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Rusch v. Borough

September 15, 2006

DONALD R. RUSCH, PLAINTIFF,
v.
VERSAILLES BOROUGH, PAUL SAXON, AND FRANK BARRIERO, DEFENDANTS



The opinion of the court was delivered by: Francis X. Caiazza U.S. Magistrate Judge

MEMORANDUM OPINION AND ORDER

MEMORANDUM

In this action filed pursuant to 42 U.S.C. § 1983, Donald R. Rusch alleges that his rights under the Fourth and Fourteenth Amendments of the United States Constitution and parallel provisions of the Pennsylvania State Constitution were violated during the course of an encounter with Versailles Borough ("Borough") police officers, Paul Saxon ("Saxon" or "Officer Saxon") and Frank Barriero ("Barriero" or "Officer Barriero").*fn1 According to Rusch, Saxon mistakenly and unreasonably identified him and the car in which he was a passenger, causing him to be subjected to an unlawful stop, search, arrest involving excessive force, detention, and criminal prosecution. Rusch also alleges liability on the part of the Borough, arguing that it failed to train its police force in the parameters of their constitutional authority.

The Defendants' Motion for Summary Judgment is pending. Saxon and Barriero raise the defense of qualified immunity as to all claims. The Borough contends that Rusch has not established the requisites for municipal liability under Section 1983. The Defendants' Motion will be granted in part, and denied in part.

I. Factual Background

Many of the underlying facts - most of them critical to resolution of this motion - are disputed. The parties support their allegations primarily through reference to deposition testimony and the transcript of a criminal trial that took place in state court. The court highlights each version of events.

Following the 12:00 a.m. end of his February 8, 2003 shift as a part-time Borough patrolman, Saxon changed to street clothes, and met a friend at a bar located in the Olympia Shopping Center in Versailles. (Saxon Dep. 15). He states that he spent about an hour in the bar, and admits that he drank "a beer." Id. at 17.

According to Saxon, when the bar stopped serving food at 2:00 a.m., he and his friend left the shopping center in the friend's car, and drove to a nearby Denny's restaurant where they spent about two hours. Id. at 19. Saxon returned to his truck in the shopping center parking lot shortly after 4:00 a.m.

While he was sitting in his car waiting for it to get warm, he heard a deep muffled "boosh" and an alarm. Id. at 21. Because he couldn't identify the source of the noise, he got out of his truck, and spotted a car straddling the curb in front of the shopping center's beer distributorship. Id. at 22-23). Two men were standing near the car, one at the trunk, and one outside the driver's door. Id. From a distance of about fifty yards, Saxon saw one of the men "throw something in the trunk." Id. at 24-25 It looked like "a shadow" or a "round tubular object within three to four feet long." (Trial Tr. 55). The two men then got into the car, and pulled out of the parking lot with the headlights out. (Saxon Dep. 27).

At about the same time, Saxon saw that the distributorship door was damaged. Id. He knew that the door had been intact earlier in the evening (Trial Tr. 52), and was aware that cigarettes valued at thousands of dollars had been taken from the store in an unresolved January 2003 incident.(Saxon Dep. 31). Without drawing attention to himself, Saxon set out to follow the car, using his cell phone to alert Officer Barriero in the Versailles patrol car. Id. at 27-28. When he was unable to reach Barriero, Saxon contacted the appropriate dispatch center, describing what he had seen, and stating that the car he was following was about to enter White Oak. Id. at 33. Saxon claims that he radioed the color, make, and model number of the car to the dispatcher.*fn2 Two White Oak Police cars*fn3 responded to the dispatcher's call, intercepting the car in which Rusch was a passenger. Id. at 34-35. Officer Barriero, in a Versailles patrol vehicle, joined the other officers after making a quick stop at the shopping center to examine the distributorship door. (Barriero Dep. 7,10)

James Shutack ("Shutack"), the owner and driver of the intercepted car, stated that shortly after the stop he was removed from the vehicle, frisked, and handcuffed by Officer Barriero. While he was still standing near the driver's side door, Shutack watched Saxon open the passenger door, place a gun to Rusch's neck or temple, and pull him out of the car as he threatened to shoot Rusch's head off if he did not cooperate. Shutack and Rusch state that Saxon was clearly inebriated, smelling of alcohol, slurring his words, and stumbling. (Rusch Dep. 71, 73)(Shutack Dep. 61, 65).

After Rusch was handcuffed, Saxon searched him. Id. According to Rusch, the search was not a simple pat-down; Saxon reached deep into his pocket to remove his wallet. (Rusch Dep. 75-76). According to Shutack, a police sergeant intervened, telling Saxon "to get in [his] truck and get the hell out of here." *fn4

A "plain view" search of the vehicle did not reveal weapons or contraband. Police also conducted a consent search of the car. In the trunk they found pieces of string, a laundry basket, rocks, a standing car jack, and a hammer.(Doc. 26 p. 26-27). *fn5

Rusch and Shutack were taken to the Versailles station by Barriero and Saxon. (Trial Tr. 79 -80) Rusch alleges that on the way, Saxon rifled through Rusch's wallet, found a card for Rusch's probation officer, and telephoned the probation officer to notify him of Rusch's arrest.*fn6 Id. at 83. At the station, the officers prepared an affidavit of probable cause, a criminal complaint, and an initial report.*fn7 Barriero typed the documents with input from Saxon. (Trial Tr. 86)(Shutack Dep. 70-72).

Although Saxon does not remember whether he reviewed the completed documents, his signature appears on the complaint and affidavit as the assisting officer or co-affiant respectively. The complaint charged Rusch with burglary, possession of instruments of crime - a standing carjack*fn8 , criminal mischief, and criminal conspiracy. Shutack was released later the same morning. Saxon, because he was on parole at the time of his arrest, was transported to the Allegheny County Jail where he was detained pending trial.

The trial took place on March 9, 2004 in the Court of Common Pleas. When he testified, Rusch admitted that he and Shutack had driven past the Olympia Shopping Center shortly before they were apprehended; he claimed that they were in the area because Shutack was driving him from his home in Upper St. Clair to his girlfriend's house in Wilmerding, and the shopping center was located along that route. Both men contended that as they drove past the shopping center they observed a black car speeding out of the parking lot across their lane of traffic. The car proceeded in the opposite direction, and could have carried the men seen at the beer distributorship.(Shutack Dep. 73 -75). Shutack and Rusch theorize that Saxon was sleeping in his parked truck at 4:00 a.m. because he was too impaired to drive. When he heard the distributorship alarm, he awoke to observe a car and two men on the shopping center curb. He attempted to follow them out of the parking lot, but because he was impaired, he mistakenly trailed Shutack's vehicle.*fn9

At the close of the prosecution's case, the charges against Rusch and Shutack were dismissed for lack of evidence. This lawsuit followed.

II. Standard of Review

In order to defeat a motion for summary judgment, the non-moving party must produce enough evidence sufficient to enable a reasonable juror to find in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A motion will be granted where the materials in the record, if reduced to admissible evidence, would not satisfy the ...


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