United States District Court, E.D. Pennsylvania
December 19, 2012
ESTATE OF Andrea Yvonne ARRINGTON, Plaintiff,
Officer John MICHAEL, and the City of Chester, Defendants.
[Copyrighted Material Omitted]
Frank N. Dimeo, Jr., James D. Rosen, Rosen Schafer & Dimeo, P.C., Philadelphia, PA, for Plaintiff.
Suzanne McDonough, Holsten & Associates, Media, PA, for Defendants.
MEMORANDUM AND ORDER
JOYNER, Chief Judge.
Before the Court are the Defendants' Motion for Summary Judgment (ECF No. 21) and the Plaintiff's Motion for Partial Summary Judgment (ECF No. 24). For the reasons set forth in this Memorandum, we grant the Defendants' Motion in part and deny it in part, and we deny the Plaintiff's Motion.
This matter arises out of the tragic deaths of the Plaintiff's decedent, Andrea Yvonne Arrington, and Aaron Michael, the son of Defendant Officer John Michael. (Def.'s Stmt. of Material Facts (the " Def.'s SMF" ) ¶¶ 1-2.) The Plaintiff principally asserts that, because Aaron Michael shot and killed Ms. Arrington with Officer Michael's inadequately secured police-issued service weapon, Officer Michael and his employer, the City of Chester (the " City" ), deprived Ms. Arrington of her constitutional rights and should bear liability pursuant to 42 U.S.C. § 1983. ( See generally Compl.)
A. The Relationship Between Aaron Michael and Ms. Arrington
Ms. Arrington and Aaron Michael shared an apartment with their young son in Chester beginning in 2007. (Def.'s SMF ¶ 3.) On July 2, 2009, Ms. Arrington filed a petition in the Court of Common Pleas of Delaware County seeking a Temporary Protection From Abuse Order. Id. ¶¶ 3-4. The petition alleged that Aaron Michael had assaulted Ms. Arrington three to four days earlier and recited other occasions when Aaron Michael had hit or threatened to hit Ms. Arrington. Id. ¶¶ 4-5. The court granted the petition, issued the order (the " July 2 Order" ), and scheduled a hearing for July 9, 2009. Id. ¶ 9. The July 2 Order evicted Aaron Michael from the couple's shared apartment, granted custody of the couple's son to Ms. Arrington, and forbade Aaron Michael from possessing, transferring or acquiring firearms. Id. ¶ 8; (Def.'s Ex. D-1 (the " July 2 Order" ), at 10). Following the hearing on July 9, the court issued a final Protection from Abuse Order (the " July 9 Order" ) which extended the terms of the July 2 Order for six months. (Def.'s SMF ¶ 10; Pl.'s Ex. K (the " July 9 Order" ), at 3.)
On July 14, Aaron Michael violated the July 9 Order by going to the apartment from which the July 9 Order had evicted him and threatening Ms. Arrington. (Def.'s SMF ¶ 11.) Specifically, Aaron Michael threatened physical harm if Ms. Arrington contacted law enforcement to report the violation of the July 9 Order. Id. Ms. Arrington reported the violation after Aaron Michael fled the apartment. Id.
A Chester police officer, William Swanson, responded to Ms. Arrington's call. Id. ¶ 12. Officer Swanson investigated, prepared a police report, and filed a criminal complaint against Aaron Michael for violation of the July 9 Order. Id. ¶¶ 12-13; (Def.'s Ex. D-5, at 1-2). Officer Swanson also requested a warrant for Aaron Michael's arrest. (Def.'s SMF ¶ 13.) Despite Officer Swanson filing the request for the arrest warrant on July 15, the warrant did not issue until July 20. Id. ¶¶ 14-15; (Def.'s Ex. D-6, at 1).
After Aaron Michael violated the July 9 Order, he went to stay with another woman with whom he had a romantic relationship, Ashley Miller. (Def.'s SMF ¶ 39.) Between July 14 and July 20, Aaron Michael primarily stayed with Ms. Miller, believing that Officer Michael had " set him up" to be arrested. Id.; (Def.'s Ex. D-23 (the " Miller Dep." ), at 26:19-27:17 (Feb. 15, 2011)).
B. Officer Michael's Actions
After the July 2 Order issued, a colleague on the police force informed Officer Michael about it. (Def.'s Ex. D-24 (the " Michael Dep." ), at 11:23-12:16 (Oct. 24, 2011).) The same day, July 2, Officer Michael told Aaron Michael about the July 2 Order. Id. at 12:13-13:12. Aaron Michael then came to Officer Michael's home. Id. at 13:13-15:9.
