Igwe v. Skaggs et al

BRIEF in Opposition re Motion to Dismiss, and Motion for Summary Judgment

W.D. Pa.December 27, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ANTHONY IGWE, as the Administrator ) of the Estate of PRISCILLA L. ROBINSON, ) ) Civil Action No.: 16-cv-1403 Plaintiff ) ) Jury Trial Demanded v. ) ) HONORABLE MARK A. KEARNEY JEREMY SKAGGS; MUNICIPALITY OF ) MONROEVILLE; GLOBAL TRAFFIC ) TECHNOLOGIES, INC.; and GLOBAL ) TRAFFIC TECHNOLOGIES, LLC; ) ) Defendants. ) PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS JEREMY SKAGGS AND MUNICIPALITY OF MONROEVILLE’S MOTION TO DISMISS PURSUANT TO FED.R.CIV.P 12(b)(6) AND ALTERNATIVELY MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56 NOW COMES the Plaintiff, by and through the undersigned counsel, and files this Brief in Opposition to Defendants’ Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) and alternatively for Summary Judgment under Fed.R.Civ.P. 56, and in support thereof, Plaintiff states as follows: I. INTRODUCTION This matter arises from an automobile collision that occurred at the intersection of SR 22 and Mall Plaza Blvd in Monroeville, Allegheny County, Pennsylvania. [Doc. #34 @ ¶17-19, 52- 53]. The traffic signal at that intersection was equipped with an Opticom™ priority control system which was intended to give emergency vehicles a green signal as they approach and proceed through a controlled intersection. [Doc. #34 @ ¶13, 37-41]. On December 8, 2010, MONROEVILLE Police Officer Frisk called dispatch to run the license plate on a Hyundai vehicle he was following on SR 22 in Monroeville, Pennsylvania. [Doc. #34 @ ¶23]. Shortly thereafter a pursuit ensued between Officer Frisk and the suspect. [Doc. #34 Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 1 of 21 2 @ ¶25]. Officer Supancic was requested by dispatch to provide assistance. [Doc. #34 @ ¶28]. Defendant SKAGGS, without being requested, voluntarily took it upon himself to respond to Officer Frisk’s location. [Doc. #34 @ ¶34]. While responding to Officer Frisk’s location Officer Supancic disregarded a stop sign and went through at least seven (7) intersections controlled by traffic signals which displayed a red traffic signal in his direction. Officer Supancic proceeded through those intersections, without first clearing those intersections despite having a red traffic signal. [Doc. #34 @ ¶42]. Defendant SKAGGS drove on the wrong side of the road and drove through at least two (2) intersections controlled by traffic signals which displayed a red traffic signal in his direction. [Doc. #34 @ ¶45]. Defendant SKAGGS proceeded through those intersections despite having a red traffic signal, without first clearing those intersections, prior to reaching the intersection of SR 22 and Mall Plaza Boulevard. [Doc. #34 @ ¶45]. According to Defendant SKAGGS’ patrol unit’s dash cam, he proceeds through the intersection of SR 22 and Mall Plaza Boulevard against a steady red light. [Doc. #34 @ ¶46]. Information obtained from Defendant SKAGGS’ patrol unit’s RCM showed that at 3 seconds out from the impact, Defendant SKAGGS’s speed was 88 MPH. [Doc. #34 @ ¶47]. Defendant SKAGGS crashed into the driver’s side of Decedent ROBINSON’s vehicle after Decedent ROBINSON had already crossed the westbound lanes of SR 22 and was crossing the eastbound lanes of SR 22. [Doc. #34 @ ¶52]. As a result of the crash, Decedent ROBINSON suffered grave injuries including, but not limited to, blunt force trauma to the head resulting in traumatic brain injury with massive cerebral edema which ultimately lead to her death the following day, December 9, 2014. [Doc. #34 @ ¶54]. Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 2 of 21 3 Plaintiff incorporates herein by reference Plaintiff’s Response and Counter-Statement of Material Facts and Plaintiff’s Appendix to Concise Counter-Statement of Material Facts filed simultaneous herewith. II. LEGAL ARGUMENT A. Count IV of Plaintiff’s Amended Complaint States a Plausible Claim for a Violation of the Fourteenth Amended Pursuant to 42 U.S.C. §1983 Based on the State Created Danger Doctrine Under the state-created danger theory liability may be assessed against the state where the state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment rights. Sanford v. Stiles, 456 F.3d 298, 304 (3rd Cir. 2006)[citing Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d. Cir. 1996)]. In the matter presently before the court, this case concerns Section 1 of the Fourteenth Amendment, “nor shall any state deprive any person of life* * * without due process of law.”