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Khalil Christian, et al v. Sgt. William Orr

March 1, 2011

KHALIL CHRISTIAN, ET AL., PLAINTIFFS,
v.
SGT. WILLIAM ORR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gene E.K. Pratter United States District Judge

MEMORANDUM PRATTER, J.

INTRODUCTION

Seven Plaintiffs have sued four police officers from Darby Township, from the Borough of Folcroft, and from the Borough of Sharon Hill, as well as Sharon Hill itself, alleging that the officers violated their civil rights in connection with the execution of a warrant to search the Top of the Line Barber Shop ("the Barber Shop" or "the Shop") in Sharon Hill on December 16, 2005.*fn1 At the time of the search, Plaintiffs Augustus Collins and Devin Gilliam were barbers at the Shop, and Plaintiff AllanCharles Burton, who was then 13 years old, was working at the Shop in a limited capacity. The four remaining Plaintiffs -- Khalil Christian, Arnette Covert, Devin Covert and DeAndray Covert -- were patrons of the Barber Shop. The Barber Shop caters to a primarily African American clientele, and all of the Plaintiffs here are African Americans.

Specifically, the Plaintiffs allege that Officer Christopher Eiserman of Folcroft, Sergeant Leonard McDevitt of Darby, and Sergeant William Orr and Officer Gerald Scanlan, Jr. of Sharon Hill (collectively, "the Officer Defendants") violated the Plaintiffs' rights under the Fourth and Fourteenth Amendments when they, along with a number of other officers, raided the Barber Shop. All of the officers who participated in the raid are white.*fn2 The Plaintiffs also assert that Sharon Hill followed unconstitutional policies or customs. The Plaintiffs' entire case proceeds under 42 U.S.C. § 1983, and they have sued Sharon Hill under a Monell liability theory.*fn3

The five Defendants have filed three Motions for Summary Judgment which would, if granted, dispose of the Complaint in its entirety. For the reasons set forth below, these Motions will denied in part and granted in part, so that summary judgment will be granted for Defendants as to (1) the false arrest claim asserted by Messrs. Collins and Gilliam against the four Officer Defendants; and (2) the Monell claim asserted by Messrs. Christian, Collins and Gilliam against Sharon Hill.

JURISDICTION

The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441(b).

FACTUAL AND PROCEDURAL BACKGROUND

For the purposes of these motions for summary judgment, the Court considers whether the record presents any genuine issues of material fact that would allow a reasonable jury to find for the Plaintiffs.*fn4 On that basis, the facts are as follows.

On December 16, 2005, a group of police officers*fn5 raided the Top of the Line Barber Shop in Sharon Hill, Pennsylvania, pursuant to a facially valid search warrant.*fn6 The stated purpose of the raid was to obtain evidence relating to a drug-dealing operation, which the police believed was being conducted from the Barber Shop. While the raid did not uncover evidence of a substantial drug-dealing operation, the police did recover small amounts of marijuana from the two barbers, Augustus Collins and Devin Gilliam.*fn7 However, Messrs. Collins and Gilliam and five other people who were inside the Shop at the time of the raid have argued that four of the officers who participated in the raid violated their Fourth and Fourteenth Amendment rights in obtaining and executing the search warrant. In addition, Messrs. Collins and Gilliam, along with one of the Shop's patrons, Khalil Christian, have asserted that they were arrested with excessive force and falsely, and became victims of an unconstitutional strip search policy or custom while detained in the Sharon Hill Police Station. The Court will review the events giving rise to these claims in roughly chronological order.

In an affidavit of probable cause supporting the warrant to search the Barber Shop, Officer Gerard Scanlan of Sharon Hill stated that he began "periodic surveillance" of the Barber Shop beginning in April of 2005, in response to complaints that "narcotics" were being used and sold on its premises.*fn8 Officer Scanlan's affidavit also described two particular instances in which confidential informants had purchased drugs inside the Barber Shop. According to the affidavit, one informant bought cocaine in the Shop on May 11, 2005, and another bought marijuana in the Shop within 48 hours prior to the issuance of the warrant.*fn9

The Plaintiffs have alleged that the second of these purchases -- or "controlled buys," in police parlance -- was a fabrication. This challenge is based on documentary evidence that raises questions as to the second buy's timing (and therefore, according to the Plaintiffs, whether it ever took place at all), as well as the fact that the only evidence for the second buy is the statements of the three Officer Defendants who claim to have monitored it from outside the Barber Shop.*fn10

The documentary evidence is Officer Scanlan's affidavit and search warrant application. The search warrant application appears to be dated December 15, 2005; it describes the "date(s) of violation" (relating to the warrant's issuance) as May 11 to December 15, 2005; and it appears to have been hand-dated by the signing magistrate at 10:15 a.m. on December 16. The Plaintiffs argue that Officer Scanlan's affidavit, which was appended to his warrant application, appears to be hand-dated "10/16/05" (i.e., October 16, 2005) on its first page -- and features an ambiguous, and conceivably altered, date on its second.*fn11 The Plaintiffs also observe that Sergeant Orr -- who was Officer Scanlan's supervisor, and one of the three officers who claims to have been present for the second buy -- has estimated that the second buy took place between 10:00 a.m. and 12:00 p.m. on December 16.*fn12 The Plaintiffs argue that this timeline is inconsistent with the issuance of a warrant at 10:15 a.m., and that this contradiction is suggestive of fabulism.

