MORENO et al v. CITY OF PITTSBURGH et al

Filing 130

MEMORANDUM OPINION AND ORDER indicating that upon consideration of Defendants' Motion for Summary Judgment 101 , all the parties filings before the Court, the parties arguments at a Motion Hearing held on 3/21/14 129 , the Supplemental Record Materials provided by the parties on 3/24/14, and for the reasons more fully stated herein, it is hereby ordered that that Defendants' Motion for Summary Judgment 101 is DENIED. It is further ordered that: 1. Plaintiffs shall file their Pretr ial Statement by no later than 4/23/14 at 12:00 PM; 2. Defendants shall file their Pretrial Statement by no later than 5/7/14 at 12:00 PM; 3. A Status Conference is scheduled for 5/12/14 at 3:00 PM to set a trial date and establish deadlines for the Court's Pretrial Order. Signed by Judge Nora Barry Fischer on 4/9/14. (tql)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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Plaintiffs,
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v.
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CITY OF PITTSBURGH, CHIEF OF
POLICE NATHAN HARPER, OFFICER
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MICHAEL REDDY, OFFICER BRIAN
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NICHOLAS, OFFICER WILLIAM
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FRIBURGER, OFFICER DOUGLAS EPLER,
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OFFICER DONALD P. GORHAM,
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OFFICER JOSEPH NOVAKOWSKI,
OFFICER LISA KOLARAC, OFFICER
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NEAL MARABELLO, OFFICER GLENN
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HAIRSTON, LIEUTENANT JOSEPH
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TERSAK, OFFICER NATHANIEL BURTT,
OFFICER ERIK ENGELHARDT, OFFICER )
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WADE SARVER, and OFFICER CARL
MOROSETTI,
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Defendants.

GEORGEIA MORENO, GEORGEIA
MORENO, on behalf of her minor son, T.
MORENO, and her minor daughter, B.
MORENO, DARLENE STAYMATES, and
MARK STAYMATES,

Civil Action No. 12-615
Judge Nora Barry Fischer

MEMORANDUM OPINION AND ORDER
This is a civil rights action pursuant to 42 U.S.C. § 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
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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
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The facts are viewed in the light most favorable to the Plaintiffs, as this case comes before the Court on
Defendants’ Motion for Summary Judgment. See, e.g., Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004) (“Under Federal Rule of Civil Procedure 56(c), summary judgment is proper where no genuine issue of
material fact exists, and where, viewing the facts in the light most favorable to the party against whom summary
judgment was entered, the moving party is entitled to judgment as a matter of law.”).

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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. 1141 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

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During the Motion Hearing held on March 21, 2014, counsel for Defendants informed the Court that Officer
Mercurio was not deposed, but that Officer Honick was deposed, and Counsel for Plaintiffs offered to provide the

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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.

Court with the deposition of Officer Honick. However, upon further discussion, counsel for Defendants informed
the Court that Officer Mercurio was relying on a second version of the SWAT Operations Deployment Report,
(Docket No. 129-2 at 10), which was apparently produced months after the first version of the SWAT Operations
Deployment Report, (Docket No. 114-1), had been produced and the City of Pittsburgh knew of the pending
litigation, (Docket No. 129). The second version does not attribute the apparent visual or auditory observation of
Moreno’s attempt to escape or find a weapon to Officer Honick, but to Officer Garris, consistent with Engelhardt’s
deposition testimony. (Docket Nos. 121-5 at 18, 129-2 at 10). In any event, no deposition testimony (if it exists) for
either Officer Honick or Garris was provided to the Court, and the facts are sufficiently disputed to warrant denial of
summary judgment on this issue, as the Court discusses in § III.B, infra. The Court proceeds with its ruling.

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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

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In response, Defendants obtained an independent medical examination of T.M. that disputes whether T.M.’s
injuries were related to the SWAT raid. (Docket No. 102-21 at 1-3).

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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.”