. To prevail on a claim of state-created danger, a plaintiff must prove the following four elements: (1) The harm ultimately caused was foreseeable and fairly direct; (2) A state actor acted with a degree of culpability that shocks the conscience; (3) A relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s act, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s action, as opposed to a member of the public in general; and (4) A state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Sanford v. Stiles, 456 F.3d 298, 304 (3rd Cir. 2006)[citing Bright v. Westmoreland County, 443 F.3d 276, 281 (3d. Cir. 2006)]. (i) The Harm Caused Was Foreseeable and Direct To suggest that causing injury and death to another person by someone running a red light at nearly 80 MPH is not foreseeable is simply incredulous. If that were true, why did Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 3 of 21 4 MONROEVILLE file the following charges against the fleeing suspect, Martell Lavon Harris, based on his driving: Reckless Driving, 75 Pa.C.S.A. §3736, which requires evidence of willful or wanton disregard for the safety of persons; Aggravated Assault, 18 Pa.C.S.A. §2702(a)(1), which requires evidence of an attempt to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; and Recklessly Endangering Another Person, 18 Pa.C.S.A. §2705, which requires evidence that the person recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. [Response @ ¶49-50]. Officers Frisk, Supancic, and Defendant SKAGGS all engaged in the exact same driving habits in their attempt to either pursue Martell Lavon Harris or respond to Officer Frisk’s location. [Response @ ¶42-45, 49, 51-56, 60-63]. Interestingly, despite his conduct Martell Lavon Harris’s vehicle did not strike or kill anyone yet he was charged as set forth above. It cannot credibly be argued in the instant matter that the harm to Priscilla Robinson was not foreseeable. The entire purpose of a municipality instituting a “Pursuit Policy” is to try to limit the know dangers associated with the police pursuit of vehicles. See 75 Pa.C.S.A. §6342. The driver of an emergency vehicle is afforded certain privileges when responding to an emergency call or when in pursuit of a suspect, however, the driver is not relieved “from the duty to drive with due regard for the safety of all persons.” 75 Pa.C.S.A. 3105(e). Defendant SKAGGS knew that the MONROEVILLE POLICE DEPARTMENT’S POLICY AND PROCEDURES MANUAL specifically states: It is the policy of this Department to always drive safely and comply with state and local laws. Officers shall have the duty to drive with due regard for the safety of all persons. Furthermore, no duty is so important and no call so urgent that officers cannot proceed with caution and arrive safely.” Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 4 of 21 5 [Doc. #34 @ ¶78][See Exhibit “1” @ §28.1.1 attached to Plaintiff’s Appendix to Concise Counter-Statement of Material Facts]. Defendant SKAGGS also knew that pursuant to 75 Pa.C.S.A. 3105(b)(2) the “[d]river of an emergency vehicle, when responding to an emergency call or when in pursuit of an actual or suspected violator of the law * * * [may] [e]xceed the maximum speed limits so long as the driver does not endanger life or property * * *.” [Emphasis added] [Doc. #34 @ ¶77]. Defendant SKAGGS knew that the OPTICOM system was capable of being outrun depending on the vehicle’s speed. [Doc. #34 @ ¶82][Response @ ¶34-35]. Defendant SKAGGS further knew that pursuant to 75 Pa.C.S.A. 3105(b)(2), the “[d]river of an emergency vehicle, when responding to an emergency call or when in pursuit of an actual or suspected violator of the law * * * [may] [p]roceed past a red signal indication * * *, but only after slowing down as may be necessary for safe operation.” [Emphasis added] [Doc. #34 @ ¶76]. The reason the preceding policies and limitations exist is because it was well known that if the driver of an emergency vehicle didn’t follow those polices and limitations, it was foreseeable that people’s lives would be endangered. Despite that, Defendant SKAGGS approached the intersection of SR 22 and Mall Plaza Boulevard, were the collision occurred, going 88 MPH [Doc #34 @ ¶49][Response @ ¶63] and entered the intersection against a red traffic signal. [Doc #34 @ ¶46][Response @ ¶60]. (ii) The State-Actor’s Actions “Shock the Conscience” In County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998), the Supreme Court stated that in the context of a high-speed police pursuit, only an “intent to harm” the plaintiff satisfies the “shocks the contemporary conscience” standard to impose liability. However, the Court went on to state that whether behavior rises to the level of conscience-shocking will depend upon the facts of each individual case. Id. At 850. In Miller v. City of Philadelphia, 174 F.3d 368, Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 5 of 21 6 375 (3d Cir. 1999), the Third Circuit stated that in substantive due process cases, “[t]he exact degree of wrongfulness necessary to reach the conscience-shocking level depends upon the circumstances of a particular case.” Plaintiff concedes that if this court determines that Defendant SKAGGS was involved in a high-speed pursuit, the applicable standard is an “intent to harm” which the Plaintiff herein, as well as any other Plaintiff on the Planet, is unable to prove.1 