Aaron Michael had a key to the front door of Officer Michael's home. Id. at
9:17-11:22. Aaron Michael stored some of his personal effects at Officer Michael's home and continued to receive mail there through July 2009. Id. at 14:20-20:20, 62:22-63:9. Sometimes, he would come to Officer Michael's home when Officer Michael was not present. Id. at 19:5-25. Officer Michael also knew of his son's extensive criminal history, including threatening a former romantic partner, check fraud, and theft. Id. at 6:6-8:22.
After Officer Michael told his son about the July 2 Order, the two men discussed its accusations; Officer Michael also advised his son that, should he need to go to the apartment he shared with Ms. Arrington to retrieve certain of his personal effect, he should go escorted by police officers. Id. at 21:6-27:6. Aaron Michael, citing the upcoming holiday weekend, left Officer Michael's house to stay with certain unspecified friends. Id. at 25:24-26:12.
Early on the morning of July 15, a friend of Aaron Michael's called Officer Michael to tell him that Aaron Michael had violated the July 9 Order. (Def.'s SMF ¶ 32.) Officer Michael then telephoned a superior of his in the Chester Police Department (the " Department" ), Captain Amaro, who told Officer Michael that a warrant for his son's arrest would issue. (Michael Dep. at 69:15-70:25 (Oct. 24, 2011).)
Although Officer Michael tried to reach his son by telephone, he could not do so. Id. at 71:1-73:3. As a result, on July 16, Officer Michael wrote his son two notes, id. at 66:14-67:21, and left them on the dining room table in his home, next to mail addressed to Aaron Michael, in the hope that, if Aaron Michael came to retrieve his mail, he would see the notes, id. at 73:9-74:8.
The first note, four pages long, asked Aaron Michael to turn himself in based on the outstanding warrant and discussed the benefits of surrendering in comparison to attempting to evade the warrant. (Michael Dep. Ex. 6, at 1-4.) This note also offered Aaron Michael a $1,500 " bonus" for surrendering, offered to pay any bail imposed, and referred to the situation as " not that serious." Id. at 4. The second note, two pages long, also pleaded with Aaron Michael to surrender himself and noted that Aaron Michael's probation officer " will do what he can for [Aaron Michael], he knows [Officer Michael] is a police officer. They will give you a courtesy break. [Officer Michael] already talked to people, but in order to get this one time break, [Aaron Michael] ha[s] to turn [him]self in." (Michael Dep. Ex. 7, at 1-2; Michael Dep. at 81:16-21 (Oct. 24, 2011).) It appears that Officer Michael also left a copy of Officer Swanson's police report about the July 14 incident with the two notes. ( See Def.'s Ex. D-10, at 23; Pl.'s Mot. for Partial Summ. J. ¶ 39; Def.'s Response to Pl.'s Cross-Mot. for Summ. J. ¶ 39.)
On Friday, July 17, Aaron Michael called his father and left a message on the answering machine at Officer Michael's home. ( See Michael Dep. at 74:12-75:3 (Oct. 24, 2011).) In the message, Aaron Michael told Officer Michael that he intended to surrender to the authorities once the warrant for his arrest issued. Id. at 74:17-21. When Officer Michael returned to his home on July 17 and listened to the message, the notes to Aaron Michael appeared as they had on July 16, and mail addressed to Aaron Michael was still on the dining room table of the house as before. Id. at 78:20-79:5. It is not clear how Aaron Michael discovered that a warrant would issue for his arrest based on the July 14 incident. Evidence exists in the record suggesting that Aaron Michael believed that his father " had set him up to get arrested" (Miller Dep. at 18:10-22 (Feb. 15, 2011)), but the record is silent
about whether Officer Michael knew that his son thought so.
Officer Michael left Chester for a vacation in Florida on July 20. (Michael Dep. at 27:7-10 (Oct. 24, 2011).) Before leaving for Florida, Officer Michael left his service weapon in his locked bedroom and secured the weapon with a Department-issue gun lock. Id. at 36:6-37:20. Officer Michael stored the key to the single-bolt bedroom lock in a kitchen cabinet. See id. at 53:22-55:16. Officer Michael put the weapon, empty of ammunition and secured by the gun lock, in the bedroom's closet hidden under some bedroom linens. (Def. Ex. D-33, at 6.) Officer Michael hid the ammunition inside a duffel bag located in the bedroom. Id. Officer Michael stored the only key  to the gun lock separately, inside a sock in a bureau drawer in the bedroom. Id.; ( see also Def.'s SMF ¶ 21.)