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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

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515. To that end, even extreme “Rambo-type” behavior or methods may not constitute excessive
force under the Fourth Amendment, despite causing “plaintiffs’ discomfort and humiliation.”
Sharrar, 128 F.3d at 821-22. Nevertheless, the Third Circuit has made clear that:
The decision to deploy a SWAT team to execute a warrant
necessarily involves the decision to make an overwhelming show
of force—force far greater than that normally applied in police
encounters with citizens. Indeed, it is the SWAT team’s
extraordinary and overwhelming show of force that makes
‘dynamic entry’ a viable law enforcement tactic in dealing with
difficult and dangerous situations....
....
The ‘SWAT’ designation does not grant license to law
enforcement officers to abuse suspects or bystanders, or to vent in
an unprofessional manner their own pent-up aggression, personal
frustration or animosity toward others. If anything, the special
circumstances and greater risks that warrant ‘dynamic entry’ by a
SWAT team call for more discipline, control, mindfulness, and
restraint on the part of law enforcement, not less. SWAT officers
are specially trained and equipped to deal with a variety of difficult
situations, including those requiring a swift and overwhelming
show of force. At all times, SWAT officers no less than others—
dressed in camouflage or not—must keep it clearly in mind that we
are not at war with our own people.
Marasco I, 318 F.3d at 517-18 (quoting Holland v. Harrington, 268 F.3d 1179, 1190-95 (10th
Cir. 2001)).
Here, Plaintiffs have adduced sufficient evidence to demonstrate a genuine issue of
material fact as to whether the decision to use SWAT was reasonable. To this end, a reasonable
jury could conclude that at the time the decision was made to use SWAT to secure his arrest,
Moreno was already on federal supervised release with a U.S. Probation Officer who had reliable
information and known intelligence, yet neither Morosetti nor the SWAT team asked for any of
this information prior to executing the SWAT raid. (Docket No. 114-4 at 6-9). The Probation
Officer testified that she could have provided Defendants with information concerning whether

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Moreno was likely to be armed, violent or stable, a threat to the community, or a flight risk, as
well as whether he would be likely to obey police orders or turn himself in. Id.
A reasonable jury could also credit the Probation Officer’s testimony that had she known
that Morosetti intended to use a SWAT team, she would have expressed concern over the safety
of the small children and elderly people who lived in the house with Moreno, as they appeared to
be a decent family. Id. The jury could weigh whether Morosetti made any inquiries with the
Probation Officer about the nature of the individuals living with Moreno or whether they were
likely to be involved in any criminal activity or to comply with police orders. Id. The fact that a
U.S. Probation Officer with knowledge of the facts, and with responsibility for his supervision,
may not have believed that SWAT was necessary to execute his arrest, or at minimum would
have reconsidered the use of SWAT, given the other residents within the Moreno home,
undermines Defendants’ Motion for Summary Judgment on the decision to use SWAT. Id.
A jury could further find that the score of 29 for the SWAT Decision Matrix was not
reasonable because two of the 29 points were assessed due to Defendants’ assumption that
“[s]ervice of warrant requires forced entry (use of a ram or pry tool),” (Docket No. 114-1 at 3),
particularly when Defendants had not yet arrived at the Moreno residence, or provided Moreno
with an opportunity to surrender without requiring forced entry or immediate breach. To that
end, the Court is mindful that “regardless of whether objective reasonableness invokes a different
and heightened standard from negligence, reasonableness under the Fourth Amendment should
frequently remain a question for the jury.” Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999).
After viewing the facts in the light most favorable to Plaintiffs, the Court finds that
summary judgment is not warranted as to the initial decision to use SWAT to execute the arrest
of Moreno.

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B.

Entry into the Moreno Home and Subsequent Investigation.

Even putting aside the objective reasonableness of the decision to use SWAT, Plaintiffs
have also presented sufficient facts to withstand summary judgment on the claim that Defendants
used excessive force while entering and clearing the Moreno residence. Of course, “[t]he
calculus of reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.” Graham, 490
U.S. at 396-397. “Not every push or shove, even if it may later seem unnecessary in the peace of
a judge’s chambers, violates the Fourth Amendment.” Id. (internal quotation marks omitted).
“In determining the reasonableness of all degrees of force, the Supreme Court has said
that the factors to consider include the ‘severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officer or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.’” Abraham, 183 F.3d at 289 (quoting Graham, 490
U.S. at 396). The “use of guns and handcuffs must be justified by the circumstances.” Baker, 50
F.3d at 1193. “[W]e must look at the intrusiveness of all aspects of the incident in the aggregate.”
Id. (“Here, accepting the Bakers’ testimony, the police used all of those intrusive methods
without any reason to feel threatened by the Bakers, or to fear the Bakers would escape.”).
Because “each case alleging excessive force must be evaluated under the totality of the
circumstances … the absence of physical injury [does not] necessarily signif[y] that the force has
not been excessive, although the fact that the physical force applied was of such an extent as to
lead to injury is indeed a relevant factor.” Sharrar, 128 F.3d at 822. “Other relevant factors
include the possibility that the persons subject to the police action are themselves violent or
dangerous, the duration of the action, whether the action takes place in the context of effecting an

