United States District Court, E.D. Pennsylvania
June 16, 2004.
ROLLIN SCOTT SCHALL, Plaintiff,
JOSEPH A. VAZQUEZ, Defendant.
The opinion of the court was delivered by: MARVIN KATZ, Senior District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Rollin Scott Schall ("Schall") brings claims under
42 U.S.C. § 1983 against Corporal Joseph A. Vazquez
("Vazquez") of the Pennsylvania State Police for violations of
his Fourth and Fourteenth Amendment rights, alleging that he was
illegally seized and subject to excessive force by Vazquez.
Schall is seeking compensatory and punitive damages from Vazquez.
In addition, Schall seeks damages based on supplemental
Pennsylvania law claims. After a bench trial, the court makes the
following findings of fact and conclusions of law:
I. FINDINGS OF FACT
1. Schall is an individual employed as a civilian maintenance
worker with Pennsylvania State Police Troop M Bethlehem Barracks
in Bethlehem, Pennsylvania. Schall has been employed in that
capacity since December 1991.
2. Vazquez has been employed as an officer with the
Pennsylvania State Police for approximately 24 years and was
assigned to Troop M Bethlehem Barracks on September 1, 1983. 3. Schall and Vazquez worked together at the Bethlehem Barracks
for approximately 12 years. They had developed a friendly
relationship at work that included "horseplay" such as verbal
taunts, throwing food at each other, and pushing or shoving each
4. Schall and Vazquez both consented to this type of horseplay
behavior prior to January 31, 2003. The horseplay prior to this
date never involved a firearm.
5. On Friday, January 31, 2003, Schall and Vazquez were both on
duty at the Bethlehem barracks.
6. Between 12 and 1 p.m. on January 31, 2003, Schall was
sitting in the barracks lunchroom. Several other State Police
employees were present, including Roger Andras, Tina Koren,
Trooper Paul Iannace, and Trooper Christopher Sullivan.
7. Vazquez entered the lunchroom sometime between 12 and 1 p.m.
with a plate of cupcakes, which he set down on a table. Schall
spoke to Vazquez, commenting on Vazquez's weight and telling him
he should eat a cupcake.
8. Vazquez responded with a similar comment about Schall and
left the lunchroom to hang up his coat. Less than a minute later,
he returned to the lunchroom and spoke with Schall again.
9. After conversing with Schall for several minutes, Vazquez
grabbed Schall near the top of his head using his left arm. With
Schall's face pressed against Vazquez's chest in a headlock-type
hold, Vazquez removed his service revolver with his right hand
and held it against Schall's head. This event was not preceded by
physical horseplay on this day.
10. Schall could not see the exact position of Vazquez's
service revolver because his face was turned towards Vazquez's
11. Vazquez pointed the loaded gun at Schall's head for a few
seconds. 12. After a few seconds, Vazquez placed his weapon back in its
holster and released Schall from the headlock hold.
13. Schall did not resist Vazquez's physical force while being
held in the headlock.
14. Schall did not believe he was free to go until Vazquez
reholstered his weapon and released him from the headlock hold.
15. After Vazquez released him, Schall walked out of the
16. On Monday, February 3, 2003, Vazquez's superiors told him
that there would be an internal investigation into the January
31, 2003 incident.
17. After the January 31, 2003 incident and the subsequent
internal affairs investigation, Vazquez received a six-week
suspension from the State Police without pay as a result of an
18. Vazquez was transferred to another location within the
State Police system.
19. Schall continues to work as a maintenance worker at the
20. The January 31, 2003 incident frightened, humiliated, and
shocked Schall. He missed five days of work due to stress from
the incident and attended several counseling sessions with
respect to the incident. Schall continues to feel anxiety when
remembering the incident and worries about being around other
co-workers who routinely carry guns at the Bethlehem barracks.
Schall's satisfaction with his work environment has decreased as
a result of the January 31, 2003 incident because of anxiety and
the strain that the administrative aftermath has put on his
relationships with co-workers. This anxiety has led to difficulty
21. Schall suffered no physical injuries as a result of the
January 31, 2003 incident and has never taken any medication for
anything associated with the incident. II. CONCLUSIONS OF LAW
1. This court has federal question jurisdiction over Schall's
civil rights claims pursuant to 28 U.S.C. § 1331 and
supplemental jurisdiction over his state law claims pursuant to
28 U.S.C. § 1367.
2. To establish a cause of action for civil rights violations
under Section 1983, a plaintiff must show that the defendant
acted under color of law and that the defendant's actions
deprived plaintiff of a constitutionally or federally secured
right, privilege, or immunity. See 42 U.S.C. § 1983; Kost v.
Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993).
3. Vazquez admits that he acted under color of law at the time
of the January 31, 2003 incident because he was on duty as a
Pennsylvania State Trooper, used a weapon owned by the
Commonwealth of Pennsylvania that he lawfully possessed, and the
incident took place at the Pennsylvania State Police Barracks.
A. Deprivation of Constitutional Right to be Free from
1. Under the Fourth Amendment, which applies to state action
via the Due Process Clause of the Fourteenth Amendment, every
person has a right to be secure in their person against
unreasonable searches and seizures. See U.S. Const. amend. IV;
Mapp v. Ohio, 367 U.S. 643, 646-53 (1961) (holding that states
are bound by the same Fourth Amendment principles as the federal
2. The seizure of a person for purposes of the Fourth Amendment
occurs when "taking into account all of the circumstances
surrounding the encounter, the police conduct would have
communicated to a reasonable person that he was not at liberty to
ignore the police presence and go about his business." Kaupp v. Texas, 538 U.S. 626, 629
(2003) (internal citations omitted). See also California v.
Hodari D., 499 U.S. 621 (1991) (holding that a suspect is not
seized for Fourth Amendment purposes when he flees in response to
a show of authority because the "reasonable person" test is
necessary but not sufficient to identifying a seizure).
3. Vazquez's conduct towards Schall constituted a seizure
because Schall reasonably believed that he was not free to leave
while Vazquez was exercising control over his body by grabbing
him, unholstering his weapon, and placing it near Schall's head.
Schall submitted to Vazquez's physical force and show of
4. Regardless of whether Vazquez pointed his weapon at Schall's
head or held it near Schall's head while Schall was being held in
a headlock, a law enforcement officer unholstering a loaded
weapon while holding someone in a headlock is sufficient to make
a reasonable person in that position believe that he or she is
not free to leave. See Terry v. Ohio, 392 U.S. 1, 16 (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."). Courts have treated even brief
investigatory stops as seizures under the Fourth Amendment,
subject to at least the "reasonable suspicion" standard outlined
in Terry v. Ohio. See, e.g., United States v. Arvizu,
534 U.S. 266, 273 (2002).
5. Although the Fourth Amendment does not define
"unreasonable," courts have held that a seizure is unreasonable
if the invasion that the seizure entails outweighs the need for
the seizure. See Camara v. Municipal Court, 387 U.S. 523,
534-37 (1967); United States v. Montoya de Hernandez,
473 U.S. 531, 537 (1985) (holding that reasonableness depends on the
nature of the seizure, the surrounding circumstances, and balance
of individual's Fourth Amendment rights with legitimate government interests) (citing, inter alia, New
Jersey v. T.L.O, 469 U.S. 325 (1985) and United States v.
Villamonte-Marquez, 462 U.S. 579 (1983)). See also United
States v. Pollard, 326 F.3d 397, 410-11 (3d Cir. 2003) ("For the
most part, searches and seizures undertaken without a warrant and
probable cause or reasonable suspicion are unreasonable and
violative of the Fourth Amendment.").
6. The Supreme Court has recognized several exceptions to the
general rule that probable cause is required for a reasonable
seizure or an arrest, such as a limited seizure when an officer
has reasonable suspicion of illegal activity. See Terry v.
Ohio, 392 U.S. 1 (1968) (upholding the admission of evidence
obtained from the seizure and subsequent "pat down" of a suspect
based on a police officer's reasonable suspicion that the suspect
had a gun).
7. Vazquez had neither probable cause to seize Schall nor
reasonable suspicion that Schall was engaged in any criminal
activity at the time he was seized.
8. Vazquez's seizure of Schall was therefore unreasonable and
violated Schall's Fourth Amendment rights.
B. Deprivation of Constitutional Right to be Free of Excessive
1. The Third Circuit has held that to state a claim for
excessive force under the Fourth Amendment, "a plaintiff must
show that a `seizure' occurred and that it was unreasonable."
Abraham v. Raso, 183 F.3d 279, 288 (1999) (quoting Brower v.
County of Inyo, 489 U.S. 593, 599 (1989)). A claim for excessive
force is "properly analyzed under the Fourth Amendment's
`objective reasonableness' standard, rather than under a
substantive due process standard." Graham v. Connor,
490 U.S. 386, 388 (1989). See also Tennessee v. Garner, 471 U.S. 1,
8-9 (1985) (noting that several Supreme Court cases dealing with
reasonableness under the Fourth Amendment framed the issue as
"whether the totality of the circumstances justified a particular
sort of search or seizure.").
