United States District Court, W.D. Pennsylvania
ANNETTE BROOKINS and DONALD BROOKINS, administrators of the estate of RASHAAD BROOKINS, deceased, Plaintiffs,
CITY OF PITTSBURGH, et al., Defendants.
ROBERT C. MITCHELL, Magistrate Judge.
It is respectfully recommended that the motion for summary judgment filed on behalf of the defendants (ECF No. 20) be granted with respect to Counts I-II of the Complaint and that Counts III-V be dismissed pursuant to 28 U.S.C. § 1367(c)(3).
Plaintiffs, Annette Brookins and Donald Brookins, as administrators of the estate of Rashaad Brookins, bring this civil rights action pursuant to 28 U.S.C. § 1983 and related state law claims, arising out of the events of October 7, 2010, during which City of Pittsburgh police officers Ronald Absten and Kevin Swimkosky shot and killed the Brookins' decedent, Rashaad Brookins. Named as Defendants are the City of Pittsburgh, Absten, Swimkosky and a Pittsburgh police officer identified only as John Doe.
Currently pending before the Court is a motion for summary judgment, filed by the Defendants. For the reasons that follow, the motion should be granted with respect to Counts I-II of the Complaint and Counts III-V should be dismissed pursuant to 28 U.S.C. § 1367(c)(3).
Defendant Ronald Absten is a City of Pittsburgh Police officer. Defendant Kevin Swimkosky is also a City of Pittsburgh Police Officer, and has been since he was hired in December, 2001. (Swimkosky Aff. ¶ 1.) Officer Swimkosky indicates that he received substantial education and training on the proper use of force from the City of Pittsburgh Police Training Academy prior to initial deployment. (Swimkosky Aff. ¶ 2.)
In 2004, Officer Swimkosky was assigned to the Zone 5 station, and worked as a patrol officer. (Swimkosky Aff. ¶ 3.) On October 7, 2010, Officer Swimkosky and his partner responded to a burglary in progress at the Frog's Club located at 532 Paulson Avenue, within Zone 5 in the Homewood neighborhood of the City. (Swimkosky Aff. ¶ 4; Investigative report dated 10/7/2010, at 3).
Officer Swimkosky and his partner were the first to arrive on scene and Officer Swimkosky secured the front door while his partner secured the rear of the club. Officer Swimkosky took note that the front door was closed and the frame of the door appeared to be damaged. (Swimkosky Aff. ¶ 5; Investigative report dated 10/7/2010, at 3.)
Officer Absten arrived on the scene as backup, along with his K9 partner, Kuly, a Belgian Malinois. By then, several units formed a perimeter around the club. Officer Absten was informed that the front door had been damaged. (Absten Aff. ¶¶ 1-2; Swimkosky Aff. ¶ 6; Investigative report dated 10/7/2010, at 3.)
Officer Absten asked Officer Swimkosky to assist him in searching the building. (Swimkosky Aff. ¶ 6.) Officer Absten, along with Kuly, approached the front door and gave a standard K9 warning: "Pittsburgh Police K9, anyone inside talk or I'll release the dog." (Absten Aff. ¶ 3; Swimkosky Aff. ¶ 6.) He gave the warning three times, saying it loudly and clearly each time. (Absten Aff. ¶ 4; Swimkosky Aff. ¶ 7.)
Officer Absten, Officer Swimkosky, and Kuly then entered the building. The building's alarm was ringing and it was very dark. Officer Absten allowed Kuly to search the entire first floor with negative results. (Absten Aff. ¶ 5; Swimkosky Aff. ¶ 8.)
As Officer Absten was about to ascend the stairs to search the second floor, he heard a noise coming from the second floor leading him to believe that someone was up there. (Absten Aff. ¶ 6.) Officer Absten went up the steps to the second floor, where he commanded Kuly to search several of the rooms. Officer Swimkosky provided lighting from the top of the stairwell because the rooms were poorly lit. (Absten Aff. ¶ 7; Swimkosky Aff. ¶ 9.)
Upon hearing another sound in an adjacent room, Officer Absten commanded Kuly to return to him near the top of the steps. (Absten Aff. ¶ 8.) Officer Absten again gave a police K9 warning, and immediately after, Rashaad Brookins ("Brookins") opened a door leading to a kitchen area. Officer Absten then saw Brookins standing in the center of the room. (Absten Aff. ¶ 9.)
Kuly began a "hold and bark" technique while Officer Absten gave commands for Brookins to get on the ground. Brookins refused saying that he "ain't gotta do shit." (Absten Aff. ¶ 10.)
At this point, Officer Swimkosky entered the kitchen area from a different doorway in the rear of the building, also giving orders for Brookins to get on the ground. The area was dark, with little lighting beyond the officers' tactical lights and flashlights. (Absten Aff. ¶ 10; Swimkosky Aff. ¶ 11.)
Brookins never complied with either officer's commands, instead looking towards them with a "crazed look" and appearing agitated by their presence. (Swimkosky Aff. ¶¶ 10, 11.) Kuly, after hearing the orders being yelled by Officer Swimkosky, became distracted and Officer Absten had to hold Kuly by the collar with one hand while holding his service pistol in the other hand. (Absten Aff. ¶ 12.)
Brookins then lunged at Officer Absten aggressively with a fist raised, so Officer Absten struck Brookins in the head with his service pistol, and commanded him to back off. (Absten Aff. ¶ 13; Swimkosky Aff. ¶ 12.) Brookins stumbled back into a door and Officer Absten momentarily lost sight of him. Officer Absten then regained sight of him and both officers ...