However, it is respectfully submitted that Defendant SKAGGS was not involved in a high-speed pursuit at the time he voluntarily took it upon himself to proceed towards Officer Frisk’s location. As such, a lesser standard applies to determine if Defendant SKAGG’s conduct “shocks the contemporary conscience”. In Sanford v. Stiles, 456 F.3d 298, 310 (3d Cir. 2006), the Third Circuit held that: [i]n a state-created danger case, when a state actor is not confronted with a “hyperpressurized environment” but nonetheless does not have the luxury of proceeding in a deliberate fashion, the relevant question is whether the officer consciously disregarded a great risk of harm. Again, it is possible that actual knowledge of the risk may not be necessary where the risk is “obvious”. The MONROEVILLE “Pursuit Policy” defines a “vehicular pursuit” to mean “(A) Officer attempts to stop motorist; and (B) Motorist appears to know that the officer wants him/her to stop and fails to do so as required by law; and (C) Motorist takes action in an attempt to elude the officer.” [Response @ ¶18]. Accordingly, Officer Frisk was engaged in a “vehicular pursuit”. Defendant SKAGGS, however, was several miles from Officer Frisk’s 1 It is respectfully submitted that the standard enunciated by the Supreme Court is unattainable. There will never be an incident where a police officer who causes harm to another is going to voluntarily admit that the officer “intended to harm” that person. Satisfying the “intent to harm” standard is much like satisfying one’s daughter’s desire to own a Unicorn; impossible. This unattainable standard begs the question, if one can never impose liability against a police officer engaged in a pursuit, no matter how reckless their conduct, why legislate that municipalities institute “Pursuit Policies” if the law declares that violation of those polices does not impose any liability so long as the officer didn’t intend to harm anyone? See Herrera v. Collins, 506 U.S. 390, 428 (Scalia, J. concurring) (questioning the usefulness of “conscience shocking” as a legal test). Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 6 of 21 7 location when Officer Frisk attempted to initiate the traffic stop which lead to the pursuit. Moreover, once Officer Frisk initiated the pursuit, Officer Supancic was requested by dispatch to provide the role as the secondary pursuing unit. [Doc. #34 @ ¶21, 23][Response @ ¶22-23]. MONROEVILLE’S “Pursuit Policy” specifically states that after the primary and secondary pursuing roles are established, “[o]ther units shall assume support roles if needed or requested by pursuing officer(s) or pursuit supervisor.” [Emphasis added][Response @ ¶28]. At the time Defendant Jeremy Skaggs began responding to Officer Frisk’s location, he had not been requested to respond by Officer Frisk; he had not been requested to respond by the pursuit supervisor; and Officer Frisk was already entering into other municipal jurisdictions and had asked dispatch to advise those jurisdictions, therefore there was no need at that time for Defendant Jeremy Skaggs to provide a support role. [Response @ ¶29-31]. Defendant SKAGGS voluntarily took it upon himself to provide back up assistance to a pursuit that was heading into other jurisdictions. As such, Defendant SKAGGS was not confronted with a “hyperpressurized environment”. Accordingly, the “intent to harm” standard should not apply when evaluating Defendant SKAGGS’s conduct. See Terrell v. Larson, 371 F.3d 418 (8th Cir. 2004). Instead, Defendant SKAGGS’s conduct must be reviewed to determine if he acted in conscious disregard of a great risk of serious harm. It is undisputed that Defendant SKAGGS consciously disregarded MONROEVILLE’s “Pursuit Policies” when he knowingly violated the departmental policy which specifically require that “[a]ll officers participating in a pursuit shall immediately advise the radio dispatcher.” [Response @ ¶26-27]. Defendant SKAGGS attempt to justify his violation of MONROEVILLE’s departmental policy by claiming, “I did not want to communicate over the radio unless necessary or requested to do so in order to keep the radio air clear for Officer Frisk Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 7 of 21 8 to communicate *.*.