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Wargo v. Municipality of Monroeville

July 27, 2009

ROBERT WARGO AND PAMELA WARGO, HIS WIFE, PLAINTIFFS,
v.
MUNICIPALITY OF MONROEVILLE, PENNSYLVANIA; POLICE CHIEF GEORGE POLNAR, OFFICER KIP E. JOBE, OFFICER STEVEN PASCARELLA, AND ASSISTANT POLICE CHIEF K. DOUGLAS COLE, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER

Presently before the Court is the MOTION FOR SUMMARY JUDGMENT by Defendants Assistant Police Chief K. Douglas Cole, the Municipality of Monroeville, Pennsylvania, Police Chief George Polnar, Officer Kip E. Jobe, and Officer Steven Pascarella (Document No. 27). Plaintiffs filed a Brief in Opposition to Defendants‟ Motion. (Document No. 34). Both sides filed Concise Statements of Material Fact with numerous exhibits. (Document Nos. 29, 33). The issues have been fully briefed and the matters are ripe for disposition. After careful consideration of the motion, the filings in support and opposition thereto, the relevant case law, and the record as a whole, the Court concludes that the motion for summary judgment will be granted.

Background

In resolving a motion for summary judgment, a court must view the facts in a light most favorable to the non-moving party and draw all reasonable inferences in favor of the same. The following recitation of facts is thus drafted in the light most favorable to Plaintiffs. The incident which gave rise to this lawsuit occurred on the evening of October 6, 2006. Robert Wargo ("Wargo") arrived home to a notice from Allegheny County stating that his house was under foreclosure and would be sold at a Sheriff‟s sale. This news was compounded by the fact that Wargo‟s automotive repair business was financially distressed.

Upon reading the foreclosure notice, Wargo exited his home, carrying with him a cellular phone and a loaded.357 magnum revolver in his jacket pocket. Wargo had a valid PA permit to carry a firearm. Wargo informed his wife Pamela Wargo ("Mrs. Wargo") that he intended to head into the woods in order to think. By his own admission, Wargo was "very upset" and had a variety of "irrational thoughts." Wargo Deposition at 19, 23.

After reaching the woods behind his home, Wargo sent a text message to his wife that stated: "If I would kill myself you can file a wrongful death suit against the Muller‟s.[Do] not fight what‟s coming because every end has a new beginning."*fn1 Wargo Deposition at 26. Wargo then left his phone behind on a bench and continued further into the woods. After receiving this message from her husband, Mrs. Wargo contacted her parents, who in turn came to the Wargo residence and called the police.

Corporal Kip Jobe ("Jobe") of the Monroeville Police Department received a dispatch on his radio concerning a potentially suicidal individual with a firearm. As shift supervisor at the time, Jobe responded to the call, and was told by Assistant Police Chief Kenneth Cole ("Cole") to contact him if necessary. Cole ultimately had no personal involvement in taking Wargo into custody, and arrived at the Wargo residence only at the end of the ordeal in question. While traveling to the scene, Jobe contacted Lieutenant Steven Pascarella ("Pascarella"). Jobe set up a staging area approximately a quarter mile away from Wargo‟s home where additional officers could coordinate their activities. Several officers began to search for Wargo in the area around his home. Jobe proceeded to Plaintiffs‟ residence.

After his arrival at the Wargo residence, Jobe spoke to Mrs. Wargo, who led Jobe to a bench at the top of the Wargo‟s back yard where she thought her husband might be. It is disputed as to whether Jobe learned of Wargo‟s suicidal thoughts from Mrs. Wargo or from reading the text message. Nevertheless, Jobe was aware of Wargo‟s mental state before the two men encountered one another. It is also disputed exactly when Jobe learned that Wargo was carrying a.357 magnum, but it is undisputed that Jobe knew about the gun before he encountered Wargo.

Wargo returned from the woods back towards his home; he was aware of the police officers surrounding the vicinity after having overheard a passing search party. Upon seeing Wargo, Jobe shined his flashlight and identified himself. With his own gun drawn, Jobe instructed Wargo to take his hands out of his pockets and lie on the ground. It is undisputed that Jobe could clearly see a gun in Wargo‟s jacket pocket. Wargo was belligerent, and responded by telling Jobe to "get the f--king [flash]light out of my face" and leave his property. Wargo Deposition at 33-34; Jobe Deposition at 56. Wargo calmed to a degree, but still refused to comply with Jobe‟s repeated commands to stop and disarm. Specifically, Wargo stated that he had done nothing wrong and "can‟t just pull my hands out of my pocket... my gun‟s on me, it will drop to the ground, it will discharge off the pavement." Wargo Deposition at 33.