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arrest, the possibility that the suspect may be armed, and the number of persons with whom the
police officers must contend at one time.” Id. Even if individuals are “ordered out of bed naked
and held at gunpoint while the deputies searched their bedroom for the suspects and a gun,” the
Supreme Court has held, “[d]eputies were not required to turn their backs to allow [plaintiffs] to
retrieve clothing or to cover themselves with the sheets.” Los Angeles Cnty., California v.
Rettele, 550 U.S. 609, 612, 615 (2007). However, the continued detention of individuals at
gunpoint can become unreasonable if “there is simply no evidence of anything that should have
caused the officers to use the kind of force they are alleged to have used.” Baker, 50 F.3d at
1193; see also Rettele, 550 U.S. at 615 (“This is not to say, of course, that the deputies were free
to force Rettele and Sadler to remain motionless and standing for any longer than necessary.”).
Here, the Court notes first the complete absence of a hostage, barricaded gunman, sniper,
or active shooter, in which time may have been of essence or innocent lives at risk, which could
provide a reason to breach the Moreno residence immediately. Delaying a forced entry by a
matter of minutes to accurately assess the actual threat would not have risked any lives or the
escape of Moreno. See Estate of Smith v. Marasco (“Marasco II”), 430 F.3d 140, 152 (3d Cir.
2005) (“When viewing the facts in the light most favorable to the Smiths, we believe that a
reasonable officer would have concluded that, at the time the decision was made, Smith did not
pose a threat that was sufficiently serious and immediate as to require storming his house.”). The
SWAT team had already covered all exits and escape routes from the home with its 23 operators.
No contraband or evidence was sought. The SWAT team could have allowed Moreno to
surrender voluntarily rather than arresting him at gunpoint in front of his young children.
The only justification provided by SWAT for the immediate breach is the alleged
observation that Moreno attempted to escape or find a weapon. (Docket No. 102-20 at 3). Yet,

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there is no deposition testimony by any of the officers who apparently observed Moreno’s
attempt to escape.

Officer Mescan, who is not a named Defendant, provided deposition

testimony that it was Officer Mercurio, along with Officer Honick, who made the visual or
auditory observation that the occupants came to the door, assessed that there were police seeking
entry, and began to flee from the location of the door, which was the purported justification for
immediate breach and forced entry. (Docket No. 102-20 at 3). Officer Mescan testified: “In this
case I’m not going to speak for them, but they saw something that indicated that we were there.
They knew it was the police and began to flee away from the location. At that point, they
breached the door.” (Docket No. 121-9 at 2-3). Officer Mescan thus affirmed that he himself
did not observe Moreno’s attempted escape. Id. 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 No. 121-5 at 18). Nevertheless, the Court has
been provided with no deposition testimony or affidavits from Officers Mercurio, Honick,
Garris, or Turko, none of whom are Defendants. Defendants also do not mention any of these
Officers or their observations within their Statements of Facts. (Docket Nos. 103, 117). Given
Defendants’ failure to produce any deposition testimony from witnesses who apparently
observed Moreno’s alleged attempt to escape or find a weapon, the Court finds that Defendants
have not established that summary judgment on Defendants’ decision to breach the door is
warranted.
Plaintiffs also rely on their deposition testimony that none of them had heard any
announcements from the public address system prior to the breach of the front and back doors,
despite Engelhardt’s testimony to the contrary.

After viewing the facts in the light most

favorable to Plaintiffs, this factual issue should be reserved for the jury, as it is up to the jury to

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determine the credibility of witnesses on such contested points. See Marino v. Indus. Crating
Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255) (“In considering a
motion for summary judgment, a district court may not make credibility determinations or
engage in any weighing of the evidence; instead, the non-moving party’s evidence ‘is to be
believed and all justifiable inferences are to be drawn in his favor.’”).
Second, Defendants have failed to justify their continued search of the Moreno residence
and seizure of its occupants after Moreno had already been identified and handcuffed by SWAT
officers.

