FORD v. CITY OF PITTSBURGH et al
Filing
206
OPINION GRANTING IN PART AND DENYING IN PART 180 Motion for Summary Judgment and GRANTING 183 Motion for Summary Judgment. Signed by Chief Magistrate Judge Maureen P. Kelly on 08/15/16. (eca)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
Plaintiff,
)
)
)
VS.
)
)
CITY OF PITTSBURGH; POLICE
)
OFFICER DAVID DERBISH; POLICE
)
OFFICER MICHAEL KOSKO and
POLICE OFFICER ANDREW MILLER, )
Defendants. )
)
)
POLICE OFFICER DAVID DERBISH;
)
POLICE OFFICER MICHAEL KOSKO
)
and POLICE OFFICER ANDREW
MILLER,
)
Cross-Claim Plaintiffs, )
)
vs.
)
)
CITY OF PITTSBURGH,
)
Cross-Claim Defendant. )
LEON D. FORD,
Civil Action No. 13-1364
Chief Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 180 and 183
OPINION
KELLY, Chief Magistrate Judge
Presently before the Court are two Motions for Summary Judgment: one filed by
Defendants Police Officer David Derbish ("Derbish"), Police Officer Michael Kosko ("Kosko")
and Police Officer Andrew Miller ("Miller") (collectively, "the Officers"), ECF No. 180, and
one filed by Defendant City of Pittsburgh ("the City"), ECF No. 183. For the reasons that
follow, the Officers' Motion for Summary Judgment, ECF No. 180, will be granted in part and
denied in part. The City's Motion for Summary Judgment, ECF No. 183, will be granted.
I.
PROCEDURAL BACKGROUND
In the operative Complaint, ECF No. 34, Plaintiff Leon D. Ford ("Plaintiff'') raises
federal and state claims related to a traffic stop of Plaintiff by Defendants Kosko and Miller
which resulted in Plaintiff being shot by Defendant Derbish.
The Officers filed their Motion for Summary Judgment on January 29, 2016, along with a
Brief in Support and a Concise Statement of Material Facts. ECF Nos. 180-182. The City also
filed its Motion for Summary Judgment, Brief in Support and Concise Statement of Material
Facts on January 29, 2016. ECF Nos. 183-185.
Plaintiff filed two responses to the Motions for Summary Judgment and a single Brief in
Opposition on February 26, 2016. ECF Nos. 188-190. Also, on February 26, 2016, Plaintiff
filed a three-part Concise Statement of Material Facts. ECF Nos. 191-193.
On March 18, 2016, the Officers filed a Reply to Plaintiffs Response and a Brief in
Support thereof.
ECF Nos. 198-199.
Also on March 18, 2016, the City filed a Reply to
Plaintiffs Response. ECF No. 200. Additionally on March 18, 2016, the City and the Officers
filed a Reply to Plaintiffs Concise Statement of Material Facts. ECF Nos. 201.
On April 1, 2016, Plaintiff filed Sur-Replies to: (1) the Officers' Reply to Plaintiffs
Concise Statement of Material Facts, ECF No. 202; (2) the City's Reply to the Plaintiffs
Concise Statement of Material Facts, ECF No. 203; (3) the Officers' Brief in Reply to Plaintiffs
Brief in Opposition to the Motion for Summary Judgment, ECF No. 204; and (4) the City's Brief
in Reply to Plaintiffs Brief in Opposition to the Motion for Summary Judgment, ECF No. 205.
The Motions for Summary Judgment are now ripe for review.
2
II.
FACTS
On November 11, 2012, at approximately 9:33 p.m., Defendants Miller and Koska
effectuated a traffic stop of Plaintiff. 1 ECF No. 182 ~ 2; ECF No. 191 ~ 23.
As soon as
Defendant Koska activated the lights of his police cruiser, Plaintiff immediately put on his tum
signal and pulled over to the side of the street. 2 ECF No. 201 ~ 23.
Plaintiff provided to
Defendant Koska Plaintiffs driver's license, insurance card and registration documentation and
Defendant Koska returned to the police cruiser. ECF No. 182
201
~
~
3; ECF No.
191~28;
ECF No.
28. Defendant Koska testified at his deposition that he ran "Leon Ford" through the
Mobile Data Terminal. ECF No. 192-6 at 24. The "Leon Ford" search returned no criminal
history. Id. Defendant Koska then ran "L. Ford" through the Mobile Data Terminal and found a
picture of Lamont Ford, who had an active warrant. ECF No. 182
~
4; ECF No. 191
~~
28, 30;
ECF No. 192-6 at 24. Defendant Miller subsequently viewed the photo of Lamont Ford. ECF
No. 182
~
8; ECF No. 202
~
8. Lamont Ford, like Plaintiff, was a young African American
male. 3 ECF No. 182 ~ 9; ECF No. 202 ~ 9. Although Defendant Miller had previous knowledge
of and personal interactions with Lamont Ford, 4 nonetheless, Defendant Miller called Defendant
Derbish, who also had prior interactions with Lamont Ford, to the scene from another location
for help in determining Plaintiffs identity. ECF No. 182 ~ 10; ECF No. 191
~
~
35; ECF No. 202
10. At the scene, Defendant Derbish observed the photos of Lamont Ford and Plaintiff and
conveyed to Defendant Miller his belief that Plaintiff likely was Lamont Ford. ECF No. 182
1
No officer body microphone recorded the interaction between Plaintiff and the Officers. The dash cam of
Defendants Kosko and Miller's cruiser did record video of the incident. ECF No. 190, Exhibit S.
2
Defendants admit that this stop was not a "high risk traffic stop." ECF No. 201 ~ 38.
3
Plaintiff was nineteen years old at the time of the stop. ECF No. 191 ~ 18.
4
Defendant Miller testified that he had previously monitored Lamont Ford on social media, he had spoken with
Lamont Ford multiple times on Mulford Street and he had seen Lamont Ford in the hospital. ECF No. 182-5 at 3.
3
~~
10-11; ECF No. 191
~
37. Defendant Derbish did not go to Plaintiffs vehicle and observe
Plaintiff before rendering his opinion. ECF No. 191
~
37.
Plaintiff testified that, in a second encounter with Defendant Kosko, prior to Defendants
Miller and Derbish's approach to the car, Defendant Kosko asked Plaintiff if he was Lamont
Ford. ECF No. 192-4 at 60. Plaintiff denied he was Lamont Ford. Id. At some point, Kosko
responded to Plaintiff by yelling, "Fuck you. You are fuckin lying to a cop." Id. at 61.
At approximately 9:46 p.m., Defendants Miller and Derbish approached Plaintiffs car, at
which time Defendant Derbish went to the passenger side of the car. ECF No. 182
~
13; ECF
No. 202 ~ 13.
It is undisputed that Defendant Miller did not observe any firearm or ammunition in
Plaintiffs vehicle. ECF No. 201
~
27. However, the Officers maintain that Defendant Derbish
observed a bulge in Plaintiffs sweatpants at this time, which he pointed out to Defendant Miller.
ECF No. 182 ~~ 14-15. Defendant Miller then decided to pat Plaintiff down outside of the
vehicle. Id. at ~ 15.
At approximately 9:48 p.m., Defendant Kosko opened Plaintiffs door. ECF No. 191
~
40; ECF No. 201
~
41. The Officers verbally communicated their desire for Plaintiff to get out
of the car. 5 ECF No. 182 ~ 17; ECF No. 202 ~ 17. Plaintiff remained in the car, anchoring his
hand on the gear shift. ECF No. 182
~~
17-18; ECF No. 202
~
18; ECF No. 205-2 at 81.
Defendant Miller attempted to physically pull Plaintiff from the car. ECF No. 182
No.
191~41;
ECF No.
201~41.
