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POTTS v. CITY OF PHILADELPHIA

August 29, 2002

ROBERT POTTS
V.
CITY OF PHILADELPHIA, ET AL.



The opinion of the court was delivered by: Anita B. Brody, District Judge.

            MEMORANDUM AND ORDER

On June 28, 2001, plaintiff, Robert Potts ("plaintiff" or "Potts"), instituted this action against the City of Philadelphia, former Philadelphia Police Commissioner John Timoney, and numerous police officers, both known and unknown (collectively, "defendants"), asserting multiple claims under 42 U.S.C. § 1983 for violations of his rights under the Second, Fourth, Fifth and Fourteenth Amendments of the United States Constitution, and for various related state law claims. Potts' claims stem from his arrest on November 18, 1999 by Philadelphia police officers for allegedly shooting a gun out of the window of his house.

On January 24, 2002, defendants moved for summary judgment on all claims. On January 29, 2002, Potts filed a motion for leave to file an amended complaint replacing the "unknown police officers" with two individually named officers, Jaison Potts and Stephen Blocker ("Officer Potts" and "Officer Blocker") pursuant to Federal Rule of Civil Procedure 15. These motions are now before me. I will grant plaintiff's motion to amend.*fn1 I find, however, that even with the amendment to the complaint, Potts cannot survive summary judgment on his claims.

Factual Background*fn2

At this same time, Edna Laughinghouse ("Laughinghouse"), who lives two houses down from Potts, was standing outside her house, near the front steps. (Laughinghouse Investigation Interview Record). According to Laughinghouse, she observed Potts fire a gun out of the second floor window of his house.*fn3 (11/18/99 Incident Report). She told her daughter to call the police to report that Potts had fired a gun out of his window. (11/18/99 Incident Report; Laughinghouse Investigation Interview Record). Based on this report, the police dispatcher put out a radio call to Philadelphia police officers in the area. (Dep. of Officer Potts, 16). Eight to ten officers responded to the radio call, arriving at 5225 West Diamond Street soon thereafter. Among the responding officers were Officers Potts and Blocker who eventually arrested plaintiff. (See id; Incident Report).

Laughinghouse was outside her house when the officers arrived on the scene. Officers Potts and Blocker spoke with Laughinghouse. She informed them that she had seen Potts firing a gun out of his window. (Dep. of Officer Potts, 21-23; Dep. of Officer Blocker, 74). Officer Potts and Blocker also talked to Justin Foster, a teenager who lived across the street from Potts. Foster reported to the officers that someone had fired a gun out of the window of Potts' house. (Dep. of Officer Potts, 23, 51; Dep. of Officer Blocker, 74; 11/19/99 Incident Report).

After talking to Laughinghouse and Foster, several police officers, including Officers Potts and Blocker, walked up plaintiff's driveway and approached plaintiff who was still sitting on the front porch of his house. (Dep. of Potts, at 33-34). The officers asked Potts if he had fired a gun out of his window. (Plaintiff's Answer to Interrogatories, #9). Potts responded, "No." (See id).

Potts offers slightly conflicting statements about what happened next. In his answers to interrogatories, Potts stated that:

I was sitting on my porch when approximately 8-10 police officers walked onto my porch and asked if I had been shooting out my window. I told the policemen that I had not. I told the police they could go into my house.

(See id). At deposition, taken after he provided answers to interrogatories, Potts testified that:

[The] officers came up and said somebody called and said I was firing out a window. They asked me had I been firing a gun out the window, I told them no, they told me go in the house . . .
(Dep. of Plaintiff, 33-34). When counsel for defendants questioned Potts further about whether or not he told the police they could enter his house, Potts stated:
[The police] told me to go in the house and, you know, when they told me to go in, I had nothing to hide so I, you know, did not complain about, you know, going in the house and them coming in there.

(Dep. of Plaintiff, 41).

The officers entered Potts' house. They did not have a search warrant. Officer Potts believed that the officers "had permission from Mr. Potts to go inside the house." (See id). When asked at deposition what gave him that impression, Officer Potts responded, "[Plaintiff] wasn't — he wasn't very combative. He wasn't evasive. He was very cooperative." (See id).

Once inside, the officers asked plaintiff if he owned a gun. (Plaintiff's Answer to Interrogatories, #9; Dep. of Officer Potts, 25). Plaintiff answered "yes" and told them that he had a permit for it. (See id). He retrieved the permit and showed it to Officer Potts who took the permit. (11/18/99 Incident Report). The officers asked plaintiff where he kept his gun, and he explained that it was upstairs. (See id.; Dep. of Plaintiff, 33-34). Plaintiff then went upstairs to the second floor of his house with several officers, including Officer Potts, and retrieved the gun from a trash can at the end of his bed. (Plaintiff's Answer to Interrogatories, #9; Dep. of Plaintiff, 33-34; Dep. of Officer Potts, 27). The gun was in a box along with a box of bullets. (Dep. of Plaintiff, 33-34). Officer Potts seized the gun and the bullets which he later turned over to the Property Department of the Philadelphia Police Department. (See id; Property Receipt). One of the police officers also seized a hunting knife that plaintiff kept on a belt. (Dep. of Plaintiff, 34).

The officers told Potts to get his coat and then handcuffed him. (Dep. of Plaintiff, 35). They asked him if he took medication. Potts responded "yes." The officers put his medication in a bag and brought it with them to the police station. (See id). The medication was to be taken every four to six hours. (Medication Schedule of Robert Potts). The officers were not violent in handcuffing Potts, nor in escorting him to the patrol car. (Dep. of Plaintiff, 44-45). Potts did not resist. (See id). Officers Potts and Blocker transported plaintiff to the Southwest Detective Division for processing, and plaintiff was eventually placed in the holding cell. (See id; Incident Report). Police officers on the scene also transported the two witnesses, Laughinghouse and Foster, to the police station so that they could be interviewed about the incident.

Back at the police station, Officers Potts and Blocker completed an incident report, describing the incident as follows:

[Edna Laughinghouse] stated to police that [Robert Potts] did fire one shot out his bedroom window, in an unknown direction. [Potts] was placed under arrest and taken to [the Southwest division]. Also taken was [Potts' gun] . . .
(11/18/99 Incident Report). The report identified Justin Foster as a witness. (See id). Officer Blocker turned over Potts' gun and box of bullets to the Property Department and signed the property receipt. (11/18/99 Property Receipt). Potts' hunting knife is not listed as an "item of property" seized on this property receipt.

(See id).

At the police station, Detective Larry Land assigned to investigate Potts' case. Detective Land obtained the incident report from Officers Potts and Blocker. Officers Potts and Blocker also gave Land the permit for Potts' gun. (Dep. of Det. Land, 18). Detective Land ran a criminal history check on Potts. (Dep. of Det. Land, 25-26). The criminal history check revealed that Potts had no prior criminal history, and that he had a valid permit for his gun. (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, dated 11/18/99).

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, 51-52).

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. (See id).

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 safety.
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 BUSINESS HOURS.

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. ...


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