C. The City's Relevant Policies
The Department officially encouraged, but did not require, officers to take their service weapons home with them when they were not on duty. (Pl.'s Ex. U (the " Chubb Dep." ), at 45:20-46:24 (May 23, 2012).) The Department trained officers to store their service weapons unloaded, preferably in a locked container, and separately from the weapon's ammunition. Id. at 36:9-37:8. The Department also trained officers to secure a service weapon with a Department-issue gun lock, but the Department did not specifically train officers about where or how to store the key to the gun lock. Id. at 37:9-38:5. Department training materials do address the security of a service weapon stored at an officer's home, directing officers to " secure [a weapon] in a safe place with consideration as to children, friends & family." (Pl.'s Ex. X, at 2.)
The Department also had a regulation which " establish[ed] Department policy, guidelines, and procedures in the enforcement, reporting, and prosecution of domestic of domestic violence / Protection From Abuse (PFA) Order violations." (Pl.'s Ex. W, at 1.) This directive established Department policy as, among other things, strictly enforcing Protection From Abuse Orders and arresting violators of such orders and other perpetrators of crimes of domestic violence. Id. at 1,4-5.
Finally, the Department issued a directive which established a policy of preventing officers from becoming involved in law enforcement situations with family members or relatives. (Pl.'s Ex. V.) The directive called upon officers involved in non-emergency situations with family members or relatives to make superiors aware of the relationship and arrange for alternate personnel to respond. Id. The directive specifically excepted emergency situations from its operation. Id.
None of these regulations, nor any other Department policy, specifically addressed how they should apply or interact when the perpetrator of a crime of domestic violence or the subject of a Protection From Abuse Order was a relative of a police officer and had access to a police officer's home where the officer typically stored his service weapon. (Pl.'s Mot. for Partial Summ. J. ¶¶ 49-50; Def.'s Response to Pl.'s Cross-Mot. for Summ. J. ¶¶ 49-50.) The Department did not have any new or different procedures or policies which specifically addressed such a situation, nor did the Department conduct specific training sessions about how to respond to such a situation. (Pl.'s Mot. for Partial Summ. J. ¶ 49; Def.'s Response to Pl.'s Cross-Mot. for Summ. J. ¶ 49.)
D. The July 20, 2009 Incident
Sometime on July 20, 2009, Aaron Michael went to his father's home. (Def.'s Ex. D-10, at 8.) It appears that he drank a great deal of alcohol there. Id. at 22. He moved the notes that his father had written him several days earlier, along with the copy of Officer Swanson's police report about the July 14 incident, from the kitchen table to one of the upstairs bedrooms in the house, indicating that he saw and read all three documents. See id.
He also forced open the locked door to his father's bedroom, id. at 23, apparently unaware that Officer Michael had hidden the key to the bedroom in the house (Michael Dep. at 53:22-54:6 (Oct. 24, 2011).) Inside the bedroom, Aaron Michael located his father's service weapon and ammunition in the closet, then discovered the key to the gun lock in a drawer in the bedroom. (Def.'s Ex. D-10, at 8.) He then conducted internet research about how to load the weapon, disengage the safety, and otherwise operate the weapon. Id. at 7-8.
Just after 11:30 p.m. on July 20, Ridley Township police responded to a report of gunshots at Ms. Arrington's residence. Id. at 3. The Ridley Township officers discovered Ms. Arrington with numerous gunshot wounds. Id. She was transported to Crozer-Chester Medical Center, where she was pronounced dead shortly after 7:00 a.m. on July 21. Id.
At about the same time as the report of gunfire at Ms. Arrington's residence, Aaron Michael telephoned two of his friends and apparently spoke to both of them simultaneously. Id. at 20. Aaron Michael confessed to shooting Ms. Arrington, as well as to killing two of his young children on earlier occasions. Id. at 8-10, 20. Aaron Michael also described how he had broken into his father's bedroom, found his father's service weapon, discovered the gun lock key, and learned how to operate the weapon. Id. One of the friends to whom Aaron Michael spoke thought Aaron Michael had been drinking. Id. at 20.
After the report of gunfire at Ms. Arrington's residence, officers of the Department were dispatched to Officer Michael's home. Id. at 3. There, they encountered Aaron Michael, armed with his father's service weapon. Id. When Aaron Michael did not comply with the officers' instructions and pointed the weapon at them, one of them fired, striking him in the chest. Id. at 19. Aaron Michael was pronounced dead less than an hour later. Id. at 3.