~
18; ECF
At approximately 9:49 p.m., Defendant Derbish climbed into
5
The Officers maintain that Defendant Miller and Kosko asked Plaintiff to step out of the car several times. ECF
No. 182 ~ 17. Plaintiff maintains that the Officers never instructed him to exit the car, but instead told him, "you'll
get your black ass out of the car if we want your black ass out of the car." ECF No. 191 ~ 41; ECF No. 202 ~ 17.
Plaintiff testified that he was "terrified" and "scared" by these remarks and that the two Officers had become
"aggressive and combative." ECF No. 192-4 at 68, 73-75.
4
Plaintiffs car from the passenger side. 6 ECF No. 182
ii 42.
ii
18; ECF No. 191
ii 41;
ECF No. 201
Mere seconds later, the car moved forward with Plaintiff and Defendant Derbish inside. 7
ECF No. 191
ii 42;
ECF No. 201
ii 42.
Mere seconds after the car started to move, Defendant
Derbish shot Plaintiff multiple times, in rapid succession, stopping only when Plaintiff was
slumped over the steering wheel. ECF No. 182 ii 20; ECF No. 191
ii 42.
The car crashed into a
set of stairs at a residence a few houses down the street from the location of the stop. ECF No.
182 ii 21; ECF No. 191
ii 42.
in his vehicle. ECF No. 191
Following the crash, no weapon was found on Plaintiffs person or
ii 44.
Plaintiff testified at his deposition that, as a result of the shooting by Defendant Derbish,
three bullets entered his chest, one bullet entered his arm and one bullet entered his hip. ECF
No. 205-3 at 4.
Due to injuries sustained from the shooting, Plaintiff was hospitalized for
months and underwent multiple surgeries. Id. at 10-11. His spine is completely severed at the
TS level and he suffers permanent paralysis. Id. at 12.
A Critical Incident Review Board ("CIRB") was appointed by Pittsburgh Police Chief
Nathan E. Harper to review the shooting of Plaintiff. ECF No. 191
the Officers violated multiple policies and training standards. Id.
ii 56.
The CIRB found that
ii 57; ECF No.
201
ii 57; ECF
No. 193-6. The CIRB recommended that Defendants Kosko and Derbish receive discipline
regarding numerous violations of General Order 69-1 (relating to Mobile Video/Audio
Recording equipment). ECF No. 193-6 at 10. The CIRB further recommended that Defendants
Kosko and Miller receive remedial training concerning General Order 40-4.9 (relating to the
quick, effective and efficient nature of motor vehicle stops).
Id.
Finally, the CIRB
recommended that Office Derbish receive discipline concerning violations of General Order 406
It is undisputed that Defendant Derbish entered Plaintiffs vehicle while it was still running. ECF No. 199 at 5.
7
Defendant Derbish testified that he was uncertain what caused the vehicle to move forward. ECF No. 191-10 at
13. Plaintiff testified that he does not know how the vehicle moved forward. ECF No. 192-4 at 90.
5
4.4 (relating to the prohibition on reaching into a running vehicle of a suspect) and General
Order 12-7-4.0 (relating to discharge of a firearm at a moving vehicle). Id.
As a result of the incident, Plaintiff was criminally charged with two counts of
aggravated assault, three counts of recklessly endangering another person, one count each of
resisting arrest and escape and Motor Vehicle Code violations. Commonwealth v. Ford, CP-02CR-0003273-2013 (Allegheny County Com. Pl.), available at http://ujsportal.pacourts.us/.
Fallowing a trial, Plaintiff was found not guilty of the aggravated assault charges. Id. The jury
was hung on the charges of recklessly endangering another person, resisting arrest and escape
and those charges were later nolle prossed by the Allegheny County District Attorney.
Id.
Plaintiff was convicted of two Motor Vehicle Code violations for summary traffic offenses. Id.
III.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), a court shall grant summary judgment ""if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine [dispute] as to any material fact and that the
moving party is entitled to a summary judgment as a matter of law." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(a). "If the moving party meets its burden, the
burden shifts to the nonmoving party to go beyond the pleadings and come forward with specific
facts showing that there is a genuine issue for trial." Santini v. Fuentes, 795 F.3d 410, 416 (3d
Cir. 2015) (internal citations and quotation marks omitted). Therefore, in order to defeat a
motion for summary judgment, the non-movant must establish that the disputes are both (1)
material, meaning concerning facts that will affect the outcome of the issue under substantive
law; and (2) genuine, meaning the evidence must be such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
6
Summary judgment is mandated "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, 477 U.S. at 322. "At the summary judgment stage of
proceedings, courts do not 'weigh the evidence or make credibility determinations,' but, instead,
leave that task to the fact-finder at a later trial if the court denies summary judgment." Halsey v.
Pfeiffer, 750 F.3d 273 (3d Cir. 2014) (quoting Petruzzi's IGA Supermarkets v. Darling-Delaware
Co., 998 F.2d 1224, 1230 (3d Cir. 1993)).
IV.
DISCUSSION
A.
Motion for Summary Judgment filed by Defendants Derbish, Kosko and
Miller
Plaintiff brings multiple claims against the Officers in the Complaint. ECF No. 34. The
claims generally may be grouped as follows: (1) Counts I and II, against all three of the Officers,
concern violations of Plaintiffs rights guaranteed to him under the Fourth and Fourteenth 8
Amendments to the United States Constitution, (2) Counts IV (against Defendant Derbish), V
(against Defendant Kosko) and VI (against Defendant Miller) are state law claims of assault and
battery; and (3) Counts VII (against Defendant Derbish), VIII (against Defendant Kosko) and IX
(against Defendant Miller) are claims of false arrest and imprisonment.
In their Motion for Summary Judgment, ECF No. 180, the Officers assert that they are
entitled to judgment as a matter of law on multiple bases which will be addressed in tum.
8
Technically, the Fourth Amendment applies to state actors, as the Officers herein are, by means of the Fourteenth
Amendment and the selective incorporation doctrine. Knox County Educ. Ass'n v. Knox County Bd. of Educ., 158
F.3d 361, 371 n.9 (6th Cir. 1998) The phrase "Fourth Amendment" is herein used as a shorthand way of expressing
the concept that the Fourth Amendment standards are applicable herein as incorporated into the substantive due
process clause of the Fourteenth Amendment.
7
1.
Qualified immunity
At the outset of their Motion for Summary Judgment and Brief in Support, the Officers
first argue that they are entitled to judgment as a matter of law based on the qualified immunity
doctrine. ECF No. 180 if 5; ECF No. 181at3.
Qualified immunity protects government officials "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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The United States Supreme Court has set forth a two-step objective reasonableness test to
determine whether qualified immunity should be granted. Saucier v. Katz, 533 U.S. 194, 200-01
(2001); see also Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004). "First, the court must consider
whether the facts alleged, taken in the light most favorable to the plaintiff, show that the officer's
conduct violated a constitutional right." Kopec, 361 F.3d at 776 (citing Saucier, 533 U.S. at
201 ). If "'a violation could be made out on a favorable view of the parties' submissions," the
court must determine '"whether the right was clearly established."' Id. (quoting Saucier, 533
U.S. at 201). '"The relevant dispositive inquiry' in making this determination is 'whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted."' Id. (quoting Saucier, 533 U.S. at 202).
In this case, the Officers' argument for qualified immunity purports to be based on facts
as seen in the light most favorable to Plaintiff. ECF No. 181 at 9. It is not. A thorough review
of the summary judgment filings by the Officers reveals that their argument for qualified
immunity is based on disputed facts, e.g., the uncertainty over Plaintiffs identity, the observance
of a bulge in Plaintiffs sweatpants and other critical facts, viewed in the light least favorable to
Plaintiff. Id.
