DEANGELO v. NORTH STRABANE TOWNSHIP et al

Filing 33

MEMORANDUM OPINION & ORDER OF COURT: Defendant Dan Strimel is entitled to the defense of qualified immunity as to Plaintiffs federal constitutional claim; and Plaintiffs state constitutional claim is DISMISSED WITHOUT PREJUDICE. The Clerk shall docket this case closed. Signed by Judge Terrence F. McVerry on 08/21/14. (mcp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DALE DEANGELO,
Plaintiff,
v.
DAN STRIMEL in his individual capacity,
Defendant.

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MEMORANDUM OPINION AND ORDER OF COURT
Before the Court are the following: the DEFENDANT’S BRIEF IN SUPPORT OF
APPLICATION OF THE DOCTRINE OF QUALIFIED IMMUNITY (ECF No. 30) filed by
Dan Strimel; and PLAINTIFF’S BRIEF IN OPPOSITION OF APPLICATION OF THE
DOCTRINE OF QUALIFIED IMMUNITY (ECF No. 31). Accordingly, the issues have been
fully briefed and are ripe for disposition.
I.

Background
A. Factual Background
The actions leadings up to this litigation began sometime around July 2012 when Plaintiff

sought to engage in target practice with his firearms on a tract of industrial property he privately
owns in North Strabane Township. The 185 foot by 82 foot tract is located approximately fivehundred yards from Interstate 79 North Exit #45, commonly referred to as the “Canonsburg
Exit.” One side of the land faces I-79, but lies roughly eighty feet below the highway with a
sixty-foot tall hillside separating the two areas. The land is accessible only by foot and does not
contain any roads, paths, or lanes that allow for ingress or egress. According to Plaintiff, if he
were to discharge a firearm projectile toward the direction of the sixty-foot tall hillside, there
would be no danger of a ricochet or fragmentation striking any motorist, person, or property.

Sometime before July 2012, Plaintiff contends that he “made arrangements and took all
necessary and reasonable precautions to ensure that discharging firearms and engaging in target
practice on the land would be done in a safe and reasonable manner.” (ECF No. 1 at 4). Among
his preparations, Plaintiff examined “all relevant Commonwealth statutes, [ ] local ordinances,
and relevant regulations” that govern his intended activities.

From his reading, Plaintiff

concluded that he was legally permitted to discharge firearms on his land.
Plaintiff likewise attempted to contact law enforcement officials from North Strabane
Township and the neighboring Borough of Canonsburg to alert them of his intent to “lawfully
discharge firearms” on his property. Plaintiff first attempted to contact Defendant Strimel in July
2012 to place the North Strabane police on notice regarding his target shooting should they
receive reports of gunshots in the area. Strimel was unavailable at that time, and Plaintiff left a
message requesting a return call. Plaintiff also reached out to Canonsburg Police Department
Chief R.T. Bell to make him similarly aware of his intended target shooting given the close
proximity between the industrial land and the Borough. During their discussion, Bell stated that
he would pass along the information to Strimel who would likely call Plaintiff in the near future.
On August 6, 2012, Strimel contacted Plaintiff by telephone to discuss his intended target
shooting. During this call, Strimel allegedly acknowledged that he was unaware of any local
ordinances or state laws prohibiting the Plaintiff from target shooting. Strimel nonetheless
informed Plaintiff that he would promptly be placed under arrest if he discharged a firearm on
his land. Plaintiff attempted to explain that other persons or property would not be placed in any
danger due to the precautions in place and the landscape of the property, but apparently to no
avail. Strimel instead advised that he would charge Plaintiff with a crime, possibly “Recklessly
Endangering Another Person,” irrespective of whether the target shooting was done in a safe and