E. This Action
The Estate of Andrea Arrington by and through Audra L. Thornton Arrington, Administratrix of her Estate (the " Plaintiff" ) brought this action pursuant to 42 U.S.C. § 1983 on July 18, 2011. The Plaintiff brings claims for deprivation of Ms. Arrington's substantive due process rights against Officer Michael under a state created danger theory and against the City on a failure to train theory pursuant to the doctrine announced in Monell v. Dep't of Soc. Servs. ( Monell), 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
II. STANDARD OF REVIEW
Upon considering a motion for summary judgment, the Court shall grant the motion " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In making this determination, " inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (alteration in original) (internal quotation marks omitted). " [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party opposing summary judgment " may not rest upon the mere allegations or denials of the ... pleading; its response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001) (alteration in original) (internal quotation marks omitted).
The summary judgment standard does not change when parties have filed cross-motions for summary judgment. Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir.1987). We " must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." Schlegel v. Life Ins. Co. of N. Am., 269 F.Supp.2d 612, 615 n. 1 (E.D.Pa.2003) (quoting 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (1998)). If review of cross-motions reveals no genuine issue of material fact, then judgment may be granted in favor of the party entitled to judgment in view of the law and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.1998) (citation omitted).
A. State-Created Danger
The Plaintiff brings a § 1983 claim against Officer Michael for depriving Arrington of her Fourteenth Amendment substantive due process rights under a state created danger theory. Officer Michael argues that the record warrants summary judgment in his favor because: (1) he was not acting under color of state law, (2) the harm to Ms. Arrington was insufficiently foreseeable, (3) he did not act with the requisite culpability with respect to Ms. Arrington's safety, (4) no special relationship between Officer Michael and Ms. Arrington existed, (5) he did not affirmatively use his authority to create an opportunity for danger, (6) qualified immunity shields him from suit, and (7) the statutory immunity provided in 18 U.S.C. § 922(z) shields him from suit. Because material factual disputes exist with regard to all of these arguments, summary judgment is not proper.
" Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983.
" Individuals have a constitutional liberty interest in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment." Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir.2008) (citing D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1368 (3d Cir.1992)). Although the Due Process Clause does not require the state to take affirmative steps to protect its citizens from violence inflicted by private parties, see DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the state-created danger doctrine serves as a limited exception to this general proposition, see Phillips, 515 F.3d at 235. The doctrine has four elements:
(1) the harm ultimately caused to the plaintiff was foreseeable and fairly direct; (2) the state-actor acted in willful disregard for the plaintiff's safety; (3)
there was some relationship between the state and the plaintiff; and (4) the state-actor used his authority to create an opportunity for danger that otherwise would not have existed.
Id.  (citing Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir.2006)) (footnote omitted).
1. Action Under Color of State Law
Officer Michael first argues that the record contains no evidence from which a reasonable juror could conclude that he acted under color of state law such that § 1983 applies. This argument has no merit. Courts routinely consider off-duty officers to have acted under color of state law. E.g., Bonenberger v. Plymouth Township, 132 F.3d 20, 23-25 (3d Cir.1997). Officer Michael also had the discretion, granted to him by the Department, to store his service weapon at home if he so chose. (Chubb Dep. at 45:20-46:24 (May 23, 2012).) At a minimum, the evidence of this discretion suffices for a rational juror to conclude that Officer Michael " exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Bonenberger, 132 F.3d at 23 (internal quotations omitted). We also note that Officer Michael himself invoked his official authority in his attempts to persuade his son to surrender to the authorities. (Michael Dep. Ex. 7, at 1-2; Michael Dep. at 81:16-21 (Oct. 24, 2011).) This evidence could also permit a reasonable juror to conclude that Officer Michael acted under color of state law. See Bonenberger, 132 F.3d at 23. Summary judgment on this basis is not proper.
Officer Michael clearly did foresee that Aaron Michael might visit his home during his vacation. (Michael Dep. at 73:9-74:8 (Oct. 24, 2011).) Officer Michael nonetheless argues that the record warrants summary judgment in his favor because he could not have foreseen his son's actions upon visiting the home, including breaking into his father's locked bedroom in order to locate his father's service weapon. The record shows that Officer Michael knew of his son's criminal history (Michael Dep. at 6:6-8:22 (Oct. 24, 2011)), that he had possession of the police report documenting his son's criminal violation of the July 9 Order and his criminal threats of physical violence against Ms. Arrington (Def.'s Ex. D-10, at 23; Pl.'s Mot. for Partial Summ. J. ¶ 39; Def.'s Response to
Pl.'s Cross-Mot. for Summ. J. ¶ 39), that his son had a key to the house (Michael Dep. at 9:17-11:22, 14:20-20:20 (Oct. 24, 2011)), and that he could have inferred that his son knew that he stored his service weapon in the house, see id. at 34:16-36:5. This evidence would permit a reasonable juror to conclude that Officer Michael had a sufficiently concrete awareness of the risk his service weapon posed to Ms. Arrington when stored at home, unattended, and secured only by a single deadbolt and a gun lock whose key lay in the same room. See Phillips, 515 F.3d at 238. Summary judgment on this basis is not proper.
