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Jeffrey Dunbar Reiff v. Chad T. Marks

February 23, 2011

JEFFREY DUNBAR REIFF, PLAINTIFF,
v.
CHAD T. MARKS, BOROUGH OF WEST READING, EDWARD FABRIZIANI, AND WEST READING BOROUGH POLICE DEPARTMENT DEFENDANTS.



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

MEMORANDUM OPINION & ORDER

In this action brought under 42 U.S.C. § 1983, Plaintiff Jeffrey Dunbar Reiff ("Reiff") seeks damages for injuries allegedly sustained during an investigatory stop. Before the Court are Defendants' Motion for Summary Judgment and Statement of Undisputed Facts [doc. no. 34], Plaintiff's Response [doc. no 37] and Plaintiff's Counter-Statement of Facts [doc. no. 35]. For the reasons set forth below, Defendants' Motion will be denied in part and granted in part.

I.BACKGROUND*fn1

This case arises from a January 5, 2007 investigatory stop of the Plaintiff by Defendant Officer Marks ("Ofc. Marks"). During the stop, Officer Marks used his TASER against Reiff four times. Reiff now brings claims of excessive force, assault, false imprisonment, and failure to train against Ofc. Marks, the Borough of West Reading ("the Borough") and Chief Edward Fabriziani ("Chief Fabriziani").

A. FACTS RELATING TO PLAINTIFF'S ASSAULT,EXCESSIVE FORCE, AND FALSE IMPRISONMENT CLAIMS AGAINST OFFICER MARKS.

Reiff was driving alone in his motor vehicle in the Borough when Ofc. Marks, a Borough police officer, activated his patrol car lights and sirens in an attempt to stop Reiff for a traffic violation.*fn2 Reiff did not stop his vehicle immediately, but instead drove, without speeding, for another thirty to sixty seconds, before stopping in a parking lot.*fn3 Reiff does not dispute that Ofc. Marks was justified in detaining him for stopping beyond a marked stop line at a traffic signal in violation of 75 Pa. Cons. Stat. §3323.*fn4 The parties disagree, however, on when Ofc. Marks turned on his patrol lights and sirens,*fn5 whether Reiff engaged in evasive driving maneuvers by refusing to pull over,*fn6 or if Reiff failed to stop at a second stop sign during the pursuit.*fn7 It is undisputed, however, that after Ofc. Marks turned on his emergency lights and sirens, Mr. Reiff proceeded several blocks, making a right, two lefts, and another right before finally coming to a stop.*fn8 During his pursuit of Reiff, Ofc. Marks called dispatch for back up.*fn9

Upon stopping, Reiff exited his car and walked towards Ofc. Marks's car.*fn10 When Ofc. Marks exited his patrol vehicle, he drew his service weapon, but after ten to fifteen seconds,*fn11 he holstered it in favor of his TASER because he did not see Reiff with a weapon and believed that Reiff would not attack him.*fn12 When Reiff was approximately fifteen feet away from Ofc. Marks, Reiff saw Ofc. Marks's gun, turned around, and began walking away from Ofc. Marks.*fn13 The Parties disagree as to what occurred next. Ofc. Marks claims he commanded Reiff to stop and get on the ground, and repeatedly warned him that he would be tasered if he did not stop.*fn14 Reiff responded by giving Ofc. Marks the middle finger and telling him to "f--- off" as he walked away toward "some building."*fn15 Reiff, on the other hand, claims that he could not discern what Ofc. Marks was screaming at him and walked away because he was afraid that Ofc. Marks was going to shoot him.*fn16

Although Reiff was not free to leave,*fn17 he walked away toward a nearby building.*fn18 Ofc. Marks did not want to follow Reiff into the building, nor allow Reiff to enter it while he waited for back up, because he believed doing so would lead to a different, dangerous, and unpredictable situation.*fn19 To stop Reiff, Ofc. Marks fired his TASER*fn20 at him from a distance of ten to fifteen feet;*fn21 the shot hit Reiff, who seized up, fell face-first on the macadam and suffered a facial laceration.*fn22

While Reiff lay face down, Ofc. Marks tased*fn23 him three more times-the acts that form the basis of Reiff's complaint. Ofc. Marks claims that he fired his TASER the second time because his repeated commands for Reiff to stay on the ground and put his hands behind his back were met with physical and verbal resistance.*fn24 That TASER shot was also (allegedly) met with resistance: Ofc. Marks claims that Reiff tried to get off the ground, refused to be handcuffed, attempted to remove the TASER probes from his back, and repeatedly told Ofc. Marks to "f--- off."*fn25

According to Ofc. Marks, he tased Reiff twice more before Reiff finally submitted to the commands by putting his hands behind his back to be handcuffed.*fn26 Reiff allegedly remained defiant and aggressive toward the Emergency Medical Services personnel called to the scene, refusing medical care and telling them not to touch him.