The Plaintiffs also note that Sharon Hill has never been able to produce to them the marijuana that was allegedly purchased during the second buy -- neither in response to discovery requests made during this litigation, nor during the course of an earlier state criminal prosecution of Messrs. Collins and Gilliam.*fn13 In addition, the Plaintiffs observe that none of the three Officer Defendants who were allegedly present for the second controlled buy kept notes on that event, or have described it with particularity (whether based upon direct observations, or upon information they might have gathered from their still-anonymous informant),*fn14 and that Sharon Hill has not produced serial numbers for bills used in the controlled buy for comparison with $525 in cash that was seized from the Barber Shop during the raid (which took place on the same day that the buy ostensibly occurred). The Plaintiffs contrast the second buy with the earlier May 11 crack cocaine buy, direct evidence for which includes: (1) the crack cocaine that was purchased; (2) a police department form relating to the processing of these drugs; and (3) contemporaneous notes on the controlled buy taken by Officer Scanlan.*fn15

The raid on the Barber Shop took place in the late afternoon of December 16, which was a Friday.*fn16 When the police entered the Shop, nine people were already present: Messrs. Collins and Gilliam, the two barbers; a 13-year-old boy named AllenCharles Burton, who has said that he worked at the Shop on a part-time basis; Mr. Christian, who has indicated that he was at the Shop waiting for his regular barber; patrons Arnette Covert and her two sons Devon, aged four, and DeAndray, aged seven; and another woman, also a patron, who was with a young boy.*fn17 Mr. Collins was standing in the front of the Shop and was cutting the hair of DeAndray Covert, who was seated in a barber's chair. Arnette and Devon Covert were likewise in the front of the Shop, seated on a bench. Mr. Christian and AllenCharles Burton were standing in the rear of the Shop. playing a game of pool, and Mr. Gilliam was standing near the pool table and watching.

The first police officer to enter the Barber Shop was Officer Dana McBride of Sharon Hill, who Mr. Collins recognized (although not by name) because the officer had been stationed at a nearby school. According to Mr. Gilliam, Officer McBride's gun was drawn when she entered the Shop. She was followed by a group of several male officers, one of whom was in uniform and the others in plain clothes. Several of the Plaintiffs have said that all of these officers had their guns drawn when they entered the Shop, and that officers pointed guns at all of the adults in the Shop, as well as at AllenCharles Burton.*fn18 Sergeant McDevitt has confirmed that his gun was pointed at Mr. Christian and AllenCharles Burton, each of whom was holding a pool cue in his hand when police entered.*fn19 Sergeant Orr, the raid's supervising officer, entered the Shop after the entry party had secured the premises.

The Plaintiffs report that the officers continued to brandish their weapons as they issued orders to the Barber Shop's occupants. Sergeant Orr and Officer Scanlan approached Mr. Collins and ordered him to stop cutting DeAndray Covert's hair. Mr. Collins says that they pushed him to the floor, and that Officer Scanlan threatened several times to "blow [his] brains out." One of the officers told DeAndray Covert to get out of the barber chair and to go look out the window. Arnette Covert says that she was trying to keep her eyes on her two sons, but an officer ordered her to "get the f[- - -] on the ground," and pressed the barrel of his gun to her right temple. This allegedly was both audible and visible to her young children.

Mr. Christian, in the rear of the Shop, saw a male officer point a gun towards him and heard the officer command him to "get the f[- - -] down." Mr. Christian then dropped his pool cue and lay on the floor. AllenCharles Burton also dropped his cue, and he and Mr. Gilliam fell to the ground near Mr. Christian. Mr. Gilliam quickly recognized Officer Christopher Eiserman, who had once arrested him for possession of marijuana, and also recognized Sergeant Orr and Officer Scanlan, who remained in the front of the Shop. Both Officer Eiserman and Sergeant McDevitt walked to the rear of the Shop.