Officer Michael argues that the record here would not permit a reasonable juror to conclude that he acted with deliberate indifference, rather than blamelessly or with mere negligence, to the safety of Ms. Arrington. See Sanford v. Stiles, 456 F.3d 298, 305-306, 311 (3d Cir.2006). Here, the record does contain sufficient evidence for a reasonable juror, crediting the evidence and drawing reasonable inferences in the Plaintiff's favor, to conclude that Officer Michael acted with deliberate indifference for Ms. Arrington's safety. See, e.g., Kneipp v. Tedder, 95 F.3d 1199, 1208-1209 (3d Cir.1996); see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 910 n. 10 (3d Cir.1997) (" [T]he state's actions must evince a willingness to ignore a foreseeable danger or risk." ) Again, one could reasonably infer from the record that Officer Michael knew his son posed a grave risk to Ms. Arrington's safety but nonetheless chose to secure his service weapon at the home which his son could access behind a single deadbolt and with a gun lock whose key lay in the same room. (Michael Dep. at 6:6-8:22, 9:17-11:22, 14:20-20:20, 34:16-36:5 (Oct. 24, 2011); Def.'s Ex. D-10, at 23; Pl.'s Mot. for Partial Summ. J. ¶ 39; Def.'s Response to Pl.'s Cross-Mot. for Summ. J. ¶ 39.) A reasonable juror could, on this basis, conclude that Officer Michael acted with the requisite culpability for state created danger liability when he willingly ignored a foreseeable risk to Ms. Arrington's safety.
4. Relationship with State
Officer Michael argues that no special relationship existed between him and Ms. Arrington such that state created danger liability is unavailable. This requirement " contemplates some contact such that the plaintiff was a foreseeable victim of the defendant's acts in a tort sense." Phillips, 515 F.3d at 242 (quoting Morse, 132 F.3d at 912). We have already concluded that Ms. Arrington was the foreseeable victim of Officer Michael's actions; a reasonable juror could conclude that Officer Michael knew his son posed a grave risk to Ms. Arrington's safety but nonetheless chose to secure his service weapon at the home which his son could access behind a single deadbolt and a gun lock whose key lay in the same room. Ms. Arrington was certainly a foreseeable victim of his actions under traditional tort principles; the state created danger doctrine does not require more. See Phillips, 515 F.3d at 242.
5. Creation of Danger
Officer Michael argues that he took no affirmative steps that enhanced the danger to Ms. Arrington and that the absence of evidence of any affirmative act warrants
summary judgment in his favor. We disagree.
The state created danger doctrine requires that an officer use his authority in a way that created a danger or that rendered the foreseeable victim more vulnerable to danger than had he not acted at all. See Sanford, 456 F.3d at 311. The doctrine requires an affirmative act, see Phillips, 515 F.3d at 236; see also Kneipp, 95 F.3d at 1209, and a failure to act cannot support a state created danger claim, see, e.g., Bennett v. City of Phila., 499 F.3d 281, 288 (3d Cir.2007).
On this record, a jury could conclude that Officer Michael's actions went beyond " mere failure to protect an individual against private violence." See id. Officer Michael, having the discretion not to take his weapon home (Chubb Dep. at 45:20-46:24 (May 23, 2012)), and knowing that his son would likely visit his home (Michael Dep. at 73:9-74:8 (Oct. 24, 2011)), nonetheless decided to store the weapon at home during his vacation. In addition, Officer Michael, in contrast to at least one of his colleagues, exercised his discretion to leave the key to his gun lock in the same room as the gun lock, rather than storing it elsewhere or carrying it with him. (Def. Ex. D-33, at 6; Def.'s SMF ¶ 21; Chubb Dep. at 37:14-38:5, 72:14-73:10 (May 23, 2012).) Because a reasonable juror could conclude, based on this evidence, that Officer Michael exercised his discretion in a manner which left Ms. Arrington more vulnerable to catastrophic violence at the hands of Aaron Michael, summary judgment on this basis is not proper. See, e.g., Starr v. Price, 385 F.Supp.2d 502, 508 (M.D.Pa.2005).