8
Viewing the facts in the light most favorable to Plaintiff, as is proper to undergo the first
step outlined above in Saucier, the Court finds that the jury could conclude that the Officers used
excessive force 9 against Plaintiff. The facts presented in the record do not clearly establish that
every reasonable officer would have used the level of force employed by the Officers in the
traffic stop, shooting and arrest of Plaintiff.
The second step outlined above requires a determination of "whether it would be clear to
a reasonable officer that his conduct was unlawful in the situation confronted." Kopec, 361 F.3d
at 776 (citing Saucier, 533 U.S. at 202). "In other words, there must be sufficient precedent at
the time of action, factually similar to the plaintiffs allegations, to put defendant on notice that
his or her conduct is constitutionally prohibited." Mammaro v. N.J. Div. of Child Prot. and
Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (citing McLaughlin v. Watson, 271 F.3d 566, 572
(3d Cir. 2001)).
Here, the Officers claim that they are entitled to qualified immunity because the Officers
"acted reasonably in response to the circumstances surrounding the incident." ECF No. 181 at
3. 10 However, the Officers concede that "there is no case law notifying the Defendants that their
actions would result in the violation of an individual's rights and putting such a notice beyond
debate." Id. at 4. See also ECF No. 180 ~ 5.
In this context, the United States Court of Appeals for the Third Circuit has interpreted
the second factor broadly. Kopec, 361 F.3d at 778 (quoting Bums v. County of Cambria, 971
9
The legal principles relevant to excessive force are discussed infra.
The Officers cite to the decision of the United States Supreme Court in Plumhoff v. Rickard, 134 S. Ct. 2012
(2014), ECF No. 181at6. However, the facts that supported a finding of qualified immunity in that case are very
different and thus distinguishable from those in the instant case. In Plumhoff, the driver led police on a chase in
which speeds exceeded 100 miles per hour that lasted more than 5 minutes and included the passing of more than
two dozen other motorists, as well as the driver going through a "rolling roadblock" on I-40. 134 S. Ct. at 2017-18.
When the driver was temporarily halted by colliding with a police cruiser in a parking lot, the driver made contact
with another police cruiser, spun his tires and fled down another street at which point police officers fired shots at
the driver. Id.
'
0
9
F.2d 1015, 1024 (3d Cir. 1992)). If no case directly speaks to the legality of the officers'
conduct, the challenged conduct would need to be such that "reasonable officers in the
defendants' position at the relevant time could have believed, in light of what was in the decided
case law, that their conduct was lawful." Giuffre v. Bissell, 31 F.3d 1241, 1255 (3d Cir. 1994)
(quoting Good v. Dauphin Cty. Social Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d
Cir. 1989)). "Reasonableness under the second factor [of the qualified immunity analysis] is an
issue of law for the district court to determine; however, if there are facts material to the
determination of reasonableness in dispute, then that issue of fact should be decided by the jury."
Barton v. Curtis, 497 F.3d 331, 335 (3d Cir. 2007) (citing Sharrar v. Felsing, 128 F.3d 810, 82628, 832 (3d Cir.1997) (citation omitted)).
In the instant case, there are multiple facts material to the determination of
reasonableness that remain in dispute, including, but not limited to: (I) the nature of Plaintiffs
conduct resulting in the traffic stop; (2) whether Plaintiff posed any threat during the traffic stop;
(3) why the Officers continued to detain Plaintiff after his identity was confirmed; (4) whether
there was a bulge in Plaintiffs pants; (5) why Defendant Derbish climbed into Plaintiffs vehicle
in violation of the Pittsburgh Bureau of Police General Orders; and (6) what caused Plaintiffs
vehicle to move forward. These disputes should be resolved by a jury, not the Court.
Because resolution of these issues implicates "disputes over facts that might affect the
outcome of the suit under the governing law," Anderson, 477 U.S. at 248, the entry of summary
judgment on qualified immunity is not appropriate at this time. 11 As such, the Officers are not
entitled to summary judgment as a matter of law on this issue.
11
See Barnes v. Edwards, Civ. A. 13-4239, 2016 U.S. Dist. LEXIS 82343, at *5 (D.N.J. June 24, 2016) (denying
summary judgment on qualified immunity because factual disputes remained regarding reasonableness of
defendants' conduct during arrest); Garey v. Borough of Quakertown, Civ. A. No. 12-799, 2013 U.S Dist. LEXIS
91798, at *15-16 (E.D. Pa. Jul. I, 2013) (denying summary judgment on qualified immunity defense because factual
10
2.
Unreasonable seizure (Counts I and II)
In Counts I and II of the Complaint, Plaintiff asserts that the Officers violated his rights
guaranteed to him under the Fourth and Fourteenth Amendments, including the right to body
integrity, the right to be free from excessive use of force and the right to be free from
unreasonable searches and seizures. ECF No. 34 iii! 57-64.
In describing his unlawful seizure claim in the Brief in Opposition to the Defendants'
Motions for Summary Judgment, Plaintiff specifically identifies two "seizures" by the Officers:
(1) when he was stopped; and (2) when he was shot. ECF No. 190 at 20. The Officers assert
that Plaintiff has failed to produce sufficient evidence that he was subject to an unlawful seizure
in either context.
A seizure triggering the Fourth Amendment's protections occurs when a government
actor, "by means of physical force or show of authority, has in some way restrained the liberty of
a citizen .... " Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
a.
Traffic stop
The United States Supreme Court has recognized that a traffic stop is a "seizure" within
the meaning of the Fourth Amendment, "even though the purpose of the stop is limited and the
resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653 (1979); see also Whren
v. United States, 517 U.S. 806, 809-10 (1996) ("Temporary detention of individuals during the
stop of an automobile by the police, even if only for a brief period and for a limited purpose,
constitutes a 'seizure' of 'persons' .... ").
disputes about reasonableness of officer's conduct remained); Shultz v. Carlisle Police Dep't, 706 F.Supp.2d 613,
624 (M.D. Pa. 2010) (denying summary judgment on qualified immunity because factual disputes remained about
whether a reasonable officer would have acted the same way); Wilhere v. Delaware Cnty., Civ. A. No. 09-22, 2010
U.S. Dist. LEXIS 3 I 896, at *20-2 I (E.D. Pa. Apr. I, 2010) (denying summary judgment on qualified immunity
defense because factual disputes remained about reasonableness of officer's conduct); Reynolds v. Smythe, 418
F.Supp.2d 724, 735 (E.D. Pa. 2006) (denying summary judgment on qualified immunity because factual disputes
remained about how the actual incident occurred).
11
In the instant case, the Officers assert that Defendants Miller and Kosko were justified in
executing the traffic stop of Plaintiff based on his travel at a high rate of speed and his failure to
come to a complete stop at multiple stop signs. 12 ECF No. 181 at 12. In support of their
argument, the Officers cite to the dash cam video from Defendants Miller and Kosko's cruiser.
Id. Also citing the dash cam video, Plaintiff alleges that he was "not speeding, abiding by all
posted road signs, and traveling in a safe and cautious manner." ECF No. 190 at 21. A review
of the dash cam video, id., Exhibit S, shows that Plaintiff may have failed to come to a complete
stop at a stop sign immediately prior to the traffic stop. Accordingly, the traffic stop was not
unjustified in the manner that Plaintiff claims. See U.S. v. Mosley, 454 F.3d 249, 252 (3d Cir.
2006) (explaining that any technical violation of a traffic code legitimizes a stop even where stop
is pretextual). 13
Further, Plaintiff was convicted in the Court of Common Pleas of Allegheny County of a
violation of 75 Pa. Cons. Stat. § 3323.
The trial court docket indicates that Plaintiff was
convicted of violating Section 3323(c), failure to comply with yield signs, but on appeal, the
Pennsylvania Superior Court found that Plaintiff was effectively convicted of Section 3323(b),
failure to comply with stop sign. Commonwealth v. Ford, No. 1669 WDA 2014, 2016 Pa. Super.