Ofc. Marks believed that Reiff was under the influence of alcohol, but did not want to administer a breathalyzer because of his combative behavior.*fn27 Reiff was taken to the Berks County DUOS Processing Center and then to a hospital.*fn28 Reiff refused to consent to blood testing at the DUOS processing center. After the incident, Reiff was charged with driving under the influence of alcohol and failing to observe a traffic control device.*fn29 He was later acquitted of both charges.*fn30 He was also charged with fleeing and eluding the police; this charge was later dropped.*fn31

The West Reading Police Department ("Department") espouses the philosophy of using a minimum amount of force to control a combative person.*fn32 Under that policy, the TASER, which is issued by the Department,*fn33 should be used when other tactics are ineffective and it is unsafe for an officer to come into close proximity of a suspect.*fn34 The TASER may be used to subdue individuals who pose an immediate risk to themselves or others, or to safely effect an arrest.*fn35

Ofc. Marks asserts that he was following Department policy in his encounter with Reiff*fn36 because Reiff ignored repeated commands and warnings,*fn37 attempted to leave without permission,*fn38 and because Ofc. Marks believed the situation would have become dangerous if Reiff had been permitted to enter any of the nearby buildings.*fn39 Ofc. Marks used his TASER instead of approaching Reiff with a baton*fn40 because he thought Reiff was much larger than him and he was unsure if Reiff, who had already displayed combative behavior, might assault him, steal his gun, or attack him with a hidden weapon in response to physical contact.*fn41

Ofc. Marks believes that he used all available reasonable alternatives before initially tasing Reiff,*fn42 and asserts that his subsequent uses of the TASER followed Department policy because Reiff would not submit to arrest.*fn43 Although Reiff was on the ground after the initial TASER shot, Ofc. Marks continued to TASER him because he believed that Reiff would knock him over if he attempted to physically restrain Reiff by placing his foot on Reiff's back.*fn44 He claims that his actions were consistent with his TASER training.*fn45

Reiff disputes the following aspects of Ofc. Marks's description of the events leading up to and occurring during the tasing: (1) that Ofc. Marks's belief that tasing was the "minimum amount of force necessary" was reasonable;*fn46 (2) that he is physically larger and had the potential to harm and overpower Ofc. Marks;*fn47 (3) that he could have pulled a gun on Ofc. Marks;*fn48 (4) that walking away from Ofc. Marks created an "out of control" situation;*fn49 (5) that Ofc. Marks could not make an arrest unless Reiff remained on the ground;*fn50 and, (6) that because of his size and demeanor, Ofc. Marks would have been knocked over if he had placed his foot on Reiff's back.*fn51

Plaintiff's expert regarding police operations opined that Ofc. Marks exerted unnecessary and excessive force in pointing his gun at Reiff after exiting his car in the parking lot.*fn52 In his view, although Ofc. Marks's initial use of a TASER on Reiff was a viable-force alternative considering the totality of the circumstances, Ofc. Marks's additional TASER uses after Reiff was able to comply with verbal commands and could be safely handcuffed were unnecessary and unreasonable.*fn53

B. FACTS RELATING TO PLAINTIFF'S FAILURE-TO-TRAIN CLAIMS AGAINST DEFENDANTS FABRIZIANI AND THE BOROUGH OF WEST READING.

The Department's use of TASERs has been approved by the Borough's Mayor and Council,*fn54 and is governed by a seven-page TASER Policy, which is included in the Department's Police Policy Manual.*fn55 The TASER Policy was written in consultation with the TASER manufacturer and other police departments.*fn56 Borough police officers are neither required to memorize the TASER Policy, nor read it on a regular basis.*fn57 The same is true of the Policy Manual.*fn58 There is no written test to evaluate the officers' understanding of the Policy Manual.*fn59

There are several provisions of the TASER Policy that Chief Edward Fabriziani ("Chief Fabriziani") allows his Department to ignore in practice. For instance, the TASER policy requires officers to photograph the TASER contact spot, and enter the photographs and expended TASER cartridges into evidence.*fn60 Ofc. Marks, however, did not take photographs at the scene of the incident.*fn61 In addition, although Ofc. Beighly (the Department's TASER Instructor) interviewed the back-up officers who arrived after the tasings, he did not write a report or evaluate whether Reiff complied with the TASER Policy during the incident.*fn62 Instead, Ofc. Beighly simply told Ofc. Marks that his TASER use on Reiff was "fine."*fn63 Moreover, although the TASER policy includes a sign-out sheet for officers to complete when taking a TASER on patrol, the Chief allows the officers to simply note that they carried a TASER on their daily shift logs.*fn64

Although Ofc. Marks had worked as a part-time officer for a year before being hired as a full-time officer for the Department, he did not see a copy of the Policy Manual-which apparently governs the conduct of all officers-until he started working full-time.*fn65 Neither the Policy Manual nor the TASER Policy requires Borough police officers to be retrained after their initial TASER training.

Ofc. Beighly used the manufacturer's lesson plan and a Power Point curriculum to train Ofc. Marks on the X26 TASER in 2006.*fn66 Although Ofc. Beighly does not deviate from the manufacturer's lesson plan, his training sessions have never been reviewed by other TASER instructors, or attended by Chief Fabriziani, representatives of the Borough, or the manufacturer.*fn67 The training consists of a video, instruction about how the TASER works and is used, practice firing a TASER, and tasing participants.*fn68 At the conclusion of the training, Ofc. Marks took and passed a written test.*fn69

Ofc. Marks was recertified on TASER usage by Ofc. Beighly in 2007, but the recertification consisted solely of Ofc. Beighley informing Ofc. Marks that there were no new developments regarding the TASER. Although Ofc. Beighly was unable to confirm that further recertifications occurred, Ofc. Marks claims that he was recertified in April of 2008 and 2009.*fn70

It is the Department's practice for Ofc. Beighly to annually reissue police officers a new certificate of TASER proficiency.*fn71

Plaintiff's expert evaluated the Department's TASER Policy and found it deficient in several respects.*fn72 In particular, the policy does not direct its officers to taser the subject as few times as possible and no longer than necessary to accomplish the "legitimate operational objective."*fn73 Additionally, the policy fails to inform officers that a subject who has ...


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