One can also infer from the record that Officer Michael took the affirmative act of leaving a copy of Officer Swanson's police report about the July 14 incident, which detailed Aaron Michael's command to Ms. Arrington not to report the violation of the July 9 Order to the authorities and Ms. Arrington's subsequent decision to report the violation, on his kitchen table for his son to find. (Def.'s Ex. D-10, at 23; Pl.'s Mot. for Partial Summ. J. ¶ 39; Def.'s Response to Pl.'s Cross-Mot. for Summ. J. ¶ 39.) Given that Aaron Michael appears to have read this document at or about the time he broke into Officer Michael's bedroom and took his service weapon, one can infer that the decision to leave this document for Aaron Michael to find also materially increased the risk of harm to Ms. Arrington. See, e.g., Starr, 385 F.Supp.2d at 508.
This record evidence, taken together, creates triable factual issues about whether Officer Michael used his authority in a way that rendered Ms. Arrington more vulnerable to danger than had he not acted
at all. Summary judgment on this basis is not proper.
6. Qualified Immunity
Officer Michael further contends that the doctrine of qualified immunity shields him from liability. Because the applicability of the qualified immunity doctrine depends on the resolution of the material factual disputes we have already identified, we may not apply it at this time.
Government actors engaged in discretionary conduct are subject to qualified immunity. See Lamont v. New Jersey, 637 F.3d 177, 182 (3d Cir.2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). An officer who violates a constitutional right may not avail himself of qualified immunity if the " right was clearly established, such that ‘ it would have been clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ " Id. (quoting Saucier v. Katz, 533 U.S. 194, 201-202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)) (alterations omitted). The qualified immunity issue should be addressed " at the earliest possible stage of litigation." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).
Here, it is clearly established that an officer is liable under the state-created danger doctrine when the officer is aware of the risk of grave harm and is responsible, at least in part, for creating that risk. See Rivas v. City of Passaic, 365 F.3d 181, 200-201 (3d Cir.2004) (Garth, J.); see also United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (" [A] general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful." ) (internal quotations omitted). The relevant constitutional right was clearly established as of July 2009.
Moreover, material factual disputes prevent resolution of the question whether it would have been clear to a reasonable officer in Officer Michael's position that his conduct was unlawful. Construing the record in the light most favorable to the Plaintiff, Officer Michael knew his son was threatening Ms. Arrington, knew his son was ordered by the court to stay away from her, and had access to information that his son was violating that order and threatening Ms. Arrington if she reported the violation. (Def.'s Ex. D-10, at 23; Pl.'s Mot. for Partial Summ. J. ¶ 39; Def.'s Response to Pl.'s Cross-Mot. for Summ. J. ¶ 39.) In light of these circumstances, Officer Michael chose to store his service weapon and ammunition at home, unattended and with the key necessary to use the weapon in the same room as the weapon, where he could have foreseen that his son could access both by disabling a single deadbolt. (Michael Dep. at 6:6-8:22, 9:17-11:22, 14:20-20:20, 34:16-36:5 (Oct. 24, 2011).) So viewed, it would have been clear to a reasonable officer that this conduct would create a sufficient risk of harm to a foreseeable victim, Ms. Arrington. But, viewing the record in the light most favorable to Officer Michael and declining to draw inferences in the Plaintiff's favor, he could not have foreseen the subsequent tragic events of July 20, and it would not have been clear to a reasonable officer that this conduct would create such a risk to Ms. Arrington.
Material disputes therefore exist about the factual predicates necessary to apply the doctrine of qualified immunity to shield Officer Michael from suit. Accordingly, summary judgment in Officer Michael's favor on this basis is not proper.
7. Child Safety Lock Act of 2005 Statutory Immunity
Finally, Officer Michael argues that he is entitled to statutory immunity pursuant to the Child Safety Lock Act of 2005, Pub.L. No. 109-92, § 5, 119 Stat. 2095 (codified at 18 U.S.C. § 922(z)(3)). Because material factual disputes exist on this record about whether the statute immunizes Officer Michael from civil liability in these circumstances, summary judgment is improper on this basis.
" Notwithstanding any other provision of law, a person who has lawful possession and control of a handgun, and who uses a secure gun storage or safety device with the handgun, shall be entitled to immunity from a qualified civil liability action." 18 U.S.C. § 922(z)(3)(A). As relevant here, a " qualified civil liability action" is " (i) ... a civil action brought by any person against a person described in subparagraph (A) for damages resulting from the criminal or unlawful misuse of the handgun by a third party, if ... (I) the handgun was accessed by another person who did not have the permission or authorization of the person having lawful possession and control of the handgun to have access to it; and ... (II) at the time access was gained by the person not so authorized, the handgun had been made inoperable by use of a secure gun storage or safety device." 18 U.S.C. § 922(z)(3)(C) (emphasis added). It follows that the statute immunizes the lawful custodian of a firearm from the relevant liability for a third party's unlawful use of the firearm if the lawful custodian has used a " secure gun storage or safety device"  to make the firearm " inoperable." See id.