*.” [Doc. #35-1 @ ¶6]. Not only does this proffered excuse violate MONROEVILLE’s specific policy instructions [Response @ ¶26] but also demonstrates that Defendant SKAGGS was not reacting in a “hyperpressurized environment” as he had time to deliberate and make a calculated decision to ignore MONROEVILLE’s departmental policy. It is respectfully submitted that the Second Amended Complaint sets forth sufficient allegations that Defendant SKAGGS acted in conscious disregard of a great risk of serious harm. As set forth above, it was well known and foreseeable that violating MONREOVILLE’s POLICIES AND PROCEDURES MANUAL including, but not limited to, its “Pursuit Policy” created a great risk of serious harm. Again, the purpose of developing Pursuit Policies is to avoid the know danger that a great risk of harm can result from high-speed pursuits. As the Supreme Court stated in Lewis, “[a] police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from law is no way to freedom, and, on the other hand, the high-speed threat to all those in stopping range, be they suspects, their passengers, other drivers, or bystanders.” Lewis, 523 U.S. at 853. This balance is reflected in MONROEVILLE’s “Pursuit Policy” wherein it specifically authorizes officers to “[t]erminate the pursuit if the risks to the public, officer(s), or suspect(s) are greater than the need to apprehend the suspect(s).” [Response @ ¶38-39]. As such, the great risk of serious harm associated with a high-speed chase, especially when approaching an intersection at a speed of 88 MPH and entering an intersection against a steady red signal [Doc #34 @ ¶46, ¶49][Response @ ¶60, ¶63] was well known to Defendant SKAGGS. Likewise, Defendant SKAGGS knew that he was proceeding at a speed which would out run the Opticom™ system and yet failed to follow departmental policy to clear the intersection. [Doc. #34 @ ¶82][Response @ ¶34-35]. Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 8 of 21 9 To the extent the court decides this issue on a summary judgment basis, all inferences must be drawn in favor of the non-movant and it must be remembered that discovery is incomplete2 and Plaintiff should be given the opportunity to develop additional facts to refute any claims the Defendants may make that Defendant SKAGGS did not consciously disregard a great risk of harm. With respect to the cases relied upon Defendants SKAGGS and MONROEVILLE, those cases are readily distinguishable. In Leddy v. Township of Merion, 114 F.Supp.2d 372 (E.D. Pa. 2000), the police officer, although responding to a non-emergency call had in fact been dispatched to go to that scene and the response required immediate attention. It is important to note that the Leddy Court applied an intermediate standard for reviewing the officer’s conduct, as Plaintiff herein is suggesting, and not the “intent to harm” standard argued by the defense in the instant matter. It must also be noted that the Leddy case was decided at the summary judgment stage after discovery had been completed. Marcelle v. City of Allentown, 2010 WL 1373661 (E.D. Pa. 2010), is a non-precedential case that did not involve a high speed chase, but rather an officer responding to an emergency call of a man threatening to shoot people with a gun and the court applied the “intent to harm” standard. Defendant SKAGGS, in the matter herein, states that when he heard Officer Frisk radio to dispatch “that the suspect ‘was reaching around in the vehicle a lot’ and was ‘acting very awkwardly’ [it] indicated to [him] that the suspect may have been reaching for a weapon or other contraband.” [Doc. #35-1 @ ¶7]. However, no gun was ever found and the suspect was never charged with a weapons offense. [Response @ ¶80]. Accordingly, the exigent circumstances 2 What Defendant SKAGGS ultimately knew is something that needs to be explored during discovery. Fed.R.Civ.P. 56(d). Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 9 of 21 10 present in Marcelle did not exist here. Again, the officer in Marcelle, unlike Defendant SKAGGS, had been dispatched to respond to an emergency situation. Gillyard v. Stylios, 1998 WL 966010 (E.D. Pa. 1998), is another non-precedential that was decided prior to the Third Circuit’s rulings in Sanford v. Stiles, 456 F.3d 298 (3d. Cir. 2006)[see also Suarez v. City of Philadelphia, 2011 WL 6258232 (E.D. Pa. 2011)]. Gillyard is further distinguishable in that it applied the “intent to harm” standard. It should also be noted that Gillyard was decided at the summary judgment stage after full and complete discovery had been conducted, not at the pleading stage. (iii) A Relationship Existed Between the State and Plaintiff Defendants contend that no relationship existed between Defendant SKAGGS and Priscilla Robinson such that she was a foreseeable victim of the defendant’s acts. The Defendants have focused their argument on the second way of demonstrating a relationship, that the plaintiff was a member of a discrete class of persons subjected to the potential harm and ignore the first way: that the plaintiff was a foreseeable victim of the defendant’s acts. However, in doing so the Defendants have ignored existing case law, controlling statutes, and MONROEVILLE’s own POLICIES AND PROCEDURES MANUAL all of which unquestionably establish that Priscilla Robinson was a foreseeable victim of Defendant SKAGGS acts. First, it must be noted that the Defendants haven’t cited one case, not only in this jurisdiction, but any jurisdiction, which has held that the third prong of the state-created danger doctrine is not met where a police officer, in the course of a high-speed pursuit, injures or kills an innocent bystander or driver. Instead they cite to and rely on an