LEXIS 319 at *7-8. 14
The Superior Court further held that sufficient evidence existed to
establish that Plaintiff failed to stop at a stop sign. Id. at * 18. A plaintiff cannot recover
damages pursuant to a Section 1983 civil rights claim for harm caused by actions whose
12
Defendant Derbish was not present for the initial traffic stop, so on this ground alone, he is entitled to summary
judgment as to this portion of the unreasonable seizure claim.
13
It is noted that both Plaintiff and the Officers refer to the length of the traffic stop and the reasons therefor in the
context of this issue. However, Plaintiff does not claim that there was a separate or additional seizure between the
stop and the shooting.
14
On July 12, 2016, Plaintiff filed a Petition for Allowance of Appeal of the Superior Court's decision in the
Pennsylvania Supreme Court.
12
unlawfulness would render a conviction invalid unless the conviction has reversed or set aside by
other means not relevant in this case. See Smith v. Holtz, 87 F .3d 108, 112 (3d Cir. 1996).
Because Plaintiffs conviction for failing to comply with a stop sign was upheld on
appeal, he cannot in this litigation recover damages for harm caused by the stop on the basis that
he did not fail to comply with a stop sign.
For these reasons, the Officers are entitled to judgment as a matter of law with respect to
Plaintiffs claim under Counts I and II that the traffic stop constituted an unreasonable seizure.
b.
Shooting
Plaintiff characterizes the second portion of Counts I and II as a claim for unlawful
seizure via the use of excessive force. ECF No. 190 at 20. "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." Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999).
The Officers assert that Defendant Derbish acted reasonably in using deadly force against
Plaintiff. 15 ECF No. 181at19.
The United States Supreme Court has held:
The "reasonableness" of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight. See Terry v. Ohio, supra, at 20-22 .... With respect to
a claim of excessive force, the same standard of reasonableness at the
moment applies: "Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers," Johnson v. Glick, 481 F.
2d [1028] at 103 3 [(2d Cir. 1973)], violates the Fourth Amendment. The
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.
15
The Officers additionally discuss the reasonableness of attempting to remove Plaintiff from the vehicle. Plaintiff
does not claim that the attempt to remove constituted a separate or additional seizure. Therefore, it is unnecessary
for the Court to address this context.
13
As in other Fourth Amendment contexts, however, the "reasonableness"
inquiry in an excessive force case is an objective one: the question is
whether the officers' actions are "objectively reasonable" in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation. See Scott v. United States, 436 U.S. 128,
137-139 (1978); see also Terry v. Ohio. supra, at 21 (in analyzing the
reasonableness of a particular search or seizure, "it is imperative that the
facts be judged against an objective standard"). An officer's evil intentions
will not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer's good intentions make an
objectively unreasonable use of force constitutional. See Scott v. United
States, supra, at 138, citing United States v. Robinson, 414 U.S. 218 (1973).
Graham v. Connor, 490 U.S. 386, 396-97 (1989).
Plaintiff and the Officers set forth their respective versions of the circumstances
surrounding the use of deadly force by Defendant Derbish. ECF No. 181 at 19; ECF No. 190 at
25. The Officers' version, again, does not reflect the facts viewed in the light most favorable to
Plaintiff because it cites as true the uncertainty over Plaintiffs identity, the observance of a bulge
in Plaintiffs sweatpants and Plaintiffs act of "fleeing." ECF No. 181 at 19. These facts are
disputed.
Because Defendant Derbish is the sole defendant alleged to have effectuated this specific
seizure, the claim can only proceed against him. Defendants Kosko and Miller are entitled to
judgment as a matter of law as to Counts I and II as they relate to the shooting of Plaintiff
constituting an unreasonable seizure.
As to the conduct of Defendant Derbish, in light of the disputed facts relative to the
reasonableness of his actions and resolving all factual disputes in favor of Plaintiff, summary
judgment is not appropriate because there is evidence which, if believed, could contradict the
Officers' testimony and convince a factfinder that Defendant Derbish acted unreasonably.
Accordingly, summary judgment is denied as to the claim against Defendant Derbish in Counts I
and II as it relates to his shooting of Plaintiff.
14
3.
Assault and battery (Counts IV, V and VI)
In the operative Complaint, Plaintiff asserts the following claims of assault and battery:
(I) Count IV against Defendant Derbish for shooting Plaintiff, ECF No. 34
against Defendant Kosko for attempting to drag Plaintiff from his vehicle, id.
~
~
87; (2) Count V
91; and (3) Count
VI against Defendant Miller for attempting to drag Plaintiff from his vehicle, id.~ 95.
16
The United States Court of Appeals for the Third Circuit has explained:
The tort of assault is defined as "an intentional attempt by force to do any
injury to the person of another, and a battery is committed whenever the
violence menaced in an assault is actually done, though in ever so small a
degree, upon the person."
Essex Ins. Co. v. Starlight Mgt. Co., 198 Fed. App'x 179, 183 (3d Cir. 2006) (quoting Renk v.
City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)).
Further, "[a] police officer may use
reasonable force to prevent interference with the exercise of his authority or the performance of
his duty" as well as force necessary under the circumstances to effectuate a lawful arrest. Renk,
641 A.2d at 293. "The reasonableness of the force used in making the arrest determines whether
the police officer's conduct constitutes an assault and battery." Id.
In moving for summary judgment, the Officers assert that Plaintiff failed to produce
sufficient evidence to support his claims of assault and battery.
ECF No. 181 at 23-25.
Generally, the Officers argue that the force used against Plaintiff was reasonable and necessary.
Specifically, the Officers argue that Plaintiff has produced no evidence that: (1) Defendant
Kosko touched Plaintiff until he removed him from the vehicle and handcuffed him after the
shooting; (2) Defendant Miller acted with intent to harm or actually harmed Plaintiff when he
16
As to each of these Counts, in addition to the acts specified to constitute assault and battery, Plaintiff inserts a
paragraph concerning the named officer's failure to render aid or assistance to Plaintiff after the shooting. ECF No.
34 ~~ 88, 92, 96. In responding to the Motion for Summary Judgment, Plaintiff fails to address the significance of
this conduct in the context of his assault and battery claims.
15
attempted to pull him out of the car; and (3) Defendant Derbish did not act in self-defense when
he shot Plaintiff. ECF No. 181at24.
In response, Plaintiff asserts that disputes of material facts exist concerning the
reasonableness of the Officers' use of force. ECF No. 190 at 41. Indeed, while Plaintiff fails to
specifically identify any of the factual disputes to which he refers, even a cursory review of the
facts as offered by the parties, in the context of the totality of the circumstances, reveals disputes
of material fact as to the reasonableness of the force used by Defendant Miller in his act of
attempting to pull Plaintiff out of the car and by Defendant Derbish in his act of shooting
Plaintiff. Accordingly, Defendants Miller and Derbish are not entitled to judgment as a matter of
law on Counts IV and VI.
However, a review of the evidence advanced by Plaintiff to support the claim set forth in
the Complaint against Defendant Kosko and his attempt to drag Plaintiff from his vehicle reveals
a complete failure of proof. Plaintiff cites to an exchange at his criminal trial, ECF No. 191
iJ 41
(citing ECF No. 192-5 at 26, lines 12-14), in which he is asked: "Now, at some point you
remember getting yanked; and you said the car was rocking back and forth?" Plaintiff answers
affirmatively. Id. The testimony does not identify Defendant Kosko as the person who yanked
Plaintiff or who rocked the car. The dash cam footage also cited by Plaintiff, ECF No. 191,
Exhibit S, at 21:49:14, shows Defendant Miller alone reaching into the car with a yanking
motion which appears to cause the car to rock. Accordingly, because Plaintiff has failed to
produce evidence to support his claim for assault and battery against Defendant Kosko, he is
entitled to judgment as a matter of law for Count V.