Congress' use of the term " inoperable" is puzzling. A strict reading of the term " inoperable" would make it impossible for the immunity provision to apply at all; a third party, no matter how determined, cannot fire a truly " inoperable" firearm and could, therefore, cause no harm which might result in liability from which the statute may immunize him or her. But a loose reading of the term " inoperable" does not accord with the word's plain meaning. See Webster's II New Riverside University Dictionary 630, 823 (3d ed. 1994) (defining " inoperable" as " [n]ot operable" and defining " operable" as " [c]apable of being used or operated" ).
The meaning of the term " inoperable" and the intended scope of the immunity provision are therefore ambiguous. And it appears that no court has ever cited § 922(z) for any substantive purpose, much less interpreted the ambiguous immunity provision at issue here.
The limited legislative history discussing the immunity provision provides some guidance as to the interpretation of the term " inoperable." This legislative history envisions a gun owner's use of a safety device as a fact-specific defense. See 151 Cong. Rec. E2162-63 (daily ed. Oct. 20, 2005) (statement of Rep. Stearns) (" Finally, compliance or noncompliance [with the statute's safety lock provisions] could not even be used as evidence, except ... by a gun owner who wanted to present his use of a safety device as a defense against a civil suit. On that point, section 5 provides a new defense, not a new line of attack.... The [immunity] language neither creates nor eliminates liability for gun owners who use safety devices; in effect, it leaves the common law rules unchanged for those gun owners." ) (emphasis added).
In the absence of express guidance on the scope of immunity provided in § 922(z)(3), and taking into the account the legislative history's reference to " common law rules," id., the Court concludes that it is appropriate to read into the statutory term " made inoperable" a requirement that, for the immunity provision to apply, the secure gun storage or safety device must make the firearm inoperable by reasonably foreseeable means. This interpretation not only accords with the statute's legislative history but also gives effect to the immunity provision insofar as it immunizes responsible gun owners who cannot foresee the manner in which their reasonable security measures were compromised. At the same time, this interpretation prevents the immunity provision from becoming surplusage because it would otherwise only immunize liability which, because such liability requires the operation of an " inoperable" firearm, cannot occur.
Applying this interpretation here, the Court concludes that, as in the qualified immunity context, it is appropriate to defer resolution of this question of law until the factfinder determines certain predicate issues of fact. See Carswell v. Borough of Homestead, 381 F.3d 235, 242-43 (3d Cir.2004). On this record, material factual disputes exist about whether Officer Michael's actions actually rendered his service weapon " inoperable" by reasonably foreseeable means. A reasonable juror could conclude that the use of a gun lock behind a locked bedroom door with the gun lock key stored in the same bedroom renders a firearm so secured inoperable by reasonably foreseeable means. A reasonable juror could also conclude the opposite. Accordingly, whether Officer Michael's use of the gun lock with the key stored in the same room behind a single deadbolt rendered his service weapon " inoperable" through reasonably foreseeable means and whether the other elements of the immunity provision are met is properly resolved after trial.
B. Monell Liability
The Plaintiff also brings a Monell claim for municipal liability against the City on two theories: (1) the City failed to train its police officers with regard to the storage and security of firearms when cohabitants of the officer are prohibited from possessing firearms because of a Protection From Abuse Order, and (2) the City lacked sufficient policies and procedures regarding the proper storage of service weapons and how to handle encounters with family members who may be subject to protection orders or post-conviction state supervision. Citing the same largely undisputed facts, the Plaintiff and the City both move for summary judgment on this claim. We conclude that summary judgment is appropriate in the City's favor on the Plaintiff's Monell claim.
A municipality may be found liable where the allegedly unconstitutional action " implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690, 98 S.Ct. 2018. Such actions can take two forms: an official policy or a custom or usage. Id. at 691, 98 S.Ct. 2018. " Although not authorized by written law, [ ] practices of state officials could well be so permanent and well settled as to constitute a ‘ custom or usage’ with the force of law." Id. (citation omitted). Inadequate police training may also be the basis for municipal liability if the deficient training amounts to " deliberate indifference" to the rights of the person aggrieved. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
In order to sustain Monell liability, a plaintiff must also establish both culpability and causation. " [I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality." Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). The plaintiff " must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Id.