Tersak himself admitted that the objective of the arrest and search warrant was

complete when the SWAT team had cleared the home for the detectives to enter. (Docket No.
114-9 at 6). He also admitted that the only permissible scope of search authorized by the search
warrant was to locate Moreno, and that this scope had been achieved by the SWAT team before
the detectives entered the Moreno residence. Id. at 5-6. Both the Warrant of Arrest and
Application for Search Warrant and Authorization list Moreno himself as the only subject to be
seized. (Docket No. 102-14 at 3). Nevertheless, despite Ms. Moreno’s testimony that Moreno
was the first person to be identified and handcuffed within the living room on the first floor of
the residence, (Docket No. 114-2 at 9), the SWAT team continued to search the remainder of the
residence, including the second floor and the basement, and “cuff” several additional unarmed
individuals, including a “younger 20’s male,” a “female,” and an “older male,” according to the
first version of the SWAT Operations Deployment Report, (Docket No. 114-1 at 10).
To be sure, officers who possess an arrest and search warrant for a suspect are entitled to
enter and search “anywhere in the house in which [the suspect] might be found.” Maryland v.
Buie, 494 U.S. 325, 333 (1990). “Once he [i]s found, however, the search for him [i]s over, and
there [i]s no longer that particular justification for entering any rooms that had not yet been

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searched.” Id. “[A]s an incident to the arrest the officers could, as a precautionary matter and
without probable cause or reasonable suspicion, look in closets and other spaces immediately
adjoining the place of arrest from which an attack could be immediately launched.” Id. at 334
(“We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if
justified by the circumstances, is nevertheless not a full search of the premises, but may extend
only to a cursory inspection of those spaces where a person may be found.”). “The sweep lasts
no longer than is necessary to dispel the reasonable suspicion of danger and in any event no
longer than it takes to complete the arrest and depart the premises.” Id. at 335-36. When “a
protective search goes beyond a search for weapons and becomes a search for evidence, it is no
longer valid under Terry.” Baker, 50 F.3d at 1194 (“The alleged actions in this case were fullscale searches for evidence, having nothing to do with a limited Terry-frisk, and having no
probable cause justification. These allegations constitute Fourth Amendment violations.”). Here,
Defendants have provided no justification for their search of additional rooms and floors of the
residence when Moreno was the first person to be identified and seized. (Docket No. 114-2 at 9).
The Court recognizes that Defendants rely on Bryant v. City of Philadelphia, 518 F.
App’x 89, 92 (3d Cir. 2013), for their position that the use of a SWAT team does not
automatically violate the occupant’s rights against unreasonable seizure, despite allegations of
being kicked while handcuffed. In Bryant, however, (1) the court ruled based on a post-trial
motion with factual findings from trial testimony; (2) the plaintiff was released from his
handcuffs as soon as officers realized that he was not the individual that the warrant targeted;
and, (3) the search warrant was for evidence rather than an individual. Id. at 91-93. Here, (1) the
issue comes before the Court on summary judgment; (2) Plaintiffs remained in handcuffs even
after Moreno was identified and seized; and, (3) the search warrant was not for evidence, but for

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Moreno as an individual. To that end, Ms. Moreno, Mr. Staymates, and the younger 20s male
could not have been confused with Moreno, yet all were immediately handcuffed, which a
reasonable jury may conclude were activities beyond the scope of the search warrant. (Docket
No. 114-1 at 10). Under Third Circuit law, “[c]ontinuing to hold an individual in handcuffs once
it has been determined that there was no lawful basis for the initial seizure is unlawful within the
meaning of the Fourth Amendment.” Rogers v. Powell, 120 F.3d 446, 456 (3d Cir. 1997).
Third, even if Defendants were attempting to conduct a protective sweep, that sweep does
not justify conducting interrogations to identify other suspects from a bar fight that took place
the previous evening at another location, which was the clear purpose of Reddy’s questioning of
Ms. Moreno. (Docket No. 114-5 at 14). Reddy admitted that he sought to identify the other
suspects in the bar fight. Id. He asked Ms. Moreno if she knew who was involved in the fight, if
Moreno had mentioned the fight, and if Moreno had talked to her about it. Id. A reasonable jury
could conclude that interrogating Ms. Moreno while she and her family remained handcuffed,
and in light of the SWAT raid of her home, was beyond the scope of the search warrant. See
Marasco II, 430 F.3d at 148 (citing Marasco I, 318 F.3d at 515) (“In Smith I, we held that
SERT’s activities constituted a seizure, and that the only remaining question was whether the
force used in doing so was reasonable.”).

