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Moreno v. City of Pittsburgh

United States District Court, W.D. Pennsylvania

April 9, 2014

GEORGEIA MORENO, GEORGEIA MORENO, on behalf of her minor son, T. MORENO, and her minor daughter, B. MORENO, DARLENE STAYMATES, and MARK STAYMATES, Plaintiffs,
v.
CITY OF PITTSBURGH, CHIEF OF POLICE NATHAN HARPER, OFFICER MICHAEL REDDY, OFFICER BRIAN NICHOLAS, OFFICER WILLIAM FRIBURGER, OFFICER DOUGLAS EPLER, OFFICER DONALD P. GORHAM, OFFICER JOSEPH NOVAKOWSKI, OFFICER LISA KOLARAC, OFFICER NEAL MARABELLO, OFFICER GLENN HAIRSTON, LIEUTENANT JOSEPH TERSAK, OFFICER NATHANIEL BURTT, OFFICER ERIK ENGELHARDT, OFFICER WADE SARVER, and OFFICER CARL MOROSETTI, Defendants. Judge Nora Barry Fischer

MEMORANDUM OPINION AND ORDER

NORA BARRY FISCHER, District Judge.

This is a civil rights action pursuant to 42 U.S.C. ยง 1983, alleging violations of Plaintiffs' constitutional rights stemming from a SWAT raid that occurred on December 7, 2010. (Docket No. 56). Presently pending before the Court are Defendants Reddy, Nicholas, Friburger, Epler, Gorham, Novakowski, Kolarac, Hairston, Marabello, Tersak, Burtt, Engelhardt, Sarver, and Morosetti's ("Defendants") Motion for Summary Judgment. (Docket Nos. 101). This Motion has been fully briefed. (Docket Nos. 101, 102, 103, 111, 112, 113, 114, 117, 121, 123, 126, 127, 128, 129-2). Upon consideration of all the parties' filings before the Court, the parties' arguments at a Motion Hearing held on March 21, 2014, (Docket No. 129), the Supplemental Record Materials provided by the parties on March 24, 2014, and for the reasons more fully stated herein, Defendants' Motion, (Docket No. 101), is DENIED.

I. BACKGROUND

On December 6, 2010 at approximately 9:00 PM, Georgeia Moreno ("Ms. Moreno"), her husband William Moreno ("Moreno"), and her step-father Mark Staymates ("Mr. Staymates"), were at home watching television in their first floor living room.[1] (Docket No. 114-2 at 5). Her son Billy Moreno ("Billy") was in the kitchen. Id. at 13. Her other two young children, T.M. and B.M., and her mother, Darlene Staymates ("Ms. Staymates"), were upstairs. Id. at 14. Suddenly, without warning, a 23-Officer SWAT team in full gear and masks breached the doors of their home using open-air NFDD deployments (i.e., "flash-bang" devices). Id. at 5. The SWAT team was executing an arrest and search warrant for Moreno related to a bar fight that had taken place the previous evening at the Polish Vets Bar. (Docket No. 102-14). Moreno was apparently charged with, and later convicted of, the aggravated assault of an off-duty Pittsburgh Police Officer, Michael Murray ("Murray"), during the bar fight. (Docket No. 101 at 2).

Defendant Carl Morosetti ("Morosetti") investigated the bar fight and discovered that Murray had sustained a fractured lower leg and a skull fracture on his left side, with six staples. (Docket No. 102-3 at 2). After speaking with the bartender who had been working during the fight, Morosetti obtained a copy of videotape surveillance of the fight, and identified Moreno, with the assistance of other officers. Id. Morosetti had not had any prior law enforcement contact with Moreno, but Morosetti apparently "knew" Moreno to be "violent" since Morosetti had been in high school. (Docket No. 114-3 at 7). Morosetti also knew that Moreno was on federal supervised release, and had spoken with Moreno's U.S. Probation Officer, Rosa Doherty ("Doherty"). (Docket No. 114-3 at 12). At this point, the decision to use SWAT was apparently made during a conversation between Morosetti, Defendant Michael Reddy ("Reddy"), and Defendant Brian Nicholas ("Nicholas"). (Docket No. 114-5 at 3). Yet, none of these officers know who made the initial request for SWAT assistance. Id. Even Morosetti denies making any initial request for SWAT assistance. (Docket No. 114-3 at 5-6). Morosetti also did not mention the use of SWAT to Doherty, nor did he ask her whether Moreno or anyone else living within his home could be expected to be violent, armed, or dangerous. (Docket No. 114-4 at 9-12).

Using information provided by Morosetti, Defendant Erik Engelhardt ("Engelhardt") calculated an Arrest/Threat Warrant Section score of 29 based on a SWAT Decision Matrix. (Docket Nos. 102-6 at 3, 114-1). The score of 29 is a middle zone score, in which SWAT was not required, cautioning the zone or unit supervisor, i.e., Morosetti, to contact the SWAT supervisor, i.e., Defendant Joseph Tersak ("Tersak"), for further consultation. (Docket No. 114-1 at 4). Engelhardt calculated the optimal number of SWAT operators (officers) as 24, based on the SWAT team's "standard approach, " (Docket No. 103 at 3), of using two SWAT operators for each problem; this case had seven rooms and five people, which corresponds to twelve problems. (Docket No. 102-6 at 6). Twenty-three SWAT operators were deployed. (Docket No. 114-1).