16
4.
False arrest and false imprisonment (Counts VII, VIII and IX)
Finally, the Officers assert that Plaintiff failed to produce sufficient evidence to support
his claims of false arrest and false imprisonment. 17 ECF No. 181 at 19-23.
An arrest is unlawful if is not based upon probable cause. Reedy v. Evanson, 615 F.3d
197, 211 (3d Cir. 2010); Renk, 641 A.2d at 293. Plaintiff asserts that there was no probable
cause to stop him and that no probable cause developed at any time in the incident. ECF No. 190
at 38-39. He additionally argues that he was charged based on false statements provided by the
Officers. ECF No. 204 at 6-7.
Fallowing the traffic stop and shooting, Plaintiff was arrested pursuant to a warrant
obtained by Pittsburgh Police Detective Robert Provident on November 14, 2012, for two counts
of aggravated assault, three counts of recklessly endangering another person, two counts of
failure to yield at a yield sign and reckless driving. ECF No. 182
ii 23;
ECF No. 202
ii 23.
If
probable cause existed as to any of these offenses, no liability for false arrest can attach. See
Johnson v. Knorr, 477 F.3d 75, 84-85 (3d Cir. 2007).
Further, conviction of an offense
establishes as a matter of law that the arrest was supported by probable cause. Shelley v. Wilson,
339 Fed. App'x 136, 139 (3d Cir. 2009) (citing McClam v. Barry, 697 F.2d 366, 370 (D.C. Cir.
1983) (stating that for false arrest claims pursuant to common law and constitutional law,
subsequent conviction establishes justification for arrest as a matter of law.))
Subsequent to the subject incident of this case, Plaintiff was arrested for and convicted of
The Complaint indicates that Plaintiff is pursuing a constitutional claim for false arrest, ECF No. 34 ~ 99. Now,
Plaintiff indicates that the false arrest claim is a state law tort. ECF No. 205 at 6 ("the only torts that the Plaintiff
ha[ s] alleged against the Defendant officers are assault and battery and false arrest.") The elements for both types of
false arrest claims are the same. Campeggio v. Upper Pottsgrove Twp., Civ. A. No. 14-1286, 2014 U.S. Dist.
LEXIS 125644, *14-15 (E.D. Pa. Sept. 8, 2014) (citing Patzig v. O'Neil, 577 F.2d 84, 850 n.9 (3d Cir. 1978)). In
Pennsylvania, claims of false arrest and false imprisonment are coextensive. Safa v. City of Phila., Civ. A. No.
2: 13-cv-5007-DS, 2015 U.S. Dist. LEXIS 70022, *37 n.18 (E.D. Pa. May 29, 2015).
17
17
violating the Motor Vehicle Code at 75 Pa. Cons. Stat.§ 3323. 18 That conviction was upheld on
appeal. Ford, 2016 Pa. Super. LEXIS 319. Even though the conviction was for a summary
traffic offense, the conviction establishes probable cause for his arrest as a matter of law, thus
rendering his arrest lawful.
Accordingly, the Officers are entitled to judgment as a matter of law on Counts VII, VIII
and IX.
B.
Motion for Summary Judgment filed by Defendant City of Pittsburgh (Count
III)
Plaintiffs sole claim against the City is set forth in Count III of the Complaint, entitled
"Failure to Train, Enact and Imple[]ment Policies and Procedures and to Supervise Properly."
ECF No. 34 at 18. Therein, Plaintiff alleges:
The failure by the City of Pittsburgh to ensure that the established policies
and procedures found in the Pittsburgh Bureau of Police Order were being
followed by all Officers during the discharge of their official duties
rendered the policies and procedures "window dressing," and demonstrates
a deliberate indifference by the City of Pittsburgh Police Department to
thwart the custom or practice of officers' noncompliance of the Order, and
therein resulting in the violation of the constitutional rights ensured to the
citizens of the City of Pittsburgh, such as the Plaintiff ....
Id.
~
82. Plaintiff alleges that his constitutional rights that were violated by the City include: "the
right to body integrity," "the right to be free from the use of excessive force" and "the right to be
free from unreasonable seizures and searches."
Id.~
72.
Following discovery, and in response to the City's Motion for Summary Judgment,
Plaintiff summarizes his claim against the City as follows:
... The City of Pittsburgh Police Department has in place defective and
unlawful use of force policies and practices. Those policies, along with
the closed, insular structure of leadership fostered by cronyism, enabled
"fishing," and widespread non compliance of the Department's General
18
The unusual history of the applicable subsection is detailed above.
18
Orders, including
undisciplined ....
misuse
of
the
MVR
Equipment
that
went
ECF No. 190 at 4 (emphasis added).
Plaintiffs claim against the City is based on liability as set forth in Monell v. Department
of Social Services of the City of New York:
Local governing bodies ... can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where, as here, the action that is alleged to
be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body's
officers. Moreover, although the touchstone of the § 1983 action against a
government body is an allegation that official policy is responsible for a
deprivation of rights protected by the Constitution, local governments, like
every other § 1983 "person," by the very terms of the statute, may be sued
for constitutional deprivations visited pursuant to governmental "custom"
even though such a custom has not received formal approval through the
body's official decisionmaking channels.
436 U.S. 658, 690-91 (1978). 19
The City first argues that Plaintiff cannot establish any violation of his constitutional
rights by the Officers. ECF No. 184 at 3-5. As discussed above, in the analysis of the Officers'
Motion for Summary Judgment, a jury question concerning the violation of Plaintiffs
constitutional right to be free from unlawful seizure by excessive force remains. Accordingly,
the City cannot obtain judgment as a matter of law on this basis.
The City next argues that Plaintiff cannot establish that he suffered a violation of his
constitutional rights by the City as a result of the identified municipal policy and customs. Id. at
6-25. In his "Counter Concise Statement of Material Facts in Support of Plaintiffs Opposition
19
In order to succeed on a Section 1983 claim, a claimant must show: (1) the conduct complained of was performed
by a person acting under color of state law; and (2) this conduct deprived the claimant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; Kost v. Kozakiewicz, 1 F.3d
176, 184(3dCir.1993).
19
to Defendants' Motions for Summary Judgment," 20 Plaintiff sets forth approximately sixteen
"facts" to establish the existence of the City's policy and customs that resulted in constitutional
violations. ECF No.
191~~1-16.
One of these "facts," Paragraph 16, is wholly unsupported by citation to the record. 21 It
will not be considered. The other "facts" referenced by Plaintiff include a significant number of
non-factual, non-supported statements. See,
M.:_,
id.
~
8 (no citation for "It's important to note
that David Wright is a hyper-physical, overly muscular, former wrestler, who prides himself on
physical fitness and fighting technique.") Such unsupported statements will not be considered.
Finally, these sixteen "facts" listed by Plaintiff often contain citations which are inaccurate. In
Paragraphs 8 and 9, for example, which are purported to be illustrations of the flawed training at
the Pittsburgh Police Training Academy, the sole supportive citations are to excerpts of the
transcript of the deposition of David Wright, an instructor at the Academy. However, none of
20
The Court notes that Plaintiffs "Counter Concise Statement of Material Facts in Support of Plaintiffs Opposition
to Defendants' Motions for Summary Judgment," ECF No. 191, is not compliant with LCvR 56(C){l), which
requires "A Responsive Concise Statement" "which responds to each numbered paragraph in the moving party's
Concise Statement of Material Facts." The City and the Officers objected to the Counter Concise Statement on this
basis, correctly stating that such non-compliance "needlessly adds to the work facing the parties and the Court."