2. Vazquez's actions on January 31, 2003 constituted a seizure
of Schall; therefore, the court should consider Schall's claim
that Vazquez carried out that seizure in an objectively
3. Vazquez effectuated the seizure of Schall by placing him in
a headlock while he drew his loaded service revolver from its
holster and held it near Schall's head for several seconds before
4. Pointing a loaded gun at another person is a display of
deadly force because it creates more than a remote possibility of
death. See Model Penal Code § 3.11(2) (1994) (defining "deadly
force" as "force which the actor uses with the purpose of causing
or which he knows to create a substantial risk of causing death
or serious bodily harm.") (cited in In re City of Philadelphia
Litigation, 49 F.3d 945 (3d Cir. 1995) and Matthews v. Jones,
35 F.3d 1046, 1050-51 (6th Cir. 1994)). An officer's actions need
not actually wound or kill a person to be considered a display of
deadly force. See Ryder v. City of Topeka, 814 F.2d 1412,
1416 n. 11 (10th Cir. 1987).
5. Vazquez used deadly force when he put Schall in a headlock
and drew his loaded service weapon close to Schall's head.
Defendant Vazquez admits that he used deadly force on January 31,
2003 in his deposition. See Def.'s Dep. at 60, lines 8-13.
6. According to the Supreme Court, deadly force is only
reasonable when "it is necessary to prevent the escape [of a
suspect] and the officer has probable cause to believe that the
suspect poses a significant threat of death or serious physical injury to
the officer or others." Tennessee v. Garner, 471 U.S. 1, 3
(1985). The Third Circuit, drawing on Garner and Graham v.
Connor, 490 U.S. 386 (1989), set forth the following standard
for analyzing whether the use of deadly force was reasonable
under the Fourth Amendment:
Giving due regard to the pressures faced by the
police, was it objectively reasonable for the officer
to believe, in light of the totality of the
circumstances, that deadly force was necessary to
prevent the suspect's escape, and that the suspect
posed a significant threat of death or serious
physical injury to the officer or others? . . . . The
factors to consider include the "severity of the
crime at issue, whether the suspect poses an
immediate threat to the safety of the officer or
others, and whether he is actively resisting arrest
or attempting to evade arrest by flight."
Abraham v. Raso, 183 F.3d 279
, 288-96 (1999) (citing Graham
7. It was unreasonable for Vazquez to use a display of deadly
force because Schall was not resisting or trying to escape the
seizure, posed no threat of physical harm to Vazquez or others,
and Schall had committed no crime. Vazquez acknowledges he should
not have unholstered his weapon.
8. Considering the totality of the circumstances, the nature of
the seizure and the lack of a justification for the seizure, the
court finds that Vazquez used excessive force in his seizure of
Schall and violated Schall's Fourth Amendment rights.
C. Claim for Civil Battery
1. To establish a claim for the intentional tort of battery, a
plaintiff must show that the defendant made a harmful or
offensive contact with a person and that the contact resulted
from an act intended to cause the plaintiff or a third person to
suffer such a contact or intended to cause an apprehension of
such imminent contact. See Herr v. Booten, 580 A.2d 1115,
1117 ( Pa. Super. 1990) (quoting Prosser & Keeton, Law of Torts at 39 (5th
ed. 1984)); Lakits v. New York, 258 F. Supp.2d 401, 407 (E.D.
2. According to the Restatement (Second) of Torts, "[A]
bodily contact is offensive if it offends a reasonable sense of
personal dignity." Herr at 1117 (quoting Restatement § 19).
See also Montgomery v. Bazaz-Seghal, 742 A.2d 1125, 1130 (
Pa. Super. 1999) (finding that there is no need to show actual
physical injury in order to establish battery if there has been
an offensive contact without consent).
3. Vazquez's action towards Schall on January 31, 2003
constituted harmful and offensive contact. In bringing his loaded
weapon up near Schall's head while holding him in a headlock,
Vazquez made physical contact with Schall and put him at risk of
bodily harm. In addition, making such contact in the lunchroom in
front of co-workers was offensive in that it was an affront to
Schall's sense of personal dignity and an embarrassing physical
display. Vazquez acted with the intention to cause such contact
because he purposely grabbed Schall and placed him in a headlock.
