United States District Court, M.D. Pennsylvania
KAROLINE MEHALCHICK United States Magistrate Judge
Lisa Lee Shiloh filed the instant civil rights action on June
8, 2012. (Doc. 1). Proceeding through five years of pre-trial
motions, discovery, and amendments, the matter culminated
with a bench trial on August 15, 2017. (Doc. 195). The sole
claim remaining at trial was Shiloh's claim for excessive
force against Defendants Hassinger and O'Shea. Following
presentation of the Plaintiff's case, the Defendants
moved for judgment as a matter of law pursuant to Rule 52
of the Federal Rules of Civil Procedure, which was
granted. Contained within this Memorandum are the Court's
findings of fact and conclusions of law warranting the entry
of judgment in favor of Defendants Hassinger and O'Shea.
the duration of this action, much of the procedural history
is omitted and the Court focuses primarily on the case
progression as it relates to the issues at trial.
8, 2012, Shiloh filed her complaint alleging violations of
her Fourth, Eighth and Fourteenth Amendment rights as a
result of a search of her home by authorities involving
forcible entry and chemical agents. (Doc. 1). Shiloh alleged
that the use of tear gas was not identified on the warrant
and caused medical distress that went ignored by the
Defendants. (Doc. 1). Further, she stated that the Defendants
handcuffed her while she was not clothed, until two male
Defendants dressed her, constituting cruel and unusual
punishment. (Doc. 1). Lastly, she stated that the forcible
entry performed six days after the signing of a search
warrant violated her due process rights. (Doc. 1). Defendants
Hassinger and O'Shea were identified in the initial
complaint, although their specific participation was not
Defendants were initially dismissed on May 14, 2013. (Doc.
36). Shiloh filed an amended complaint on August 9, 2013.
(Doc. 49). Therein, she reaffirmed that the Defendants
participated in the deployment of tear gas and forcible entry
into her home without announcing their presence. The
Defendants filed an answer to the operative complaint on
August 8, 2014, denying all allegations. (Doc. 78). The
Defendants moved for summary judgment on November 5, 2014,
arguing they should be dismissed because they were not
present at the time of the entry. (Doc. 94; Doc. 97). The
Court recommended dismissal of all Defendants contained in
the motion except Hassinger and O'Shea, finding disputes
of fact remained on their presence at the time of entry and
participation in planning of the search. (Doc. 130). The
Report and Recommendation was adopted on September 17, 2015.
parties consented to proceed before the undersigned on June
1, 2017, and four days later the Court set trial for August
15, 2017. (Doc. 183). On July 17, 2017, Shiloh moved for
leave to include a Fourth Amendment failure to intervene
claim against Hassinger and O'Shea. (Doc. 186). Citing
evidentiary and timing concerns, the Court denied
Shiloh's motion on August 9, 2017. (Doc. 192).
case then proceeded to trial. The first witness to testify
was Lieutenant Gary Carter, tactical leader for the Special
Emergency Response Team on the day of the
search. Carter testified that the Defendants
requested the service of the SERT team for the search of
Shiloh's residence. (Doc. 197, at 10). The Defendants
informed the SERT team on the house layout, expected
occupants (Shiloh and her husband, along with a dog), the
background of the occupants including law enforcement
training, the presence of motion sensing lights at the home,
and expected presence of drugs and firearms. (Doc. 197, at
11). As a result of these beliefs, SERT approved the
Defendants' request for SERT assistance in execution of
the search warrant. (Doc. 197, at 11).
members then developed the plan for execution of the warrant.
(Doc. 197, at 14). The plan developed involved concurrent
entry and deployment of agents through the window of the
bathroom adjacent to Shiloh's bedroom, due to concerns
about access to firearms in the bathroom, to be performed
between 4 and 4:30 a.m. (Doc. 197, at 15).
then testified that the plan was executed as planned on June
15, 2010. (Doc. 197, at 17). He testified that on the date of
the execution of the search and arrest warrants, the SERT
team arrived at the Plaintiff's home between 4:00 and
4:30am. (Doc. 197, at 15.) The “knock and
announce” was initiated and two rounds of tear gas were
deployed into the master bathroom of the residence where
investigators believed the guns were kept. (Doc. 197, at 17).
Both the Plaintiff and her husband were found in the master
bedroom, secured without incident, and taken into custody.
(Doc. 197, at 17). Approximately two minutes elapsed from the
time of the “knock and announce” until the
securing of Plaintiff and her husband. (Doc. 197, at 19).
SERT members then opened the windows in the home to help
ventilate the gas. (Doc. 197, at 19). Carter testified that
neither Hassinger nor O'Shea were not at the house when
the gas was deployed, nor entered the house with the SERT
team. (Doc. 197, at 17-18.). Carter stated that Hassinger and
O'Shea waited at a restaurant along Route 97 for safety
purposes, as is standard practice. (Doc. 197, at 20). Lastly,
Carter testified that the Defendants did not participate in
the development of the SERT plan and did not arrive until
after Shiloh had been secured. (Doc. 197, at 21).
Shiloh herself took the stand. During her testimony, Shiloh
stated that Hassinger and O'Shea did not commit the
specific acts of force, but permitted it to happen and
provided false information leading to execution of the
warrant. (Doc. 197, at 37-38). In support, Shiloh testified
that Hassinger and O'Shea clocked in around 3 a.m. and
she remembers seeing them in her bedroom before the gas had
cleared. (Doc. 197).
conclusion of Shiloh's testimony, the Defendants moved
for judgment as a matter of law. (Doc. 197, at 58). Counsel
argued that Shiloh's testimony demonstrated that
Hassinger and O'Shea did not deploy the gas, knock down
the door, or participate in the tactical entry in any way.
(Doc. 197, at 58). Further, citing the testimony of
Lieutenant Carter, counsel averred that the Defendants did
not participate in the creation of the plan. (Doc. 197, at
58). Counsel argued the information provided to SERT
demonstrated a need for use of force tactics that was not
excessive under the circumstances. (Doc. 197, at 59). Counsel
stated that evidence of being on the clock was insufficient
to find that either Hassinger or O'Shea used excessive
force against Shiloh. (Doc. 197, at 60). Shiloh responded
that her claim was predicated upon the Defendants
responsibility for the planning of the search and that they
failed to step in to stop it. (Doc. 197, at 60). The Court
then granted the Defendants' motion and entered judgment.
(Doc. 197, at 61).