ECF No. 201 at I. In response to the Defendants' objection, "in an abundance of caution," Plaintiffs counsel
undertook "the rote exercise" of complying with the applicable Local Rule. ECF No. 202 at 2; ECF No. 203 at 2.
Plaintiffs responses in the compliant pleading largely unnecessarily and unhelpfully refer to multiple paragraphs (as
many as 51 at a time, see, ~. ECF No. 202 ~ 17) in his Counter Concise Statement. However, rather than reject
Plaintiffs pleadings as improper, in order to expedite the disposition of the subject motions, the Court will entertain
them to the extent they are otherwise compliant with applicable rules.
21
Paragraph 16 provides:
Thus, Officers Miller, Kosko, and Derbish, who were all officers in the new post-Consent
Decree era, never received the proper training on cultural diversity, impartial bias, fishing,
when to shoot, when not to shoot, or on de-escalation tactics. They were instructed not to
follow G.O. 40-4, 4.4, because force by any means can always be justified. They were
permitted to pick and choose when to comply with G.O. 69-1, which governs the proper
use of the MVR equipment. They were allowed complete freedom to use whatever
measure of force they deemed necessary without proper supervisory review, counseling, or
discipline. They were encouraged to make stops, and search as many citizens as possible,
regardless of the legality of their actions. In fact, they were lauded for such behavior
through publications circulated throughout the police force. This atmosphere of aggressive
officers quick to utilize physical force, with zero accountability for their behavior, became
akin to a percolating pot that boiled over with the shooting of Leon Ford.
ECF No.
191~16.
20
the excerpts cited therein correspond to the facts or the quotations set forth by Plaintiffs counsel.
For instance, Plaintiff states:
Instead, David Wright, who is charged with the training of officers in
accordance with the General Orders that dictate their behaviors throughout
their careers, outright disagreed with this regulation, because in his opinion,
"the policy could put an officer's life in jeopardy." David Wright
Deposition, Ex. F, Pg. 48 lines 9-18.
ECF No. 191
~
9. The citation provided is to the following testimony:
A Then we also have officers that are hired from - whether they have
experience on the street or they have experience just at the academy, have
been to another police academy within the Commonwealth.
Q And those that are, quote, unquote, off the street, did they receive any
secondary advanced training around use of force like you received in
Virginia?
A It is not broken down to - whereas, Virginia
ECF No. 191-6 at 6.
Obviously, neither the quotation nor the general topic can be found in the cited material.
Although this error may be merely clerical, it is by no means isolated. The Court cannot expend
its resources attempting to resolve and correct the numerous inaccuracies found throughout
Plaintiffs Counter Concise Statement of Material Facts. Accordingly, because an inaccurate
citation is no better than no citation, "facts" supported only by inaccurate citations will not be
considered.
It should be noted that the Defendants pointed out the problems with the lack of citation
as well as inaccurate citation in Plaintiffs Counter Concise Statement of Material Facts. ECF
No. 201. Plaintiffs counsel took no responsive remedial action.
The Court now turns to the properly submitted facts concerning the four areas
emphasized above that essentially form the bases of Plaintiffs claim against the City for failure
to train, enact and implement policies and procedures and to properly supervise: (1) defective
21
and unlawful use of force training; (2) crony1sm; (3) fishing; and (4) non-compliance with
General Order 69-1. 22
1.
Use of force training
Plaintiff asserts that the Pittsburgh Police Training Academy had a "training gap,"
whereby "training on excessive force focused primarily on encouragement and tutelage of ways
to use force, i.e., tactics and hand to hand combat techniques versus de-escalation and teaching a
proper continuum of when to use appropriate force." ECF No. 190 at 13.
In general, municipalities are not liable for a failure to train their police officers except
"where the failure to train amounts to deliberate indifference to the rights of persons with whom
the police come into contact." City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). To
amount to "deliberate indifference," the need for training must be "obvious," and the lack of
training "so likely to result in the violation of constitutional rights, that the policymakers of the
city can reasonably be said to have been deliberately indifferent to the need." Id.
Monell liability can be predicated on the theory that the municipality's failure to train its
employees "reflect[s] a deliberate or conscious choice by policymaking officials, such that one
could call it the [municipality's] policy or custom." Grazier ex rel. White v. City of Phila., 328
F.3d 120, 124 (3d Cir. 2003). "[T]here are limited circumstances in which an allegation of
failure to train can be the basis for liability under§ 1983." City of Canton, 489 U.S. at 387.
"[W]hen city policymakers are on actual or constructive notice that a particular omission in their
22
Plaintiff also makes a general argument that the City experienced a "back sliding effect" following the 2002
lifting of a 1997 consent decree concerning a pattern of conduct by City of Pittsburgh Bureau of Police. See ECF
No. 191 il'lf 1-3. However, in opposing the City's Motion for Summary Judgment, Plaintiff fails to point to even one
other incident of citizen-police interaction in which the citizen's constitutional rights were violated, thus failing in
this manner to establish a pattern of such violations. Furthermore, although Plaintiff advanced allegations in the
operative Complaint of additional "example[s] of the City of Pittsburgh Police Department's blatant and continuous
disregard for policy, particularly in the context of excessive and/or deadly force," ECF No. 34 if 78, citing incidents
involving citizens Jordan Miles, Will El, Beyshaud El and Dennis Henderson, id. iii! 78-79, Plaintiff has not
supported those allegations with any evidence in opposition to the Motion for Summary Judgment.
22
training program causes city employees to violate citizens' constitutional rights, the city may be
deemed deliberately indifferent if the policymakers choose to retain that program." Connick v.
Thompson, 563 U.S. 51, 61 (2011). However, "[w]ithout notice that a training is deficient in a
particular respect, decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights."
Id. at 62.
"A municipality's
culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to
train." Id. A plaintiff usually must provide evidence that the alleged failure to train has caused a
"pattern of violations." Kelly v. Borough of Carlisle, 622 F.3d 248, 265 (3d Cir. 2010).
When a plaintiff can show no pattern of constitutional violations, there is only "a narrow
range of circumstances" in which the need for training will be so obvious that deliberate
indifference can be imputed to a municipality that fails to provide that training. Connick, 563
U.S. at 71-72.
A district court must look to: (1) whether the training program is adequate; and (2)
whether any inadequate training "can justifiably be said to represent 'city policy."' City of
Canton, 489 U.S. at 390.
In other words, a municipality will only be liable for inadequate
training if, "in light of the duties assigned to specific officers or employees the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need." Id. "Courts should be careful not to impose liability merely
because municipal training could have been more thorough or comprehensive -- that question
will almost always be answered in the affirmative. Rather the question is whether the training
should have been more thorough or comprehensive, an inquiry that focuses on the deliberate
indifference standard." Murray v. City of Philadelphia, Civ. A. No. 2:11-CV-6900-CDJ, 2014
23
U.S. Dist. LEXIS 104456, *10-11 (E.D. Pa. July 31, 2014) (citing City of Canton, 489 U.S. at
392) (emphasis in original).
In the instant case, Plaintiff does not argue that the City failed to train officers on the use
of force.
Rather, Plaintiff claims that the use of force training focused too much on force
techniques and not enough on de-escalation techniques. Plaintiff relies on the testimony of two
witnesses as factual support for his allegation of deficient use of force training against the City.
First, Plaintiff cites the following excerpt of the deposition testimony of former
Pittsburgh Police Commander Rashall Brackney. ECF No. 191ii7.
Q: Do you see any training gap in the training that Pittsburgh police
officers are given regarding use of force or deadly force?
A: Yes. I think we've gotten into the habit of focusing so much on
physical skills training. And we give the canned response that we integrate
customer service and deescalation, conflict resolution training in every
aspect of every training that we do, that we talk about customer service, but
is it really the way we feel about that?
