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Slusar v. Sestili

United States District Court, Third Circuit

October 21, 2013

ERIKA SLUSAR, Plaintiff,
v.
BERNARD J. SESTILI, JR, Defendant.

OMNIBUS OPINION AND ORDER OF COURT

TERRENCE F. McVERRY, District Judge.

Presently pending before the Court are DEFENDANT'S MOTION IN LIMINE SEEKING THE PROHIBITION OF ANY EVIDENCE REGARDING THE ACTIONS OF SETTLED CO-DEFENDANT, ALAN E. HARFF (ECF No. 142); DEFENDANT'S MOTION IN LIMINE SEEKING THE PROHIBITION OF ANY EVIDENCE REGARDING PRIOR CIVILIAN COMPLAINTS, LAWSUITS OR DISCIPLINE WITH RESPECT TO DEFENDANT, POLICE OFFICER BERNARD J. SESTILI, JR. (ECF No. 143); DEFENDANT'S MOTION IN LIMINE SEEKING THE PROHIBITION OF ANY EVIDENCE REGARDING THE POLICE PERSONNEL FILE OF OFFICER BERNARD SESTILI (ECF No. 146); PLAINTIFF'S CONSOLIDATED MOTIONS IN LIMINE, NUMBERS ONE THROUGH EIGHT (ECF No. 148); and PLAINTIFF'S EMERGENCY MOTION TO COMPEL COMPLIANCE WITH SUBPOENA REQUIRING ATTENDANCE AT TRIAL OF PENN HILLS POLICE CHIEF HOWARD BURTON (ECF No. 166). The parties have submitted briefs in support of, and in opposition to, the motions and they are ripe for disposition.

Trial in this contentious civil rights case is scheduled to commence on October 28, 2013. The Court believes that it is important to provide clear ground rules for the presentation of evidence to facilitate efficient presentation of the case and to avoid disputes between counsel in the presence of the jury.

Factual and Procedural Background

This case arose out of an incident on May 18, 2011, when Defendant Constable Alan E. Harff arrived at Plaintiff Erika Slusar's home at 6352 Saltsburg Road, in the municipality of Penn Hills, Pennsylvania, to serve validly issued arrest warrants on Slusar's alleged boyfriend, Darrick Pryor. Slusar refused to permit Harff to enter her home without a search warrant. Harff summoned Penn Hills police to the scene. Penn Hills police officer Sestili responded and advised Slusar that Slusar would be criminally charged if she refused to let Harff into her home. Slusar continued to refuse entrance. Sestili spoke with his sergeant by phone and was instructed to not enter the home. Sestili and the other Penn Hills officers who had arrived on the scene then returned to their cars, and the other officers left. Harff eventually brandished his gun; forced entry into the home over Slusar's protests; and searched for Pryor, who was not found. Sestili did not personally enter the home or observe the interaction between Slusar and Harff, but he did remain on scene and spoke afterwards with Harff.

After the incident, Slusar called 911 to report the events, which call was relayed to the Penn Hills police department. She also called the local television network news reporting agencies. Later that evening, Sestili allegedly left a voicemail message on Slusar's phone in which he theoretically threatened to charge Slusar with hindering Pryor's arrest if she filed a complaint regarding alleged official misconduct. A local television station aired a segment about the incident on the 11:00 p.m. news that evening.

Sestili initially completed an "incident report" but did not file any charge(s) against Slusar for approximately a month. Sestili further asserts that he had no further conversations with Harff between May 18 and June 15, 2011. On June 1, 2011 Slusar's attorney contacted the Allegheny County District Attorney ("ACDA") to request an investigation into the officers' conduct. Sestili allegedly became aware of this investigation shortly thereafter and on June 15, 2011 he filed criminal charges against Slusar for: (1) Obstructing the Administration of Law, 18 P.S. § 5101; (2) Hindering Apprehension or Prosecution, 18 P.S. § 5105; and (3) Disorderly Conduct, 18 P.S. § 5503, all based on her conduct during the May 18 incident. The charges were dismissed by Magesterial District Judge Leonard Hromyak after a preliminary hearing on September 19, 2011.

Plaintiff Slusar and Defendant Constable Harff have reached an amicable resolution of this lawsuit and Harff is no longer a party to this case. The only remaining claim is against Officer Sestili for First Amendment Retaliation. To succeed on this claim, Slusar must prove: (1) that she engaged in constitutionally-protected activity; (2) that Sestili responded with retaliatory action that was sufficient to deter a person of ordinary firmness from exercising her rights; and (3) that there was a causal connection between the protected activity and the retaliatory action. Eichenlaub v. Twp. of Indiana , 385 F.3d 274, 282 (3d Cir. 2004).

As to the first element of Plaintiff's cause of action, Slusar asserts four instances of alleged protected activity: (1) invoking her Fourth Amendment right to prevent access to the home during the incident; (2) calling 911 later on May 18, the day of the incident; (3) contacting the ACDA between May 19-23; and (4) instructing her attorney to contact ACDA on her behalf on June 1. As to the second element, Slusar references the phone message left by Sestili on the evening of May 18 and the filing of criminal charges against her on June 15. Harassment and intimidation by police may constitute retaliatory action, if such conduct would be sufficient to deter a person of ordinary firmness from exercising his/her rights. See Dec v. Pennsylvania State Police , 2012 WL 6099078 at *8 (W.D. Pa. 2012) (Hornak, J.). The "deterrence threshold" is very low. O'Connor v. City of Newark , 440 F.3d 125, 127-28 (3d Cir. 2006). These elements of the claim are discrete and it is essentially uncontested that such conduct occurred. However, the parties may dispute, and the jury may have to resolve, whether leaving the phone message by Sestili constituted retaliatory conduct - this is a fact issue.

The most difficult determination for the jury to resolve is causation. Plaintiff has articulated two distinct theories of liability. First, Slusar argues that Sestili left the phone message to retaliate for Slusar's assertion of her Fourth Amendment rights and her 911 call earlier on May 18. Second, Slusar contends that Sestili filed charges a month later, on June 15, in retaliation for Slusar having triggered an ACDA investigation of the matter. Because this second theory of alleged retaliation took the form of filing criminal charges, Slusar must also show the absence of probable cause for those charges. Hartman v. Moore , 547 U.S. 250, 265-66 (2006). Sestili contends that he met with an Assistant District Attorney and had probable cause to file the charges against Slusar, and that he did not act in retaliation for her alleged protected activity. The jury must decide these issues, and if it finds in favor of Slusar, it must decide the amount of compensatory damages, if any, and whether or not to award punitive damages against Sestili.

Discussion

With that background of the issues remaining for trial, the Court turns now to the numerous motions in limine filed by the parties. To the extent that the parties have raised related topics, those will be addressed together. As explained above, it is the Court's objective to provide clear guidance to counsel, such that the evidence presented at trial is narrowly tailored to the sole remaining claim(s) and defenses thereto.

A. Constable Harff

Both parties seek to limit the scope of the evidence regarding Constable Harff. The Court agrees that the evidence must be narrowly confined to the First Amendment Retaliation claim against police officer Sestili. The jury will be instructed that it may not consider either the merits or disposition of any claims against ...


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