irrelevant case involving the release of an inmate from jail who later kills a police officer. In fact, the cases which have Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 10 of 21 11 addressed high-speed police pursuits have all held the complete opposite from Defendants’ position. It is because innocent bystanders or drivers are foreseeable victims of police conduct during a high-speed chase that the courts have recognized that a §1983 claim may exist, if it can be shown that the officers conduct was “conscious shocking”. It is because innocent bystander and other drivers on the roadways may be foreseeable victims that 75 Pa.C.S.A. §6342 specifically requires each police department to “develop and implement a written emergency vehicle response policy governing the procedures under which a police officer should initiate, continue and terminate a motor vehicle pursuit.” In developing its policy, each department is mandated to including in its procedural elements, “[s]afety factors that pose a risk to police officers, other motorists, pedestrians and other persons.” 75 Pa.C.S.A. §6342 (c)(iii). Likewise, 75 Pa.C.S.A. §3105(e) requires that drivers of emergency vehicles have a “duty to drive with due regard for the safety of all persons.” These laws evidence the state’s acknowledgement that other users of the roadways are foreseeable victims of the defendant’s acts. Finally, MONROEVILLE itself has acknowledged that other users of the roadways are foreseeable victims of the defendant’s acts, if the officers do not follow departmental guidelines on high-speed pursuit. Defendant SKAGGS knew that the MONROEVILLE POLICE DEPARTMENT’S POLICY AND PROCEDURES MANUAL specifically stated: It is the policy of this Department to always drive safely and comply with state and local laws. Officers shall have the duty to drive with due regard for the safety of all persons. Furthermore, no duty is so important and no call so urgent that officers cannot proceed with caution and arrive safely.” [Emphasis added]. [Doc. #34 @ ¶78][See Exhibit “1” @ §28.1.1 attached to Plaintiff’s Appendix to Concise Counter- Statement of Material Facts]. Likewise, The MONROEVILLE Pursuit Policy provides as follows: Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 11 of 21 12 These guidelines are intended to minimize the risk of injuries to the public, police officers and suspects. Each officer must weigh the risk of personal and public safety against the benefits of apprehension. *.*.*. [Doc. #34 @ ¶86][See Exhibit “1” @ §28.12.1 attached to Plaintiff’s Appendix to Concise Counter-Statement of Material Facts]. As such, it is indisputable that Defendants understood that persons such as Priscilla Robinson were foreseeable victims of Defendant SKAGGS’ acts. (iv). The State-Actor Used His Authority to Create An Opportunity for Danger That Otherwise Would Not Have Existed It was Defendant SKAGGS authority as a police officer which created the danger that led to Priscilla Robinson’s death. It was Defendant SKAGGS position as a MONROEVILLE Police Officer which gave Defendant SKAGGS the authority and ability to operate the EXPLORER. [Doc. #34 @ ¶112]. It was Defendant SKAGGS misuse of his authority as a MONROEVILLE Police Officer and his police issued patrol unit which created the opportunity for Defendant SKAGGS to drive in the dangerous manner which otherwise would not have existed. [Doc. #34 @ ¶113]. It is unfathomable that the Defendants would dispute that had it not been for Defendant SKAGGS driving his patrol car, in the manner that he did, that created the danger that an accident would occur at an intersection where a police officer approached an intersection at a speed of 88 MPH and entered an intersection against a steady red signal while voluntarily responding as a secondary unit to another officer’s pursuit in another jurisdiction. [Doc #34 @ ¶46, 49][Response @ ¶60, 63]. Once again the cases cited and relied upon by Defendants are inapplicable. Armijo by & through Chavez v. Wagon Mound Pub. Schools, 159 F.3d 1253 (10th Cir. 1998), is not only non- precedential but also involved a claim against school officials that arranged to drive a special education student home after suspending him and left him home unattended without notifying his Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 12 of 21 13 parents and the unsupervised student committed suicide. In that case, the Tenth Circuit, once again a case decided at the summary judgment stage, actually found that a special relationship existed and upheld the district court’s denial of summary judgment against the plaintiff. Id. at 1264. More importantly, the standard cited by Defendants out of context, is not applicable in high-speed chase cases such as the matter presently before the court. No chase case has held that the victim must show that the officers conduct compelled or placed them at the location, at that precise time, when they were struck by a vehicle during a police chase. [See