Almost all of the Plaintiffs claim to have heard officers use derogatory racial language during the early minutes of the raid, combined in at least one instance with an implied threat of violence. Mr. Gilliam claims that when the male officers first entered the Shop, "all you heard was [them] yelling ... n[- - - -]r this, n[- - - -]r that, get on the ground," and that officers continued to use this language repeatedly. (By way of example, Mr. Gilliam identifies Officer Scanlan as having "chuckled" while saying, "party's over, n[- - - -]rs"). AllenCharles Burton says that an officer yelled, "all you n[- - - -]rs get on the ground." Arnette and DeAndray Covert have both said that some officers in the front of the Shop used racial slurs. Mr. Collins asserts that Officer Scanlan informed him -- with his gun pointed at Mr. Collins' head -- that "this n[- - - -]r barber shop has come to an end." Each of the Officer Defendants has denied that he used, or indeed heard any of the other officers use, derogatory racial language.*fn20

When all the adults in the Barber Shop and AllenCharles Burton were on the floor, Officer Scanlan asked Mr. Collins where he could find Mr. Collins' nephew, a man named Darren "Dee" Brown, who had once owned or operated the Shop. Officer Eiserman asked Mr. Gilliam, who is also related to Mr. Brown, the same question. Mr. Collins told Officer Scanlan that Mr. Brown no longer worked in the Shop. Mr. Gilliam indicated to Officer Eiserman that Mr. Brown had left the Shop approximately two years earlier.

Officer Scanlan handcuffed Mr. Collins. In the back of the Barber Shop, Officer Eiserman had handcuffed Messrs. Christian and Gilliam and AllenCharles Burton. Several Plaintiffs have indicated that Sergeant McDevitt pointed his gun at each of them while Officer Eiserman was administering the handcuffs. AllenCharles Burton -- who suffers from asthma, and had trouble breathing throughout the raid -- says that an unidentified officer pressed a gun to the back of his head. Mr. Gilliam says that a gun was pressed to his head as well.*fn21 Mr. Collins says that after the police had finished securing the men in the Shop, they "mangled" it in conducting a search.*fn22 Mr. Collins also says that he was kicked by officers while they searched the Shop, but neither he nor anyone else in the Shop suffered any serious physical injury.*fn23

The police searched not only the Barber Shop, but also the adult Plaintiffs themselves, along with AllenCharles Burton. Officer McBride searched Mrs. Covert's handbag. One of the male officers pulled Mr. Collins to his feet, and Sergeant Orr and Officer Scanlan pulled off his shoes and pulled down his pants, leaving him standing in a pair of sweat shorts. The two female patrons in the Shop saw him in this condition. Officer Scanlan found 0.85 grams of marijuana in Mr. Collins' shorts,*fn24 and also seized $243 in cash from his pockets -- which Mr. Collins has said was legitimate proceeds from cutting hair.

Messrs. Christian and Gilliam and AllenCharles Burton were searched by the police officers in the back area of the Barber Shop. Mr. Gilliam asserts that after Mr. Christian jerked in response to having been inadvertently kicked in the head by Mr. Gilliam, one of these officers said to Mr. Christian: "move again, you goin' die." Mr. Christian says he could feel this officer's gun pressed against his head, and that the officer warned him: "if you move again, I'm going to blow your head off." Neither Mr. Gilliam nor Mr. Christian could see then, or later identify, the officer who had allegedly threatened Mr. Christian. It appears likely that Sergeant McDevitt and Officers Eiserman and Buckland were all in the back area of the Shop at this point in time, but Officer Buckland (who is not a party in this case) has said that he was not involved in searching, because he was carrying a shotgun in both hands, and could neither holster it nor set it down.

Mr. Gilliam says that Officer Eiserman patted and then placed his hands inside the pockets of his pants -- and after finding no contraband, either broke or unbuckled his belt and unzipped his fly, allowing Mr. Gilliam's pants to fall to his ankles. Officer Eiserman says that during the pat-down, he felt a "bulge" which he believed to be a bag of marijuana, and that it was on this basis that he took off Mr. Gilliam's pants. Officer Eiserman then searched Mr. Gilliam, recovered a small amount of marijuana from the pocket of sweat shorts that Mr. Gilliam was wearing under his pants. Another officer pulled Mr. Christian to his feet and then searched him; Mr. Christian cannot identify this officer, but believes it was the same man who had held a gun to his head and threatened his life. The officer found $140 in cash in Mr. Christian's wallet, but no contraband. The only drugs in the Shop were the small amounts of marijuana that were seized from Messrs. Collins and Gilliam as described above.

After completing the search, officers brought Messrs. Collins, Gilliam and Christianoutside the Shop, and pushed them into a sitting position on the curb.*fn25 Messrs. Collins and Gilliam, whose pants had been pulled down during the search, remained in their shorts. The weather was seasonably cold, and none of the three men wore coats or shoes. They sat on the curb for approximately 10 or 15 minutes before the police drove them to the Sharon Hill Police Station. The decision to transport the three men to the Station apparently was made by Sergeant Orr in his capacity as supervisor. Officer Scanlan has indicated that the taking of the three men into custody was not meant to constitute an arrest; instead, the purpose was to bring them to a warmer and more private location where the police could conduct "further investigation."