To that end, the Supreme Court has held that

“detention for custodial interrogation—regardless of its label—intrudes so severely on interests
protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against
illegal arrest.” Dunaway v. New York, 442 U.S. 200, 216 (1979) (“We accordingly hold that the
Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause,
they seized petitioner and transported him to the police station for interrogation.”).

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Reddy also admitted that the reason that the City of Pittsburgh Police have “as many
detectives as [they] have on scene for out [sic] operation” is “so one person isn’t going around
and interviewing every single person in the house.” (Docket No. 114-5 at 9-10). According to
Reddy, “[o]ther detectives can get other information, if they have pertinent information,” and
“then the detective can talk to them about that.” Id. at 10. Detectives would obtain not only their
“name, date of birth, [and] all their personal identifiers,” but also “any information about this
crime,” and whether they were “involved in some way or even ha[d] knowledge of it,” such as
“do you know what happened last night or are you aware?” Id. at 9-10. Throughout the entire
interrogation process, detectives would obtain all “this information from them while they are
secure, while they are handcuffed.” Id. at 10. Reddy provided no reason why he had to conduct
his interview of Moreno while he was handcuffed and during the SWAT raid other than “once he
is arrested, he goes pretty much straight to the jail.” Id. at 8. A reasonable jury could conclude
that the custodial interrogations of not only Ms. Moreno, but also Mr. Staymates and the younger
20s male, were beyond the scope of the search and arrest warrants for Moreno.
Fourth, Plaintiffs rely on their deposition testimony, photographs, and medical records for
their claims of physical and emotional injury and gratuitous property damage. Defendants,
however, did not secure an independent medical examination of Mr. Staymates, nor did they
provide any independent appraisal of the allegedly damaged property. Instead, they argue that
Mr. Staymates did not seek medical treatment for two months after the SWAT raid. As for T.M.,
they argue that their independent medical examination demonstrates that T.M.’s injuries were not
caused by the SWAT raid. (Docket No. 102-21 at 1-3). They also maintain that T.M. did not
seek medical treatment for three months after the SWAT raid, despite two intervening primary
care physician visits. (Docket No. 102 at 12). Nonetheless, Defendants cannot prevail at the

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summary judgment stage on Plaintiffs’ claim of excessive force, even if Plaintiffs had sustained
no physical injury. See Sharrar, 128 F.3d at 822 (“[T]he absence of physical injury [does not]
necessarily signif[y] that the force has not been excessive.”). Further, whether the delays in
seeking treatment were reasonable is appropriately decided by the jury.
For the aforementioned reasons, Defendants are not entitled to summary judgment on the
issue of whether their conduct in entering the Moreno residence constituted excessive force
under the Fourth Amendment.
C.

Qualified Immunity

Notwithstanding the foregoing analysis, Defendants argue the affirmative defense of
qualified immunity, as a group, but do not assert this defense on a person-by-person basis.
(Docket Nos. 102, 121). To evaluate qualified immunity, a two-step test in necessary. Saucier v.
Katz, 533 U.S. 194, 201 (2001), receded from by Pearson v. Callahan, 555 U.S. 223, 236 (2009).
First, an officer’s conduct must violate a constitutional right. Id. Second, the constitutional right
must have been clearly established at the time of the officer’s conduct. Id. In Pearson v.
Callahan, the Supreme Court clarified, “while the sequence set forth there is often appropriate, it
should no longer be regarded as mandatory.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Under Pearson, “[a]n officer conducting a search is entitled to qualified immunity where
clearly established law does not show that the search violated the Fourth Amendment.” Id. at
243-44. “This inquiry turns on the objective legal reasonableness of the action, assessed in light
of the legal rules that were clearly established at the time it was taken.” Id. at 244-45 (internal
quotation marks omitted). To determine whether the law was clearly established at the time of
the conduct in question, Defendants must look to the case law of the Third Circuit.