Defendants’ Argument @ P12-13]. The standard espoused by the Defendants simply does not exist. Likewise, the Defendants’ reliance on Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), is also faulty. In Kneipp, the Third Circuit actually found that the “police officers used their authority as police officers to create a dangerous situation or to make [plaintiff] more vulnerable to danger had they not intervened.” Id. At 1209. So too in the matter presently before the court. By Defendant SKAGGS voluntarily intervening in responding to Officer Frisk’s location, Defendant SKAGGS created a dangerous situation, or at the very least, made Priscilla Robinson more vulnerable to danger due to his approaching the intersection at a speed of 88 MPH and entering the intersection against a steady red signal. Officer Frisk and the fleeing suspect, never proceeded through the intersection in question during the course of Officer Frisk’s pursuit. B. Defendant Jeremy Skaggs Is Not Entitled to Qualified Immunity for His Actions “A defendant is entitled to qualified immunity if reasonable officials in the defendants’ position at the relevant time ‘could have believed, in light of clearly established law, that their conduct comported with established legal standards.’” Merkle v. Upper Dublin Sch. Dist., 311 F.3d 782, 797 (3d. Cir. 2000)(citations omitted). Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 13 of 21 14 In order for a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). This does not mean that the precise conduct at issue must have previously been addressed by a court for an officer to reasonably believe that his actions were unlawful. “Rather it need only be apparent from pre-existing law that the conduct is unlawful.” Wilson v. Lawrence County, 260 F.3d 946, 951 (8th Cir. 2001)(citing Anderson v. Creighton, 483 U.S. at 640). At the time of Defendant SKAGGS’s actions he knew3 that he could be held liable for his actions if his conduct was viewed as “conscious shocking”. Moreover, he knew that courts in the Third Circuit had applied an intermediate standard to determine “conscious shocking” behavior where an officer was not reacting in a “hyperpressurized environment”. See Sanford v. Stiles, 456 F.3d 298, 310 (3d Cir. 2006); see also Leddy v. Township of Lower Merion, 114 F.Supp.2d. 2000). In addition, approximately four (4) months earlier, on August 7, 2014, a similar incident took place in another Allegheny County Municipality, Coraopolis. [Response @ ¶64]. At that time Coraopolis Police Chief Alan DeRusso was driving an unmarked police car when he proceeded through the intersection of Route 51 and Thorn Run Road against a red traffic signal, and struck another vehicle as it proceeded across the intersection with a green light. [Response @ ¶65]. The occupant of the vehicle struck by Police Chief DeRusso although injured, did not die. [Response @ ¶66]. Just before slowing for the intersection, Police Chief DeRusso was proceeding at 80 MPH in an area marked at 35 MPH. [Response @ ¶67]. Witnesses confirmed that Police Chief DeRusso’s patrol vehicle’s lights and sirens were activated as he proceeded into 3 Again, what Defendant SKAGGS ultimately knew or should have known is something that needs to be explored during discovery. Fed.R.Civ.P. 56(d). Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 14 of 21 15 the intersection at the time of the collision, not unlike Defendant Jeremy Skaggs. [Response @ ¶68]. It was determined that Police Chief DeRusso was not responding to an emergency call. [Response @ ¶69]. As a result of his conduct, Police Chief DeRusso was charged with Recklessly Endangering Another Person, 18 Pa.C.S.A. §2705; Reckless Driving, 75 Pa.C.S.A. §3736; and Failure to Stop at Red Signal, 75 Pa.C.S.A. §3112, in connection with his driving at the time of the August 7, 2014 collision. [Response @ ¶70]. Accordingly, Defendant SKAGGS knew that as a result of his conduct he could possibly face criminal charges. Defendant SKAGGS knew the legal requirements of 75 Pa.C.S.A. §3105, the contents of MONROEVILLE’s POLICY AND PROCEDURES MANUAL including, but not limited to, its “Pursuit Policy”, that he had not been dispatched to provide assistance and that Defendant Frisk was already entering into other municipal jurisdictions when he voluntarily decided to respond, without notifying dispatch as he was required to do. Accordingly, when taken in a light most favorable to the party asserting an injury, for the reasons set forth above, Defendant SKAGGS conduct violated Priscilla Robinson’s constitutional rights under the Fourteenth Amendment and that right was clearly established at the time of Defendant SKAGGS’ conduct. See Saucier v. Katz, 533 U.S. 194, 201-202 (2001). C. Count V of Plaintiff’s Amended Complaint States a Plausible Monell Claim Against the Municipality of Monroeville A municipality may violate the Constitution if its policies reflect a deliberate indifference toward the constitutional rights of those