At the Station, the police placed the three men in holding cells. According to Messrs. Collins and Christian, they each waited in their cells for approximately 30 minutes, at which point they were removed, seriatim, and were stripped naked for a visual cavity search.*fn26 They both identify Officer Scanlan as the officer who conducted these searches. Each man was able to see the search of the other, and Mr. Christian has said that he could also see Officer Scanlan's search of Mr. Collins on a video monitor. Both allege that after their searches were over, they were returned to their cells, but were not allowed to put on any clothing other than underwear.

After what he estimates to have been 90 minutes of waiting in a cell, Mr. Christian was released.*fn27 Like Officer Scanlan, Sergeant Orr asserts that Mr. Christian was never arrested, but was simply transported to the Station for "further investigation" -- and was then allowed to leave when this investigation was complete. The police did not find contraband on Mr. Christian when they searched him in the Barber Shop or in the Station.

Mr. Gilliam, who had been held in a juvenile room, was transferred into Mr. Christian's cell after Mr. Christian was released. Officer Scanlan then searched Mr. Gilliam in the same fashion that he had searched Messrs. Collins and Christian. Mr. Gilliam stood naked outside his cell during the search, in view of Mr. Collins. After the search, Mr. Gilliam was required to remain in his underwear.

According to Officer Buckland, Sharon Hill had (on December 16, 2005) a policy of conducting strip searches, including a visual body cavity check, of anyone arrested for a drug crime. According to Sergeant Orr, anyone held at the Police Station was strip searched as a matter of course.*fn28 Officer Buckland and Sergeant Orr agree that a camera generally recorded these searches, and Sergeant Orr has indicated that this camera feeds to a monitor in the Station's squad room -- i.e., the room where officers assemble for assignments or briefing -- which police officers of both genders can enter freely. Officer McBride has acknowledged that she could see the squad room monitor while Messrs. Collins, Christian and Gilliam were being strip searched, but asserts that she did not watch the searches. Mr. Collins' deposition testimony suggests that a monitor showing searches was also visible from the Station's holding cells. A written policy of the Sharon Hill Police Department indicated that strip searches should be videotaped wherever possible, but there is no video recording of these Plaintiffs' searches in the record.*fn29

Messrs. Collins and Gilliam were detained in the Sharon Hill Police Station overnight, and were formally arrested the next morning, December 17, 2005, for possession of marijuana.*fn30

The case against Messrs. Collins and Gilliam was ultimately dropped after a Pennsylvania state court suppressed the marijuana that the officers had discovered on their person during the raid.

Plaintiffs filed this lawsuit in Pennsylvania state court on May 1, 2008, and the Defendants removed the case to federal court on May 22, 2008.*fn31 Each of the first seven counts of the Plaintiffs' Complaint asserts a "civil rights" claim by one of the Plaintiffs against all four of the Officer Defendants. These seven counts set forth the basis for the claims brought by each of the Plaintiffs, but do not differentiate between the actions of the Officer Defendants -- so that the text of Count I, for example, which describes the bases for Mr. Collins' § 1983 claim against all four of the Officer Defendants, does not indicate whether Mr. Collins is suing one or all of the Officers for using false information to obtain the warrant. Reading the Complaint in conjunction with the record, however, it is plain enough which precise claims appear to lie against each of the four Officer Defendants.

Count I of the Complaint claims that all four of the Officer Defendants violated Mr. Collins' civil rights in obtaining and in executing the warrant to search the Barber Shop, and in effecting his (allegedly) false arrest; Count II presents the same set of allegations on behalf of Mr. Gilliam; and Count III presents the same set of allegations on behalf of Mr. Christian. Count IV asserts that each of the Officer Defendants violated AllenCharles Burton's rights in obtaining and in executing the warrant to search the Shop; and Counts V-VII present the same allegations on behalf of Mrs. Covert and her two sons, Devin and DeAndray. Finally, Count VIII presents a Monell claim against Sharon Hill on behalf of all of the Plaintiffs.

Officer Eiserman filed the first Motion for Summary Judgment (Docket No. 16), and similar Motions were later filed by Sergeant McDevitt (Docket No. 17) and then Sergeant Orr, Officer Scanlan and Sharon Hill (Docket No. 18). These Motions would dispose of all of the claims against each Defendant. The Plaintiffs have never filed a formal memorandum of law opposing these Motions. Their counsel did, however, participate in oral argument before the Court, and ultimately filed a document that was intended to buttress the Plaintiffs' arguments against summary judgment (Docket No. ...


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