Here, it is undisputed that, although the Department had official policies and training sessions about how officers should exercise their discretion in storing their service weapons, how to respond to domestic violence crimes of violations of Protection From Abuse Orders, and how to respond to incidents involving their relatives, the Department had no such policies or training sessions about how officers should act in the specific circumstances present here. (Pl.'s Mot. for Partial Summ. J. ¶¶ 49-50; Def.'s Response to Pl.'s Cross-Mot. for Summ. J. ¶¶ 49-50.) Rather than disputing the underlying facts, the parties simply dispute the legal effect of the absence of such policies and training sessions.
First, on these undisputed facts, no reasonable juror could conclude that the City and the Department acted unconstitutionally. The City and the Department offered reasonable policy guidance and training for an officer to navigate the difficult factual circumstances in which Officer Michael found himself in July 2009. The Department trained officers to consider " children, friends & family" in determining where to store a service weapon at home (Pl.'s Ex. X, at 2), had an official policy that " [p]olice [o]fficers will not be directed or involve themselves in situations or circumstances involving family members or relatives unless an emergency situation exists" (Pl.'s Ex. V), and had an official policy of strict enforcement of protection from abuse orders and criminal provisions encompassing acts of domestic violence (Pl.'s Ex. W, at 1). Although these policies perhaps could have been more comprehensive, such shortcomings do not a constitutional violation make.
Even assuming that any deficiency in these policies and training sessions had constitutional import, the Plaintiff has presented no evidence that, when the City or the Department failed to adopt policies or conduct training sessions on how to respond to the factual circumstances present here, they acted with deliberate indifference to the known or obvious consequences of such a failure. See Natale v. Camden Cnty. Correctional Facility, 318 F.3d 575, 584 (3d Cir.2003) (citing Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir.2000)). The Plaintiff has pointed to no similar incidents in the past which would have put the City or the Department on notice that their failures to act would likely result in the tragic outcome that resulted here. Moreover, given that the evidence, viewed in the light most favorable to the
Plaintiff, suggests that Officer Michael did not follow the guidance and training which the Department did provide to him, no reasonable factfinder could conclude that these policies and training sessions were so obviously inadequate as to permit imposition of Monell liability without a pattern of similar prior violations. See Berg, 219 F.3d at 276.
To the extent that the Plaintiff argues that Monell liability arises from the City's failure to train officers other than Officer Michael about how to respond to these unique factual circumstances, this analysis applies with equal force. The report of the Plaintiff's expert witness, Dr. Evan Stark,  concludes that the City's and the Department's training, procedures, and policies were so inadequate that they caused all of the officers involved in the relevant events to respond improperly. (Def.'s Ex. D-37, at 20-23.) But Dr. Stark pointedly does not conclude that the need for additional specific training, policies, and procedures about how to respond to this factual scenario was sufficiently obvious that a reasonable juror could appropriately impose Monell liability without evidence of a pattern of similar prior violations. See id.; see also Berg, 219 F.3d at 276. Nor does Dr. Stark conclude that the inadequacies he identifies in the Department's general domestic violence policy, procedures, and training were similarly obvious such that a reasonable juror, crediting his conclusions, could impose liability on the City without evidence of a pattern of similar violations. ( See Def.'s Ex. D-37, at 20-23); see also Berg, 219 F.3d at 276. The measures Dr. Stark faults the City and the Department for not implementing may well be desirable and good policy, but, on this record, the failure to implement them absent a pattern of prior similar incidents cannot support Monell liability for the City.
We conclude that the City's and the Department's undisputed failure to implement policies and conduct training sessions about how officers should respond to the unique facts present here does not represent a constitutional violation. Even if it did, the City and the Department did not act with the requisite culpability in failing to implement additional policies or conduct additional trainings. Summary judgment is therefore appropriate in the City's favor on the Monell claim.
For these reasons, the Defendants' Motion for Summary Judgment is granted in part and denied in part, and the Plaintiff's Motion for Partial Summary Judgment is denied. An appropriate order follows.
AND NOW, this 18th day of December, 2012, upon consideration of the Defendants' Motion for Summary Judgment (ECF No. 21), the Plaintiff's Motion for Partial Summary Judgment (ECF No. 24), the Defendants' Response to the Plaintiff's Motion (ECF No. 25), and the Plaintiff's Response to the Defendants' Motion (ECF No. 27), it is hereby ORDERED that the Defendants' Motion is GRANTED IN PART and DENIED IN PART. The Motion is granted as to the Plaintiff's claim against the City of Chester and denied as to the Plaintiff's claim against Officer Michael.
It is further ORDERED that the Plaintiff's Motion is DENIED.