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lawful manner. Plaintiff made one final attempt to persuade Strimel that no persons would be
endangered; however, Strimel again instructed that he would file charges and retorted that “we
will let the courts decide.”
Plaintiff thereafter consulted with his counsel of record to evaluate his legal options.
Plaintiff’s attorney contacted the Solicitor for North Strabane in December 2012 who reiterated
Strimel’s position that Plaintiff would be criminally charged if he discharged a firearm on the
property. This lawsuit followed.
B. Procedural History
Plaintiff commenced this action on March 19, 2013 by filing a one-count Complaint
against Strimel, in his individual and official capacity as Chief of Police of North Strabane
Township, and against North Strabane Township (collectively, “Defendants”), in which he
alleged municipal liability as well as violations of his Second Amendment and Fourth
Amendment rights and the corresponding provisions set forth in Article I, §§ 8 and 21 of the
Pennsylvania Constitution. In response, Defendants filed a Rule 12(b)(6) motion to dismiss.
By Memorandum Opinion, the Court granted in part and denied in part the motion to
dismiss on October 29, 2013. The Court ultimately (1) granted the motion to dismiss (a) all
claims alleging violations of the Fourth Amendment and its state-level analog; (b) the official
capacity claims against Strimel; and (c) the Monnell claim against North Strabane; (2) denied the
motion to dismiss the individual capacity claims arising under the Second Amendment and the
Pennsylvania Constitution; and (3) permitted Plaintiff to file a curative amendment.
Plaintiff filed a First Amended Complaint on December 9, 2013 in which he alleges that
Strimel violated his rights secured by the Second Amendment to the United States Constitution

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and Article I, § 21 of the Pennsylvania Constitution. Both theories are once again pled under the
umbrella of a single count.
Strimel filed another Rule 12(b)(6) motion to dismiss on December 23, 2013, which
Plaintiff opposed. The gravamen of the motion was that Strimel—the then-Chief of Police of
North Strabane Township—was not a state actor because Plaintiff has brought this § 1983 suit
against him only in his individual capacity.1
By Memorandum Order, the Court denied the motion to dismiss on April 10, 2014. In
that filing, the Court noted that Plaintiff read Strimel’s brief as asserting a qualified immunity
defense. The Court did not, however, consider a single conclusory sentence devoid of any legal
authority or analysis and which did not actually raise the defense as sufficient to meet his burden
to establish qualified immunity.

Nevertheless, the Court stated that Strimel may raise the

defense of qualified immunity in his responsive pleading.
Strimel filed his Answer to Plaintiffs’ Amended Complaint on April 30, 2014 in which he
asserts qualified immunity as an affirmative defense. The Court thereafter scheduled its Rule 16
Case Management Conference for June 16, 2014.
At the Case Management Conference, the Court raised and discussed with counsel the
issue of qualified immunity.2 The Court ordered the parties to brief the applicability of the
defense, and they timely complied.

1. At the Rule 16 Cases Management Conference, the Court learned that Strimel has since retired from his position
effective December 31, 2013. The Court also learned that Plaintiff has engaged in target shooting on his property no
less than six times without incident since this litigation commenced.
2. The United States Court of Appeals for the Third Circuit has stated that, “[a]t Rule 16 conference, a district court
‘may consider and take appropriate action’ on a broad variety of topics, including ‘formulating and simplifying the
issues, and eliminating frivolous claims or defenses.’” Lassiter v. City of Philadelphia, 716 F.3d 53, 55 (3d Cir.
2013) (quoting Fed. R. Civ. P. 16(c)(2)(A)). See also Miller v. Clinton Cnty., 544 F.3d 542, 547 (3d Cir. 2008)
(“[A]ny claim of qualified immunity must be resolved at the earliest possible stage of litigation.”) (citing Saucier v.
Katz, 533 U.S. 194, 201 (2001)); Children First Found., Inc. v. Legreide, 259 F. App’x 444, 445 (3d Cir. 2007)
(citing Thomas v. Independence Township, 463 F.3d 285 (3d Cir. 2006)).

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II.

Standard of Review
The doctrine of qualified immunity protects “government officials who are performing

discretionary functions ‘from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.’” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). In Saucier v. Katz, the Supreme Court established a twostep sequence that governs whether government officials are entitled to the protection. 553 U.S.
194 (1982). First, a court must ask “whether the facts that a plaintiff has alleged (see Fed. R.
Civ. P. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right.”
Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation omitted). Second, “the court must
decide whether the right at issue was ‘clearly established’ at the time of defendant's alleged
misconduct.” Id. The sequence in which a court addresses the two steps of this analysis is no
longer mandatory, and a court may address the two prongs in any order, at its discretion. See id.
at 235-36. If the plaintiff does not satisfy either prong, the court must enter judgment in favor of
defendant as a matter of law. Id. at 232.
III.

