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Wilhere v. Delaware County

April 1, 2010


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


The plaintiff was arrested and charged with disorderly conduct on January 8, 2007, in a Holiday Inn parking lot in Essington, Tinicum Township, Pennsylvania. Mr. Wilhere, a part-time bartender at the hotel, was participating in a picket line at the time of his arrest. Mr. Wilhere was arrested after three warnings were given over his use of a large flashlight while picketing. He was subsequently convicted of disorderly conduct.

Mr. Wilhere was tasered in the course of his arrest. He raises excessive force and Monell claims pursuant to 42 U.S.C. § 1983 and state law tort claims in relation to the tasering and other incidents surrounding his arrest.*fn1 He brings his suit against the individual arresting officers, Deputy Sheriffs Joseph Nigro, Manuel Zayas, and Lynn Mahoney, and against Delaware County.

The defendants move for summary judgment on all of the plaintiff's claims. They argue that, because the plaintiff was tried and convicted of disorderly conduct, the plaintiff may not dispute the facts alleged at a hearing held on the disorderly conduct charge. Based upon those facts, the defendants argue that they are entitled to summary judgment because (1) the individual defendants are protected by qualified immunity, (2) there is no evidence that would support an excessive force claim against Deputies Nigro and Mahoney, (3) there is no evidence supporting a Monell "policy or practice" claim against Delaware County, and (4) the plaintiff's state law claims against Deputy Zayas have no merit.

The Court denies the defendants' motion for summary judgment. The Court finds that the plaintiff's conviction does not preclude it from considering the plaintiff's version of the facts, because, first, it is not clear which facts led to the plaintiff's conviction and, second, even if the Court takes the facts alleged at the hearing as true, a jury still could find the defendants' use of a taser to be excessive in this case. The Court, therefore, reviews the evidence according to the ordinary summary judgment standard and finds that it cannot grant summary judgment for the defendants because several material facts are in dispute.

I. The Summary Judgment Record

The facts surrounding Mr. Wilhere's January 8, 2007, encounter with Deputy Sheriffs Zayas, Nigro and Mahoney are sharply disputed. Although the parties generally agree to the events and circumstances leading up to the incident, their accounts diverge significantly as to the material details of the incident itself.

A. Undisputed Events Leading Up to the Arrest

Mr. Wilhere participated in the strike at a picket site outside of the Holiday Inn, where he worked as a part-time bartender and was a union member. The individual defendants were at the strike site, charged with managing the site and enforcing the terms of a stipulated injunction between the employer and the striking union.

Two picket sites were permitted under the agreement, with a maximum of three picketers allowed at a time at each. Deputies Nigro and Zayas were in their vehicle at the site where Mr. Wilhere picketed. Deputy Mahoney was in her vehicle with another officer at the other site. Deputy Mahoney was the senior deputy sheriff present.

Mr. Wilhere carried a large flashlight, and the defendants' allege that Mr. Wilhere shined the light at on-coming cars and into the Holiday Inn itself. Deputy Nigro, concerned that the light was creating a disruption and the potential for a car accident, approached Mr. Wilhere to talk to him about the use of the light. Deputy Nigro told Mr. Wilhere not to shine the light into cars. Mr. Wilhere agreed to comply.

Hotel operations manager Howard Showell drove into the parking lot some time later. Mr. Wilhere's light shined into Mr. Showell's car. Mr. Showell parked and went to speak with the deputies. Mr. Showell told the deputies that the light reflected through his rearview mirror and blinded him. The defendants believed that Mr. Wilhere deliberately shined the light through Mr. Showell's back window.

Deputy Nigro approached Mr. Wilhere a second time and again discussed the use of the light. The defendants claim that, after speaking with Deputy Nigro, Mr. Wilhere temporarily stopped shining the light into the cars. The defendants allege, however, that he eventually returned to shining the light into cars as they pulled into the parking lot and also began to shine the light into the Holiday Inn's restaurant and bar.

About thirty minutes later, Deputy Nigro approached Mr. Wilhere a third time, this time joined by Deputies Mahoney and Zayas. Deputy Nigro had contacted Deputy Mahoney on the radio and asked her to bring a copy of the injunction for review. After reviewing the injunction order, the three deputies decided to order Mr. Wilhere to stop using the flashlight. Deputy Zayas said words to the effect of "[s]omebody is going to get locked up tonight" as the deputies approached the picketers.

B. The Arrest

At this point, the facts become almost entirely disputed. The Court, therefore, will describe the plaintiff's version of the facts, followed by the defendants' version.

1. The Plaintiff's Account of the Arrest

According to Mr. Wilhere, the deputies first spoke to his co-picketer, Karen Trout, who was making arrangements for the next day's strike shift. Deputy Zayas approached Ms. Trout and said that she was the fourth person at the site at that time, in violation of the injunction's requirement of no more than three picketers at the site. Mr. Wilhere then stated, "This is ridiculous." He claims he was 15 to 20 feet away from Ms. Trout and Deputy Zayas at the time, and 20 to 30 feet away from Deputies Mahoney and Nigro. He claims that Deputy Zayas then may have said something about Mr. Wilhere's light, to which Mr. Wilhere again said, "This is ridiculous," and proceeded to shine the light on an empty van parked in the hotel's fire lane. Deposition of Matthew Wilhere ("Wilhere Dep.") at 112-13, attached as Ex. C to Defendants' Motion ("Def. Mot.").

After Mr. Wilhere shined the light on the van, Deputy Mahoney came up to him and struck him in the right arm or shoulder. The blow knocked the light out of his hand and forced him back a step or two. He then proceeded to raise his arms and hands to show that he was not being physically threatening or attempting to intimidate the sheriffs. Mr. Wilhere repeated, "You have no right touching me. You have no right hitting me. You don't hit me. You don't hit me." Wilhere Dep. at 119-20.

Deputy Mahoney then stepped directly in front of Mr. Wilhere, while Deputy Nigro approached him on his left side. Deputy Nigro stepped between Mr. Wilhere and Deputy Mahoney and began bumping Mr. Wilhere with his chest and stomach. Both deputies were yelling and baiting Mr. Wilhere. Mr. Wilhere believed that the deputies were trying to get him to strike back at them. Wilhere Dep. at 120-21.

Deputy Zayas then appeared at Mr. Wilhere's left side and began digging his hand and what appeared to be a cell phone into Mr. Wilhere's groin area. Mr. Wilhere instructed Deputy Zayas to leave his genitalia alone. Deputy ...

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