Id.

“‘Qualified immunity gives government officials breathing room to make reasonable but

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mistaken judgments,’ and ‘protects all but the plainly incompetent or those who knowingly
violate the law.’” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2085 (2011)). Nevertheless, it is not necessary to have “‘a case directly on point’ before
concluding that the law is clearly established, ‘but existing precedent must have placed the
statutory or constitutional question beyond debate.’” Id. (quoting Ashcroft, 131 S. Ct. at 2083).
To that end, the Third Circuit has made clear that “the second step in the Saucier
analysis, i.e., whether an officer made a reasonable mistake about the legal constraints on police
action and is entitled to qualified immunity, is a question of law that is exclusively for the court.”
Curley, 499 F.3d at 211 n.12.

However, “[w]hen the ultimate question of the objective

reasonableness of an officer’s behavior involves tightly intertwined issues of fact and law, it may
be permissible to utilize a jury in an advisory capacity, but responsibility for answering that
ultimate question remains with the court.” Id. at 211 n.12, 214-215 (internal citations omitted).
Here, Defendants have failed at this juncture to establish qualified immunity as a
complete bar to Plaintiffs’ claims. First, a reasonable jury could find that Defendants used
excessive force in violation of the Fourth Amendment when they decided to use SWAT and
through their conduct when they entered the residence to execute the warrant and seize Moreno.
Second, the law concerning appropriate use of SWAT was clearly established by the
Third Circuit at the time of the conduct in question. In 2005, for instance, the Third Circuit held
that a “decision to employ a SWAT-type team can constitute excessive force if it is not
‘objectively reasonable’ to do so in light of ‘the totality of the circumstances.’” Marasco II, 430
F.3d at 149. The totality of the circumstances is to be determined by an officer under the
Sharrar factors. Id. at 149-50 (“Sharrar was decided two years before the events at issue in this
case. Therefore, it is appropriate for us to rely on that decision in our analysis of whether the

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officers are entitled to qualified immunity, as the contours of the right at issue here—as set forth
in Sharrar—were ‘clearly established’ at the time the troopers decided to activate SERT.”).
The relevant Sharrar factors are as set forth as follows:
[T]he 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
... [whether] the physical force applied was of such an extent as to
lead to injury ... the possibility that the persons subject to the
police action are themselves violent or dangerous, the duration of
the action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be armed,
and the number of persons with whom the police officers must
contend at one time.
Id. at 150 (quoting Sharrar, 128 F.3d at 821-22). “[I]f an officer applies the Sharrar analysis in
an unreasonable manner, he is not entitled to qualified immunity.” Id. In Marasco II, the Third
Circuit affirmed the trial court’s holding that officers were entitled to qualified immunity in their
decision to use SWAT-type force because they “believed that [plaintiff] was armed and that he
had targeted a police officer with a laser-sighted weapon.” Id. The Third Circuit has also held
that “a reasonable officer would know, based on the Graham and Sharrar factors, that it would
be excessive to grab and choke an arrestee’s throat, especially before using lesser force; to hit
him on the head twice with a flashlight; and to kick him when he is already restrained and on the
ground.” Green v. New Jersey State Police, 246 F. App’x 158, 163 (3d Cir. 2007).
Here, Defendants have presented no evidence concerning whether Moreno or any other
individuals within the Moreno residence were likely to be armed. (Docket No. 114-1). As
previously noted, no deposition testimony was provided on behalf of the officers who allegedly
observed Moreno attempting to escape, which was the purported justification for their forced
entry. None of the Defendants asked the U.S. Probation Officer whether Moreno could be armed
or violent during the execution of an arrest warrant against him.