I can't speak for everybody. I just -- I just know there is a gap.
For instance, about a year ago we went through four days of training on
policing ethics. And I don't believe any of us taught any of the classes on
ethics and policing.
So I -- I believe we do a lot of our training so that we can check off a box
around liability. And if everyone believes or thinks that's the perspective
you're coming from, they're only there to check off the box, as well.
ECF No. 191-2 at 20-21.
Secondly, Plaintiff maintains that the training the City did provide concerning
"alternative techniques to the physical use of force, i.e., body language, eye contact, and verbal
judo," ECF No. 191 ii 10, was inherently ineffective because it was taught by David Wright, an
instructor "who is a staunch advocate of physical use of force, in all circumstances." Id. The
testimony from David Wright cited by Plaintiff does not support his characterization that Wright
24
advocates force in "all circumstances." Rather, therein Wright describes how he would react in
one particular circumstance, namely "if you have a gun and you decide to use it on me," which
he also describes as "close-quarter combat, which is you have a gun." ECF No. 191-8 at 4, 5.
This testimony does not support Plaintiffs claim.
As such, Plaintiff is left with the Brackney deposition excerpt, which, at the very most,
identifies a possible deficiency, i.e., that the use of force training should have included additional
de-escalation training. Construing all of the facts in the light most favorable to Plaintiff, he has
failed to proffer any evidence identifying a City decisionmaker who was "on actual or
constructive notice" of the alleged training deficiency, no evidence that the decisionmaker despite such notice - chose to maintain an inadequate training program, and no evidence
establishing that the City's training on use of force was the cause of Plaintiffs injuries. See
Kelly v. Borough of Carlisle, 622 F.3d at 265; Pharaoh v. Dewees, Civ. A. No. 14-3116, 2016
U.S. Dist. LEXIS 59668, at *5 (E.D. Pa. May 4, 2016); Artiles v. Vitanza, Civ. A. No. 06-5427,
2009 U.S. Dist. LEXIS 68820, at *82-100 (D.N.J. Aug. 6, 2009).
Because Plaintiff has failed to make a showing sufficient to establish the existence of the
requisite elements essential to a failure to train or deficient training claim, on which he will bear
the burden at trial, the City is entitled to judgment as a matter of law on this claim. Therefore,
Plaintiff may not proceed with his Monell claim against the City on the failure to adequately
train claim.
2.
Cronyism
The sole material evidence that Plaintiff cites concerning "cronyism"23 is the following
deposition testimony of Pittsburgh Police Commander Eric Holmes:
23
Plaintiff defines "cronyism" as a practice whereby "higher ranking police officials advanced or hand selected
their friends in the force to be placed in certain positions or earmarked them for advancement." ECF No. 191 ~ 4.
25
Q And in addition to not being fair to the other officers, that also creates a
risk to the society at large as far as overstepping people's rights on the
street, the citizen's on the street?
A Potentially.
Q What I mean by that is, if they're all friends and they all back up each
other's behaviors, if they overstep some grounds to do certain things, it's
hard to believe that they would tell on each other or check each other -check and balance each other?
A Yes.
Q And that's the fear of the cronyism in general, correct?
A Yes.
Q It could deteriorate pretty rapidly from the perspective of society?
A Yes.
Q That's what you're talking about keeping the integrity and
professionalism of police is important to you, as well?
A Yes.
Q You agree with that, yes?
A I wasn't listening. I was zoning.
Q You agree that one of the risks of cronyism is that behavior of officers
will be backed up by their friends, versus looked at objectively, correct?
A Yes.
ECF No. 191-3 at 11-12 (objection and recess omitted).
This testimony falls short of constituting evidence of the occurrence of any constitutional
violation. Commander Holmes herein only speculates on the potential risks of and general fears
concerning cronyism. He does not state that these risks or fears were realized in the Pittsburgh
Bureau of Police. This testimony, in which every line of substance uses a hypothetical term (i.e.,
"risk," "if," "fear," "could"), is speculative on its face, and cannot constitute proof of any
element of Plaintiffs case against the City.
3.
Fishing
Plaintiff asserts that "fishing," "which involves officers stopping or encountering as many
individuals as possible during a shift with the hope of making arrests," "became a common tool
Plaintiff cites testimony from Eric Holmes in support of this definition from Eric Holmes, id., but attaches only a
part of that testimony. Plaintiff also cites testimony from Chief Cameron McLay in further support of this
definition, id., but that testimony, "So there was a whole lot going on there. So I was able to get my handle or [sic]
what had occurred. My analysis process also revealed as .. .," ECF No. 191-4 at 7, is not supportive.
26
that Pittsburgh Police began to utilize." ECF No. 191 ,-r 11. Plaintiff further asserts that "in
practice, fishing is nothing more than glamorized racial profiling, and undoubtedly results in an
erosion of the constitutional rights amongst citizens in minority neighborhoods." Id.
The City seeks summary judgment on this claim on the grounds that Plaintiff has failed
"to provide specific instances where this alleged practice caused the deprivation of a person's
rights," let alone that it directly caused Plaintiff's alleged deprivation of rights following his
traffic stop. ECF No. 200 at 7. The City further argues that, even under Plaintiff's theory, this
practice is not unlawful. Id. At most, the City asserts that, "fishing" "may raise a public policy
issue" but it is not grounds to avoid summary judgment on Plaintiff's municipal liability claim.
Plaintiff supports his claim with deposition testimony from Pittsburgh Police Chief
Cameron McLay describing fishing as "one of those lawful practices that have an impact on
community trust because it appears disingenuous."
Id. (citing ECF No. 191-4 at 2). He also
cites to testimony from former Pittsburgh Police Chief Nathan Harper, id., which provides as
follows:
Q. I asked you, when we went off the record, did you ever hear of the term
"fishing."
You said that was a term that was used for decades?
A. Yeah, decades.
Q. What did you understand that to mean?
A. That meant, on a vehicle stop, there is no probable cause for a vehicle
stop, but officers going to hope that they find something, vehicle code
violation.
Q. And something that allows them to go further in searching. Correct?
A. That's correct.
Q. Maybe uncover narcotics or a gun or something?
A. That's correct.
Q. What do you think of that technique?
A. I think it's a terrible technique, and I would not allow it.
Q. Tell me why it's not a good technique or is a terrible technique.
A. Because it's a violation of the person's civil rights.
27
Q. And you recognized the slippery slope it could involve once you start
eroding those rights?
A. That's correct.
Q. You also recognize, largely, those practices are used in communities of
color?
A. Yes.
ECFNo.191-9at7-8.
The sole testimony cited by Plaintiff that remotely connects the technique of fishing to
City of Pittsburgh Bureau of Police in any manner comes from the deposition of Commander
Eric Holmes. ECF No. 191
if
10. In the cited testimony, Commander Holmes describes two
possible rewards for Pittsburgh police officers who engage in fishing: (1) money, in the form of
payment for court time; and (2) recognition on a list of police officers who have recovered illegal
guns.
ECF No. 191-3 at 16.
In both of these areas, Commander Holmes was indefinite,
testifying that court time could "potentially" lead to more money, depending on which shift the
officer worked, id. at 16-17, and giving his "personal opinion" that the existence of the list
"could lead to shoddy, shoddy police work," explaining that, "You're just trying to get your
name on the list, so you just take short cuts." Id. at 19-20. In the cited testimony, Commander
Holmes does not state that Pittsburgh police officers engaged in fishing or that the lawful
practice thereof resulted in any violation of constitutional rights of Plaintiff.
The above-cited testimony generally recognizes the unacceptable technique of "fishing,"
but it does not establish any connection between fishing, the City of Pittsburgh Bureau of Police
and the harm that Plaintiff sustained.
