;
Letter of Reinstatement).
A court may grant summary judgment "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 a judgment as a
matter of law." Fed.R.Civ.P. 56(c). The trial court should determine
whether there are issues with regard to material facts that warrant a
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In making this determination, the court must consider the underlying
facts in the light most favorable to the nonmoving party, giving that
party the benefit of all reasonable inferences that might be drawn from
those same facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Sempier v. Johnson and Higgins, 45 F.3d 724,
727 (3d Cir. 1995) (en banc). It is appropriate to grant summary judgment
if the court finds that the record "could not lead a rational trier of
fact to find for the nonmoving party, [and] there is no `genuine issue
for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
The moving party "bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those
portions of `the pleadings, depositions, answers to interrogatories, and
on file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party
must then "go beyond the pleadings and by her own affidavits, or by the
`depositions, answers to interrogatories, and admissions on file,'
designate `specific facts showing that there is a genuine issue for
trial.'" Id. at 324.
Potts asserts a morass of § 1983 claims against the police officers
and Police Commissioner Timoney, in their individual capacities and as
members of the Philadelphia Police Department, and against the City. Due
to a lack of specificity in the complaint, it is difficult to discern
precisely what plaintiff's claims are and to which defendants they
pertain. A liberal reading of the complaint reveals the following §
(1) Officers Potts and Blocker violated plaintiff's
Fourth Amendment right to be free from unreasonable
search and seizure by unlawfully arresting him in his
home without a warrant;
(2) Officers Potts and Blocker violated plaintiff's
Fourth and Fourteenth Amendment rights by searching
his house without a warrant and seizing his property;
(3) Detective Land violated plaintiff's Fourth and
Fourteenth Amendment rights by unlawfully detaining
him for 30 hours without charging him;
(4) Detective Land violated plaintiff's Fourth and
Fourteenth Amendment rights by refusing to return
plaintiff's property when plaintiff returned to the
police station days after he had been released from
custody to obtain the items; and
(5) Detective Pelosi violated plaintiff's Second
Amendment right and his Fourteenth Amendment right to
due process by revoking his gun permit, and
Commissioner Timoney and the City violated his Second
and Fourteenth Amendment rights by implementing a
policy of revoking gun permits precipitously and
without evidence to support the revocation.
To establish a claim under 42 U.S.C. § 1983, a plaintiff must show
(1) a deprivation of a federally protected right, and (2) that the
deprivation was committed by a person acting under color of state
law. Kelly v. Borough of Sayreville, N.J.,