Discussion
A. Second Amendment
For purposes of the second step of the qualified immunity analysis, a right is clearly

established “where its contours are ‘sufficiently clear that a reasonable official would understand
that what he is doing violates that right.’” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012)
(quoting Saucier, 533 U.S. at 202). “In determining whether a right has been clearly established,
the court must define the right allegedly violated at the appropriate level of specificity.” Id.
(citing Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006)). The Supreme Court of the United

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States has “recently emphasized that ‘[w]e do not require 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.’” Hinterberger v. Iroquois Sch. Dist., 548 F.
App’x 50, 52 (3d Cir. 2013) (quoting Stanton v. Sims, 134 S. Ct. 3, 5 (2013)) (citation and
quotation marks omitted). Accordingly, “[t]he question is not whether some right has been
clearly established at a highly abstract level—for example, the right to bear arms—but ‘whether
a reasonable official could have believed his actions were lawful in light of clearly established
law and the information the official possessed at the time of his allegedly unlawful conduct.’”
Pineiro v. Gemme, 937 F. Supp. 2d 161, 171 (D. Mass. 2013) (citing McBride v. Taylor, 924
F.2d 386, 389 (1st Cir. 1991)).
The scope of the right to bear arms in places beyond the home post-Heller has been
described as a “vast terra incognita” which has troubled courts since that case was decided. See
United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., as to Part
III.B.)); see also Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013) (“It remains unsettled whether
the individual right to bear arms for the purpose of self-defense extends beyond the home.”)
(citing McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010); D.C. v. Heller, 554 U.S. 570
(2008)). “Even at present, [courts] are unsure of the scope of that right.” Burgess v. Town of
Wallingford, -- F. App’x --, 13-2369-CV, 2014 WL 2609632, at *2 (2d Cir. June 12, 2014)
(citing Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012)). See Pineiro, 937 F.
Supp. 2d at 171 (“[T]he legal contours of the asserted right—that is, the constitutional right to
carry firearms outside the home for self-defense—were entirely unclear in 2010, and are hardly
more defined today.”); see also Nichols v. Brown, 945 F. Supp. 2d 1079, 1101 (C.D. Cal. 2013).

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The Court must, therefore, conclude that it is not yet clear how the Second Amendment
applies to situations such as Strimel’s interaction(s) with Plaintiff. Given this legal ambiguity,
Strimel is entitled to qualified immunity.3 C.f. Burgess, 2014 WL 2609632, at *2.
B. Article I, § 21
The remaining claim is premised upon Article I, § 21 of the Pennsylvania Constitution.
Jurisdiction over supplemental claims is governed by 28 U.S.C. § 1367(a), which provides that
“the district courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.” The Court has discretion to
decline to exercise supplemental jurisdiction, however, if it “has dismissed all claims over which
it has original jurisdiction[.]” 28 U.S.C. § 1367(c)(3). The Court of Appeals for the Third
Circuit has held that, where all federal claims are dismissed before trial, “the district court must
decline to decide the . . . state claims unless considerations of judicial economy, convenience,
and fairness to the parties provide an affirmative justification for doing so.” Hedges v. Musco,
204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780,
788 (3d Cir. 1995) (emphasis in original)). Finding no such justification, the Court abstains from
exercising jurisdiction over the pendant state claim.
IV.

Conclusion
For the reasons hereinabove stated, the Court finds and rules that Strimel is entitled to

qualified immunity as to Plaintiff’s federal constitutional claim. The Court also declines to
3. The Court recognizes that “it is well established that qualified immunity does not bar actions for prospective
relief, such as an injunction or declaratory judgment,” and that Plaintiff seeks that form of relief. Salerno v.
Corzine, 449 F. App’x 118, 123 (3d Cir. 2011) (collecting cases). Moreover, Plaintiff asks this Court to “[e]nter a
judgment prohibiting Defendant Strimel from prosecuting and/or harassing and/or punishing the Plaintiff from
lawfully discharging a firearm on the aforementioned private property that he owns and maintains within North
Strabane Township.” (ECF No. 15 at 10). This aspect of his prayer for relief has, however, become moot given
Strimel’s retirement from the police force.

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weigh in as to the exact parameters of the state constitutional claim and will dismiss the
remaining claim without prejudice. An appropriate Order follows.

McVerry, J.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DALE DEANGELO,
Plaintiff,
v.
DAN STRIMEL in his individual capacity,
Defendant.

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) 2:13-cv-407
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ORDER OF COURT
AND NOW, this 21st day of August, 2014, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED and DECREED (1) that
Defendant Dan Strimel is entitled to the defense of qualified immunity as to Plaintiff’s federal
constitutional claim; and (2) that Plaintiff’s state constitutional claim is DISMISSED
WITHOUT PREJUDICE. The Clerk shall docket this case closed.

BY THE COURT:
s/Terrence F. McVerry
United States District Judge

cc:

Joseph C. Francis
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James R. Jeffries
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Paul D. Krepps
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