Accordingly, Plaintiff has not established that the Officers either practiced fishing in
conducting the traffic stop, or, more importantly, that the practice of fishing by the Officers
resulted in the violation of Plaintiffs constitutional rights.
28
4.
Non-compliance with General Order 69-1
Finally, Plaintiff advances a claim that the Pittsburgh Police Officers failed to provide
proper training for and enforcement of General Order 69-1, implemented on April 15, 2012,
which established guidelines and procedures for use of Mobile Video/Audio Recording
("MVR") equipment. ECF No. 191
~
13.
The City seeks summary judgment as to this portion of Plaintiffs claim as well.
Specifically, the City argues that Plaintiff does not claim to have a constitutional right to be
recorded with MVR equipment. ECF No. 200 at 9. Rather, the City notes that Plaintiff appears
to be alleging that the failure to follow the MVR Order enabled a pattern of policy violations by
police officers to go undetected by the City. Id.
General Order 69-1 expressly provides that police officers operating MVR-equipped
vehicles "will ensure" recording of the certain types of incidents, including:
5.1.1. Traffic and criminal enforcement stops.
5.1.2. In-progress Vehicle and Crimes Code violations.
5.1.3. Police vehicle pursuits.
5.1.4. Patrol vehicle travel and movements when emergency lights or siren
are activated.
ECFNo. 191-11 at3.
In considering the noncompliance/failure to train portion of Plaintiffs claim relative to
General Order 69-1, it must be recognized that "a § 1983 plaintiff pressing a claim of this kind
must identify a failure to provide specific training that has a causal nexus with his or her injury."
Colburn v. Upper Darby Two., 946 F.2d 1017, 1030 (3d Cir. 1991).
In supporting this claim, Plaintiff initially advances a statement that the training for this
equipment was "woefully inadequate." ECF No. 191
does not speak to the adequacy of the training.
29
~
13. The cited testimony for that "fact"
ECF No. 191-12 at 2.
Rather, the cited
deposition testimony from Mark Kneebone 24 concerns the lack of immediate understanding on
the part of the police officers about whether the MVR equipment would ultimately prove to be a
benefit or a detriment to them. Id. Specifically, in response to a question about the "mind set" of
the Pittsburgh Police Department towards the equipment and whether it would be "good for"
them from the police perspective, Office Kneebone answered:
I'm trying to think how to explain it to you. We got trained in cameras
overnight. One day we came into work, they are like, "You have to go to
this training, because we have cameras." So we didn't understand how it
worked, how it was going to be utilized. So yes, there was [sic] questions
about it, because we didn't know. But now that everybody knows how it
works and they are comfortable with it now.
At most, this nonspecific testimony establishes that either prior to or immediately after
the initial training on the MVR equipment, there may have been some lack of understanding on
the scope of the use of the MVR equipment.
Plaintiff next advances the deposition testimony of several police officials to support his
contention that "no training or discipline was meted out" to officers who were noncompliant with
MVR policies. ECF No. 191
if
14. Testimony from the cited depositions, in large part, directly
contradicts Plaintiffs contention. In the excerpts of former Commander Brackney's deposition
attached by Plaintiff, she offers the following testimony:
Q Do you know if the City was doing anything as far as active training or
discipline of the officers who were guilty of not using the equipment for 691?
A I believe Chief Bryant, who is the Chief of Operations, reissued the
order regarding our motor vehicles -- our MVR activation and officers were
being counseled or retrained, so if they were --
24
Plaintiff does not here identify Mark Kneebone. A non-cited portion of his deposition reveals that he was a
Pittsburgh Police Officer working in Zone 5 with the Officers at the time of the shooting. ECF No. 205, Exhibit A,
Mark Kneebone at 18.
30
If that was -- during these validations each month, if that was determined,
the officers were trained, as well.
ECF No. 191-2 at 15.
Former Chief Harper testified about MVR-related problems as follows:
Q And then, what was done to rectify the problem?
A Well, we would do a remedial training or, after remedial training, we
initiated discipline action.
ECFNo. 191-9at6.
There is cited testimony that may not directly contradict Plaintiffs assertion of fact from
the deposition Sergeant Michael Pilyih which is, in total, as follows:
A. I can't speak for them. But I can say that it was not widely enforced at
our station yet.
Q. At Zone 5?
A. At Zone 5.
ECF No 192-1at2.
The subject of this testimony is not identified. No weight can therefore be assigned to it.
Further, Plaintiff cites to deposition testimony of Jennifer Ford, identified by Plaintiff as
"the Lieutenant of the Training Academy of the Pittsburgh Police Department," describing her
testimony as:
Despite the importance of the equipment, the purpose behind it, and the
valuable information it records, Lieutenant Ford never instituted appropriate
retraining, never investigated why video was not accompanied with audio in
all instances, and never determined whether the equipment was properly
functioning.
ECF No. 191ii15 (emphasis in original).
The testimony of Lieutenant Ford cited for this proposition by Plaintiff is:
Q Okay.
So when you didn't know whether it was either in the
malfunction of the equipment category or deliberate act, did it ever occur to
you to, at some point, review some of those, we'll call them, I guess,
31
command -- control panels, to see what -- if it was malfunction or a
deliberate act?
A No, I didn't do those reviews.
ECF No. 192-2 at 8.
As the City points out, Plaintiff did not lay a foundation to establish that Lieutenant Ford
had responsibility for any of the tasks listed. ECF No. 201
~
15. Further, the cited testimony
does not concern the issue of retraining for which it is cited.
Considering all of the evidence relative to training and compliance with the MVR
equipment order in the light most favorable to Plaintiff, this Court finds that he has not
established the causal connection between such training and compliance and the injuries at issue.
Plaintiff has not made out a claim to the inadequacy of training on the equipment or enforcement
of General Order 69-1.
*****
In summary, following a thorough review, the Court finds that Plaintiff has failed to
produce sufficient evidence, even when that evidence is construed in the light most favorable to
him, to survive the City's Motion for Summary Judgment relative to Plaintiffs claims that his
constitutional rights were violated by the City's alleged unlawful policies and practices.
Therefore, the City is entitled to summary judgment. 25
25
The City raises one additional argument, concerning the impropriety of punitive damages, in its Motion for
Summary Judgment. ECF No. 183 ~ 4. The Court need not address this issue.
32
V.
CONCLUSION
The Motion for Summary Judgment filed by the Officers, ECF No. 180, is granted in part
and denied in part.
As to qualified immunity, summary judgment is denied.
As to Counts I and II, summary judgment is granted in favor of Defendants Kosko and
Miller. Summary judgment is granted in favor of Defendant Derbish for the portion of Counts I
and II concerning the traffic stop. Summary Judgment as to Plaintiffs claim under Counts I and
II that Defendant Derbish effectuated an unlawful seizure of Plaintiff by excessive force is
denied and will proceed to trial.
As to Count IV, summary judgment is denied. The claim of assault and battery against
Defendant Derbish will proceed to trial.
As to Count V, summary judgment is granted in favor of Defendant Kosko.
As to Count VI, summary judgment is denied. The claim of assault and battery against
Defendant Miller will proceed to trial.
As to Count VII, summary judgment is granted in favor of Defendant Derbish.
As to Count VIII, summary judgment is granted in favor of Defendant Kosko.
As to Count IX, summary judgment is granted in favor of Defendant Miller.
33
The Motion for Summary Judgment filed by the City, ECF No. 183, is granted.
In accordance with these rulings, Defendant Kosko is dismissed from the case. The City
of Pittsburgh is dismissed as a defendant. 26
Dated: August 15, 2016
BY THE COURT,
MAUREEN
LY
CHIEF UNITED STATES MA
cc:
26
All Counsel of Record Via CM-ECF
The City of Pittsburgh remains as a Cross-Claim Defendant.
34
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