Subsequently, within less than 24 hours after the bar fight, the SWAT team was assembled and used to breach the front and back doors of the Moreno residence, as noted. (Docket No. 129-2 at 9-10). According to Officer Mescan, who is not a named defendant in this case, it was Officer Mercurio, along with Officer Honick, [2] who made the visual or auditory observation that occupants came to the door, assessed that police sought entry, and began to flee from the location of the door, which allegedly justified immediate breach and forced entry into the home. (Docket No. 102-20 at 3). However, according to Engelhardt, it was Officer Garris who observed a white male "running from the breach" and "called for [Officer] Turko to breach the sliding glass door." (Docket Nos. 121-5 at 18, 129-2 at 10).

Upon breaching the doors of the Moreno residence, the 23-member SWAT team entered and cleared the home. (Docket No. 129-2 at 10). Once the home was secure and Moreno was identified and restrained, nine detectives apparently entered the Moreno residence, confirmed the identification of Moreno, and began interrogating Plaintiffs. (Docket No. 114-9 at 4). Reddy, for instance, sought to identify the other suspects in the bar fight by questioning Ms. Moreno about who was involved in the fight and whether Moreno had mentioned the fight to her. (Docket No. 114-5 at 14). After the detectives determined that Plaintiffs did not have knowledge of the bar fight, they took custody of Moreno and left. The entire SWAT raid, arrest of Moreno, and questioning of Plaintiffs took place over approximately 1-2 hours. (Docket No. 114-6 at 4).

Following the SWAT raid, Plaintiffs discovered damage to their property; for example, Plaintiffs rely on deposition testimony and photographs concerning apparent damage to the front and back doors, the upstairs bedroom doors, the basement, the kitchen table and cupboard, two kitchen chairs, the drywall, a phone, several picture frames, and a laptop computer. (Docket No. 114-2 at 15-16). Plaintiffs also reported physical and emotional injuries, such that both Mr. Staymates and T.M. sought medical treatment.[3] (Docket Nos. 102-12, 102-13).

II. LEGAL STANDARD

"The court shall grant summary judgment 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). Under Rule 56, a district court must enter summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment may be granted when no "reasonable jury could return a verdict for the nonmoving party." Id. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323.

When a non-moving party would have the burden of proof at trial, the moving party has no burden to negate the opponent's claim. Id. The moving party need not produce any evidence showing the absence of a genuine issue of material fact. Id. at 325. "Instead, ... the burden on the moving party may be discharged by showing'-that is, pointing out to the district court- that there is an absence of evidence to support the nonmoving party's case." Id. After the moving party has satisfied this low burden, the nonmoving party must provide facts showing that there is a genuine issue for trial to avoid summary judgment. Id. at 324. "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Id. In considering these evidentiary materials, "courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion." Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and alterations omitted). "In qualified immunity cases, this usually means adopting... the plaintiff's version of the facts." Id.

III. DISCUSSION

At the outset, Plaintiffs admit that "defendants obtained an arrest warrant for William Moreno and a search warrant for the Celtic street home." (Docket No. 111 at 2). "Together, these warrants gave the defendants the authority to enter the plaintiffs' home and identify and arrest William Moreno." Id. They also "gave them permission to conduct a protective' sweep of the area in which Moreno was found." Id. However, Plaintiffs argue that Defendants used excessive force in their decision to use SWAT and during their entry to and search of the Moreno residence. Id. at 21-22. They also contend that "[c]ollecting personally identifying information on every person in the home after an arrest warrant has been served is standard procedure with the City of Pittsburgh Bureau of Police, " which they maintain is unconstitutional. Id. at 3.

A. Decision to Use SWAT

When an "excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right to be secure in their persons... against unreasonable... seizures' of the person." Graham v. Connor, 490 U.S. 386, 394 (1989). "The proper test for evaluating an excessive force claim is therefore one of objective reasonableness." Sharrar v. Felsing, 128 F.3d 810, 820 (3d Cir. 1997), abrogated on other grounds by Curley v. Klem, 499 F.3d 199, 211 (3d Cir. 2007). "Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396 (internal quotation marks and citations omitted).

"Of course, the fact that the defendants had probable cause to arrest [plaintiff] does not mean that they could use any amount of force in that process." Estate of Smith v. Marasco ("Marasco I"), 318 F.3d 497, 515 (3d Cir. 2003). "To state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a seizure' occurred and that it was unreasonable." Id. "There is no per se rule that pointing guns at people, or handcuffing them, constitutes an arrest." Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995). "Under Michigan v. Summers, during execution of a search warrant, police can detain the occupant of the house they have a warrant to search." Id. at 1191 (citing Michigan v. Summers, 452 U.S. 692 (1981)) ("Under these circumstances, it was entirely reasonable to order the Bakers to get down, ' until the situation was under control."). "This is reasonable to protect the police, to prevent flight, and generally to avoid dangerous confusion: The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.'" Id. (quoting Michigan v. Summers, 452 U.S. 692, 702-03 (1981)).

Under the standard of objective reasonableness, "if a use of force is objectively unreasonable, an officer's good faith is irrelevant; likewise, if a use of force is objectively reasonable, any bad faith motivation on the officer's part is immaterial." Marasco I, 318 F.3d at 515. To that end, even extreme "Rambo-type" behavior or methods may not constitute excessive force under the Fourth Amendment, despite causing "plaintiffs' ...


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