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To the extent that any

individual Defendants maintain that they did not participate in the decision to use SWAT, they
have not provided the Court with any Statements of Fact or argument to that end. None of the
Defendants seem to know who made the initial request for SWAT assistance. Even Morosetti
denied making any such request. (Docket No. 114-3 at 5-6). Given the state of the record at this
time, Defendants as a group are not entitled to qualified immunity on their decision to use
SWAT. See Marasco II, 430 F.3d at 153 (“At this stage, however, we must assume that a jury
would credit Fetterolf’s version. If Marcantino did, in fact, approve the decision to enter the
residence as well as the methods employed to do so, he is not entitled to qualified immunity.”).
Moreover, even if an individual Defendant did not participate in the initial decision to use
SWAT, each officer must still reassess the reasonableness of his own actions upon arriving at the
Moreno residence. See id. at 151 (“Our conclusion that a reasonable officer would not have
believed that the decision to activate SERT was unlawful does not necessarily entail that the
same is true of all subsequent decisions regarding the use of SERT.”). Because using SWAT
“necessarily involves the decision to make an overwhelming show of force—force far greater
than that normally applied in police encounters with citizens,” it “does not grant license to law
enforcement officers to abuse suspects or bystanders, or to vent in an unprofessional manner
their own pent-up aggression, personal frustration or animosity toward others.” Marasco I, 318
F.3d at 517-18. Instead, it “call[s] for more discipline, control, mindfulness, and restraint on the
part of law enforcement, not less.” Id. at 518 (“SWAT officers no less than others—dressed in
camouflage or not—must keep it clearly in mind that we are not at war with our own people.”).
Here, as in Marasco II, after viewing the facts in the light most favorable to the Plaintiffs,
a reasonable officer would have concluded that the decision to storm the Moreno residence with
flash-bang distraction devices violated Plaintiffs’ constitutional rights. See Marasco II, 430 F.3d

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at 152 (“Our review of the Sharrar factors leads us to conclude that, when the facts are viewed in
the light most favorable to the plaintiffs, a reasonable officer would have concluded that the
decision to storm Smith’s shed and house using flash-bang distraction devices violated Smith’s
constitutional rights.”). As previously noted, this case did not involve hostages, barricaded
gunmen, snipers, or active shooters, in which time may have been of essence. See id. (“If the
officers reasonably believed they were dealing with a hostage situation, then our analysis would
be very different.”). Any testimony by Defendants that they had concern for the safety of the
other occupants of the Moreno residence is an issue of credibility appropriately determined by
the jury. See id. (“[T]here is insufficient evidence in the record for us to conclude that the
decision to enter Smith’s house was made primarily out of a concern for Mrs. Smith’s safety.”).
Defendants are also not entitled to qualified immunity for any time in which they
continued to maintain Plaintiffs in handcuffs after Moreno had already been identified and
seized, and any protective sweep was complete. See Rogers, 120 F.3d at 456 (“Powell and Stine
do not enjoy qualified immunity, however, beyond the time at which assistant district attorney
Butts communicated to them that there was no reason to hold Rogers in custody.”).
Therefore, Defendants as a group are not entitled to qualified immunity for their conduct
in deciding to use SWAT, in entering the Moreno home after they had arrived at the scene, and
in continuing to detain Plaintiffs after Moreno had been seized, as the submissions before the
Court are plainly deficient to support qualified immunity for Defendants as a group, and
Defendants have not raised qualified immunity on a person-by-person basis. To that end,
individual Defendants may reassert this defense on a person-by-person basis at trial.

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IV.

CONCLUSION
As there are genuine issues of material fact between the parties concerning whether the

decision to use SWAT and Defendants’ conduct while entering the Moreno residence constituted
excessive force under the Fourth Amendment, Defendants’ Motion for Summary Judgment [101]
is denied. Furthermore, Defendants as a group are not entitled to qualified immunity at this time,
as the Third Circuit has clearly established that the Sharrar factors govern a decision to use
SWAT, see Marasco II, 430 F.3d at 149, and the use of SWAT involves a demonstration of
overwhelming force that does not grant a license to officers to abuse suspects or bystanders. See
Marasco I, 318 F.3d at 517-18. Accordingly, this case shall be set down for trial.
Based on the foregoing,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment [101] is
DENIED.
IT IS FURTHER ORDERED that,
1. Plaintiffs shall file their Pretrial Statement by no later than April 23, 2014 at
12:00 PM.
2. Defendants shall file their Pretrial Statement by no later than May 7, 2014 at
12:00 PM.
3. A Status Conference is scheduled for May 12, 2014 at 3:00 PM to set a trial date
and establish deadlines for the Court’s Pretrial Order.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge

Date: April 9, 2014
cc/ecf: All counsel of record

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