As Wargo continued to approach Jobe, the officer repeated his commands for Wargo to take his hands out of his pocket and drop the weapon. Wargo refused to comply, and again offered the excuse that he could not disarm because dropping the gun would cause it to misfire. Wargo‟s hands were in his jacket pocket, cradling gun; its butt was resting on Wargo‟s arm, with the cylinder but not the barrel protruding. Jobe was "absolutely" afraid of Wargo as the latter‟s approach continued, Exhibit 2 at 14, and Jobe was ultimately forced to retreat from his original position.*fn2

When the two individuals were approximately 15 feet apart, Wargo momentarily glanced away from Jobe, who holstered his firearm and transitioned to his taser. Immediately thereafter, Jobe discharged the taser into Wargo‟s body, which was designed to release an output of 50,000 volts. The barbs of the taser struck Wargo below the throat and in his chest, although Defendants contend that one barb merely made contact with his coat. Despite having been hit by the taser, Wargo remained standing, and alleges that his body tensed up and he could not move. He was able to verbally respond that he could not comply with Jobe‟s instructions to lie down.

With Wargo still standing and failing to obey commands to lie down, Jobe again discharged his taser. Jobe‟s taser log shows that he cycled his taser-pulling the trigger and releasing an electrical discharge-a total of five times over a period of 32 seconds. Following the last taser discharge, Officer Pascarella arrived on the scene. Pascarella had overheard on his radio the previous contentious exchange between Jobe and Wargo.

Pascarella also believed that Wargo was armed. Observing Wargo still standing, Pascarella fired his taser into Wargo‟s back after holstering his previously drawn handgun.

Wargo fell to the ground after Pascarella‟s taser discharge. At that point, Pascarella, with his boot on Wargo‟s wrist, instructed Wargo to turn over, lie on his stomach, and put his hands at his sides. Wargo did not comply, responding "f--k you." Pascarella Deposition at 58. Thereafter, Pascarella again discharged his taser. Wargo was then handcuffed and allowed to stand up. Mrs. Wargo was present at this point, having heard the sounds of the tasers. It is disputed, however, as to how much of the incident Mrs. Wargo witnessed, though she testified to seeing officers around her husband, and pushing them away because she believed he could not adequately breathe.

Plaintiffs allege that, after the initial use of the taser of Wargo, another (unidentified) officer on the scene recovered the.357 magnum from the ground after it fell from Wargo‟s pocket, and announced this fact to Jobe.*fn3 There is no evidence in the record to support this contention independent of Wargo‟s testimony, and that testimony does not establish the specific point in time at which the gun was retrieved. Wargo Deposition at 41. Jobe testified that Wargo was still armed after his first taser discharge, and both he and Pascarella aver that it was Pascarella who retrieved Wargo‟s firearm, which occurred after Pascarella first fired his taser. Jobe Deposition at 76; Pascarella Deposition at 58-60, 65.

Wargo required no medical attention at the scene. He was taken to Forbes Regional Hospital, where he was involuntarily committed to the Psychiatric Unit and observed for several days. Aside from minor puncture wounds from the barbs of the taser, Wargo required no additional medical treatment from hospital staff. George Polnar ("Polnar") served as Monroeville Chief of Police during this incident, but was not directly involved with any of the officers‟ actions on the night of their encounter with Wargo. Ultimately, after having initially been charged with resisting arrest, Wargo pled guilty to one count of summary disorderly conduct and forfeited his gun ownership.

Discussion

I. Plaintiffs‟ Complaint and the Standard of Review for Defendant‟s Motion for Summary Judgment

Plaintiffs filed a seven-count complaint against multiple defendants. Count I, against the Municipality of Monroeville, alleges deprivation by its agents of constitutional rights within the meaning of 42 U.S.C. § 1983. Counts II through V are filed individually against Defendants Polnar, Jobe, Pascarella, and Cole for violation of civil rights under the Fourth and Fourteenth Amendments to the U.S. Constitution while acting under the color of law, again pursuant to § 1983. Count VI against the Municipality of Monroeville alleges tort claims of assault and battery ...


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