Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Estate of Smith v. Marasco

November 30, 2005

ESTATE OF ROBERT CECIL SMITH; PAULINE SMITH, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ROBERT C. SMITH; DANA SMITH; WANDA SMITH, APPELLANTS
v.
TROOPER JAMES MARASCO; TROOPER NICHOLAS SCIANNA; TROOPER THOMAS WEAVER; TROOPER ANDREW L. WENGER; CAPTAIN MICHAEL J. MARCANTINO; LIEUTENANT BERRY REED; LIEUTENANT EDWARDS; LIEUTANT SCHAEFFER; LIEUTANT SNYDER; CORPORAL DANTE; ROBERT JOHNSON; CORPORAL GREG HALL; JOHN DOE #10-#25, WHOSE NAMES ARE CURRENTLY UNKNOWN; DANTE ORLANDI; THOMAS GREGORY HALL, TEDESCUNG L. BANDY; BARRY L. BRINSER; GREGORY BROADDUS; CARBONELL; COLON; JOHN R. COMERER, JR.; GLENN C. DOMAN; JOHN EDWARDS; WAYNE S. ELSER; FRANK L. FETTEROLF; DAVID FRISK; GILLISON; JAMES A. HAMILL; MARTIN L. HENRY, III; JOSEPH KALIS; A. J. KRAWCZEL; WILLIAM J. MCCLURE; THOMAS MCDANIEL; SHAWN MELL; ARTHUR MOSS, JR.; WILLIAM MOYER; ED MURPHY; KEVIN REICHERT; CHARLES RODGERS; MERVIN RODRIQUEZ; THOMAS RODRIQUEZ; KEITH A. STONE; GREGORY STUMPO; DOMINIC G. VISCONTI; WILLIAM WHITE; JOSEPH WILSON; GREGORY WIRTH; MICHAEL WITMER; KENNETH YODER; JOHN DOE #1-#25



On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. No. 00-cv-05485). District Judge: Honorable Franklin S. Van Antwerpen.

The opinion of the court was delivered by: Becker, Circuit Judge.

PRECEDENTIAL

Argued March 7, 2005

Before: SCIRICA, Chief Judge, ROTH and BECKER, Circuit Judges

OPINION

This strange civil rights case is before us for a second time, see Estate of Smith v. Marasco, 318 F.3d 497 (3d Cir. 2003) (Smith I), in the form of an appeal by the Estate of Robert Cecil Smith from an order of the District Court entered following remand and additional discovery. Plaintiffs filed suit under 42 U.S.C. § 1983, arguing that defendants had violated Smith's constitutional rights in the hours prior to his death. The District Court, for the second time, granted summary judgment to all defendants on all claims.

For the reasons that follow, we will affirm in part, reverse in part, and remand for further proceedings. More specifically, we will reverse with respect to the claim that defendants Fetterolf, Hall, and Marcantino used excessive force in violation of the Fourth Amendment, and with respect to the claim that defendants Marasco and Scianna conducted an unreasonable search, also in violation of the Fourth Amendment. However, we will affirm the District Court's grant of summary judgment on all other claims against all defendants, on the grounds of either: (1) lack of their personal involvement in the putative constitutional violations; (2) the absence of a genuine issue of material fact that might give rise to liability on the Fourth Amendment excessive force and the Fourteenth Amendment state-created danger claims; or (3) the presence of qualified immunity with respect to those claims.

Because of the multiplicity of defendants, and the fact that several claims are asserted against each, we will address the defendants and claims, where possible, in groups.

I. Facts and Procedural History

Plaintiffs' decedent, Robert Smith, was a Vietnam veteran who suffered from a variety of mental and physical ailments, including Post-Traumatic Stress Disorder (PTSD), flashbacks to Vietnam, and serious heart problems. Prior to his death, Smith had had several encounters with members of the state police, Troop L Reading. The encounters stemmed primarily from an ongoing feud between Smith and one of his neighbors, Robert Shafer. On a previous occasion, Shafer had accused Smith of shooting out a light Shafer installed on his property. The state police investigated the incident, but they did not charge Smith, although many of the troopers believed that he was responsible for the shooting. As a result of their interaction, some of the troopers had at least limited knowledge of Smith's medical problems, although the extent of their knowledge is disputed by the parties.

On the afternoon of July 10, 1999, the state police received a complaint from Shafer alleging that Smith was shining a bright light into his backyard. Troopers James Marasco and Nicholas Scianna responded to the call and proceeded to Smith's residence several hours later. After not receiving a response at the front door, the troopers went around the house to see if they could locate Smith in his closed-in back porch.

After they were unable to find Smith behind his house, the troopers returned to their car and called their barracks for further instructions. They spoke with Corporal Mervin Rodriguez, who instructed them to attempt to contact Smith by phone, but, in the event they were unable to reach him, to leave a citation on the property and return to the barracks. After their own efforts to contact Smith over the phone were unsuccessful, the two troopers asked the barracks Personal Communication Officer (PCO) to attempt to reach Smith.