4. To make out a case for the intentional tort of battery, the
plaintiff must also prove that he did not consent to the tortious
conduct because consent destroys the wrongfulness of the conduct
between the parties. See Levenson v. Souser, 557 A.2d 1081,
1088 (Pa. Super. 1989); Restatement (Second) Torts § 892A ("One
who effectively consents to the conduct of another intended to
invade his interests cannot recover in an action of tort for the
conduct or for the harm resulting from it."). 5. According to the Third Circuit, "Express consent to harmful
or offensive touching may be given by words or affirmative
conduct and implied consent may be manifested when a person takes
no action, indicating an apparent willingness for the conduct to
occur." Barnes v. American Tobacco Co., 161 F.3d 127, 148 (3d
Cir. 1998) (citing Restatement (Second) Torts § 892 cmt. b &
c). The consent must be to the defendant's conduct rather than to
its consequences. See Barnes at 148 (citing Prosser & Keeton
§ 18, at 118).
6. Schall did not give express or implied consent to Vazquez's
physical conduct on January 31, 2003. Although the two men had
engaged in over a decade of "horseplay" at work that occasionally
involved pushing, shoving, or throwing food at each other, the
incident on January 31, 2003 was a significant departure from the
types of interactions that they had in the past because it
involved a serious risk of physical harm due to the use of a
loaded weapon. Even if Schall had consented to continuing their
regular horseplay on that day through inaction, this cannot be
construed as implied consent to an escalation of the degree of
their physical horseplay. See Barnes at 148 ("A plaintiff's
consent is not effective if `the consenting person was mistaken
about the nature and quality of the invasion intended by the
conduct.'" (citing Prosser & Keeton § 18, at 114)). Furthermore,
Schall had no opportunity to give express intent to being put in
a headlock and exposed to an unholstered loaded weapon because
Vazquez grabbed him without warning and the entire incident was
over in a matter of seconds. D. Damages
1. To recover compensatory damages, a plaintiff in a civil
rights action under 42 U.S.C. § 1983 need not prove physical
injuries. See Hector v. Watt, 235 F.3d 154, 157 (3d Cir.
2000) ("Victims of unreasonable searches or seizures may recover
damages directly related to the invasion of their privacy
including (where appropriate), damages for physical injury,
property damage, injury to reputation, etc.") (internal citation
omitted); Niehus v. Liberio, 973 F.2d 526, 528 (7th Cir. 1996)
(sustaining large award of compensatory damages to victim of
arresting officers' excessive force in light of expert testimony
as to psychological injury); Bogle v. McClure, 332 F.3d 1347,
1359 (11th Cir. 2003) (upholding award of damages for emotional
harm caused to victim of race discrimination).
2. A plaintiff may recover compensatory damages on a claim for
civil battery based on physical injuries as well as emotional
injuries such as feelings of shock, fright, or humiliation.
3. Schall is entitled to compensatory damages because the
incident scared and humiliated him and continues to reduce his
quality of life both at home and at work in that his anxiety
interferes with his sleeping and he is not as happy as he used to
be at work.
4. A plaintiff party may recover punitive damages in a Section
1983 case if the defendant's actions were committed with "malice
or reckless indifference to the federally protected rights of an
aggrieved individual." Kolstad v. American Dental Ass'n,
527 U.S. 526 (1999). In Kolstad, the Supreme Court held that a
defendant's state of mind and not the egregious conduct is
determinative in awarding punitive damages in a civil rights
case. See id. See also Smith v. Wade, 461 U.S. 30 (1983)
(holding that a jury may assess punitive damages in a § 1983 case
where the defendant's conduct is motivated by evil motive or
intent or involves reckless or callous indifference to others' civil rights).
4. The court finds that Schall is entitled to punitive damages
because Vazquez acted with reckless indifference towards Schall
in that he intentionally placed Schall in a position where he was
at risk of death or serious injury due to proximity of the loaded
gun to Schall's head. Vazquez admitted that he should not have
unholstered his weapon and the court finds that his doing so was
reckless with regard to Schall's safety and personal dignity.
5. An award of punitive damages in this case would deter
Vazquez and others from engaging in similar conduct in the future
and underscore to the law enforcement community the seriousness
with which firearm activity must be taken. See Memphis v.
Stachura, 477 U.S. 299, 306 n. 9 (1986) ("The purpose of
punitive damages is to punish the defendant for his willful or
malicious conduct and to deter others from similar behavior."). JUDGMENT
AND NOW, this 16th day of June, 2004, judgment is entered on
the claims in FAVOR of the plaintiff, Rollin Scott Schall and
AGAINST the defendant, Joseph A. Vazquez, in the amount of
$5,000 in compensatory damages and $10,000 in punitive damages.
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