Shiloh v. John Does, et al

Filing 201

MEMORANDUM (Order to follow as separate docket entry)- For the foregoing reasons, the Court enters judgment in favor of Defendants Hassinger and OShea. There is no evidence to support a claim of excessive force against either Defendant, as testimony at trial established that neither had an active role in the execution of the search warrant at the heart of this lawsuit. Accordingly, the Court finds that the Defendants motion for judgment as a matter of law under Rule 52 of the Federal Rules of Civil Procedure is GRANTED. Signed by Magistrate Judge Karoline Mehalchick on 10/23/2017. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LISA LEE SHILOH,
Plaintiff,

CIVIL ACTION NO. 4:12-CV-01086

v.

(MEHALCHICK, M.J.)

JOHN DOES, et al.,
Defendants.
MEMORANDUM
Plaintiff 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.
I.

PROCEDURAL HISTORY
Given 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.
On June 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 detailed.
These 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. (Doc. 135).
The 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).

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The 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. 1 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).
SERT 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).
Carter 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

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Carter, called by the Defendants, testified first with the consent of Shiloh.
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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).
Next, 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).
Upon 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,
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at 60). The Court then granted the Defendants’ motion and entered judgment. (Doc. 197, at
61).
II.

FINDINGS OF FACT
Based upon the evidence at trial, the Court makes the following findings of facts:
1. Before dawn on June 15, 2010, a special tactical team (SERT) entered the home of
Plaintiff Lisa Lee Shiloh to conduct a search of the residence, pursuant to a warrant
authorized in the days prior to execution.
2. Defendants Hassinger and O’Shea requested both the warrant and tactical assistance
in the execution thereof following an investigation leading the Defendants to believe
that Shiloh and her husband were engaged in the sale of drugs.
3. Hassinger and O’Shea provided the SERT with information on the expected
occupants of the residence, its layout, and expected contents inside including drugs
and firearms.
4. The information provided reflected a belief that Shiloh and her husband kept
weapons in the bathroom adjacent to their bedroom on the second floor of the
residence.
5. Further, the residence had motion sensing lights surrounding the exterior.
6. Per the plan developed by SERT, the front door to Shiloh’s residence was breached
simultaneously with the deployment of tear gas into the bathroom adjacent to
Shiloh’s bedroom in order to prevent access to the weapons believed to be kept in the
bathroom.
7. The team swept the house, which was occupied at the time by Shiloh, her husband,
and their granddaughter.
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8. SERT members secured Shiloh, who had been asleep.
9. Neither Hassinger nor O’Shea participated in planning the tactical execution of the
search warrant, including the use of chemical agents, forcible entry, or securing
Shiloh.
10. Further, neither Hassinger nor O’Shea was present at Shiloh’s residence during the
execution of the warrant, as safety protocols dictated that they wait in a separate
location for the all-clear from the SERT team.
11. Neither Hassinger nor O’Shea was present until Shiloh had been secured by the
SERT team.
III.

CONCLUSIONS OF LAW
1. After a party has been fully heard on an issue, Rule 52(c) provides that failure to
establish the necessary elements of the controlling law may result in judgment
against the party bringing the claim, under the discretion of the trial court. FED. R.
CIV. P. 52(c).
2. The rule also requires partial findings of the court to be supported by findings of fact
and conclusions of law as required by Rule 52(a). FED. R. CIV. P. 52(a).
3. The plaintiff bears the burden of proof on the elements of a § 1983 claim by a
preponderance of the evidence. See, e.g., Groman v. Twp. of Manalapan, 47 F.3d 628,
638 (3d Cir. 1995).
4. The present civil rights claim is for use of excessive force, brought under 42 U.S.C. §
1983. In a civil rights action, the defendant “must have personal involvement in the
alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal

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involvement can be shown through allegations of personal direction or of actual
knowledge of acquiescence.” Rode, 845 F.2d at 1207.
5. In short, Shiloh conceded a lack of personal involvement by Hassinger and O’Shea
that would constitute excessive force at trial.
6. She noted that the Defendants did not have an active role in the execution of the
warrant. Her arguments related to a failure of Hassinger and O’Shea to put a stop to
the chain of events leading to the execution of the warrant.
7. Absent personal involvement, the Defendants cannot be held liable for excessive
force.
8. Further, even were the Court to have permitted Shiloh’s claim of failure to intervene
to proceed, Defendants Hassinger and O’Shea cannot be found to have committed a
constitutional violation.
9. Where “a police officer, whether supervisory or not, fails or refuses to intervene
when a constitutional violation such as an unprovoked beating takes place in his
presence, the officer is directly liable under § 1983.” Smith v. Mensinger, 293 F.3d
641, 650–51 (3d Cir. 2002) (quoting Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.
1986)).
10. More specifically, if a police officer is present when another officer violates a
citizen's constitutional rights, the first officer is liable under § 1983 if that officer had
reason to know that a constitutional violation, such as excessive force, was being
used, and that officer had “a reasonable and realistic opportunity to
intervene.” Smith, 293 F.3d at 651.

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11. Such an opportunity may exist when excessive force is used “in [the officer's]
presence or otherwise within his knowledge” and extends to officers in a nonsupervisory role. Garbacik v. Janson, 111 F.App’x 91, 94 (3d Cir. 2004) (not
precedential) (quoting Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972)).
12. Under any scenario, “[a] failure to intervene claim requires the existence of a
constitutional violation.” Ward v. Noonan, 147 F.Supp.3d 262, 290 (M.D. Pa. 2015)
(quoting Bryant v. City of Phila., 890 F.Supp.2d 591, 601 (E.D. Pa. 2012)).
13. Because the Court found that no constitutional violation occurred, there accordingly
can be no claim for a failure to intervene against Defendants Hassinger and O’Shea.
14. As Shiloh conceded that the Defendants did not themselves commit acts of excessive
force, judgment in Defendants’ favor is warranted.
IV.

CONCLUSION
For the foregoing reasons, the Court enters judgment in favor of Defendants Hassinger

and O’Shea. There is no evidence to support a claim of excessive force against either
Defendant, as testimony at trial established that neither had an active role in the execution of
the search warrant at the heart of this lawsuit. Accordingly, the Court finds that the Defendants
motion for judgment as a matter of law under Rule 52 of the Federal Rules of Civil Procedure is
GRANTED.
An appropriate Order follows.

s/ Karoline Mehalchick

Dated: October 23, 2017

KAROLINE MEHALCHICK
United States Magistrate Judge
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