with whom its agents have contact. City of Canton v. Harris, 489 U.S. 378, 388 (1989); Gillyard v. Stylios, 1998 WL 966010 (E.D.Pa. 1998). In Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d. Cir. 1996), the Third Circuit held that district courts should review a “plaintiffs' municipal liability claims independently of the section 1983 claims Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 15 of 21 16 against the individual police officers, as the City's liability for a substantive due process violation does not depend upon the liability of any police officer.” (Citations omitted). A single violation can support a failure to train claim “where 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 policymaker’s inaction amounts to deliberate indifference.” Christopher v. Nestlerode, 240 F. App’x 481, 489-490 (3d. Cir 2007)(quoting City of Canton v. Harris, 489, U.S. 378, 391 (1989)). In the matter presently before the court most of the action complained of gives rise to either a claim for negligent training and/or a claim of negligent supervision. The ultimate determination cannot be ascertained until discovery can be conducted as to what training the officers actually received.4 (i) Non Emergency Response Procedures MONROEVILLE has implemented a “Pursuit Policy” however, it has not implemented or provided training on how officers should operate their patrol vehicles when responding to an incident which does not involve a high-speed pursuit. [Doc. #34 @ ¶118]. As set forth above herein, Defendant SKAGGS was not actively engaged in a “vehicular pursuit” as that term is defined by MONROEVILLE’s POLICIES AND PROCEDURES MANUAL. MONROEVILLE was aware of the need to limit high speed operation of police vehicles for the safety of all persons. See MONROEVILLE POLICE DEPARTMENT’S POLICY AND PROCEDURES MANUAL §28.1. However, there is nothing set forth in its POLICIES AND PROCEDURES MANUAL which instructs officers as to the appropriate means for responding 4 The issue of what training was actually provided to Defendant SKAGGS and the other officers is something that needs to be explored during discovery. Fed.R.Civ.P. 56(d). Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 16 of 21 17 to calls other than high-speed pursuits. MONROEVILLE’s awareness of the need to limit the high-speed operation of police vehicles makes it obvious that MONROVILLE’s failure to adopt policies and procedures, or train its officer’s on how to safely respond to incidents that do not involve a “Vehicle Pursuit” or other “Emergency Response” is an inadequacy so likely to cause a violation of constitutional rights that MONROVILLE’s failures constitute deliberate indifference. [Doc. #34 @ ¶123]. (ii) Pursuit Policies Despite the factors set forth in §28.12.5 “INITIATION OF PURSUIT” none of the officers pursuing Martell Lavon Harris seemed to consider any of the listed factors. [Doc. #34 @ ¶128]. The MONROEVILLE POLICY AND PROCEDURES MANUAL states that “[a]n officer shall not be disciplined for terminating or ordering a pursuit terminated.” [Response @ ¶38]. The POLICY AND PROCEDURES MANUAL further provides, “[t]erminate the pursuit if the risk to the public, officers or suspect(s) are greater than the need to apprehend the suspect(s).” [Response @ ¶39, 47, 46]. Yet despite those policies, Officer Frisk pursued Martell Lavon Harris at speeds in excess of 110 MPH, through red light, and between cars. [Response @ ¶42-47, 49]. Officer Supancic proceeded through at least seven (7) steady red traffic signals and reached speed of up to 65 MPH. [Response @ ¶51-53]. Defendant SKAGGS also proceeded through steady red traffic signals, jumped the median to head the wrong way on a divided highway and approached the subject intersection at 88 MPH while faced with a steady red signal. [Response @ ¶54-56, 60, 62-63]. Accordingly, 3/4th of the Patrol Officers on-duty on December 8, 2010, either hadn’t been properly trained in the policies and procedures applicable to high-seed pursuits or they all blatantly disregarded those policies and procedures [Response @ ¶20]. Moreover, the fact that 3/4th of the Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 17 of 21 18 patrol officers on duty engaged in the same conduct supports the inference that the conduct had become a custom or practice; that the supervisors were aware of and indifferent to the conduct; and that the violations resulted from the supervisors’ failure to employ the proper practice and procedure. See Brown v. Muhlenberg Township, 269 F.2d 205, 216 (3d. Cir. 2001). (iii) Opticom™ MONROEVILLE knew that the Opticom™ system could be over run. [Doc. #34 @ ¶39, 133; Response @ ¶ 34]. However, despite knowing that, MONROEVILLE failed to ascertain the maximum speed at which an emergency vehicle could safely approach and trigger the pre- emption system. It also failed to properly train its police officers as to the maximum speed at which an intersection could be approached at and still trigger the Opticom™ system. [See Response @ ¶35-36]. Again the fact that 3/4ths of the Patrol Officers on-duty on December 8, 2010, proceeded through multiple intersection without triggering the Opticom™ system due to their excessive speed, is indicative of a systemic problem, be it a failure to train or a failure to supervise. Similarly, regardless of whether a given intersection is equipped with Opticom™ or not, the MONROEVILLE’s POLICY AND PROCEDURES MANUAL dictates that “[a]ll units participating in a pursuit shall approach and clear controlled intersections with the appropriate amount of caution as to clear the intersection safely.” [See Response @ ¶37]. Again, 3/4ths of the Patrol Officers on-duty on December 8, 2010, proceeded through multiple intersection without clearing the intersection, which repeated conduct by multiple officers is evidence of a systemic problem, be it a failure to train or a failure to supervise. The deficiencies noted above all lead to dangers posed by the reckless driving of members of the MONROEVILLE police department. See Gillyard v. Stylios, 1998 WL 966110 Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 18 of 21 19 (E.D.Pa. 1998)[“The court cannot say that a reasonable jury could not find the City of Philadelphia deliberately indifferent to the harm to private citizens caused by its failure to prevent the reckless driving of its police officers.”]. The conduct outlined above, in the Second Amended Complaint and Plaintiff’s Response demonstrate either: a complete failure to effectively train its officers in the departmental polices designed to ensure the safe operation of police vehicle; or total disregard of those policies and procedures and the supervisor’s acquiescence in the failure to enforce those policies and procedures. Had Defendant SKAGGS, along with Officers Frisk and Supancic been properly trained in pursuit procedures, the limitations apparently inherent in the Opticom™ system and how to clear intersections before proceeding through them, they would not have operated their patrol units at such high speeds and been able to either properly utilize the Opticom™ system and/or cleared the intersection they proceeded through. Had any of that been done, Defendant SKAGGS would not have gone through the intersection at SR 22 and Mall Boulevard Drive against a steady red signal thereby striking Priscilla Robinson’s vehicle resulting in her death. Section 1983 was intended to force governments to enact policies and procedures to protect its citizens’ Fourteenth Amendment Rights. Those policies and procedures are meaningless if they simply exist on the books yet are never implemented and enforced. If all a municipality has to do to avoid §1983 liability is to enact policies and procedures, but can then fail to train and enforce those policies, §1983 is rendered a sham. D. Punitive Damages Asserted Against the Municipality of Monroeville Plaintiff agrees that pursuant to the Supreme Court’s ruling in City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981), are not recoverable, and as such, the claim for same set forth in Plaintiff’s Second Amended Complaint should hereby be dismissed. Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 19 of 21 20 III. CONCLUSION Based on the foregoing, as well as the allegations set forth in the Second Amended Complaint and Plaintiff’s Counter-Statement of Material Facts, it is respectfully requested that Defendants’ Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) be DENIED and/or Defendants’ Motion for Summary Judgment under Fed.R.Civ.P. 56 be DENIED. In the event the Court grants Defendants’ Motion to Dismiss, Respectfully submitted, DATE: 12/27/16 DALLAS W. HARTMAN, P.C. BY: /s/ Douglas J. Olcott Counsel for Plaintiffs Douglas J. Olcott, Esq. Attorney I.D. No. 204851 201 Green Ridge Drive New Castle, PA 16105 (724) 652-4081 JOHN J. ZAGARI LAW OFFICE DATE: 12/27/16 BY: /s/ John J. Zagari, Esquire Co-Counsel for Plaintiffs John J. Zagari, Esq. Attorney I.D. No. 33753 1801 Lawyers Building 428 Forbes Ave. Pittsburgh, PA 15219-1603 (412) 765-2993 Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 20 of 21 21 CERTIFICATE OF SERVICE The within document has been forwarded to the following individuals and in the following manner: VIA ELECTRONIC FILING: April L. Cressler, Esq. Christian D. Marquis, Esq. Marshall Dennehey Warner Coleman & Goggin US Steel Tower, Suite 2900 600 Grant Street Pittsburgh, PA 15219 Counsel for Monreville and Skaggs *********************************************** Edward A. Smallwood, Esq. Colby S. Bryson, Esq. Litchfield Cavo LLP One Gateway Center Suite 600 Pittsburgh, PA 15222 Counsel for Global Traffic DALLAS W. HARTMAN, P.C. DATE: 12/2716 BY: /s/ Douglas J. Olcott, Esquire Counsel for Plaintiffs Douglas J. Olcott, Esq. Attorney I.D. No. 204851 JOHN J. ZAGARI LAW OFFICE DATE: 12/27/16 BY: /s/ John J. Zagari, Esquire John J. Zagari, Esq. Attorney I.D. No. 33753 Case 2:16-cv-01403-MAK Document 39 Filed 12/27/16 Page 21 of 21