While they were waiting for the PCO to respond, the troopers returned to Smith's backyard. During this time, Trooper Scianna observed a red light in one of the windows of the house, which he first assumed to be a light from a video camera. He then noticed a red dot on Trooper Marasco's clothing, and at that point assumed that the light was a laser sight from a firearm. Fearing for their safety, the troopers retreated to their vehicle and called the barracks for assistance.

The two officers again spoke with Corporal Rodriguez, who instructed them to secure the area. Rodriguez requested backup from local police officials and proceeded to Smith's house himself, arriving there around 11 p.m. By this point, additional officers, including Trooper Thomas Rodriguez, had arrived at the scene and formed a perimeter around Smith's house.

Shortly after arriving and joining the perimeter, Trooper Rodriguez observed a figure leave the house through the back door, cross the yard, and enter a nearby tool shed. He later testified that the individual appeared to be carrying something under his arm. Rodriguez observed the figure return to the house, only to leave again a few minutes later. At this point, he called out to the individual but received no response. Acting at Trooper Rodriguez's suggestion, Corporal Rodriguez then ordered the officers to tighten the perimeter around the yard in order to cut off access to the house.

At around 11:30 p.m., Corporal Rodriguez contacted Lieutenant Frank Fetterolf, requesting that Fetterolf activate the Special Emergency Response Team (SERT), a state police unit trained to deal with high-risk, volatile situations. Fetterolf relayed the request to the SERT coordinator, Corporal Gregory Hall, who contacted the members of SERT and instructed them to proceed to Smith's residence.

At about 1:30 a.m., the SERT team began to arrive. Some thirty members of SERT, "wearing riot gear and camouflage and armed with various weapons," responded. Smith I, 318 F.3d at 503. Sometime after SERT began to assemble, Fetterolf asked Lieutenant Frank Weaver to investigate the incident involving the apparent laser sight and, if necessary, obtain a warrant. Weaver did so and obtained an arrest warrant for Smith, charging him with aggravated assault, simple assault, and reckless endangerment.*fn1 At around the same time, Trooper Andrew Wenger also obtained a search warrant for the residence. In addition, at some point during the evening, Fetterolf spoke with Captain Michael Marcantino, Troop Commander for Troop L, who was camping on the night of the 10th, to update him on SERT's activities.

After arriving, Fetterolf and Hall established a command post from which they directed SERT's activities for the remainder of the night. They tried to contact Smith using the telephone and a public address system, but were unsuccessful. At around 5 a.m., they ordered SERT members to break several of Smith's windows with rocks in an effort to induce him to communicate with them. One hour later, SERT members entered Smith's shed using tear gas. Finally, at 6:43 a.m., members the SERT team stormed Smith's house using "flash-bang distraction devices," small explosives designed to briefly disorient and stun anyone in the immediate vicinity.

After SERT cleared Smith's residence, state troopers executed the search warrant. They were unable to find Smith inside his house, but they did locate his identification as well as heart medication that he was required to take in the wake of a recent operation. They also recovered several weapons, although they did not find one with a laser sight.

At some point after clearing the house, the troopers began to search the wooded area behind Smith's yard. During this time, Smith's two daughters and at least two other individuals contacted the state police in an effort to assist in locating Smith. The police generally rebuffed these efforts, citing safety concerns. However, they did permit one of Smith's neighbors, Christopher Zwicky, to join them in a helicopter search of the woods behind Smith's house. The police discovered Smith's cellular phone in the woods, but were unable to locate Smith. After approximately two hours, they abandoned the search.

About one week later, a friend of Smith's discovered his body in the same woods, not far from where his phone was found. Smith had died of heart failure brought on, according to the Smiths, by the stress of the evening.

Smith's estate and various family members ("the Smiths") then filed suit against numerous police officials, named and unnamed, who were involved in the events of the evening. The suit alleged violations of the First, Fourth, and Fourteenth Amendments as well as numerous violations of state law. After discovery, the District Court granted summary judgment for all defendants on all claims, finding that plaintiffs could not show that any of Smith's constitutional rights were violated. The Smiths appealed, and, in Smith I, we affirmed in part and reversed in part.

We held that defendants were not entitled to summary judgment on three claims: the Smiths' claim that Officers Marasco and Scianna conducted an unreasonable search in walking around to the back of Smith's house and in entering Smith's garage; the Smiths' claim that the officers responsible for activating and directing SERT used excessive force in doing so, in violation of the Fourth Amendment; and the Smiths' claim that the use of SERT and other actions by the officers amounted to a state-created danger in violation of Smith's substantive due process rights under the Fourteenth Amendment. We affirmed with regard to all other federal claims raised.

On remand, following additional discovery, the District Court again granted summary judgment with respect to all federal claims. It again held that plaintiffs could not establish that Troopers Marasco and Scianna conducted an unreasonable search in walking into Smith's backyard. With respect to the excessive force and state-created danger claims, the District Court concluded that all defendants were entitled to summary judgment, on the grounds that they either lacked sufficient personal involvement in the events leading to Smith's death or that they were entitled to qualified immunity. Qualified immunity was not at issue in the first appeal.

The Smiths then filed a second appeal to this Court. Insofar as the appeal challenges the District Court's determinations regarding the personal involvement of defendants Doman, Krawczel, Carbonell, Weaver, and Wenger, it may be summarily disposed of and we do so in the margin.*f ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.